are being recorded and if you get away from the podium we lose your voice so you need to stay right behind you podium while you're making your argument and these arguments are available to the public  previously been addressed either by you or your party that called the first case and they in that united states versus thomas william alone consolidated with the united states versus u t green substance that was not specifically controlled at the time of the events of the indictment it was made in analog by federal law upon recognizing that mr malone had been indicted he immediately began to cooperate and cooperated on a almost full time basis for approximately two years on cases across the united states he agreed that there were fourteen hundred kilos of woods and walks up to us am twenty two zero one we knew going in the issue was going to be a conversion ratio so that the court understands what we're talking about the conversion ratio being one to one sixty seven fourteen hundred kilos of am twenty two zero one using that conversion ratio would be two hundred in fifty tons of marijuana that's a lot we filed motions for defense sentencing issues we filed a motion for downward variance on various grounds including the conversion ratio  being totally irrational and arbitrary we filed substantial assistance cooperation motion under seal all of which were received by the court the government responded to all of those we responded to the cooperation  in marijuana and has the same impact whether or not it is synthetic or whether or not it is in marijuana it should have been one to one under the many reasons including the fact that as this court is held animal studies sentencing guidelines are suggestive of but this conversion ratio of one to one sixty seven doesn't mean that your clock should be  to be perfectly fit to sickle what it means here is is that the offense level became thirty eight which is the highest drug offense level with a starting base offense of two hundred thirty five to two hundred ninety three months versus if it had been one to one as marijuana would have been ninety seven to one hundred in twenty one months so a lebanon a half year difference in the bottom of the guideline is what it means practically that you're looking at twice as much of an initial guideline calculation based on a one to one sixty seven ratio that's what it means in a remain no one can answer it was in the very first guideline back on november first one thousand nine hundred eighty seven when all of us were just getting started in the sense of figuring out what these guidelines mean there is no this weight of history there is no commentary i think it's a bit more subtle than that the argument is the active psycho active ingredient in marijuana is t h c that's what makes marijuana marijuana is the euphoric effect the marijuana that c is precisely the same t h c that is mentioned in the guidelines as referenced as synthetic t h c there is no difference it is simply t h c we're not talking about cocaine and marijuana hair when the marijuana you're talking about t h c being the active ingredient there is no basis scientific or otherwise no commentary no nothing that references a c in so called synthetic form is one to one hundred sixty seven in a conversion ratio to marijuana sense it is same active ingredient that the essence of the argument take into account the absurdity of the result in dealing with the rule of lenity as well which is in the court below said this i gotta make a choice so if i gotta make a choice i'm going to go with synthetic because synthetic is more like synthetic am twenty two a one that that we get down to nothing the problem is is this the term and by the chemical equivalency analysis factual determination that the court made as to whether or not it should be t h c in marijuana or t h c synthetic that's part of the fight the second part of the fight is that we moved on multiple occasions for a variance on that particular guideline and the court never made a determination that it was going to vary or not vary it just didn't do it what it said was i'm not going to throw the guideline out if you go to that specific part of the find the conversion rate should be one one sixty seven i'm not throwing out that guideline i'm done with that i'm moving on no discussion of variance or policy or anything to do with the rationale the court just says i'm not throwing it out and moves on there's no recognition by the district court that it has the power to vary it doesn't speak a variant it speaks of kimbrel but it reads kimbrough entirely wrong it thinks kimber always talking in terms of it has to be between two different drugs which it really wasn't it's cracking crack cocaine and it was cocaine and crack in cambridge ours is the same substance t h c i think the record is clear that the court did not make a determination supreme court where him of course but it read it as if the supreme court had ruled that kimber was correct because it had to do with different drugs and the conversion ratio that's not what kimberly dealt with and all said that the district court judge has the authority to make a determination that a given guideline should not be controlling on  face in determining whether a defendant should be sentenced or not then it is up to the court to determine whether it wants to exercise its discretion based on a myriad of reasons in timbral it happened to be the  crack cocaine to cocaine ratio marijuana in the guidelines the defendants every lied on the kimbrough case and urging the court to throw out this cry line throw out the guideline no one asked the court to throw out the guideline we were saying that there should be a variance based on the lack of scientific basis for that guideline and all the other reasons we had set forth in memorandums from all the defendants this court will not do so first of all the sentencing guidelines are the expression of congress that this is what should be done that's true but that's not