represent the appellate in this case bring in shane used this who is here appealing his eighty four month sentence following a guilty plea for conspiracy to possess with intent to distribute methamphetamine  wouldn't be significant but i think in this case it moves his chrome history category back one so that it is helpful to have a number of ways mr used this was a sentence based on a fence position on the drug quantity which is one of the issues you raise there were two as i understand it two primary persons with whom mr used this allegedly dealt of which would include the amount of methamphetamine so are you still pressing that point that you chance a drug quantity or do you think the point is waved through or the you think used this waive that point by saying so yes we stand by that i think the other person do you wave your drug object drug quantity of a point on that basis but no sir but i thank you and but as to the other one in the same nd objection to the agenda he did yes or you stand by me you accept that drug quantity calculation boone's amount and half of them are fields just reward ok so your objection if there's any left as to drug  could you just before you get your other two issues what exactly is the nature of it is it that personally you should have been subtracted is that there shouldn't have been a multiplier is it that there is some unreliability even given his statements about  i think there are there is some unreliability even given those statements and i think i think our focus is sort of from two directions one that probably didn't get as a controlled substance and it doesn't say anything about possessing it or for that sort of thing it's focused on distributing this is your argument that that the wrong charge if you're looking at quantities that he didn't want so he let cited that it is stablished that he didn't distributed then then he was charged with something in the quantity that he was charged under that then you'd have to say and one of the reasons that comes up in the government brief i think that they admitted that th but did not get into the issue of age forty one we had raised the age forty one a one thing and there was never any response i don't think really from the government on that issue and i kept pressing it because i think that's a significant issue because  you look at that statute you say he's charged under that law and the government said that it's the amount of looking for the language the amount that he deliver i think that's the word that they used in the p s or paragraph twenty five of p s or talks about the amount that he possessed that they can deliver what he didn't deliver it if you look at that he didn't deliver that quality a statutory thing he's charged now at the end of the sentencing judge the judge said this is the correct sentence placed on the sentencing factors of such and such or such but it if not if there's any error in this sentence i would still impose the same sentence meaning he got plantar advisory only so i've made some adjustments in favor of this defendant as well as against him and with the judgment did not say that it had nothing at all the state of the room since last paragraph at the end of it usually looks at those issues and many times you will see of the judge's made that statement that plugged in right there saying this is the same sense regardless that was not there so i think that throws somewhat into question should the statement of reason and say the same thing somebody and specifically say what what it was and if he was wrong and it was x instead of of the sentence of eighty four dollars we don't know whether he would have looked at that would come to the same conclusion for the same reasons he sort of seemed to focus on the criminal history so more well one of the issues you know brave had to do with the chrome abuse for example issue on on even if you defense attorney are right as to the guidelines i would still get to this point with again various but he did say that that your point he didn't actually contemplate what might have been the correct guidelines right ye is the government pressing harmlessness to your knowledge i draw my knowledge no well i say to my knowledge no i did get a communication from government counsel saying that if it comes up th position would be i think that that it may be harmless error and he said maybe a communication a couple days ago and some cases so yeah that came up but it prior to that it really did there was nothing in the i think the one of the issues that we have with that is that the lodestar or and or the key issue i think is is whether the the judge would have done the same thing with the calculation and was a calculation mentioned as to what his calculation would be and that  when he doesn't you're missing some of the explanation for his reasons to be able to know how to how to address that and i think that was not very clear at the sentencing in our opinion as to what he felt the alternative sentence would be what it would be based on and so i think there's a question from that standpoint did offer enough of an explanation other than just say same sentence regardless there are some courts that look at that say well you have to be careful because for that to a talismanic thing where the judge says magic words and it sort of insulates that case from the likely successful appeal when you when you do that and so i think that a lot of courts look at it under carefully and i think here it was somewhat abbreviated in that it wasn't in the statement of reasons as one of the one of the reasons that he would do the same thing i know that the oral senate is normally would would control but in this case it was somewhat confusing and what  