up and argue that a dish of court made a erroneous factual finding typically it's a clear error standard of review i think we can meet that standard but i did want to begin by saying that i think more independent review is a political here and that is because in the district court we argued that the clear and convincing evidence standard of proof applied to this factual question i have liam nuff it seems to me that our case law is such that when we review for clear error the question is that say the noble review applies to the standard of proof question so i wouldn't be prepared to concede that clear error tell me why it matters so if i understand this and i may be incorrect you know what i'm understanding  stipulated it was conceded that somewhere between two hundred eighty and four hundred aliens had been smuggled yes we agree that the government the government's one of their primary cooperating witnesses quite a gonzales testified that the she made four hundred thousand dollars for the entire conspiracy and she made it at ten thousand dollars so so we so there's lots of evidence that there's between two hundred eighty i think it four hundred alias that was like the guidelines provision says  you go up for four levels if more than one hundred are smug well i think i know where the why not you may know where i'm going but answer my question yes well no i think it's you actually go up i think it's nine levels up to one hundred we let me say this first of all i have i certainly haven't said that the fidelity reale because our position which is never been addressed is that he didn't join the conspiracy until a few months after it started so you have to back that that's a this that's a different legal question than the number ok at the first sentencing hearing the judge did not give this up or departure he found six hundred aliens at that time and he did not give the upper departure so if he had only found four hundred aliens there is a very strong likelihood that he apart from just the numbers it seems to me that what motivated the sentencing judge had almost nothing to do with these numbers and have to do we have the nature of the crime and the fact that these folks violated their trust and did exactly the opposite of what they were hired by the people to do and that that the numbers were really a very small part of  picture what is what is your response because it seems to me that overall that was what motivated the census well i would disagree i mean first of all the four level up or departure added a decade to the sentencing guidelines that's number one that's a substantial the guidelines within the judge gave the below guidelines and i understand that but number two if you look at the thirty five fifty three analysis the judge is very concerned about the scope of the conspiracy he erroneous lee repeatedly is making a big point that there are the he thinks that the defensive because the more he only thinks that there were more loads that they made more money and they haven't disclosed the money and he distinguishes the other corruption cases that we cited because he said these defendants made so much more money than these other corruption cases and if you actually look at the numbers and you look at what claudia gonzales said they did it i mean did the amount of money that he and the number of enemies that he think were that he thought were involved were much greater then what the actual sc of the conspiracy was so i don't think that this was sort of a just a minor relatively irrelevant part of his sentencing calculus certainly he was concerned about you know you know the fact that they had used their trust that they were agents that this was corruption  part of the senate whether it was a big party or not you're contending it was error and what my difficulty here is that under the guidelines if he found four hundred that it wouldn't be error you might say well if he may have thought there were six and so he gave us a four fold increase but the truth is under the guidelines i finding a four hundred would have allowed this upward departure when it may have allowed an upward departure i don't think it would have a lot of four level but on the surface why not it's  it's four fold but typically the increases are at most three levels not four i would say that aren't there but who issues here the first deals with the up with the parts are but i suppose there's a second issue is it if if if there is a simple factual error he thought it was he makes a finding of five thousand women say there were four eighty or five hundred and that's wrong that go back could affect the substantive reasonable what i think the court in this questions before were suggesting is that you can find error but then find it was harmless on your own but the the the appropriate procedure would be to send it back to the district court and say that's why i'm asking you to divide your argument it seems to me you have two arguments one is that there was an error in giving this upward departure i think that's a tough road for you know the second argument is because the judge thought there were more aliens than the record showed his sentence was substantively and reason absolute that's a different that the defendants made all much more money than they actually did make that they had to disclose that they were all these funds out there that they hadn't disclosed that this case was so much worse than other corruption cases because it was so much bigger and so much more money  sorry could you respond to this then let's assume the guidelines calculation was correct the judge then gives a substantially below guideline sentence how does that play into arkansas determination of whether or not t it's a persona i'm saying let's assume that the judge did the guideline calculation entirely correctly and then and then looked at it as he did here and said based on the thirty five fifty three factors i'm going to depart substantially downward from the guy and give a below factual determination that is tainting the substantive reasonableness or at least the inquiry as to what the appropriate sentence should be weak what is the reasonable sentence on a thirty five fifty three then the case should be sent back for the judge to