the next matter on our calendar is sufficient evidence in the st place this court has decided recently just last month a case called united states against pauling which drew a very important distinction between a permissible inference and impermissible speculation and in this case the conviction for conspiracy is based on in permissible speculation and at the polling case points out that even what can be called reasonable speculation which the court describes as being speculation that leads to a conclusion that is possible and plausible but is not supported by sufficient evidence is still speculation now here the evidence did not show that mr boria was any more than a customer of his codefendant by the name of good mr good you can see that the record does show that  your client was was was buying drugs and in quantities that were not consistent with simple personally use yes your honor and when you say was buying ice can see that the evidence shows that on june  two thousand and sixteen he bought one hundred and eighty six grams of cocaine but that's what the evidence shows the other evidence about whether he was involved in a longer term relationship with mr goodman is i would say  debatable but even assuming that the evidence is sufficient to show that there was more than one transaction with mr goulden it doesn't show that it was more than three and that all took place in a two week period in the beginning of june two thousand and sixteen so the if you so you don't dispute that the evidence supported the proposition that on three separate occasions  he he being the the person using the only nato telephone met with and bought and bought larger than than than individual user quantities of cocaine that's correct and i three times in a two week period distribution size quantities there's no evidence of any what the quantity was on any of the earlier well there is none but the there is evidence of the quantity on the rd case there is and then as i was starting to say your honor the case law in this circuit particularly the rock decision is the judge parker authored makes it clear that the wholesale quantity in and of itself does not preclude finding that the defendant was know not was a simple customer quantity three times three thousand quantity on one occasion by a purchaser who purchased unknown quantities on two other occasions in a three week period compare the facts in this case with parker there was a much longer relationship proven in the parker case there were many more transactions involved in the parker case and there was much more interaction and interplay with customers of the defendants in parker than there were in this case there was no no evidence of any inch of action between the defendant and his and the supplier relating to what the his if any customers ha government to stress the fact that sometimes he got the drugs on consignment well your honor there is no evidence to prove that there is one again speculation from the government on the basis of one text message that said got that for you were words to that effect and the government argues that is evidence that he was what he had for mr goodman was the payment cash for a prior purchase but there was no evidence to support that other than the very ambiguous text message that had that language and it relies on the government relies on conversations having absolutely nothing to do with mr boria with other purchases from mister goodman that show that they were purchasing on consignment and there was no evidence that my client did it was evidence that mr wheel of the  it's text messages that were found on the phone your honor i don't dispute that the evidence permits the jury to find that i do not concede that that was in fact his those were his text messages but the jury could can have concluded from that and i'm arguing that notwithstanding those conversations those communications he could still and still was not at the evidence did not show is anything more than a buy but even assuming your honor if the evidence was sufficient to support any conspiracy it didn't support the conspiracy that was charged in count one which is that at least at a minimum fifteen member conspiracy with others known and unknown and so that the evidence in this case showed nothing more than interaction on at most three occasions between boria and mr goodman and that there was no connection whatsoever with any of the other members of the can still edge conspiracy other members so therefore there was a variance between what was in the indictment what was charged and what was proven a trial and the variance resulted in prejudiced my client because it allowed the government to put in reams of evidence having nothing to do with my client having only to do with the other alleged co defendants and it was in fact it demonstrated by the government's own brief where they rely on a conversation between the nice flores and one  beneath to show that my client was buying on consignment when he had nothing to do and then he said laura said she had nothing to do with michael so how that that shows the prejudice that's just an example of evidence that would never have come in if the the charge were correctly made regarding the can at the alleged conspiracy between goodman and and mr boria you want to my time is is coming to a close and i would like to discuss the guidelines issue in this case because you have a court's guidelines calculation and one of them the most serious one revolves around the determination of the drug quantity mr bori was arrested with one hundred and eighty six grams the district court concluded that the other two alleged occasions involved in equal amount and therefore