over and later written judgment such that any clue jand in the later written judgment are no unless they are intended to deceive ambiguity something that's unclear in the oral pronouncement but here the judge itself this is judge would let me ask you a quick question i don't remember the judge ever saying i'm adopting the p s r i thought those two contested names were in the piece in the probation offices thing that the judge never actually said that that was being adopted or there was no there was no agreement to adopt it right that's correct and that's my recollection as well and so the government highlights the inclusion in the p s offer but the p s r wasn't adopted in the oral pronouncement would control and where the court says so there's no objection to him not communicating gauge with his co defendants that that's and you read that to be the th superseding indictment it has to be judged otherwise the there's no limitation of what it means to be a defendant or a codefendant it could be in another case from a different jurisdiction a different charging document from another period of time at the time my client pled guilty each pled guilty to a specific charging document that listed who was co defendants were and these individuals weren't listed in that and so it does not get the government where it needs to be to point to earlier documents from this proceeding or as i gave my example some other proceeding this would just be too expansive an effort by the government to include items that the judge didn't orally pronounce ok thank you you're welcome and so i will say that with respect to the supervisor of these condition with the discretionary condition supervised release of drug testing the government put stock in how my client asked for drug testing and he did and he wants to participate in our doubt but the drug testing that he asked for agreed to i should say would be the mandatory conditions in that by the way is vision enough itself we do not need discretionary conditions when we have the mandatory condition and it's not necessary for my client to participate our doubt by having this condition he can participate our doubt that wraps up in prison this condition is not sentencing the district judge committed to related procedural errors st the court erred as a matter of law when it indicated that the ribeye fifty three a six only applies to co defendants nd even if that was not the case the district judge committed a related cunningham error when it failed to address eggers principal mitigation argument regarding the son of a coconspirator sergio all chola just three quick points i would like to make about the record in egger case which differs argument that was raised multiple times at the sentencing hearing and it was really the only thing defense counsel talked about and didn't just talk about disparity generally talked about sergio cho of in particular nd point i'd like to make is that this was not a frivolous argument this was a coconspirator somebody who began this entire drug trafficking organization with edgar roquet back in two thousand and ten and participated with him in the same drug trafficking organization for two or three years he was found to be a leader but but i just can't find her refusing other than on grounds that are within her discretion she has the government pointed out just because mr cho got a low sentence doesn't mean that that once  for all is the benchmark my absolutely not and it would make it clear we're making a procedural argument right now i'm not arguing the substantive unreasonableness just like the pianist case if the judge wants to go back and give the same sentence you know i'm not saying at this appeal that you can't do that but to me some sort of reasons on the record to prevent at least the cunningham error now you were talking about the legal error and i admit it's not as clear cut as it wasn't prado or some other cases but i don't see anything in the core of case law saying that you have to have an express statement in fact in the panic case it would kind of unclear the record was unclear as to whether the judge kind of inadvertently slipped into thinking that you know there was no discretion in some place where there was and that's what i've argued here is that this is the kind of with an image this comment without anything men or with her just asking no that wasn't my son was it that you know that comment without anything else indicates that she may have inadvertently slipped into thinking ok that's not my dependent i don't even have to think about it which would be legally incorrect and then but you know other argument that ok even if you don't you know why the legal error and think the record is too ambiguous definitely fifteen years and the fifteen years feeling is really important here because the fifteen years dealing with the reference that mr a child with that and so while it's clear from the record that mr diaz as a trial counsel didn't raise the issue as small way if the sentence is within guidelines or below guidelines in other words that the guidelines calculation takes care of the issue of disparities across defendants  is that you can't be certain that the district what the gesture court would have done with that argument and here we have every reason to believe that the district court might have gone well below the guidelines because of the mitigate that mr g s has presented so i see that i legal issue of misinterpreted thirty five thousand five hundred and thirty six he raises a cunningham issue and he also has an issue unsupervised release condition that the government agrees that the supervised release conditions a couple of them don't conform with the written judgment and should be fixed so i'm going to stand on the brief on those unless the court has any questions as mentioned by eggers counsel the clear committed procedural error in assuming that it was statutorily prohibited from considering the sentence is a separately contrarious and so again that's not harmless error because there's no indication that the court even considered the arguments richard further urges the court to reject the notion that a court can satisfy the eight six requirements by comparing