in atlanta and judge pryor and i are delighted to have judge corrigan with us today from the middle district of florida which corgan is in jacksonville and judge we appreciate the assistance that you're giving us on these appeals this week arguments to the issues on appeal this geddes is the court room deputy and she will serve as the time keeper and she will alert you counsel when your a time to argue has expired and before that when there are two minutes left to your allotted time the court appreciates your cooperation and scheduling these arguments to be heard by telephone conferencing this morning and so we will begin the st argument it is the united states of america versus brian mendelson is here for camacho and gabriel adam mendo is here for the government and mr mendelsohn are you ready to begin with your argument i am procedurally impose procedurally unreasonable sentence for two related reasons st the sentence is based on an incorrect factual finding and nd the court incorrectly calculated guidelines and failing to find the mitigating role under three v one dollar of the guidelines and the ruling because the incorrect factual finding was the factual basis for use the talking arranging the financial transaction and so far as activities are concerned the united states that's just incorrect mr duarte camacho's role in this case was he was the guy who was sitting the trailer with the drugs his role was to transfer the drugs were find out how much drugs needed to be delivered and transfer the product to the buyer he was not involved in any financial transaction he did livery what i'm saying is he was in robin the drill delivery he was not involved in the financial transaction he said that the financial transaction where when they were talking about price he said i don't know anything about price need to talk to the people in mexico about that just tell me how much i'm supposed to deliver and i will deliver that so the and i think using the phrase financial transactions important because that implies a much higher role than somebody who's the mere delivery guy you know when you're talking about financial transactions you're talking about setting the price knowing how much the product cost what those were wholesale price of the product is knowing how much the profit margin you need to make on that is so somebody who's involved in a financial transaction is much higher in the chain of events then the person whose job it is simply take the product off the shelf and deliver it and so when the court said it was not a minor role because of the financial transaction it could made a clearly erroneous fact finding and then implicated a much higher role to appears as if three judge was well versed in what had happened and he listened to a long sentence saying and it isn't that couldn't that just be read as a shorthand way of saying he arranged the deal or  e transfer is the are you really is it really fair to ascribe a larger meaning to that in the context here well judge i believe that start ascribing different meanings to what the record judge actually said i think we run into a whole a whole set of new problems this is still prior let me make sure we agree on what the facts are here as i understand it the undisputed record indicate that mr duarte camacho initiated contact with the undercover agent he discussed the amount of drugs and the location of the exchange and he also gave some information to the agent role and so i think if you turn to the underlying definition of what we're talking about of a minor role that is not enough  or not only was held accountable for the the five kilos that were part of that delivery he was also held accountable for the entire seventy kilos of methamphetamine that were found at the trailer  his involvement with that methamphetamine is basically to sit there and be at the trailer with it he had no control over how much drugs was going to we're going to be at the  trailer what kind of drugs are going to be at the trailer what was going to happen to them other than being told to deliver them he couldn't control who came and went and in fact he didn't even have a car so he couldn't deliver these drugs  self and without a car he was literally dropped at this trailer in the middle of the country and left there until somebody who's higher up in the organization decided it was time for him to leave he couldn't even leave to go to the grocery store i mean he was just stuck there and clearly that indicates somebody who's lower down on the chain of command i think it's really important to well i would if i were you i wouldn't can't impose a sentence on factually incorrect information that would be a due process violation and you know going up to gaol saying it's a procedurally unreasonable sentence to rely on  initially do you make the argument in your brief that the court can't just rely on eleven factor in making a minor row decision is that an argument that you're making their brief or not no i mean the court can rely on as many factors as if one is going to rely on entire record but what it said here and the reason it gave as the specific reason it was denying the minor role was that he was involved in a financial transaction  you know the government i think attempts to to to broaden that out to say that the judge considered everything i was arguing because i think there's a parent that a call or a little modifier after he says that which the judge says you know i mean i i believe it's a quirk to rely on anything in the record and it's a deer is in on a specific i mean obviously it has to consider all of the the guidelines in the application notes but it is a court specifically zero in on one factors say for example that he saw that my client was instructing five different people about what they should do in the organization he could point to that and say that's enough he's not minor so and i would note that this is a pretty significant difference not only is this a two level adjustment downward adjustment on the guidelines if the judge had found a minor role it also would have been a four level reduction in the base offense level so we're talking about a six level difference between the the guidelines that were used at sentencing and what we think the correct outlines would have been so they found two minute warning thank you  because he was involved in a financial transaction that the government i think tries to read that to say the judge considers saying i considered everything that counsel argued about a minor role i read that as a  in certain factual scenarios you're not i think it doesn't sound like you are relying on that authority in your appeal united states mr duarte failed to meet his burden which he held at the district court of proving that he had a minor role in the offenses to which he pled guilty which is a fact intensive determination for which this court's precedent gives considerable discretion to the district court and nor can mr duarte made his burden now of showing clear air in the district court's ruling i think it's important that we ground ourselves in the standard of review here it is not this  evidence and decide whether or not mr duarte met his burden of course even if the panel would have weighed the factual record differently that's not sufficient instead to overturn the district court the most this court must find that the district court's decision has no support in the record and there's abundant support in the record for the district court's decision the starting point for determining a defendant's role in the offense is defining the relevant conduct for which he was held accountable at sentencing and it is then the defendant's burden to show he played a minor role for that conduct alone and not for some larger conspiracy and it sent a sting mr gore it was held