to suggest in the light of this entire statement that the court believed it had a power to do something about that and the next statement according knowledge is that the ratios in the sentencing guidelines are often arbiter very in present a relative but converting education marijuana they seem to outline the relative hong in kimbrough what the supreme court in the court was doing was comparing one ratio for one drug to another ratio for another drug and pointing out the unfairness of those two race use in this case that's not what the defendants have asked us to do they have simply asked us to throw out the ratio of one to one sixty seven based on its arbitrary nature and the court would climb to do so it made read misread kimbo it didn't understand its power under came bro it basically said congress came with a guideline i can't do anything about it came bros different it had to do with two different drugs your case has to do with the same drug or the same  active ingredient and therefore i don't have the power to do it and then no she didn't say that and i haven't i've saved three minutes consolidated appeal we've adopted much of mr sedo brief on behalf of mr malone and i ok with the court i want to confine my argument to the rule of lenity and some of the issues around the decelerate issue concerning mr green your honor the rule of lenity at its core is about clarity we do not want to punish someone when it is not clear that their conduct is punishable and this court has held that that extends to punishment for a crime and not just actual criminal activity and in this case is mr sent out touched on we're dealing at first with a substance that was not itself illegal but was deemed to be an analog of a controlled substance which was not itself media legal by congress but was an emergency listing by the t s a so we have that issue first but that's not really the issue we're talking about the issue we're talking about is how to punish that then we get to sentencing and we have this substance which is an analog of an emergency listed substance and we have to figure out what it is most similar to and how to punish that and we have an old unexplained an unguided one sixty seven to one ratio in the guidelines and as the district court in this case said there seems to be no one reason to any of this that's actually a quote when the court was looking at it she said there's no rhyme or reason to any of these things in the guidelines and how to convert something into something else now much of the guidelines there is quite a bit of guidance and this is an emerging problem the synthetic marijuana issues an emerging problem but like most problems that evolve quickly the solutions have evolved quickly but not necessarily for the better we have emergency listings we have arcane conversion ratios one to one as mr said are suggested is the most appropriate conversion ratio because t h c is t h c but the government's expert at the hearing indicated that the schedule three substance would have been far lower to the order of ten or twenty percent of the guideline range when you apply one sixty seven to one to the synthetic marijuana and it is synthetic marijuana so there is also an alternative conversion ratio that could have been utilized in accordance readily reveals itself this is a product that is converted into marijuana the process was described by the government witness one of the c government to describe the process nineteen parts of plant material one part of the drug twenty one this is another conversion ratio that could have been used the rule of one of the says if there is confusion which when you have the district court judge saying there's no one reason to any of this it certainly indicates confusion when there is confusion that should go in the benefit of the defendant and in this case on a one to one would have been appropriate believe i think america on this is a quick conversion that i did this morning frankly i think it would be a level twenty to start and that would be eighteen levels lower then we started out ok even after booker read it and god tell us the district court has to correctly calculate the guidelines in the old way we've done since the guidelines came into existence back in the eighty's and we do that in cases involving analogues by finding the most closely related substance to the to the analogs so we have to we have to work within the context of the guidelines and that's the first step and as you pointed out with the district court was tasked with doing was trying to determine what substance that's already in the guidelines is the most closely related to am twenty two a one which is not and to that end the court received as mr say down mention extensive briefing on this issue from both sides and then heard all day long a full day of testimony primarily from two different expert witnesses a d a pharmacolog pharmacologist and then the defense expert who is a believe affiliated with the university and they both presented testimony to the district court and the district court ultimately looked at four things a binding assaye a functional assay of the studies performed on trained rats all very interesting and then forth these sort of reports from people human beings who had actually used am twenty to a one and who had experienced some of the side effects and so based on and after hearing all this evidence they just record says you know i agree with the government's expert dr trekkie who has testified that i am twenty two a one is the most closely related substance to c and one the things that the district court specifically addressed was the defendants plural the defendant's argument that well you know it's actually it should be marijuana and the court says we know this is illogical because you can't compare a single chemical am twenty to a one to marijuana which is an organic lead the green substance that contains many chemicals and in fact the expert testimony at the hearing was that marijuana the organic plant