di dio's sizes st no such comparison even occurred in his case the plain language of three fifty three a six and precedent prohibits that it's clear that comparison should be between defendants and not g t o's and in any event such a comparison would have been very troubling here because contreras was involved in both conspiracies and we know as we set forth in detail in richard's brief that the government sought to hold mr contrarious responsible for a whole bunch of conduct that involved his participation in both conspiracy so simply comparing the g t o it would not have captured what the relevant conduct was that the government sought to have mr contreras held responsible for and for are there doesn't address the comparison that mr that richard made between himself contracts additionally as we also point out in our brief it appears that the court had different information in front of it and i've been g s a sentencing which indicates that the court may have believed that  richard gets two hundred and ten months and richard was responsible four hundred and forty thousand in drug laundering there is obviously a huge disparity there as for cunningham eric there's no question here that richard's disparity argument was a substantial one indication the court as a government did not contend otherwise and here again the court didn't address his money laundering disparity argument in particular we provide details in our  about four different comparatives who got lesser sentences or the same sentence that he did for vastly greater amounts of money and further the government at richard's sentencing specifically states that his amount ramirez his argument is that specifically his sentencing disparity is most in line with codefendant mendoza and the government's response raef indicates that mr mendoza was sentenced after mr ramirez but in fact there was sentenced on the same day so i think it's fair to conclude that the district court's was well prepared going into that particularly in march twenty to two thousand and nineteen it's not as though there was a large gap in time between sentencing where other defendants were sentenced and between they could then negate the disparity argument mr mendoza received a one hundred and fifty month sentence within guideline range  my client mr ramirez received one hundred and eighty eight dollars but they were both low level members of the conspiracy in fact they seem to have been childhood or a teenage friends that grew up together and were  largely doing things together discussing what they did together their families are very supportive of one another even the families or even at each other sentencing hearing salon moral support neither one was a leader manager or supervisor i will stipulate that when mr ramirez was arrested it was not without incidence he did leave law enforcement on a foot chase through a back yard thirty eight months is not nearly as big as the twenty years that miss eisenman is client is arguing or ms or the six years that mr waters as a client is arguing but thirty eight months is still a large amount of time for two men who are very similarly situated discussed in the district court although the the ministers who found his lawyer in the district court said that although it was awarded to his sister angelica it was denied to him speaking of the government but he did raise it in that sense and the comparative comparative couple go he was discussed it's clear from the facts that were before the court that his role in this was substantially less than the average participant or as the other guideline comments as most of the other partners that actually guarded the others were discussed in our breed pages sixteen through twenty and actually in the government's great pages nineteen to forty three government specifically said that he was like o the guidelines give several factors his understanding of the scope and structure of the criminal activity there's none in this case that he did he didn't participate in planning  organizing the criminal activity is that if it was about two hundred dollars according to the government it had no responsibility to stress or discretion or decision making seven pickups i have a one hundred sixty one dollars i'm not too good at math but i think that's under one percent what the a gauge what he did i commonsense or the guidelines it seems to be it's clear and was clear to the court that his role was minor i know we have a lot of cases that say the couriers are automatically given a mi lot might have some quarrel with them here he was a minuscule part of a large operation that began and then divided into two conspiracies and became a rd conspiracy when one of the conspirators kept doing it after the exposure of this one well i would ask the court to send the court to and  that it would consider all those sentences that in mendoza's case he submitted transcripts from a number of the affair contrarious sentencings that it would consider those nd he didn't say the court did not say that it was only considering and eighty six and then just simply nothing in the context of this record indicates it to the contrary the court accepted all the information to the extent it was presented by any of these defendants and accepted information regarding your chair in short in the context of this entire record in the totality of the record it's this court advises your must be examined there is no basis to conclude this court misunderstood it and i would also add that in making this it's applying it's incumbent upon the parties to me in order to preserve their objection to let the court know and hear if they're saying that if you know in response to the court saying neither of these are my sentences edgar rochas attorney did not  your honor that's a relevant you're applying the wrong standard or anything to that effect yes he went on in argued about edgar about a chair which only suggests that he didn't even perceive and i would submit that's what happened here  defendants counsel in the just record did not even perceive that the court was misinterpreting the statute and in fact the question although it's kind of interesting because what we typically have seen in these disparity