sentenced him under a guideline for more than five hundred grams of cocaine if you look at in the polling decision district court and it was because the district judge there were there the defendant was the person who was arrested bringing heroin in from nigeria and i believe was around four hundred grams or so and the district court the evidence was that he had made six or seven at least six or seven prior trips and the district court used the multiplier and said well multiply the quantity he brought on this occasion with the number of times that the evidence shows he killed he went and brought drugs and arrive at a more than i could think it was one hundred and fifty grams or whatever i don't forget exactly what the numbers were but the this court said that that was based on speculation because there was no evidence to support the quantity that was involved in the earlier trips similarly and from your description of the fact also no evidence that each trip involved involved and importation but i think the district court said that it did in the court of appeals it it seems as if he was certainly involved but to say that they can in this case the difference being this case because in this case it strongly supports the proposition that each of the meetings each of the three meetings in the other guy's car were for the purchase of heroin well with the court of a analysis said that each that each of those trips could reasonably was concluded that there was importation on those earlier trips it's said that they speculate the quantity was speculative remind me of the standard we use in reviewing the district judges quantity determination well i believe that it's the guidelines review is reviewed the noble but the factual thank you may it please the court house and it calls for the government i represented the government at trial and as i do now an appeal on one thousand i have a copy of the parker decision that i could hand thank you could you counsel share with us the evidence that this defendant was involved in a conspiracy as opposed to just buying and selling drugs yes your honor the evidence here was a far cry from the tip called by cell scenario involving the casual sale of small user quantities of drugs instead the evidence here prove that boria trafficked in large wholesale quantities of cocaine which he obtained on credit from his regular supplier how do you know who's on credit you are there is strong evidence of sales on credit in this case and that  well your honor st st we would say that they were not entirely cryptic and the jury's reasonable inference about the meaning of those there were for you that for you yes your honor so that's two separate questions the evidence of his participation in the conspiracy is given by multiple factors sales on credit of which are only one i'd like to address that one st your hon so the evidence of sales on credit is given by the content of those text messages so on june th you have call your good man the supplier sending two text messages one to oscar boria that says yo demon wheeler another of his dealers that also says you know oscar boria response to that text message have that for you and it's the government's position as it was at trial but that is a fair inference for the jury to draw that h that for you refers to money that boria owed his supplier for a previous purchase of drugs the context here that's also important is that in tandem we have these conversations wheeler and collier goodman which give further information about goodman's intent and his relationship with those dealers because damon wheeler unlike oscar boreal was not ready and he told collier good men i took a few days off and i don't have that for you and then they proceed to have a very detailed conversation that's intercepted over the wiretap in which goodman becomes very angry  the evidence of one hundred and eighty six grams of cocaine being recovered at the rd transaction is very strong evidence that this defendant was not a mere buyer and rather that they were he was engaged in a conspiracy with his supplier in which both had a vested stake in the outcome hawkins says that in addition in some cases a large you know that he wasn't using wasn't getting these drugs in reselling them to support his own having goes on all the time supporting him selling to support a habit would not necessarily take him out of the conspiracy the question here is whether boria was he had  a had agreed to participate in what he knew to be a collective venture towards a common goal what evidence do you have that he knew anybody else you know any of these other eighteen defendants that you took to i just i just want to make the point very quickly person in the same word spoken spirit where a person the center is distributing drugs for redistribution to this one to that one to that one to that when they don't need to know each other or even know of each other's existence if and  don't and i'm not aware of any of any case that holds that that they need to be selling on credit and i don't use i'm not sure i understand why in this case the person saying i have that  couldn't equally mean and wouldn't be sufficient if it meant i have the money now if the seller is one who won't sell credit but only wants to be paid upfront i have that i have the money now so let meet and get it i don't see why that would be in any way insufficient absolutely so your honor i think the case law shows that sales on credit are only one of the factors that can but do not have to show a conspiracy and any evidence in the record that mr boria knew any of the other people besides mr goodman no there is no evidence that but there that that evidence