what sentence alternative sentence was he looking at promo history and also the offense was and i think in our case we would say that the offense level was at least two levels too high probably four levels too hot if you look at the enhancement and we would say criminal history category if you were correct on this criminal history issue it's instead of a two dollars which normally is not a big deal at all think but it that i think throws it into a little bit of confusion the  that that he that he gave of not being in a statement of reasons it's not it's not clear what what he really intended by by doing that so we don't on to your other issues ok the the other issue on the criminal history issue it would be brief about that the p s are signed to grow history points for one of the were incorrect and inserted in our view for a one dot to the sense of guidelines says that a diversionary disposition resulting from a finding work mission of guilt in a judicial proceeding is counted as a sentence under for a dot one c which is a one pointer in looking researching the issue there wasn't much out there if i don't found one case from the th circuit a fairly recent one i think it  sentence in that for a one dot one c should have applied to which would have been one point well if you if you take the one point he was at the bottom in the higher history category for moving back into another with another couple other things that we thought about challenge it would have made any difference it still wouldn't say catapults or what it did was it moves his guideline range of a president back and if you take two levels down for the maintaining of premises then it that affects it too so we think it was significant for that reason to move it back and it needs to be considered and since we raise in the of felt that that was an issue that that needs to be brought up here because i think the question is what is a god line range of imprisonment and it could be a couple of different ranges now the district court did not address that and i understand why often they don't they just don't have a lot of time to go into a lot of detail but wasn't addressed at the sentencing hearing so for that reason i think it's something that needs need to be brought up because it does think was quite significant in this case because it was fairly clear that it was based essentially on hearsay that there were some law enforcement officers that it was generally known that said a p s or something of fact that this was a place that was used to store and distribute drugs or it was known by home who when they went in though they gave them drug paraphernalia yes the interesting thing they did two searches of his residence this was a residence he was fully employed the house he was running from his his employer they went in twice one time they found the said an methamphetamine and they said well we found a drug paraphernalia we found a glass pipe in one case and i thought that was somewhat interesting because the the things that they found they said it was a glass pipe a sandwich sized baggie with methamphetamine not that you would think if this is a place to store and distribute drugs you would find maybe a lot of baggies to going to the house yes i don't think there was any evidence of that i think the evidence primarily seemed to be text messages back and forth during your period of time the difficulty with text messages i think is unless somebody confirms that was actual surveillance watching the place and to my knowledge there was nothing like that text messages are very incomplete because you have messages going back and forth and you don't know if this was ever been answered if this was ever acted upon middle east the court brian mckay in behalf of the united states council on the drug quantity issue and whether there is sufficient addition of reliability to support then p s r i think someone will correct me if i'm wrong but i  heard no objection as to the amount from and i heard no objection or i heard no objection also as to some of the amount for murphy oh maybe half of it so it seems to me that what's at issue that is part of the quantity himself in other words is that as a result of a police investigation which they're talking to murrayfield and he's is it and he and he's giving them that information at least him or feel was a cooperator this information did come from her and was corroborated but i would submit that that announces i see when i go through it i am finding about twenty seven dollars or twenty eight dollars distinct conversations that seems to be a starting point and in point in about twenty of those there seem to be an disha of an actual transaction that occurs in the prototypical instance misuses reaches out and says hey can i get a half or i got two hundred dollars can you bring me something for that and she may say i'm going to need a little time to get from my source or she may say i'm tied up with somebody but then that in the prototypical example ins with her somehow indicating some manifestation that i'm here i'm going to do this oftentimes she just finishes with hear me i'm here come get come outside and get your drugs or i'm right around the corner i'm a few minutes away something like that you need booms amounts to get to the amount the p s r attribute i don't have to have them he did stipulate to that but i would my question on that is in my right the st time you pointed that out was in the twenty a j letter that's correct so that's a fairly salient point it would have been helpful to draw your attention i'd i agree completely or i know we're very strict on defense attorneys with waiver so why wouldn't a st time argue that made in the twenty a j letter be one this way