cases is a defendant saying well you've looked at the national level or you've looked at the district level or the judge level but judge we would like you to look at the individuals in this conspiracy and you know for a period of time it was thought that that wasn't the right thing but at this point understanding the discretion of the district court judge the judge is entitle to do that and it's little inverted here and what we also don't know it i mean the judge never really just comes out and says look i just disagree with the sentencing philosophy the judge gentleman was applying to the ochoa group and i'm going to tether my sentences much more closely to the guidelines which i find to be an appropriate level given the scope of this conspiracy if if she had ever said something like that i don't even know if we'd be here well i should does not say those words however th repeatedly starting with the very st defendant in this case that she sentenced anthony kuhn from the very beginning this court emphasized the level of drugs involved in this conspiracy in the in roqueted and i think before i get into the specifics of the way she amply addressed the arguments to the extent they were made in the context of each sentencing in terms of of the cunningham argument i think it's really important that the court get the context here of what this court actually found about this conspiracy ed go broke was the leader of the conspiracy at his sentencing he challenged he completely challenged any of the of the guy like computations on on the quantities for which he entered a blindly he completely challenges the quantities of drugs for which he was being held accountable so the court had a look at five hundred kilograms of cocaine at least richard broke when he pled guilty and he was there from the very beginning from two thousand and ten all the way to get at least five hundred kilograms of cocaine and one hundred kilograms of heroin now let's look at the numbers that were involved based on the record submitted by these defendants one particular mr mendoza in the conspiracy the leaders of that conspiracy mr choa and and contrarious they were both found to be a level thirty six dollars on the drug table a base level thirty six dollars now unfortunately we don't have his there p s r is part of this record that cannot be done so i cannot it's not part of the record the exact calculations that the court made because they didn't contest that level thirty six so the court never had to make a public finding of the government never atomy a public submission about it but a level thirty six dollars under the guidelines is for no more than four hundred and fifty dollars kilos of cocaine and ninety kilos of heroin and you know that the quantity is involved in the old share a country of conspiracy were far below that because because you're calculating their advisory you know their base level included their relevant conduct what each of them participated for two years as relevant conduct it was considered in the broke  numbers in that in those in those calculations have nothing to do with the country or is transparency that started in about two thousand and thirteen the point of this is is that we're looking as the judge said at more drugs being pumped into the city of chicago by the roquet drug operation than this court had ever seen in its career we're looking at what at least one thousand five hundred kilos of cocaine at wholesale quantities these were both awful organizations but in terms of looking at the numbers of traffic want to tease here roquet was the eighteen it was a plus team of drug doing and the court took that into account repeatedly and it didn't even need to think about any other conspiracy but its only experience at it as it repeatedly said repeatedly in every single sentences given the quantity the mass of harm being done here by this organization i cannot the court repeatedly said it cannot be part downward from the guidelines so with that as a backdrop which i think is just a really important backdrop to this this this discussion let me go through the defendants in terms of their cunningham argument and let me start with mitchell mr rich richard roark who would be the only defendant that squarely brought a disparity argument and developed it in any way shape or form even arguably to the district court so i think it's very important that this court keep in mind of what was before this court and when it was before it so when richard roark in his he is one defendant who in history the only defend in fact in his pre other than windows who's not here but in his pre set and say in submissions to the court he did make a disparity argument and he made it about contr request for a finding by the court that he was a minor player that's where he put that argument he didn't put it in mitigation he stuck it in there and so i think the courts comments on it doesn't mean that argument went away i'm not suggesting that but i think the courts are but because of where he put it i think the courts comments regarding that minor player request are relevant and when the court rejected that minor player reduction the courts found their record that roquet was in this from the beginning that he knew the scope of this g t o he was richard edgar roque's rochas brother and his right hand man he was not a leader he was not a supervisor but he was there from two thousand and ten and even accompanied him to mexico to a brain for importation of drugs the judge said he was involved in planning and he knew the scope of this of this  said this is a vital player in this conspiracy and then that is all informative because then in the proceeding the court goes to it when it's an important context for examining the court's comments when the court addresses under the circumstances of this nassib organization which the court explain distributed huge quantities of drugs in the city it in period in particular in the city of chicago and then accord that it was imposing the sense at the bottom of the guideline range is appropriate because of the integral role this defendant played because of the volume of drugs so in looking at the totality of the org of the of the record and the