is not required in order to find that he was a knowing member of the conspiracy that the government charge diana knew know there was a conspiracy right yes your honor and how does he know that except he knows he's buying drugs from goodman regularly for a long time sometimes on credit he knows that how does he know there's a conspiracy going on one who deals in large quantities of narcotics can be presume to know that he's part of an event of a venture that extends beyond his individual participant all have different spots as i read the record with a met mr goodman so he may have never seen another person doing a deal with good that's absolutely the case here and the government does not argue and the case law does not say that he has to have seen goodman doing a deal with another person who is that good goodman has a business selling drugs he knows that goodman is in the business of selling drugs he knows that his own sales further goodmans interest and vice versa because they are engaged in a common venture that's true of every single s translates the wholesale quantities and the regular interactions between the parties here take this out of a buy sell scenario and put it into a conspiracy here you have both good men having a vested interest in the continual resells of cocaine and so that the flow of money between them can continue it is reasonable for boria to have known or have had reason to know that his own success depended on goodman success and goodman success depended on good men having drinks with his friends two hundred grams of cocaine every few days is a lot to share with your friends but in any case there is no there is no requirement that in order to put him in a conspiracy that he be selling the drugs as opposed to giving them away joined the the knowledge of the buyers intent to transfer without more does not show that the transfer had a stake but here we do have more we have prolonged cooperation between the parties there were at least three transactions and trust you mean in the district court sentencing determination well your honor it's a different standard of course it's a standard and it's axiomatic that a district court can take into consideration would like to respond to your observation which is correct that it's not required that mr boria know the identity of other people however he does have to believe know and understand that he's part of a larger organization and that there's a mutual dependence with those other people he does there's no evidence here that mr boria knew they couldn't had any other customs no evidence whatsoever only speculation n actually if you can call somebody three to if you can call somebody on a regular basis and we see here three times in a week i call i need the drugs i've got the money or got the money to pay my prior debt whichever one it is i think it matters this person is ready to sell you a distribution size quantity you know that he's in the business and he's not likely to be in the business just to sell to you when you call up your own or the just this is not speculation it is it is a logical inference but it doesn't show that he had anything to do or any mutual dependence on other customers not like saying that a he has a dependence he has a dependence for his acquisitions on goodman personally his regular goodman but doesn't show and i'm i'm now arguing not that there was i still maintain the evidence didn't show that he was more than a customer but clearly even if it shows that there was a conspiracy between between goodman and gloria it doesn't show that he had any mutual dependence or even awareness that there were other customers there's no evidence of that it's just speculation that he had that goodman just because goodman could sell him also quantities doesn't mean he had actual other customers who interacted with him in the overall enterprise there is no showing of a connection and you know it the you're to use the analogy of  of a hub and spokes requirement that he have a connection with the other custom the supreme court disagrees your honor because the supreme court says that hub and spokes is not enough you have to have a rim connecting the spokes and there is no rim in this would case you i think that was the burger or for the ox one of those two you wanted the jury's verdict as as you pointed out is very important in this case because the jury's verdict also shows that it rejected the government's conspiracy theory and the government's because the government's conspiracy theory included mr boria in the overall conspiracy organization that  government alleged and it couldn't have come to the conclusion that he was responsible for less than five hundred grams if he was part of that larger conspiracy and the significance of that is if the jury concluded there wasn't enough evidence to can  put him in that conspiracy there wasn't enough evidence to put him in that conspiracy that's the significance of the jury's verdict on that one the your own i just want to come back to the significance of the  because the nd circuit reversed in a case where the analysis was almost identical to what judge bell used in this case to come come up with the more than five hundred grams and why it's important is if i'm right if we're right on the quantity the correct sentencing range for mr boria is fifteen to twenty one months he's already been in for twenty months as of tomorrow so that he's already served almost the top end of that range and i submit that if this case if as i contend that the  the quantity determination was based on speculation as the shinobi case leads us to conclude that he's on the verge of being beyond even the appropriate sentencing range if