good morning your honour's counsel may please the court my name is adam stephenson and i am with the attorney for public lopez the question here is whether mr lopez was properly designated as a leader under the united states sentencing guidelines and i think it appropriate to discuss a straight reference coming out of the p s r that a law enforcement officer characterized mr lopez as quote the man behind the curtain and then that phrase was repeated at sentencing both by the government as well as the district court but in reality here one of two things happened either the curtain was actually never pulled back not meeting the government's burden by preponderance of the evidence of demonstrating leadership here or what amount of curtain was pulled back showed a man not a wizard it was not that leadership necessary for the fine and the there's are a number of standards that the court uses under noble with regard to the leadership standard and this is with regard to the level of control  leadership not the number of individuals which was met here but instead that the amount of leadership or lack thereof and its any of a number of things from recruitment greater proceeds of direction and control so on and so forth i like to sort of summarize those as the individual has more money they bring in more people and they have more control sort of three pots of information and all three of those pots really are not present here and we're not demonstrated by the actual evidence in the record on the government made several claims in the case with regard to mr lopez's degree of control his alleged recruitment of individuals and so on what they see did to actually did not demonstrate or meet those claims they cited to the original criminal complaint  involved in the overall case before this was separated into a separate case and that is occluded included as appendix b it also cited to miss and we all know santiago proffer wherein there are summaries of her grand jury transcripts as well as correctly actually is a good demonstration here of what would meet the standard for leadership in a case like this the government relies on the case to demonstrate that recruitment perhaps enough would be would be subject or would be capable of demonstrating demonstrating leadership here that is an important thing although that's actually not enough in that case the individual not only recruited multiple individuals into the criminal activity but also provided extensive training and extensive direction and so the the actual factors and how they played out in that case i think are important because that was not present here and secondly you got to actually involved in today's sentencing hearing involving actual law enforcement testimony multiple proffers and multiple valve proffer statements as well as what this court characterized as extensive evidence in mr lopez's case all we have are the wiretap summaries and as the government itself concedes there is not a greater share of proceeds demonstrate the record behalf of mr lopez so with regard to more money that's not present with regard to recruitment it's pretty clear that there was no recruitment on behalf of mr lopez despite characterizations to the contrary for example  lopez organization sounds like he's an organizer with meter short hand poor choice of phrase your honor but lopez and lopez real substantially the way this breaks down is lopez and lopez rios were approached by on quijano on behalf of mr used interpreters with mr given it's yet her relationship with mr givens greatly appreciated any relationship or ongoing activity with lopez and lopez rios yet the district court actually held and stated that mr lopez recruited recruited the nieces to be involved in the activity whereas miss and we all know apparently did not speak english or sufficient english to engage with mr givens an individual she had been working with and effectively was an independent contractor for well before either of the  brothers were involved so it strains credibility to believe that mr lopez was the instigating cause for the nieces to become involved let alone no other affirmative evidence of that fact with regard to the control so i've talked about more people i've talked about more money with regard to control the possible individuals here are givens career to which there was no direct communication or connection with mr lopez frankly or with on we on or with  apart from during the actual deliveries given some self which is that of a leader and sort of the central figure in this particular case had multiple suppliers they were all supplying him distribution quantities of controlled substances the government characterizes lopez a sort of the individual who dictates certain things to givens whether it be locations or dates of transactions or any of a number of things but again when you sort of look at the underlying psyche sions and the actual and the summaries contained in the complaint instead what you have is just a buyer seller relationship for example on appendix b eighty six through ninety six there's an ongoing discussion between lopez and givens where there's a discussion of terms that is one correct application there are situations like in weaver for example where this court discussed that the ongoing relationship between a buyer and seller perhaps not in sort of as formal a characterized as well as knowledge of extensive transactions and ongoing activities and sort of down the supply chain sort of uses for the controlled substance was insufficient for a leadership fight so while the buyer seller the more the more sort of formalized or formally characterized argument is through towards conspiracy the nature of a just strictly buyer seller relationship is insufficient there needs to be more there needs to be that demonstration of control as this call to state it telling people what to do when it's done and determining when it was d successfully right and the district court made those findings here based on the wiretap and other evidence in the case that your client is a chemo quantity supplier to givens who's downstream in the organization and it's he's the one who cut out recordings that that's a director is like there's enough for a leader organizer here base those were the district court findings however the problem with that fact is that when you actually look at the wiretaps those findings are not are inconsistent with what the actually show similar to the situation with regard to the recruitment of nice's there was no evidence where mr lopez was the instigating cars or the niece is being brought into the organization similarly with regard to characterizations of exclusion of are there are the actual wiretap evidence demonstrates that both individuals removed her from that's on the complaint to pages seventy nine and eighty so well that's your argument we have the district judge making the findings that he secured lopez security services other delivery people yes we're saying that this management were saying that those findings are there absolutely and clearly erroneous given the actual evidence in the record they are not plausible given the information in the  record and those are again with regard to the control over and we all know with regard to any control dynamic with regard to his brother bacilli zero with regard to any control dynamic with regard to givens with regard to recruitment those are almost based upon characterizations made by the government that do not putting them together takes him out of the leadership credit he exercise no greater control over the organization relative to the individuals it was givens as a downstream supplier receiver of controlled substances miss andriano is an independent contractor and good morning ma'am please the court and counsel my name is roger lott i represent the united states in this matter we're here on a claim that the district court clearly erred in applying the organizer leader enhanced meant and i submit that it did not because it found several facts it in a detailed oral ruling that spanned several pages supporting the application of that enhancement i want to tick off a few things and i'd also like to respond to some of the defendant specific arguments here it's clear that just report found it's supported by miss angry on his own statements as well as corroborated by the contemporaneous wire interceptions that it was the defendant who first had to approve supplying givens throughout the on a she approached the sileo lopez rios but they couldn't move forward until mr lopez rios received the defendant's approval and then later when he became suspicious of and when i know it was the defendant who made the decision to exclude her there are references today on the wire taps summariz andriano says it was the defendant and i submit it's not unusual to refer to an organization in the collective a time driving in breaking out who that exact decision maker was we also have the fact that the defendant was the one who called the shots with regard to the relationship with mr givens and that's why i want to clear something up the district court did not find that the defendant was a leader because he was directing the activities of mr givens with the district court found is that the defendant clearly held the highest position in the lopez lopez rios and we on l and other courier conspiracy because he was the one who had the authority to say for example this money was short but i'm not going to collect on it this cocaine was inferior but we're going to submit you know come back and return it by contrast the conversations that mr givens had with the serial lopez rios were low level ministerial you know i'm around the corner i'm almost there to make the delivery and then there's this third factor which i think is very important that the district court found recruiting other couriers after and we are no became unavailable because he kicked her out and other people made those deliveries and in one of those phone calls it summarized in the government's brief page sixteen to seventeen mr lopez said he was sending his niece to make a delivery and then i had a female would never previously come up with part of the investigation was observed by surveillance actually making that delivery so i think it's a very well corroborated statement i think the confusion with the nieces comes up because mrs andriano also relied on some of her nieces to translate and that is not something that there's any evidence that the defendant directed her to do but he doesn't need to you know direct micromanage every manner by which she performs her duties to be the organizer leader so i think the niece is just a little bit of confusion about there being multiple nieces at play here so because this evidence which is largely uncontested at the sentencing supports the district court's detailed