way it was presented to the court and the fact that richard roquet well he made the argument he never submitted a single record to the court that showed or even began to show the quantity of drugs at level thirty six that rig that  had been held accountable for he did not provide that to the court at all he lied on raja saying generalities he was a leader it was a large conspiracy so that's what the court had before it of course tell me if of course but of course we are told a lot about the sentences that many of the ochoa people actually received but what i don't recall and maybe just because it's too huge is whether we know how those sentences related to the guard lines the proper guidelines ranges for each of those people we do we do your honor and we know what because mr mendoza six months after these other sentences we've been talking about he submitted their sen that started with the very st defendant he said was that judge sentenced was extremely below guidelines and then from that point on he sentenced everybody in relation to that sentence them and then the guy so i remember in this conspiracy i forget which  never said you could not but certainly said you should not your honor that that was just out of line and should not be referred to and so again with all of that happened by the way your honor before richard bro which again the government would maintain it was the only defendant that even arguably frame to this for the court so let me turn to the other defendants in that room raising this issue edgar roquet again he again i think context is is critical here in fairness to the court and in and in in and in following this court's precedent that you look at the totality of the record in his pre sentencing submissions and at in the same conspiracy i was it a great case that she was we were in the same big conspiracy starting two thousand and ten all the way to the end and you know what court in your honor and government all those drugs you're attributing to me they really exclusively jointly but but but but your honor jointly but that sure joe cho was the main leader in other words the whole idea was to minimize his his things so even with the  i i did some drugs but he did more of these stash houses actually he tried to really pin just on a cho i believe has my recollection and but with leadership yes he certainly said i may have had some management role but how many i think his quote was you know how many leaders are the earth there's one leader so i say that to say that anything response to that that the that the government says your honor there were two drug operations here yes they happens to a challah surge and go broke continued in his operation and that was a point and it was in the context of that that if the government raised the sentence imposed on sergio a didn't sufficiently developed the argument to laurent any comment being needed to be made by the by the court because all he does literally is just a few sentences saying i'm the same the government alleged that he distributed seven thousand kilograms of cocaine in a cho it didn't show it was worse than me and he got a lower sentence he offered nothing after at that point in the proceeding he offered absolutely no evidence to the court and in fact the record does not involves substantially fewer amount of drugs and no importation enhancement no firearms they were different and this defendant did not make his record he did not make develop his record in a that is not the case i've been d s came after and baroque mendoza's submissions to the court were six months after aggro ed to this was the case that started this edwin wrote there none of this is before the court none of this is before the court at the time of a direct sentencing now he did now i would not say the court had no familia in the military with it because of course because edgar broken argue that a chair was more responsible actions was undermined by the by the by the position the government presented at the time as to philip vs philip diaz again he made the same argument that just a lowly courier that was me that was it and when he says he recommended a sense of a one hundred and eighteen months it is there is nothing in the record to suggest that he did that based on a cho a sentence because what he said to the court was i w is never been our argument that the court who makes the disparity argument regarding sanchez it is never been the government's argument that the sequencing of sentencing matter this this court's precedent make it clear it does not matter when you sentenced if you make a disparity argument you know there's no reason we're not saying it couldn't be considered i'm just saying we're the government saying he never made a disparity argument as to mendoza he made it as to sanchez and the court responded if his argument instead is ok i didn't make the argument that the court still needed to consider it well then this court's precedent is positively clear that the fact that that he gave to me or is it within guidelines sentance is it takes care of any disparity consideration a court consider the disparity because again the guideline sentence and the guidelines are an anti disparity formula this whole i would like to mention one more thing before leaving this topic and that is judge  that dispiriting formula of the guideline range kind of doing away with these cunningham type arguments there is tension i would say in looking at the cases there is tension in this court skylines cases on that point in some cases there is that indication that when you give a guideline sentence the court has spoken on on the factor of a disparity but there's also cases where the court gives a guideline sentence and this court goes ahead and considers under cunningham whether the district court addressed disparity arguments raised so rather by the grammar is a point is where there is some tension in your case law so that is why you know the government's not taking the position that there can't be a cunningham argument here the government's position is simply that it either didn't rise to a gunning ham argument because the court was required under this court's precedent to deal with these arguments or th minor