reconsider before you before you done i want to go back and find out why you think that there is error to begin with because they we have bernard's testimony that the smuggling involved two to three loads of aliens per week gonzales is testimony that ro sought to have ten aliens per group and cabrera's sworn statement that there were fifty times or more smuggling operations over the course of a year and if you multiply two times ten times fifty you get exactly to where the district court got so why is that clear error how do we get to decide well he should've listened to this witness a little more on that witness a little less because no witness when you sa burn all said two to three times a week of three times a week two hundred three right burnell never said that they did that every single week i mean to say that maybe on two or three occasions they did two or three a week doesn't mean that they did that for fifty fifty weeks that's just as we s inference from the evidence what you're asking us to do is look at the same evidence and you know way it slightly differently or make different differences but how and how does that square with walk out looking at what the district court fifty groups total to then say because one witness said on some unknown number of occasions that it was two or three groups a week and to say well that's the that's the fact i'm going to find for fifty weeks that's just an unreasonable determination at the very least a difficult would have had to have explained  it never did why they credited that particular way or where does that rule come from and when when a district court says well i've heard you know evidence there are conflicting evidence and here's what i end up finding what do we require more than what the district court said i think so under taylor and we've cited the taylor case which talks about when there clearly are only factual determinations and that he says when there is conflicting evidence and there's reasonable evidence supporting one party's position that the district that the district court has to analyze the evidence explain why it's choosing now when we know we know what which evidence that district court credit because we know how the calculation we just had no explanation as to why why he said that that's what i'm choosing as opposed to the other witnesses honor and she she also the one who paid the defendants each time she was involved in every single one burn all he was on involved in a very small subset of the of the load so he's crediting one government witness who has not nearly the knowledge of the good morning man please the court timothy slow on the happy united states first of all with respect to the factual finding that there were a thousand aliens smuggled this was a conservative estimate progress in this case said at sentencing the government established through the analysis of the witnesses testimony that there was in the court accepted that there was one thousand and one smuggled or no one of the of activity it's on page but make their argument on page thirty of the brief yes sure it's not an accurate statement no it's not your honor that the declaration cited was a declaration submitted in support of the sentencing in the where aliens were actually apprehended there were other events that were established through poll camera or trackers many just simply showed the phone contacts for those ten select events it didn't undermine the estimate of the other witnesses regarding the regularity of the smuggling activity let's assume that the record only supports a finding of five hundred as the u s attorney said at least sa the judge judge was well within and with a record of finding five hundred but i thousand is not supported by the record just assume that for purposes of my question what does that do to the sentence in this case that would be two things number one the upper departure based on substantially more than one hundred aliens would be supported not because it's more than four hundred yes so what then that part remains that what does it do to the sentence in this case it was we found it that was a factual finding made an error what should we do the that the sentences were otherwise substantive reasonable you know they may be something may or not may or may not be substantive reasons but if they were based on a factual er suppose the judge there's a big difference between five hundred thousand and suppose the judge was mistaken on the fly on the on on finding that there was a thousand that would be he would be making or he would be yes my question is it may make it even easier for you how do we know that if he found a thousand effect he gave a different sentence than he would have given had he given six hundred is there any way to know in this record based on the the we know the upper departure is fine so that the question is does the number of aliens bear any other relationship to the sentences to the sentence given how can we tell that from  based on the record the number of aliens did not drive the sentences imposed in this case the the senses it did drive the upper departure obviously it did drive the upper departure but then the court imposed the sentence below  can i ask you did you know why you have to read the judge's mind i mean i find out how many people have sentenced and thirty two years on the bench but there are all sorts of factors that are in a judge's mind sometimes they're not articulated in fact i try and follow a policy of the less the better in that way they can make it in in this way like judge who in this case that their record is  extremely extensive regarding all the factors the court considered the number of aliens did not factor into the i mean that's why i asked opposing counsel seem to me that the judge was intensely focused on the abus trust and the abuse of the position as more to patrol agents and also on the violin threats against a witness and efforts to obstruct justice and it seems to me pretty clear because this judge did say something more than more than nothing about what was motivating the sentence and and anyway as i read the transcript that's really what was in the judge's mind foremost regular basis down to mexico and then multiple times a week transporting the aliens