focus my argument on the manner in which the minor role consideration is reviewed by this court and also on the impact of the amendments on this court's case law because those seem to be t particular to particular themes that have come up repeatedly beginning first with the impact of the in then this on this court's case law to be clear the him the amendment does impact this court case law it does change this court's case law this is not a matter of a three judge panel overruling another three judge panel this is a matter of superseding or alternative authority and if i could point the court to you rightly point out how do you give me i ca a this is not the supreme court no masonite checked were three article three judges and i'm not going to give that to the sentencing commission yes and that's the perfect segue for me your honor said thank you for the webster case which is a case that's all been cited and i'll quote that the downward adjustment may not be based on relevant but on charge conduct are no longer valid because of the subsequent adoption by the sentencing commission of amendment three four five to the more mandatory minimum at the next three judge panel says ok well i understand we have a series of a body of case law that says under the statute it's ten years but congress has changed that so plainly that's no longer the law and that's exactly what this court said in what in webster about the in on a very similar issue and see exactly what's happened here there is a line of cases including rodriguez castro as your honour's noted including hurta says any one factor such as the amount of drugs is sufficient to deny minor role that is plainly no longer good law following the amendment the sensing commission has done everything it to say not only are we talking about the totality of the circumstances but any one factor can't be enough we've given you five and if i could take us outside a minor role i think in examples really helpful here we have for example the idea of the custodian of what is custody in the correct headline of cases somebody is in their home their interrogated are they in custody this court has laid forth a multi factor test how many agents how many agencies was the person handcuffed what language was used so if the district court were to just look at one of those factors and say well he was told he was free to leave this court would say i'm sorry district court that's not a clearly erroneous finding but that's the wrong legal standard you have to look at all of the factors that is what happened that's what's happened with the sentencing unit commission now one of those factors is no longer sufficient it just cannot be it is absolutely in conflict with what the commission has said and that brings us to the point about how it's reviewed and i think craig had provides a decent example i hope for what i just looked at your honor i would say i hope that's right the person was told he was really that's not a clearly erroneous fact but district court i'm not going there because there's a first a applied the kreg had test you focused on just one factor and you shouldn't have that's a legal error you have to go back and do it right you have to determine custody based on all of the factors you can't  what's happened here and i think in all three of the cases but here presently you've got some trouble some facts so you just don't have one factor you have your client was stopped by the border patrol had that stated he thought it was marijuana he said he expected to be paid one hundred thousand dollars he said he was to receive instructions on where to go after across the border the car which was when it hit a car he was san was not registered to him was purchased the week before by someone other than your client right yes and all of those factors we adopt them wholeheartedly because all of them both before and especially after the amendment in our favor  commission and minor role what is your role views of the other people now whether you willingly do so or not that makes you guilty but it doesn't make you more important to the organization it doesn't make you more trusted are but it can if you get paid a hundred thousand dollars you have a large amount of dope you have numbers of people to call sam ready to go that's it you're driving you know it's x and that person is just a lot different than someone that walk the border with a little teeny bat the amount for example take payment we know that is not a prop now we know that is not a proper basis to deny minor role payments is a sufficient basis because the sentencing commission has specifically said somebody without a peculiar interest who just getting paid to cross drugs is not should be considered for a minor role that's not a proper  that you can't just cherry pick everything you've got to take your client with everything there and we and we do so there's a series of undisputed facts on the p s r on page four and of the p s r and they show that my client didn't load the drugs that means somebody else had to load the drugs it's met them fed i mean it doesn't grow on a tree somebody had to manufacture the drugs he didn't know where he was going in the united states somebody had to be there to take the drugs out on the other side but he didn't own the drugs he somebody had to be the owner of the drugs the district court calls him a neophyte because he believed he was getting one hundred thousand for one load of marijuana this is a nineteen year old kid with no prior experience who was shaking like a leaf when he got up to primary there was no way he was getting through unless the person had their eyes closed this is not a trusted courier this is a one time person who was used by a drug smuggling  get through your honor with a lot more drugs he's a perfect person to set up but then the question and it gets back to the proper legal analysis there are a series of factors this court has it in a  variety of contexts it is wrong it is no longer valid law to cherry pick amount or getting paid that was the basis here that is not the right legal analysis your honor asked earlier if you send it back to grant minor role no because what the fundamental flaw is is that the court was looking at the wrong things the amendment is retroactive that has been conceded and therefore if the district court didn't consider those factors the proper really the necessary result is to remember the case so that the district court in the first instance can take a shot at looking at those factors in light of the undisputed facts in the p s r that this was essentially a neophyte first offender what do i do in harmless error here i have a time because i think you need i mean in this particular situation the district court applied a downward variance of thirty six months venteen months seventy two months six years nineteen year old kid with michael forty six months and that in another itself answers the harmless error question well it seems to me that the district judge in this particular matter as as as you suggest not only cherry pick the factors but then said this is the sentence this kid needs it's below what he would have yours but i'm just trying to say it seems to me in her minor role i have to look at what did the