because the two reasons well  st i think that the court can affirm on any basis supported by the record well established but to even if the court was to disregard the amount by boon the amount that supported with murphy yield and that alone the court the court applied ten ounces it could have tripled that amount and still been supported on this record the fifty one day window that we get a peek into their text conversations in july and august of two thousand and seventeen we know that's not exclusive of their dealing it may set a pace for their dealing but from the very beginning on page one hundred and twenty two the st thing that mr used to says is you got anything or you got something and she responded what's your best guess what's her best case and when we can extrapolate or use a multiplier so we got a little peek at a specific time and therefore by a preponderance we can say in there must have been a lot more i think in betancourt the court did that it took it affirmed the district court's use of one sort of customer and extrapolated to other customers because back on the point if he hadn't conceded in the a den don't you have a p s r paragraph that describes multiple sources but doesn't attribute the knowledge to anyone the agents told us the coconspirators told us and we've corroborated that with reference to other documents none of which are attached correct and knowing you you're well prepared how does that harmonize with cases like the where we say that generally the protection is i understand for a defense attorney when the probation officer says here's a huge amount of drugs that we're going to tribute to you and we know it's that amount because we've looked at lots of sources but then they don't say the specific sources usually if you attribute it to a coconspirator then the defendant can call that person at at sentencing but the trouble here is the grab bag issue now one answer is will factually in this case he's conceded it and it's done but that wasn't in your brief so i was very concerned you haven't answer to my anxiety phrase that yes i think the court can take comfort in the drug quantity established here because when we look at the text messages alone we know that  it is not exclusive he stipulated in his factual resume that he participated in this conspiracy for a period of ten months from march two thousand and seventeen to january twenty eight team we have a peak of fifty one days during that period we know that  they're dealing preceded it because their very st conversation she's asking you on the same thing we know that it proceeded we also know that it post dated our peek into their conversations as well because it isn't d it our view into their conversations and august and by his stipulation he continued to participate in this in this conspiracy until january and yet for that fifty one day window we can substantiate about eleven and a half ounces on that alone and i think that if the district court had tripled that amount to account for that september through through january this is helpful to me and it's case specific just to abstract for a minute if we didn't have the text messages would you agree with me there would be difficulty for us to affirm if the p s r had just said i've looked at a lot of sources and here it is i think that that would be a i could understand that the court would have more discomfort in that situation here the i'm sorry your honor i just want to make clear this was not an affirmative waiver there was no judgment made that what we can establish harmlessness here i'm sorry i really don't mean any any offense whatsoever you're still out on the record you're monday afternoon send a packet of cases that simply stand for the proposition that the court has recognized its ability to sue spawn to analyze harmlessness when it's own and of course the court can affirm any any basis in the record so i don't claim to argue it of this week which was the nd you provided something to the court on harmlessness these of the the judge's comments about it would be the same sentence no your honor i didn't provide anything to the court i'm glad to supplement with the twenty eight dollars j letter with the citation  those three cases or i can read them into the record here but i did it work counsel to that that if if the court which to to broach that subject with me then i did plan to include them in my response or i might include them in response i just didn't want that to be a surprise to two counsel i thought that was the best way to handle i figure twenty eight j later on a matter raising something new that the court three or four days before the court if the court want to talk about it i'm prepared to do that if the court didn't bring it up i was prepared to leave it at that turning your turn to turning to the premises enhanced moment and i think there are two aspects of this particular record that support the finding that a primary or a principal use of the mr used his home was for drug distribution activity the st aspect is i would point the court back to the same text messages  that establish that he was receiving these drugs from ms murphy at his home they do conclusively established they were going to result of the twenty or so transactions that i find sort of substantiated in the in the text messages ten times he is explicitly telling her where to go where to deliver the drugs and there seven are seven of those ten times he is at home and he same bring him to me here at the house one time he's at an apartment complex that was a two ounce transaction he's saying i'm here at the apartment complex but he is also say oh and by the way can you give me a ride home so use using her also to to give him a ride home i think