the court my name is wendy holt and i represent mr rivera mean us an accurate guideline calculation is required in every sentence proceeding and the guideline calculation in this case is is based on the determination that he was a managers or supervisor additionally the district court erred by not adjusting his sentence downward for time that he had already served on a related felony in a firearm case and i'd like to talk about that a little bit initially in this case victor was arrested initially in february of two thousand on based on an allegation that he was a prohibited person and possession of a firearm he was ultimately sentenced in that case in november of two thousand and sixteen and was given a sentence of twenty one months that sentence would have expired sometime between july and september of two thousand and seventeen but in june of two thousand and seventeen before that sentence had expired by the time of sentencing that the gout lamb provision does not apply so how do you get around that if you don't have a case that distinguishes the line in the way that you're urging us to adopt i think that she says i'm going to run the portions of the after he was charged in this case concurrently but i'm not going to but i'm not going to give you credit i'm not going with just the sentence downward it seems to me that the what that acknowledges is a trigger of application note to do or not a trigger she just said discretion to consider all of the circumstances in terms of imposing sentence but that doesn't mean that she decided that the guy that line provision the plan i think that i mean i think that she she thought that based based on what she said at the time if i interpret that as her saying i don't think that i want to dress the other issues that you've raised ok the other issue the other two issues of course the st is the drug quantity and as as you are aware we objected to the drug quantity that was determined in the pre sentence report what's our standard of review when we're determining when we are reviewing the district court's determination of quantity what's our standard of review will the  discretion on whether to apply really in which the guideline was apply think and in this case once i objected it became incumbent on the government to present evidence or it was just me reliable there has to be reliable evidence right and the evidence that was presented at the sentencing hearing regarding the issue of quantity was the testimony of jeanette raymond shot who victor lived with for three months and the spreadsheet and the spreadsheet in the they stipulated order the argument here is that there was at least one point five to right and where my argument was that even though bigger lives with jeanette and raymond that during this entire time he lived with  i guess it might my point on that would be that they never saw more than that one big pie plate and what that would have totaled is between twelve dollars fifteen cents ounces which is totally could be included but that's what was in the pi this is what victor gave me is what would be could the totality of it wouldn't but it would be more than two or three pounds it would be a credibility determination and a reliance determination because we have not only  supervisor the guidelines require that he had some control over anybody and they don't just they the evidence in this case clearly doesn't establish any control nobody did what he asked them to do anybody who or would that request come from a lower level participant rather than somebody who is more of a manager or supervisor considers it might look from somebody who is looking to expand their market but but it manager or supervisor implies an inequity of bargaining power and that just isn't what happened here ok i'll give you some time for it thank you let's hear from the government good morning may it please the court my name is julie patton and i represent the united states i st want to address the issue of the drug quantity calculation and the court did not clearly air when it relied upon the testimony presented by jeannette shocked i think that she had to have had some a basis in which is say there was four we know how do we get to four we know there were four trips taken during the time that he lived with the shocks from november of two thousand and fifteen to february of two well i heard that will come which wasn't well i think it we should look to that conversation that jeannette shocked test shocked to testify to regarding the spreadsheet the creation of that spreadsheet she sat down with him in january but again the  other judge or can we look at the entire we allowed to look at the entire record what the district court were allowed to look at the entire record and i believe that the court looked to not only what was presented sentencing but also her experience as the presiding judge if it were so since i can't add one if you just tell me how you get how she got to four the four trips add it all up for me or trips it was his business model to get in hilo on each trip and bring that back ok so that was the was there evidence that he brought back somebody see the kilo each time he came back you know all right but what do we know what is the basis for saying that he when he went to california  court looked at the fact that this was the only reason that he returned to monterey that there was evidence that he went back to california with his brother one time and he did he did have these reasons for going to california to say that he was in this is his business model he pled guilty and i think the timing of this conversation is key here to this conversation that jeannette has with victor occurs in january of two thousand and sixteen we know at this point that he's at least taken to if not want her any other questions on the drug quantity i'll move on to the manager supervisor and the court did not abuse its discretion when it applied the same hands meant again this court understood this conspiracy she presided all over all twelve cases and i think there are five key areas that mr rivera exercise control his decision making authority he was the one going to california and returning with the methamphetamine he decided how much he decided who got it and at what point when we look at the recruitment of coconspirators he recruited two dealers he recruited the shocks you tried to recruit people in wyoming and then we look at the control he just exercised over the shocks alone jeannette was his landlady his bookkeeper he used their home in their vehicles  be reimbursed or write but just the fact that you're been paying for something doesn't mean you're not exercising control much like an employer employee and then we look at the fact that there was this false letter of employment for the brother slash bodyguard that he directed ed to right and then we move on to the fact that he's asking jeanette to collect a drug debt on his behalf from the jail we don't know where that you just know it was that well he doesn't have any other job so it's presumed it's as a drawing there was something about being a trip wasn't it i believe so he said he was owed a truck and but that's not the only one he's trying to control there when it comes to these debts he asked richard del to collect a drug debt and he's ordered by police and he also has a jail call with one of the other telling your to talk to angel to get more money and then we look at the whole organizing of this in general the drug ledger shows that he's frenching methamphetamine to other dealers within the conspiracy and that ledger also shows that he's making a significant profit off of that it's not shock testified that he theirs was getting eighty percent profit from them alone and i think you for you know if we're going to move on to the fact about the discharge versus undischarged sentence i think we have to look to the fact that we do not have a record whether the court considered the discharge sentence in her determination in her downward departure of the sentence because it was not raised below five k two point two three was not raised by defense counsel at sentencing so the court was not required to basically pronounce that when she did depart downward and she thank you your honor regarding the troops there were there was evidence that victor had other reasons to go to california his family where we could have picked up the notes while he was down there but there is not evidence of  that i mean what there is evidence that he said i'm going to see my family in california there's evidence that he said i'm going to take raymond down for court and then came back and there's there's also evidence that the reason that he would come back to montana is that  at the time that the pre sentence report was written in two thousand and eighteen he his baby was two years old so you don't dispute that testimony from jeanette there at least one of the trips to california he came back with th full of meth over the top i don't i do not dispute that there was a pampered chef i played that she thought had between two dollars and three dollars pounds in it but i also my position is that is the amount that is proved in this case and every month amount that is documented in this case could be part of that amount it's not more than everything else added together well but if you include if you say it's three pounds or two four pounds but then you