of the court on the application of three b one point two which is commonly known as the minor role mitigating factor under the guidelines in the district court the fact that sentenc clearly reflected that his codefendant mr suazo molina had a far greater role in the methamphetamine deal that ultimately led to both of their arrests because of his minor role of mad offense we argued that he should receive some reduction it's interesting because the most of the case law involving the application of this reduction comes before the sentencing commission actually reached a they did it and then and the reason for that amendment was that it wasn't being applied in a common manner it wasn't being applied consistently so the citizen commission gave us five factors to look at when we're considering whether someone should receive a minor role reduction understanding of the scope and structure of the activity which in this case it's clear that mr suazo molino the code that was involved in the set up he was involved in the sales and promotion involved in the price negotiation he was involved in the logistics of the delivery and the actual delivery and it's only about the livery where  get how much does it cost when will it be here where will it be all of those conversations are with the codefendant never with mr greg dale in the fourth issue the nature and extent of participation in the acts that were performed against same argument that as this deal is progressing and the interval parts of this deal are being big my plan is not hard and then finally the degree of benefit when the confidential informant is making a price negotiation with the to be eighteen thousand five hundred dollars for the methamphetamine and a thousand dollars a livery that's consistent with what my client says he ends up with which is the thousand dollars that the degree of benefit while it might be great compared in a vacuum it's certainly not sell for someone who could be considered sort of a corey or a delivery person did not get the role reduction but there was a partnership between math person and his brother to set up a deal that's the real issue in this case  client server limited function in the in the in the case he was in the role of not only it wasn't even a drug korean it's truest sense of the word because he didn't actually deliver the drugs he was just along for the ride there's no evidence so i don't think that's a factor at all i think the factors we have for what the government presents is their investigation what they say happened and that really all were left to do have big that's exactly what the commission is a it's a lesser sentence the problem with the way we phrased it just now is that i will never win that argument because i was there then we would have to go with a sort of almost investigative negative what i have to rely on is a series of investigatory steps taken by the united states government that point the finger at someone who was working on behalf of his i think the brokers however were to him a mexican drug trafficking organization out of atlanta and we have my client who just shows up at the end if there was something in the record to suggest that he was the man behind the deal when doesn't the other defendant saying that but that's the only thing he said all the other evidence points to what arrested in this case where did this come from and in this case better than in a historical evidence case where we have a picture of who operating informants we have actual government steps where the united states government by a confidential source and says target this drug the greater role in this or is it more likely that the person did all of the business that required to get the methamphetamine from cellar to bar he served as the sales promoter the sales negotiator the price negotiator logistics manager and then finally the delivery that i think this is the evidence in the just in the p s or a line that no one objected to really does point to while the movie you know under a preponderance of the evidence being a greater role in this  in mr kendricks argument that he's just may he left out an important advisor that is contained in application of three eight of the guidelines that adverb is s leigh less culpable than the average participant in the criminal i said let me stop you there because this is helpful to me i'm trying to figure out what the government's argument is whether you are arguing that as a factual matter we can't tell what the defendant did and didn't do or whether you are arguing even assuming it is as it appears to be from the p s r that the defendant came in at the last minute and once occur you know co transporter and curry are still not entitled to the reduction mean the government didn't object it is certainly the more natural inference from the p s r is that the defendant was brought in toward the end to do the transporting and i will get even if i i would agree that you're on a silly my interpretation of the s r i don't think is that naturally he his story is more is more really because i thought it said that the confidential informant when after the codefendant because the confidential informant had heard that the codefendant was a broker for these groups in mexico that the present report indicated that the combination source didn't make contact with was only the first isn't it and and so that that that is what it that is what it said but if you look at davy jones version of it that  the statement he gave containing the p s l he says that this was a molina approached him to deliver initially two bundles of cocaine he says that he was he was close to you and there's if there was a discussion that shows that he knew what was going on he was not an unwitting accomplice is that what you're getting just i was not innocent perino he's guilty over it and i also think it's not very credible i don't think it's credible necessarily that he just happened to overhe something that i think if he acknowledges in a statement that he was close enough to the source of supply from texas knew the quantities of what the discussion entailed at a minimum that he is involved more particularly with the set up let me tell you