it's plausible reasonable inference that that large quantity two ounces she's bringing into his home and also taking him the drugs but then taking him in the drugs to his house and then there are a couple of instances where he's at work and then he's at home on a lunch break and then in the record simply doesn't say where he is and one instance i don't think a transaction was consummated but by seven of the ten times he is explicitly saying bring him here to me at home and i think for those other ten when it's not explicit i think it's plausible and a reasonable inference that they've established essentially a course of dealing so that when nothing is said when he says i have two hundred dollars can you bring me something or she says i'll be there in ten minutes the plausible the reasonable inference is that they've established this course of dealing it is at its house so these text messages so show that on average two or three times a week he is receiving distribution drugs for redistribution at his home the other aspect of this record is that page one hundred and forty seven where the p s r details those two instances where police went to his house so in september th team or a month removed from our window into their conversations a month later police go to his house with a search warrant and they find the unspecified amount of methamphetamine the drug  importantly they find digital scales in that's something that sets apart a pure user from someone who has them breaking it down for redistribution police find those scales at his home and p s or says that they seized those scales less than ninety days later police returned to his house this time with an arrest warrant to arrest him again they find a small amount of methamphetamine and drug pipe but they also again find another set of digital scales with residue on him preparing drugs breaking them down to the smaller quantities of the cell to his users his customers and those activities are occurring in his home because that's where he's receiving the drugs that's where he is has his scales that he's using to break them down that premisses and handsome is well supported by the record and i think one of my best authorities for that is actually the court's unpublished decision and rodriguez not because of its similarity to this case but because of the contrast there in rodriguez the defendant was enhanced on the premises and handsome and based on one possession of about two kilograms of methamphetamine alone an instance and that gave the court pause it noted that this was a close factual question whether this one  time storing drugs at his home could could support that enhancement but this this is not a close question what the story that these two aspects of the record tell where he is two or three times a week receiving distribution quantities at his house breaking them down at his house that supports a finding of frequency that the commentary directs the court to consider and supports the premises and in this case it's very well supported certainly plausible to believe that the drug quantity in involved in mr used is this case was at least fourteen and a half ounces and that he used his home as frequently as a a primary or a principal use of his home was for drug distribution activities and would submit that there is no clear error in those two instances i plan to to largely rest on the brief on the last point but i will say that with respect to the criminal history issue this court has decades ago given guidance as to how we treat a texas deferred follow mr nunn i heard a suggestion of a waiver by the government for not talking about the your your client's concession about the amounts attributable from but i'm looking at your brief your opening brief here and i'm trying to find what in your brief would have prompted the government to talk about what i see here is an argument in your brief about quantities and i'm looking at page eleven in your brief records devoid of any corroboration drug quantity estimates use against used  in particular those of murphy field so my question is in your opening brief are you are or users trying to take back the concession with respect to bunia making an argument with respect to the boon amounts or or you only argue about it was i think it was a combination of different factors it was based on and i think that was one of the one of the things that i think the government when they responded to our objections to the p s r the government's response which is in  boone and murphy field so there it was based on statements by murphy old the m well i think there were statements by by both of those i would assume to the investigators but we never saw what those statements were there was never any testimony at to a specific objection i think at that point that needs to be resolved by the district court somehow and i think you could either have testimony and i think the cases don't really distinguish in some cases in this circuit whether they're talking about whether there was testimony under oath there are cases of a familiar was on the th circuit th and i think as well that say that it's not a statement by someone it's not under oath it's a coconspirator is not a reliable with that that would be our view and i think the cases in this sort that you look at to try and determine that issue you cannot tell in many of them whether there was any testimony under oath at all i think the assumption is while there may have been but you cannot tell that there are other circuits it will say if you don't have it under oath and it's a coconspirator that is not reliable in the public service it's a that essentially and so i think that the argument here we can't tell from these whether there was any