district court do in order to get there and the district court was trying to put all the factors out there give him every reduction he put can't possibly give give him everything that he could do he now were varied thirty six months and sent an amount now i'm suggesting it is more than once they would do but nonetheless he suggested forty six months at the law and that's a huge what he got and then what it could be so we trust the district court that if he comes back if the district court has the benefit of the retroactive amendment if the district court properly thank your honor as of as we stated before if this court does find that the district court here clearly erred in weighing these factual findings in determining that this defendant was not entitled to minor role then i don't think that there's a harmlessness way to save it because the calculations are correct there's a massive swing particularly in math cases but your argument is just cause is contradictory to what the defendant is really arguing the defendant is not arguing that it's clear the defendant is and instead arguing that it is and in fact in an abuse of discretion situation it's the wrong application of the law in other words that's the part in abuse of discretion where if the law's wrongly or it's the wrong law applied then it's absolutely an abuse of discretion and it goes back that's his argument he's not arguing that it's a clear view and that's the problem that i mean i saw this in the briefs it seems to me you two are passing in the night what we need to determine is it what standard or view were really going on here well your honor i think on the legal question of did the court first of all the court announced the correct rule there's no dispute of that it said that the test is is this defendant substantially less culpable than the average five factors that need to be applied that's what he's arguing that it is not enough to say minor role this is the law and then apply its minor role this is to be applied in here  five factors i have to apply in in assessing the minor role that's what he's suggesting and the failure to make the five factors means it was an abuse of discretion we would disagree with  honor i understand fundamentally that test in the guidelines is whether a defendant is substantially less culpable than the average participant the fact that the court and the fraud context listed five non exhaustive factors in no way goes back and changes that it makes it legal to me about that he finally did respond to his first argument that the guidelines are appropriate that we cannot get out from under from under the guidelines simply because our case law prior to this was different we could cherry pick in his words because i've got a comrades who have done that i guess and get and get around the guidelines what do you say what you say to the case i forget the case it what do you say to that case your honor there are situations at the guidelines were changed i think the example defendant used if there were a mandatory minimum place one day congress changed it and remove that mandatory minimum this court would not be bound by the earlier case law it could say as the standard is whether the change in intervening authority is clearly irreconcilable with the past court's case law so if there were a situation where the guidelines were fundamentally changed in such a way that the case law was clearly irreconcilable with those changes then a three judge panel this court could consider that could you're saying we could if that's clearly irreconcilable but in this case what we're talking about is five non exhaustive factors in a fraud context there's no they simply don't fundamentally alter the twenty five years of case law in the circuit in fact that a lot of the factors that this court has considered in this specific context this drug courier at the border context are co extensive and line up with the five factors that the commission adopted including the amount of drugs involved which in the unique fact pattern of these cases necessarily translate into a certain amount of trust and a certain amount of responsibility when you have a case like this one with thirteen kilos a meth worth hundreds of thousands of dollars that trust and responsibility lines up with one of the factors you also have a m numerous other factors including the lot of preparation dry runs previous crossings the amount that a defendant has paid been paid all of these lined up with the five factors maybe not exactly but certainly not in a way that we could say that those five not exhaustive fraud factors are so clearly irreconcilable with this body of case law that this court can can as a three judge panel can simply overturn existing precedent it's just that changes were not that level this case is that this court should consider the factual determination made by this district court in light of these new amendments and it's still under a clear air standard this court should consider whether in light of these five factors it was still plausible for the district court in this case to determine that this specific defendant was not entitled to a minor role adjustment suppose i guess you  i don't think of the five non exhaustive fraud factors in this case necessarily are irreconcilable with the case law that says in this specific context at the border that a large amount of drugs can alone be sufficient to deny m you've answered my question ok i still don't understand how that makes the amendments retroactive in this case i think if the court looks of the guidelines as they stand now with these five factors included it was still not clear error for this just record to deny minor role in this case given the thirteen kilograms of meth given the payment and given the fact that this defendant re initiated contact with his recruiters and was in contact with them for of go as quickly as possible judge nelson just so i can give you a direct quote directly answer your question from sanders the ninth circuit has consistently stated that when an amendment is a clarification rather than an alteration of existing  should be it should be used interpret ing the provision in question retroactively that is the answer the answer under this court's well established law as it should be used by this court right now in honor the fact that the government here yawners the fact the government keeps telling clearer clearer clearer is telling its because they want the court to skip the step announcing the correct rule saying that the correct rule is whether the person is in custody that doesn't answer the question that's just the very first part of the onion it needs to be peeled the next part is did the court apply the correct legal framework for analyzing the legal question there is no way your honour's that five factors is not clearly in irreconcilable with one factor it's just not possible not mathematically possible the guidelines now say you have to look at the totality of the circumstances in this particular framework looking at just amount looking at just payment which is this court has suggested in her tato wrote in previous cases you could do that is no longer a valid legal analysis that's why the government can only yell about clear air