actually there was not there was a determination made by the court rather by the jury in the trial of the case that the amount of drugs exceeded the ten year mandatory minimum and there was no basis upon which there was any contest made at cocaine involved in the conspiracy however the trial evidence will also demonstrated that while there was an extraordinarily large amount of evidence to demonstrate that mr delahunt was involved in a three hundred sixty three  trans out of which there was corroboration of the only evidence that existed of his participating in those prior transactions was that of the uncorroborated testimony of cooperating witnesses not a single one of which was was motion if the defendant has an interest in challenging it on the amendment that he didn't have that sentencing is that the crux of your argument that is absolutely correct judge wife i mean there's there's an rio's and thirty five eighty two as well as due process as being the underlying principles surrounding wall of them are thick you laid rather clearly by former district court judge john cleese and in this i in the citation i gave to the i understand that very clearly exactly and judge gleason stated and i think that this is the most pressure and argument to make that sometimes they were fact findings made at the original sentencing and circumstances with the defendant had simply no incentive to challenge the fact involved drug quantities it might even be the only example when drug one is a lowered when the triggering amounts a lowered it can create a situation where a defendant who had no incentive to litigate the amount of drugs in the first time around now all of a sudden has one in those circumstance explain to me again mr nelson why it is that at trial as opposed to sentencing there was no incentive to cross examine any of the cooperating witnesses trial coun l and there were there have been two trials here first trial was that it was it was a deadlocked jury in the second trial the defense strategy was simply that mr developer had no participation whatsoever in the offense and he ignored completely sentencing at that time one hundred fifty kilos was the threshold amount to be at level thirty eight that amount was clearly demonstrated just based upon the fully corroborated staten island seizure that was made in march of two thousand and three i did not address because it was no reason or incentive to address whether or not he should be held accountable for these prior drug shipments that took place in two thousand and two what was particularly interesting though in the trial is that the trial evidence demonstrated one that del who was a relatively late comer into the conspiracy he was brought in because of a last drug shipment in a kidnapping that took place and i guess his prior drug dealing activity that suppliers were aware of and the only evidence that demonstrated that he was involved in these prior shipments was the testimony of cooperating witnesses it was absolutely no other evidence whatsoever i mean s well not really because the strategy of trial was that he didn't participate in the offense so why would you possibly use a defense attorney at that time intent to open the door to get further evidence that might corroborate things that they have to say as an experienced trial attorney that attorney keep kilos of cocaine that were found testified about another shipment of two hundred kilograms he did and so why was he not a corroborated witness in that sense overall before two hundred plus three sixty eight because the typical manner in which your preparation of a cooperating witness would be the history in character of how somebody came to participate in an offense in order to lay out what somebody did earlier to corroborate what he does now an individual would testify as to the prior dealings in transactions with that person but there was no evidence to demonstrate that that he that cooperating witness in fact had prior dealings with mr delver as it related to those other transactions other than his own testimony with respect to that indeed as it relates to three hundred sixty that the later seizure really wasn't a seizure because the drugs have been stolen but there were recordings that taken place which corroborated what the cooperating witnesses have to say so there wasn't a basis to attack those cooperating witnesses as to the prior transactions a trial i think that the bigger picture that it thank good morning your honour's made it please the court my name's whitman knapp i'm an assistant united states attorney for the government here today here the defendant simply did not meet the threshold under dylan for a recent sing the trial court at the sentencing court found that he was responsible for more for the importation of more than six hundred kilograms of cocaine into the united states the penalty for importing more than six hundred kilograms of cocaine into the united states was the same when he was sentenced in late two thousand and nine as it is today pursuant and subsequent to amendment seven eighty two there was ample basis in the record  for the court to come to the conclusion and make the finding that he did should we your honor i think as expressed in rio's there is a value to fidelity in this sort of circumstance and i would also take issue with the notion that there wasn't an incentive during trial or at the time of sentencing to really challenge this information at base what defense counsel is going to do is to try and discredit to the fullest extent possible all of the cooperating witnesses who testified here there were five the evidence  previously characterized by this chord in a previous appeal was overwhelming there are specific amounts that certain of the defendants referred to that are cited in our papers and  defendant had plenty of opportunity to try to fully discredit this witness are these witnesses and he did not do it similarly at sentencing i think even under these circumstances there's plenty of opportunity to try to minimize in the course of sentencing the defendant's involvement in a situation like this if in fact there had been some weakness in the evidence in the amounts it certainly would have been in the council's interest to argue that while the defendant had been found guilty as the judge could have seen the evidence as to the amount was not strong and to try and argue fulsomely at that point that the amount simply was not more than six hundred kilograms of cocaine and was significantly less in sum the court made a drug weight finding at sentencing based upon ample evidence the penalty for importing more than six hundred  kilos at the time was the same as it is now and as a result the defendant is not intitled to a rate reset and saying here in here if the court has no further questions the government will rely upon its written submissions very brief first in response to the government's last statement that there might have been a basis to raise drug on the sentencing at sentencing that was clear indication that over double the drug one need that would be necessary to trigger a level thirty eight was clearly demonstrated so there was no basis whatsoever to do so had we been talking about a pound or an ounce or a couple of kilos maybe that would have been an issue but not double the drug over one hundred fifty more kilos to reach that threshold don't think you're saying that that was not going to make the difference between the low end of the guidelines range and not in any way indeed the thrust of the argument at sentencing had to deal with what where what my client's role was in the events and indeed as it related to that the district court made a specific terminations that the role of hanson should not apply based upon the arguments that when they'd second the government's argument that rios is a case that speaks in terms of finality is exactly the opposite in rios from that the court overturned in essence the stipulation and he was sentenced to a higher term so i would submit to the court that if anything rios presents a reason for due process to apply to make an appropriate determination by a pr of the evidence which is lockable requires and where there was not an incentive to do so policeman airily that should be an opportunity afforded in these rare unusual circumstances which i submit this is one of them mr nelson i'm trying to envision the hearing and given the overwhelming evidence against your client at trial what facts do you into subpoenaed proving that would end up putting your client a position for a reduced sentence two types of facts one  incentive for the cooperating witness to testify as they did and to what their relationship was with mr delver during that into that prior period of time of which there's no corroboration i would be focusing on those issues these people that you didn't get to do a trial because when you focus on the promise of that sense of you procure you'd be thought you'd be focusing on the promise of their actual knowledge of what took place during that period of time as opposed to the usual argument that's made to discredit somebody in front of a jury as to the incentive to in the ensign fabricated in order to get a better plea agreement that's already done that's already been taken care of the ready se know but in terms of role in the offense and they were pointing the finger at him as being the mastermind behind which the court discredit thank you very much