her conviction it should remain hands to the district court for a new sentencing hearing using the clear and convincing standard of proof to determine the appropriate amount of methamphetamine to be attributed to myself to fund so i'll begin with the closing argument critical that miss bill de francis defense of this case was focused on the requirement for there to be a meeting at the minds missile defense so admitted that she had accepted certain amounts of money and cars from the individual who was wanting her to import methamphetamine but she said that she never intended to actually follow through on the importation and so essentially she admitted to all of the facts that the government argued in closing argument constituted a committed  crime that's because the government did not make clear to the jury that they needed to also prove that there was a meeting of the minds meaning that missile defense so intended to help the conspiracy i'm looking at the government's argument the way that the usa started out explaining the charge conspiracy what does that mean conspiracy means an agreement it's a meeting of the minds it's very difficult to prove a conspiracy to prove what's in someone's mind with direct evidence so we tend to rely on circumstantial evidence yes it goes on to talk about the circumstantial evidence that seems like a pretty standard way to argue a conspiracy charge based on circumstantial evidence of what was in the defendant's mind yes your hon and that initial explanation of the law was certainly cracked as were the jury instructions the concern is with this particular portion of the closing argument which the government didn't address in its answering brief at all and if this particular portion of the government stated that it was a merely was my explanation from listing the facts and saying that that was sufficient for the conviction which it's not under escobar deprived the problem was exacerbated by the district court overruling the objection which specifically said that this was  misstatement the a u s a say that the circumstances were sufficient to establish a conspiracy or did the usa argue that the circumstances constitute evidence conspiracy your honor i think the problematic phrase was that is a committed crime and so that's not the same thing as saying you could infer from this that there was a committed crime they were saying all of that is a committed crime if this court were not to agree that this particular statement made in closing argument rises to the level of prosecutorial misconduct this court should remand for a new evidence here hearing using the clear and convincing standard of proof to determine the amount and the methamphetamine that's attributable to attributable to missile defense though and that's because this conclusion had a disproportionate impact on missile defenses sentence now the government's argument is that this increase in sentence was based on the extent of a conspiracy and therefore the preponderance standard was appropriate but there's a predicate question that the court answered which was absent in harrison felt hot the case where this idea that a conspiracy conviction can use the the evidence standard and that is the question of what is the extent of the conspiracy for missile just bill to fund so it's not at all clear in this case that this particular load was related to the conspiracy for which  she had actually been put to trial for both the importation of this load and the conspiracy and she was not convicted for this particular load so that means at least one juror did not think that this particular load was a part of the conspiracy so the question that the court was answering when determining the amount and quantity and purity of the methamphetamine attributable to missile defense so was necessarily different than typical drug cases where we know which transactions were a part of the conspiracy and we're just determining the quantity involved in each of those transactions here there was a question as to whether this particular load was even a part of the conspiracy and that's the question that actually had the disproportionate impact on  question that should have been answered using the clear and convincing standard of proof rather than the preponderance of the evidence standard importantly the judge recognize that he may have come to a different decision if he had to use he said that beyond that reasonable doubt standard of proof but in that he's recognizing that there's a degree of uncertainty here and that this court has previously recognize the difference in the standard of proof between preponderance and clear and convincing  different outcome here and that's why this plane air requires reversal if i could also highly a few more factual differences between this case and united states versus harrison philpott i guess that's the case where the this court had it first decided that quantity determinations for conspiracy convictions are on a different plane in that case the individual mr harrison was actually given an enhancement for a leadership role as a part of the conspiracy she admitted through testimony on the stand that harrison was involved from the very beginning of the conspiracy and so the question was really the amount that each of these transactions involved but there wasn't any question that she was at that he was completely involved in every aspect of the conspiracy the same cannot be said for mr l to fonzo who contested first the contest of her involvement with conspiracy at all and certainly that question was decided by the jury but she also contested whether she knew about this particular load and that question was not decided by the jury in fact leaving some doubt about whether this load was a part of the conspiracy so factually it's a very different scenario  than the united states versus harris help it's also different from the later case from two thousand and two united states versus roe sachar which the government relies on to say that drug quantity determinations are very different and roast hacker the individual with had a methamphetamine lab in a shed there was no question that all of the chemicals in that shed were involved in the if he was the only person who is involved in the offense here we have a fundamental question about whether the load of methamphetamine was a part of offense and that was why it was not appropriate for the court to to determine that that would load was necessarily a part of her conspiracy now to be fair the judge had not said that he was looking at that particular load sentencing hearing there was a back and forth between the defense attorney and the judge about what was the appropriate standard it's clear that no one actually knew the law and there was no consideration of these factors which are drawn from united states versus georgia so we are on plain error view here but the factors under jordan when they're applied here clearly fall in favor of missile to fonzo this had a dramatic effect on her sentencing range it went from seventy eight to ninety seven months up to two hundred thirty five to two hundred ninety three months that's a ten level increase more than doubles below and and it actually puts the majority of the range outside of the statutory maximum with assistance so all of those factors show that this is this should have been proven with clear good morning your honors may please the court and really keep her for the united states the conviction here should be affirmed first throughout both its initial and rebuttal closing argument before during and after the lone defense objection at issue were sufficient by themselves to constitute a crime starting at two forty six as your owners have noted the united states embraced its burden to prove a meeting of the minds at yard two forty nine it likewise expressed it objection that's at issue here were several that supported the defendant's intent as an initial matter the united states noticed that her allies and readily observable nervous behavior on the day of her arrest there statement that the defendant really relies on the two fifty line twenty one all of that is a committed crime what do you make of your own i believe that's a correct statement of the law and of the facts of this case so