in the border border patrol vehicles or he could have given as i and if i read the pre sentence report correctly he could have my other i'm just saying that my of the when the problem is is why bother if you if it doesn't matter and this is based on my own experience if it's not going to matter to me and imposing sentence i don't get involved in whether i should increase the the you know do what he did let's say with respect to the the amount of valence if it's not if it's not going to affect my sentence why even gaijin it why not just accept the the the the guideline calculation here the fact that he's engaging and that's i mean it just doesn't it just for us for an appellate court to decide what everything that may have been in the judge's mind and false agree of speculation when it makes me feel uncomfortable but based on my own experience as a sentence a good judge i i appreciate the court they deserved you know for wark but i don't want to get into that argument with you but not at sentencing when i want to be sure about is what the clergy of gonzales it seems to me was the mean she testified that they had made eight hundred thousand dollars that they split i think i may be getting the math wrong but they split that they made four hundred thousand apiece and it was ten thousand a trip she i believe she testified that she received four hundred thousand and then she also testified that she paid the brothers about four hundred thousand she wasn't the only one paying the brothers armando garcia also paid bribes to the brothers and her estimate on the amount of money that the brothers received is not the complete picture because the brothers receipt bride payments even if she didn't receive anything so they received a guaranteed bride payment if they were involved and also that there was someone else paying them bribes and i know your time is short but i want you to address this you've been talking to judge korman about what the judge may said or may not have said but one thing he did say concerns me and i'm going to quote in this case the defendants have remained mum as to the allocation the identification and location of ill gotten gains they are constitutionally entitled to remain mum how do we know that statements and found that just based on the evidence in the case that the court found by clear and convincing evidence that there was about a million dollars in bribes that the that the the find imposition of a fine was appropriate and defendants bore the burden with respect to establishing that no fine was appropriate so i'm not sure this was directed solely to the fine it was when the other side was saying here's a bunch of other cases in which people have gotten lesser sentences he said yeah but when the judge says the difference in those cases of course is that people didn't exercise their constitutional right to remain silent so i'm worried that that may have somehow entered into a sentencing calculus tell me how i can be sure it didn't well that the court indicated that that statement was primarily to distinguish the cases the cases cited by defense where defendants are given a break at sentencing because they pled guilty early in cooperated he was distinguishing between cooperators plead guilty and those who go to trial and obstruct justice so he was doing the comparative analysis with respect to unwarranted sentencing from the time period where both brothers were involved the entire period of smuggling was thirteen to fourteen months but how do we know that that's the you bets the scope of the conspiracy it lasted for until they were arrested but how do we know that the i'm getting back to the number how do we know that this happened that they were doing this every week well we know that based on the testimony scuse me  that fifty week number we know that based on the testimony that they were doing it according to claudia three to four times a week there was no indication of significant breaks we also there was there also had a statement that there were fifty occasions in the course of a year that's correct in the fifty week period there was also testimony at trial that fidel was involved in a smuggling event on june ninth two thousand and five so fidel was involved for over a year both brothers the fifty week period is when both brothers were sent and i am one last question it seems to me and i don't have enough feel for it that this bill is being investigated and that the people invest the gators knew that this was going on before they actually made the arrest and if they knew this was going on for two or three times a week for fifty weeks and they didn't stop it sooner that to answer your question your honor the government did not know the extent and the regularity of the smuggling activity until everyone was arrested and we did brief the defendants who were involved but we didn't know that it was going on through or three times a week you know your honor when when when did you first discover their role in picking up the aliens after they were they were crossing the border in other words the a role was the pick up the aliens and deliver them to los angeles or were they delivered them when did you first discover there we first discovered in may in june of two thousand and five that this activity was going on the problem with they chose different locations for the pick up in different locations for the drop off so it was a moving target throughout the investigation and the government was analyzing the phones conducting surveillance including air surveillance on a regular basis and we were not successful and developing the investigation at the very early stage the government never argued harmless error if we were right about the factual error they never said that that error was harmless and the same thing with the fifth amendment error in their briefs they never argued a harmless error and they waived that finally on the fifth amendment issue as far as harmlessness all the reversal at least would have had to engage in an extended analysis where it explained that the reasons why this case were different from the other cases had nothing to do with them remaining mom i went through all the cases you cited again explain himself all he said was to the extent that i