the agreed upon guideline range fifty one sixty three months the hundred twenty six months sentence followed by ten year supervised at least imposed by the district court henri man from this court's prior decision represents an extreme were variance to twice the high reviewed considers the whole the whole sentence i mean so you're not challenging the procedural aspects of the computation of the guidelines you're just attacking the reasonableness of the sentence i'm challenging the procedural if the procedural and reasonable news of the sentence because in writing well that was there's no such thing as procedural and reasonable if that goes to the substantive reasonableness of the sentence that was imposed what are you what did the district court do wrong in terms of its computation of the guidelines it didn't do anything know you don't challenge the procedural i challenge the procedure that was used but based upon reliance on facts that were not in the record clearly erroneous facts such as the fact that my client did not appear that he failed to appear for deportation proceedings  that he had two prior convictions that had failed to deter him and it's my understanding based on united states v card he did have two prior marijuana trafficking convictions at that on the date that he was sentenced for this offense is that right facts that we relied on that weren't in the record now well that's the problem i'm having with your argument is in reading the transcript of the sentencing it appeared to me that what was of most concern to the court was the quantity of narcotic methamphetamine that this drug trafficking organization was responsible for distributing in the beauty area and and that gets i thought that was the thrust of your written arguments that that basically  the court exaggerated the amount that was attributable in violation of the mandate from our prior reaming did i understand your argument you are absolutely correct as i have three independent basis why you can  reverse the district court decision to remand to a new judge recently the mandate is exactly right the mandate of this court could not have been clear and i understand that the two of you may not have witnessed so he agreed with that prior decision but it is a lot of the case well that's why i asked you about the procedural computation because it appeared to me that the district court honored the mandate by capping the quantity that was attributable to your client with regard to the possession with intent to distribute of less than fifty grams which is what drove the total often score but where i have a problem with your argument is the district court focused upon relevant conduct of the drug trafficking conspiracy which your client clearly was a member of and i don't think you're challenging that and the court's concern that your client was the source of supply and that this particular conspiracy involved multi kilos quantities of methamphetamine so in light of our case law that says that even acquitted conduct can be considered as relevant conduct and in the pinkerton theory that establishes liability for all acts of coconspirators that are reasonably foreseeable at the time the defendant joins the conspiracy how did the district court err in considering that evidence there's a couple things there and i'll try to hit them i think as i read that the prior opinion it's based on is not based on the court did not say judge you can't calculate the guidelines based upon the drug amounts are rejected by the jury what the the court said what this court said it remanded with the specific instructions that the defendant be recency on the premise that his crimes involved less than fifty grams of drugs i mean that's a specific extract but so far did that i mean i have to say our prior panel opinion is not very clear on this point but the court did that with regard to the computation of the guideline off fence level for both counts but then it departed based upon or it decided to impose consecutive sentences ago to be a more accurate way to put it based upon the of course to park upward from the sentencing range generated by the jury's findings so clearly understood that the district court retained its discretion to consider other factor is other factors other than is court instructed the court that he be reasons on the specific premises that his crimes not exceed fifty grams of drugs and the district court did not do that the district court sentenced based upon substantial amounts of methamphetamine but i'd like to go to one other thing if that is that i mean how can you make that are you in the face of fifty gram limitation driving the quantity in the computation as to both counts that's where you're losing me on your argument the not instruct the court how to calculate the guidelines instructed but keep but you agree that he did calculate the guideline range based on less than fifty grams of methamphetamine do you know i do agree that heat i'm not saying he didn't calculate the guidelines correctly i'm basically saying the overall sense is in violation of the mandate where it was specifically said that he's supposed to be resentenced on the premise that his crimes not exceed fifty grams i guess i guess maybe the problem we're having is we're not reading the prior panel mandate or opinion the same way you are i read that to mean the district court must compute the total off ants level using no more than less than fifty grams which is what the district court did i think what you're saying is that that prior panel opinion should be read more broadly to say even under relevant conduct the district court was forbidden from considering the total amount of drugs that were distributed throughout the period of the conspiracy if they were otherwise reasonably foreseeable to your client and i just don't read that the panel opinion to preclude the district judge from doing that that's exactly what i'm saying ok he was  brought it's based on the sixth amendment and you know it saying that he cannot when a jury makes a specific finding of fifty grams that's what the sentence should