the united states talks about its burden to prove missile defenses intent then the united states talks about the evidence that proves her intent only after talking about the evidence of her intent including her lies her nervousness including the fact that she had asked her co the type of drugs that she would be importing at two forty nine the united states are used to the jury if she's not really intending to join this conspiracy if she's just pretending why does she even care what kind of drugs jorge will eventually want her to important to the united states only after talking about its burden marshalling the evidence that tends to show missile to fonso harbor the requisite intent only then united states start starts to talk about ms ildefonso his behavior before the day of her so before the day of her arrest as the united states noted she met with jorge she understood that or he wanted her to smuggle drugs that or he would be giving her money and cars she accepted the money and cars so after having set forth the was talking about the evidence that established both of those elements only then to the united states that would state that that was a committed crime and that was what drew an objection and the united then pivoted and went back to the intent again that miss ildefonso displayed on the day of her arrest specifically her nervousness and as the prosecutor pose if she's never intending to join the conspiracy why is she lying why she nervous  throughout the closing arguments and i would note for your honour's that it is a rather short closing argument it's eight pages long from the beginning through to the end from forty six to two fifty three the united states acknowledged this attack intent multiple times and marshal both the circumstantial and direct evidence to show that she had committed that crime and nothing was improper either a misstatement of law or fact in any of the united states closing argument and likewise in a bottle closing the united states expressly dealt with ms ildefonso us and her her theory of defense which was that she had never intended to join the conspiracy specifically the united states noted that that was an implausible theory of defense that it would require the jury to believe that a sophisticated drug dealer would allow himself to get stripped strung along and would also require the jury to believe  didn't believe that this drug carrier was carrying drugs in her support i agree that there was must have been at least wonder who did not believe beyond a reasonable doubt that  arrest intended to import the drugs that were found in her car however as to the conspiracy count based on the substantial evidence introduced including her post arrest statements including her testimony at trial it was a s lished that missile defense so joined a conspiracy with jorge with the requisite intent that she knew what the goal of the conspiracy was and that she intended to accomplish it and that was what the united states laid out for the  i understand the law what you're allowed to presume from your conflicting verdict but it's rather remarkable that the jury leading up to her arrest were both criminally oriented as to their action and as to the intent then when she actually did it they were well so i think it's important to look at ildefons to moni so ildefonso testified that she felt pressured on the day of her arrest and one of the points that the united states was making in its closing argument was that she harbored the requisite intent prior to her arrest she was asking jorge the kind of judge she would be importing in the united states a view that indicated that she actually was joining the conspiracy and the actions that she undertook prior to her arrest demonstrate that she was part of the conspiracy so regardless of what she felt on the day of her arrest in terms this case is on plane air review on this particular issue after jordan was decided this court has repeatedly affirmed that a preponderance of the evidence standard applies when determining drug quantities in the context so this court repeatedly post in jordan and the six factors that jordan analyzed has stated and affirmed that preponderance of the evidence applies when making drug quantity determinations here and there was adequate evidence even under a clear and convincing standard to support that the defendant here was responsible for the drugs in her car so you can get there one of two routes the defendants responsible for the amount of drugs here is the amount of drugs with either reasonably forseeable to the defendant or if the defendant actually knew that the drugs were in her car so proceeding on the route of whether they were reasonably forseeable as the district court noted this defendant prior to arrest knew that she was getting involved with a drug smuggler who used cars to cross the border cars are large conveyances that have the ability to hold the sort of drugs the drug quantity at issue here and when coupled with the defendant's nervousness on the day of her arrest and the lies on the day of her arrest the district court found that both the mound of drugs was reasonably forseeable and that the defendant actually knew that the drugs were in her car so under either route whether it's preponderance of the evidence or some clear and convincing evidence that the defendant was found to be responsible for the amount of drugs in the car on the day of her arrest and the preponderance of the evidence standard is appropriate even if you were to take an independent look at the six jordan factors four of the six mine up in favor of applying a preponderance of the evidence standard here so we would submit that preponderance as appropriate this court has repeatedly so held and even if it were not appropriate the defendant has not shown any prejudice because clear and convincing evidence exists either to show that the amount was reasonably forseeable or that he actually knew that the drugs were in her car i have two brief points first as to your honor's question about what this jury would have done if they hadn't had this and proper argument i think it's important to know the beginning of this argument or to fifty the government stated that she never fully intended to join th conspiracy because she felt threatened and so listening to this this is part of the can be inappropriate argument the government is basically trying to say that if the threats were the reason that she's saying she wasn't part of this conspiracy they came too late by not acknowledging that the meaning of the mines had had to have occurred before and the threats the government is undermining missile defense those defenses to the conspiracy charge and clearly they believe so as to some of her testimony about these threats because they didn't convict her of the importation charge one period at least at least one juror we don't know how many but at least one juror believed that so that's why it's critical that this confusion about when the meeting of the minds had to have occurred that was a critical part of missile defense as it undermined the government's burden of proof as to the argument about the two ways that missile defense oh could have been held accountable for these drugs that  actually goes to the jordan factor about undermining the guard the government's burden of proof in the presumption of innocence if the government wanted to hold missile defense or accountable for these drugs under the theory that they were reasonably forseeable to her as a member of the conspiracy they could have requested the pinkerton charge as part of the jury instructions they did not do so so allowing the government to use this type of argument at sentencing to hold her accountable for drugs that they weren't able to convict her of at trial would be with had the low end of seventy eight months and so we believe that the court would have still very downwards based on her expertise and her long history of in the united states are positive history of educating herself working hard and being supportive for her family so because there was such a great variance from the range that was calculated it's reasonable to conclude that there would still be a variance with the lower range and of course miscalculating the guidelines is always