that that's grown in smoke by people contains between sixty and eighty different cannabinoids and the cannabinoid is is the type of substance that produces this effect you know actually mediate the effects of the th day and this makes the organic plant the leafy green marijuana very different from the sole standalone chemical and twenty two a watt and that's one of many reasons that the court ultimately adopted the equivalence say between the am twenty two one zero one and the t h c now once the court makes that factual finding which i would suggest and i've argued in my brave is entitle to deference on appeal because it is at bottom a credibility determination and a factual finding by the court once you get to that factual finding then the guidelines supply the one to one hundred sixty seven ratio and to answer your question  grams of the leafy green stuff that people and as the district court pointed out with those guidelines equivalencies do you know sometimes in many instances we have to convert everything to marijuana if you have a case where defendant only has crack cocaine and crack is on the the guideline of the quantity tables we don't have to convert to marijuana but we have to convert to marijuana if the defendant possesses more than one type of drug so if the guy has marijuana crack and ecstasy then we convert everything to marijuana because we need a common denominator you know that seventh grade math or fourth grade math probably now we need a common denominator what's the equivalency one to two hundred is cocaine and in the hearing the district judge specifically  say is two hundred versus one sixty seven a serious discussion but on that point during the evidence rehearing because the district judge and this is going to sort of factor into my argument later on how the e i think what the court was talking about judge first of all those comments were made i believe the ones you're referring to is where the in the early before the hearing even starts before any one staff defied the judge says i'm just going to tell counsel just so you know how the court is leaning that although the court might be persuaded the court is of the mind that the tables in the sentencing guidelines are what they are and that issue may be an issue for a higher court i think what the court you have to sort of read it in context with the court's later comments in the middle of the hearing the court defense counsel i think mr say thou was examining the witness on the issue of well isn't it true that the the crack guidelines have changed the judge in robson and says you know maybe i'm missing something here but you know this is a different type of ratio because this is the way the guidelines convert everything to the coin of the round which is marijuana and what the court was talking about i think at that point was how at some point when we have to do these conversions to get everything to accommodate nominator the guidelines have to to make it relative so as judge you pointed out what's cocaine is one to two hundred t h c is one to one sixty seven methamphetamine is something else we so it's arbitrary in the sense that it's one sixty seven but it's not arbitrary in the sense that t h c is one sixty seven cocaine is two hundred and methamphetamine is something else so i think what the court was talking about when it says the guidelines are what they are is kind of going to this argument that this court has addressed several relative by converting everything to marijuana they seek to outline the relative hong i think she's talking about in one sense where did we get one sixty seven well you know why not a million well because when they are when they're not arbitrary it's because she did she is one sixty seven cocaine is two hundred methamphetamine is something else l s d is something else so so there arbitrary in the sense that the question to the expert was where do we get one sixty seven and both experts said i don't know i mean i can't point you to a study that says synthetic t h c is one hundred sixty seven times stronger than the leafy green stuff but so what the court says is yeah there are arbitrary but they no question the courts aware of camberwell there's no question the court read this is not burns the case discussed in both briefs where the camera was decided after the court sentenced the defendant that's not this case was decided almost seven years before sentencing in kim variance was unavailable as a matter of law because it only applied in crack cases the government took the position that you know this was a good sense and that a variance was not warranted because of the dangerousness of am twenty two zero one the government never took the position that a camera variance wasn't warranted and so all this was extensively brave like is a dangerous drug it's a glaze just dangerous you know i guess that they're good for it that this is a good sentence because am twenty two a one is a very dangerous drug when you read the government's response to the defense attorneys or the defendants filings on camera particularly mr malone's filing on camera was the most detail the government's response is this is a dangerous drug and it details all of these stewarts of you know people die and they commit suicide and they have over days says and they have psychosis and this is a very dangerous drug you know again this this refutes the defendant's argument that well you know this is not so bad this is really no worse than marijuana and look how high the government did not have the authority under kim wrote a very no no no no we argued out of the air for convers know judge because that would affect the calculation of the guideline range well that that the court can vary from the guideline range based on a policy based disagreement with the guidelines but that doesn't mean that you don't calculate the guidelines  calculate the guidelines using what's in the guidelines once you do yes and so my position is and you know there's and i know it's just a district