role argument that's clear under this case in the united states versus butler and under and whether it be a clear air or a plane error standard this defendant was not substantially less significant than that of the average conspiracy member here he participated for about eighteen months he took numerous courier trips he provided counter surveillance in a chen kilogram heroin shipment he helped out at the stash house and while the defendant contended there was no evidence of that if you look at his fleet agreement which is in the record at three hundred and eighty two at page four he admitted that he along with others maintained a stash house and he was accountable for one hundred and seventy kilograms to ten kilograms of heroin in the context of the this entire case that is simply not a minor player and that is just not is just not supported by the record and there was no clear or much less plain air here  in terms of mr sanchez and the supervised release conditions the government strongly held position is that there were no there's no inconsistency here between the court ordering no contact with co defendants  well i think because they were at this point no indictments had been dismissed at this point i mean at most your honor it was ambiguous most this was ambiguous and if it was ambiguous then it was clarified when the court when the court  wasn't it i think it was understood by everybody at this sentencing what co defendants met it was understood in the argument at the sentencing when when the government was i was referring to what happened here and referred to can this codefendant but even if it most this is ambiguous in the context of this case your honor i see my time is up so for the the the government would respectfully rest for everything else on its br and respectfully ask the court to affirm the convictions and set this case thank you very much for your help but i'll be brief your honor the government's a bit of a moving target now whether the language is in big u s or not it was not in big u s the sentencing transcript shows what was sad that's where we need to look compare that to the written judgment also my client was required to object whatever understanding the government thinks is conveyed it's not to be accepted we are to gauge that by the written words in the transcript it does not show there is the understanding of judge what you are absolutely correct to look at the operative documents that's what we did in the case that's of course you do here now with that i would see the balance of my time to two lines of taste law and i agree that there is some tension there because i think there are arguments don't always don't overlap all that often and the way i see it in the way i think the court has harmonized it already in the that's it that means the court has to address it you get out of the default rule and then you get into cunningham and that's the way i read all of this course cases in the old oliver and other cases there was an accounting an argument it was a principle argument in mitigation and that's why the court felt comfortable saying ok if in a six argument you got it within guidelines them the judge already took into account that makes total sense but it has to be that you can have to have some sort of oh shoot i'm out of time  up mr hawes and remaining time going you can conclude your rebuttal sorry i got up and just wanted to throw that in in this case i just fundamentally disagree with the government's argument that edgar do not make a principle argument and they get mitigation again it's just it's not an incredibly difficult standard and i look at our our appendix at twenty four through twenty six this was his only mitigation argument i don't know how much more clear you can after iger ok there's nothing here i'm nothing the judge had to buy it i'm not saying the judge had to give him the same sentence but the two needed to address thank you so much for the extra time and i request recommended a one hundred and eighty one sentence it's not it that the judge went so far below the guidelines based on some reason that we that we don't have access to the government recommended the one hundred and eighty month entrance and so for those those present we would ask the criminal procedure should govern with the standard of review here just like any other case there should be some special can use type of role the issues were preserved for appellate review and to no program you should apply here because they were argued and raised in the district accused and the other matter it certainly had a awful lot of detail before it come which it was clear that he was very involved in trafficking you nor miss quantities and laundering millions of dollars and with that i would ask the initially start with a presumption of validity but a presumption can be rebut it and i think that collectively we have done that during the course of this appeal and if there's any other  understood understood your honor and thank you i have nothing further to add if another defense attorney would like to have my time i'm happy to get that's right thank you i think only mr nash is left he brought his lawyer brought it up in connection with angelica his sister was by any judgment more culpable than he was and if you look at our brief what she did was here or the guideline range is not done here because the judge did not take into account minor role and it was discussed and he didn't operate any house there's no evidence of that and back he was not given and he waits for the government says that the burden of proof falls on the defendant we start with the district having to make the correct guideline calculation he didn't do that in this case the facts were all there before they discussed you know all the other cases there's no question  one and i wonder how you parse that that's a minor rule and he should should have gotten a minor role adjustment that i as your daughter's to cue in you all in person and back in the courtroom as soon as that is reasonably feasible and safe so that you all look great and it will be good to see you back in the court room sometime hopefully erased thank you all very much for excellent argument taken under advi