accountable only for the seventy five kilograms of methamphetamines that were seized from his codefendant and from the meth lab that mr duarte duarte had been guarding with a shotgun quote well st of all your honor the defendant has raised that issue in his briefs in his reply brief and barely adopted at the end of his oral arguments and the government would posit that argument has been waived by the defendant in this case but i think when you look at the record of this case it's numerous other factors there was a premises in hants meant that was disputed and then the court obviously also very downward below the guideline range so i don't think this record indicates that the court only relied on that one it's just that's the only one it mentioned and i don't think the court's preston indicates that the district court is required to list and lay out all of the factors that may have relied on for a minor role reduction particularly when we're just looking at at clear air and it clear what the court is supposed to do is look at the whole record and see if i financial transaction is some mystery that the district court invented out of whole cloth the record is clear that the dish records are foreign to the transaction involving the sale of drugs to the undercover officer a drug deal is a financial transaction is the quote in so far as activities are concerned here in the united states and quote in other words the court recognized that some aspects of the transaction work coordinated elsewhere just as mr duarte had argued the district court had no misunderstanding of the factual record before  think it's worth noting that mr gore his counsel was present at sentencing at no time after the district court made this reference to a financial transaction the defense counsel stand up and suggest the court made an error asked the court to clarify just what financial transaction it was referring to instead asked if he had anything further to say defense counsel said no judge thank you nothing if the district court had just made such a fundamental error as mr gore to now claims it would have been apparent to defense counsel yes runner yes roger which is why we haven't raised a point where we think quite clear as the right standard point is simply if this was such an mysterious reference it would have been discussed at the time and so instead what we have is really a cynical attempt to ask this panel to assume that the district court had such a poor grasp of the facts before it so as to invent mr duarte's participation in some some mysterious transaction there was only one of his action  corrigan i was interested in the way that the p s r played out where there were supplemental factual assertions made terms of of him being coerced in terms of him being threatened in terms of him not not being paid anything extra than what he was being paid to tend the animals he didn't have a car there's lots of things that would start to tend toward making you think that a minor role would be appropriate and the government didn't object to that supplement as i could see so i'm wondering what what the appellate court does with that yes your honor you know as we pointed out in our brief we do think there's something curious about a defendant asking about his proffer be included in the p s r with an assertion that the government cannot rely on it to his detriment but then seeking to rely on those on sworn contentions for a sentencing argument we think either there undisputed facts that everyone can rely on or if they put in a cab that you know they can't be paris reference he talks about being threatened he did not a sort of duress defense in this case he pled guilty to all those crimes and the court district court could have considered those circumstances under three thousand five hundred and fifty three and from the transcript it seems that the court did acknowledge and consider that history but they don't tell us about the relative importance of his role a drug trafficker might have a number of sympathetic explanations for why he committed this crime but it doesn't materially change the role he played  corrigan again can i ask you this is a matter of discretion and judgment by the district court would the district court on this record have been authorized to find a minor role that is good the district judge had made findings and and agreed that a minor role was appropriate in this case yes your honor the considerable discretion that's that's left to the district court in this area there are facts that mr gore tehran used and some of them were raised in this argument that could have pointed towards a minor role it was his burden to prove that we would have certainly argued as we did at the dish of course that he failed to meet that burden but i think the district court  could have have exercised its considerable discretion in either regard and we would not be able to sit here today and say that that the district court had clearly erred the other direction that's that is what the considerable discretion in this fact intensive determination leaves in the district court but because the record also contains numerous facts that the district court could rely on for denying that role clear or can't be found as a defendant who was not just guarding drugs but guarding the meth lab or the drugs were created he didn't just guard the drugs he coordinated the sale of those drugs was trusted to have contact with and with a buyer of five kilograms of methamphetamines which is no small amount he also was found in his own possession in his own home with more than one hundred and fifty thousand dollars in cash which is another factor that this court's precedents shows indicates that someone is not a minor participant now he says it's not his his money it's someone else in the organization but the fact that he's trusted to have that amount of money shows a confidence and a trust its place and him and also so is his knowledge of the extent of this drug trafficking conspiracy it's i think it's important note that the district court also sustained mr george's objection to the enhancements for maintaining drug premises and i say that because it shows that the district court conducted a thorough review of the factual record in this case and where the defend its position had merit he granted mr toward his objection but on the minor  st you know we talk about this financial transaction question and the government still has not pointed to anything in particular that says a financial transaction that says he was involved in a drug deal  because there's a deal that's a sale and so that must be a financial transaction but nowhere does the court does the government point to anything in the record that suggests that mr duarte camacho had anything to do with this other than arranging for the delivery of the solely on one factor probably but i don't think it's it's necessary to get there as to the government's argument about the supplemental facts and the information in the additional facts which came from my my client's proffer and did didn't object to those facts at the hearing in fact the district court then adopted those facts as the facts of the case the government also said statements were truthful mr duarte camacho also made similar statements during his allocution which the district court indicated that he had no reason to doubt in response to the allocution  and finally it is true that i objected that the government should not be allowed to use his proffer to enhance the guidelines that's section one hundred and one point eight of the sentencing guidelines says that can't be used to enhance it but i certainly believe that this truthful information is being used is not being used to enhance its guidelines and so appropriate to use finally the government's argument that the