just well for right this regard the can say well you know this comes out under the guidelines is a level thirty that's way too high because i don't think the stuff is so bad or i think that this is the one sixty seven has no basis so you're not you're not  changing the manner in which the guidelines are calculated but you are is just taking about the points out changing the result and this is exactly the argument that was presented to a district court in the middle district of alabama it's a case i cite in my brief because it's dead on  it was an analog case in which there was an issue on potency that the the unlisted substance was not as potent as the listed substance and so the defendant wanted the district court to apply different ratio and the district court i think correctly said no i calculate the guidelines using the ratio supplied by the guidelines and then that second question is left for a variance and i think that's that's what the court had in front of it and the case law in this in this circuit and in every circuit is is extensive on the fact that the court never has to vary it doesn't have to disagree and it doesn't have to vary  on in malone's reply brief supporting his argument that there's a difference between a variance and a departure or a deviation and a departure jacobs that's the jacobs case jacobs says the guidelines sentencing it's a two thousand and eleven case post booker says it takes place in three steps the court calculates the guidelines the court considers specific offender characteristics and available grounds for departure under the guidelines so the five k and the  categories and then applies to thirty five fifty three a factor of it so it's our position that you have to read to sell the cell is an unusual case it was a government appeal where the court departed to a greater extent on grounds other than assistance and in judge jones opinion it is that this court reversed saying no no you know if a five k departure is meant to address substantial assistance related factors only and i would suggest to this court as we do in our brief and many other circuits are recognized as well that the district that's a one way ratchet the district court always has the authority to limit the extent of a departure to account for valid thirty five fifty three a considerations and that's exactly what happened in this case your honor that the district court conducted sent evidence there was a ruling in the sense that the court says in the sealed proceeding i grant the government's five k mission then later when we get to stand and sing the court basically pronounces a bottom line sentence if if you're asking me did the judge say am giving you thought the the government filed a generic motion and then a more detailed member of the men and granted no granted it not to the extent recommended by the nothing to do with assistants she looked at the relative culpability of the defendants relative to each other she looked at the she looked at them she says i look at their relative cooperation the value of their relative cooperation a a downward departure on the basis of factors other then substantial assistance alvarez talks about once the district court validly decides to depart meaning considers valid factors in making the departure decision motion then later at the open sentencing hearing it says i'm granting a thirty percent departure instead of the government's requested fifty percent impartial so there there is a ruling to that extent thank  on the five k one point one the factors that are supposed to be considered by the court are never even mentioned we have a sealed hearing in which the court does rule that it's going to grant the motion without any indication whatsoever what the court is going to actually do in the departure extended departure we're going to set in saying green goes first then malone handwriting is on the wall thirty percent from the top of the guidelines not any mention again of the factors that are outlined in five k one point one just thirty percent from top of the guidelines the government said fifty percent from the bottom of the guidelines difference forty nine months without a word being one sixty eight forty nine months approximately do you do you agree that the other circuits that are considered this have held the non assistance related factors can be considered to limit the extent of five k one point one departure i do but i don't because this court and the other circuits have made it clear how that comes into play the government in a letter to the court just recently in fact it in a per curiam opinion that judge jolly was involved in and i realize doesn't have presidential value but the government did reference that this court says in reference to the sound noting that a district court could consider other factors to determine the amount and significance of the assistance provid as long as the ultimate extent of the departure was based soley on assistance related factors are certainly not based on assistance related factors there's nothing in what the court said on the record that even spoke to assistance related factors it was other matters outside five k one point one substantial assistance which guided the court on its thirty percent from the top of the guidelines and there's an extensive difference between going back to the other issue between departure invariants the court told us at the time of the five k that five one point one sealed hearing that that was all for that hearing that was it we're not going to be arguing that again when we get it sent thirty five fifty three a was argued at sentencing thirty five fifty three a and compas is downward variances in compas is kimber those were the arguments made not five k one point one court never speaks to variance never speaks to thirty five fifty three a speaks only thirty percent not assistance related factors and that's procedurally and reasonable that's the way it's called the entire sentence and substantively and we should