i have so many problems with this case if the district court had said all of that i would be way more comfortable i cannot figure out for the life of me what this district court decision rests on i and it's very difficult a i'm just going to be totally candid i have a particular concern that the very last thing the government says before the district where it says ok i'm ready to make a decision is that it relies on our old white case which is pretty the amendment and it says that look i'll assume he's just a but that in and of itself under white in and of itself that's enough because without couriers you don't have distribution that part of white clearly superseded by the amendment right and i see that you're not citing right in front of our court well  integral role thing that it is not in and of itself enough and so my concern is that's the last thing the district court hears then the disregard says look i'm ready to roll two people pointing fingers at each other i'm done and it makes me very nervous that the district court might have been relying on white and that would be a legal letter and i thank you so much for that question because that's important one of the cases cited was the castro case which does stand for the proposition that pursuant to amendment seven ninety four that obviously is no longer  i would respectfully suggest that the what should be the thrust of the examination is did mr daley own meet his burden of proof by a preponderance of the evidence to show that he was substantially less c than the average person participant and under the facts as presented to the district court during the sentencing hearings in the district court clearly there in other words was the district courts believe that that the evidence was i guess of there was no independent corroboration i think was was a phrase was that believe that basically it was a tie that you have to fend pointing the finger at each other was that a plausible finding and white of the evidence presented at the sentencing he and i think your honor that if that is the lens through which this court examines what occurred at the sentencing hearings i think that it is it is clear that the court did not err alone clearly or some of the question i think under clearly erroneous standard but what's the difference between being stated on the record and being a parent from the from the record what legal significan i would argue that so long as you have copied it so as to what the finding is under the apparent scenario that you have that you raise i don't think there's much significance on the there's much difference in th reduction credit if you actually didn't know this was an illegal enterprise if you were in fact innocent you had not done anything intentionally wrong i mean there's a big chunk where the disregard is sounding like that's what the standard is and then there's this discussion of white where  it's just going back to that integral role theory and so there's a lot of stuff on the record that gives me apprehension about what the basis for this decision was and then you get to the explanation and it's at best terse and i don't i really don't understand this idea that there's no independent corroborating evidence because i would have thought the t s r is at least worth discussing at this point that there is some evidence here and you may you may not think it's enough to get over that but it's not that there's nothing there's the whole p s r and so i'm very can i am left sort of unsettled by if you look at the entire look at the entire record as relates to both theories judge chiles the district court and i wrote down references to the record that the district court at the appendix pages thirty three thirty four discusses the five factors contain in three application to see the five factors that were added pursuant to him and member seven ninety four there is a discussion of the fact that she uses those words sco the activity benefit the defendant there are there are specific references made to those facts that is one example of how the district court house by amendment hang his hat on that he wasn't the one who set up the deal and the court can really delve into that very very carefully and in me in the record you would probably notice that she asked me she said miss warming tell me about how this this set up how this is really significant why isn't this important and i gave the example of the wiretap but i think the judge was also asked about how maybe maybe the fact that that was a million was a point of contact indicates or another spin is that daley known was really the man in charge and didn't want to be  e get his hands dirty with with the drug so i think if you look at the record as a whole i think that the district court very carefully wide the factors contain pursuant to amendment seven ninety four because just because that was the last concept that was mentioned before the judge decided to rule i don't i agree you can't make a strong i'm just given the brevity of the holding i'm sort of looking for i'm done trying to do what i think judge wilkinson is exactly we should do cuts both ways and i think that bad i think that because it cuts both ways i think it it cuts in favor of the government under a clearly erroneous state it's not them overwhelming outlays of evidence it's something we can see something of something and then when the course says there's no independent corroborating evidence we are in a procedural posture on a case where the evidence has been set out or this agreed with the district court i think there's a step on the record as a parent because when we don't object to the p s are we we don't get to do something different we don't get to present the piece of evidence unless someone  reasoning if we see what you're all in your whole argument depends on the fact that you could only conclude on these facts that your client had a minor role doesn't it does and i view it from the fact  that each of the backers by the commission that there will rarely be a clearer case for the application of the reduction and that's just based on what the commission told us and in fact if we don't apply it we get right back to the problem