be based on of course there would be other reasons and other ways for the court to vary upward but there aren't any such challenging the amounts that were attributable to the other coconspirators that are set forth in the pre sentence report not as not as to them but that those all those defendants pleaded guilty so i so if this defendant was the source of supply and if you don't challenge the quantities which are multiple quantities attributable to the coconspirators where's the beef here the beef was that the jury specifically distributor the government certainly argued he was the source of supply and there was testimony in the record to support that factual conclusion was there not that when there's the jury verdict there's no way the jury could have found its verdict if it believe that testimony if there's no way that there's no way for a jury verdict of less than fifty grams well i gree with you i meant a loss to understand in the face of the evidence that the jury heard how they arrived at less than fifty grams attributable to your good morning your honors you know baucus the u s attorney's office in billings montana on behalf of the united states that the district court did not violate the expressed terms nor the spirit of the mandate when a recent human to lopez in october of last year it did not make a drug quantity finding contrary the german jury's determination in fact the question presented in the june two thousand and seventeen amended opinion from this court was whether a just record was in entitled to make a drug this clearly contemplating that a defendant here was involved in a project or an enterprise that involved a great a large quantity of drugs now could the court consider that large quantity of drugs given the jury finding that the defendant himself could not be held accountable for more than forty nine grams i think record would support the fact that large amounts of methamphetamine were walvis conspiracy but that is not the same as actually making a drug finding it's our position your honor he was entitled to consider relevant conduct on the freeze discussion you're right there is a passage from the prior opinion how  circuit as to whether a district court judge is always precluded from sentencing essentially within a zero to fifty range if that's the jury verdict finding that is can a district court judge sends her mortem out great in that next sentence a district court judge of course may depart upward based on the jury's finding as a drug amount and while your honor's are exactly right this isn't a upward departure it was a consecutive sentence on the high end of the guideline range but the the the district court was more than entitled to make a and making a finding that a sixty three month consecutive sentence was sufficient but not great or necessary in this case there's a lot of information contained in the p s r your honor that was not objected to a sentencing i'm from ation they're related to the defendant's role in the conspiracy he was the driver of the conspiracy he was the supplier of the conspiracy it's easy to kind of go back and say that drug amount is really the only thing that a court should look at and sending a drug conspiracy but that's not the case we don't often sentence drug mules for example d when we sent them into lopez in october of last year and that is with the district court did the panel noted his prior convictions that's exactly right he had two prior felonies om at the time he was sentenced to drug trafficking fined felonies one was i think for two point three five kilograms of marijuana there is the there is ample information contained in the p s r master his role in the conspiracy is information is not objected to that so i think there's ample evidence to support a high end guideline range thank you i want to your question about the procedural henri's will miss perhaps i misspoke misspoke what i'm talking about is procedural error about requests relying on facts that are not of record cardia page ninety three says it's automatic reversal to rely on a fact that's not a record here we had the question though is with regard to the error in connection with the failure to appear for the deportation proceeding even if that was error clearly what was animating the district judge was the scope of the drug trafficking activities that were before it and even if here only asli considered that to me that appears to be harmless error well there we also have the fact that again that the government's asking for an extreme upward variance based upon the fact that he was not it's not an upward variance what you're really quarrelling with is the district court's decision to string the two sentences consecutively however you want to phrase it phrase a judge we're looking at the total the total sentence i mean it looks to me that what the district court did was look at the remaining mandate and say ok i have to compute the range based on less than fifty grams and he did that and then in order to address what the court thought was the seriousness of the defendant's conduct and his role in the conspiracy he decided to run the sentences consecutive in order to arrive at a sentence that was roughly half what he had previously sentenced him to that's sort of how i read the record is that fair i go back to the instruction that the the instructions that defendant beas upon the premise that his crimes involved less than fifty grams of drugs but but the panel didn't say you can't impose a consecutive sentence and that's what he did he stayed within the range picked i mean it's a clever way to sort of work around the mandate but i don't think it violates the terms of the mandate if the court otherwise retains its discretion in imposing their fashioning an appropriate so i would just go back to that i don't understand the purpose of the  panel's prior opinion if that were well it clearly resulted in a lower sentencing range because the first time around the range was much higher was it not because he attributed what four point five kilograms to your client that's correct and i would argue that he did