of conspiracy to deliver the bare water three of the four defended said be arrested some time during this alleged conspiracy in possession of significant a bounce of marijuana the testimony generally was that the witness saw what the witness believed was marijuana stacked in the other will be able to shop in place at the witness could clearly tell bus to removed it from a vehicle example of the test the type of testimony is that of fernando lenders who testified that daniel's brother picked up a car from him in motel six a the testimony was he knocked on the door took a step in hand and i gave him the keys and he left this was a foreign am and th any element of the conspiracy there's no evidence that lenders paid any other connection with of the conspiracy charge of possession of more than one hundred grams or one hundred kilograms of marijuana in the event that this court should find there is sufficient evidence pm prayed there were two pre sentence reports a second would prepare to the door government objected to the first we believe that the correct sentence in this case should have been pursuant to the first previous previous our sixty to seventy two much thank you very much for your time thank you mr watching mr blizzard are representing mr rodriguez we have three points we request the court to a look at in this case we believe there's insufficient evidence we believe that the trial court should have severed  mr rodriguez's case out from the other defendants and we believe the trial court erred in including a lesser included often it's both fifty done hundred kilograms and less than fifty kilograms mr flores is the only witness to testify to tie mr rodriguez into the conspiracy he does this by quoting another conspirator travis long gloria mr flores his testimony was ultimately very contradictory very conclusive mr watson alluded to the conclusory testimony that comes from mr flores as the only witness that ties mr rodriguez into the conspiracy and there was no way a rational jury could believe his testimony after he had been impeached and found to be lying on several occasions while on the stand additionally the lesser included office just to touch on a couple of written charge in advance and so that's the other point is that we bring this written charge of the trial court a trial court thinks about it says ok maybe i'll get to you know i said well judge actually spoke my client he doesn't want to know any more withdrawing u attorney never prepares a charge on a lesser included off chance the court doesn't adopt the defendant's charge it creates its own charge and interestingly enough the court also applies a lesser included to every defendant doesn't just it to my client which was the only one who by the elements test and the evidence standards would have qualified for a lesser included oftens and so i believe that  or the court long fully included him in and food lesser included i believe the united states cases they cite mazan and young and those cases are not telling for this court because those cases simply go into the fact that the the lesser included request as reviewed for plane air or if it's not brought up a please court kevin well i'm praying on behalf of travis and gloria but i wish the courts consider today is the point that insufficient evidence was presented at trial to prove travis on perec there was no direct or circumstantial evidence to connect the travis to prison any such way the only evidence that was presented in which travis was any drug conspiracy for which the government was trying this case travis was connected to this through his father daniel and gloria travis's son he's going to have connection with his father was evidence through the packaging of marijuana which was scuppered at his house price of three point four pounds and s imported by the fish circuits opinion in the united states versus or take it one forty eight if third five hundred five forty five forty three the government's theory regarding the number of quantity of witnesses and or exhibits does not equate to sufficient evidence of guilt quantity doesn't equal quality so i could get a medal t and i can fill it with cow manure and no matter how much cow manure i put in there are no help no matter how much cow manure are sprayed on my shoes it does not equal she polished in any form or fashion it can never equal she follows quantity does an equal quality the government's case is based upon a quantity of evidence which they presented at trial but none of that quantity was sufficient to find travis guilty the government furthermore the government can broaden the scope of his case at trial u s versus adams the government has attempted to go by unrelated events and situations into something for which fabian in the prosecutor's brief he says that i bring all this bring excessive emphasis i think is his word on the import of mr president course religion is the key man would argue a lot of the sufficiency here is very nuanced would ask you to look at the testimony of agent cooperating and while they were able to facilitate phone calls between the two they were never actually able to get the agents were not a marijuana delivery intercepted from mr prison we've argued anything he shows different key men with their own different conspiracies sending folks down there is this mennonite individual they repeatedly met with that's very different than the much larger quantities judge that we would argue were over in mr prez's territory so that our first aardman of course would be that we don't think there was conspir unpacked the mystery vases at apple in automotive in the till it was mr daniel mongery his place of business and even if that was enough to show one spoke of a conspiracy i don't think that serves to distinguish the fact there were necessarily two different even if we would prevail even one two level movement under the guidelines of the thought one thousand kilogram triggered it would result at the high end of the lower guideline range sixty eight months off my client sense of going to some of the more detail if i have time son travis longoria daniels brother joe has a composite us and the employee of abilene automotive david rodriguez with respect to daniel long the evidence is pretty clear that he was at the top of the conspiracy arranged for imports of marijuana from sources of supply in mexico with respect to travis the son the evidence is likewise clear that he dealt drugs he obtained those drugs from his father sometimes through david rodriguez father's employee with respect to mr cavazos the evidence at trial was in short that he participated in breaking down vehicles that had smuggled marijuana into the a and finally with respect to mr rodriguez the evidence at trial was that he stored marijuana for mr daniel long oriya and in some cases farmed it out to travis for resale with respect to daniel  goriest sentencing arguments first your honour's with respect to his argument that anything before his two thousand and nine conviction should not be included is relevant conduct that argument is simply refuted by the guideline in the guideline commentary that any conduct that is charged in a federal indictment is to be treated as relevant conduct rather than criminal history with respect to his argument that one hundred forty three pounds should not be attributed to him first your honour's that is reviewed underplaying error it is a factual finding that cannot constitute plain error and furthermore it was refuted by the trial testimony with respect to his argument that the testimony of john davis is trial from mr john davis and therefore he cannot prevail on that argument finally i'm sorry next with respect to the argument of david rodriguez that the district judge should have severed his case out first his general allegation of spillover effect is insufficient under this court's case law to allow him to prevail on that argument and there was an instructional anyway it wasn't there was an instruction that the jurors were to consider evidence against the defendant separately finally with respect to mr rodriguez argument about the lesser included offense of course the language of rule thirty provides that any party may request an instruction and furthermore the genesis of the lesser included offense doctrine is in the idea that if the prosecution's evidence fails as to an element but there is a lesser included offense that misses that element but encompasses all the rest the defendant should not escape conviction for the lesser included oftens if the court has no questions i'm happy to cede the remainder of my time rest of my brief and ask the court to affirm the can conclusively cite to a a law or case that says that the prosecution is allowed or prohibited from requesting a lesser included of it doesn't talk about the united states being able to request a lesser included often so i believe that that applies to any jury instruction and effectively what happens in this case is you know the government certainly didn't write one and so effectively there was no basis for the court to give it and i think that's evident by the fact that the court did not apply and elements test and  test to determine if a lesser included to the plot each defendant the court just applied it broadly to all the defendants are thank you thank you pressure you say time for  first question on cross examination question the government just said a moment ago that you did it for daniel longer but that is not true did it for a brief c e o correct answer correct it was for quote your out of it not that fabian and daniel were not working in tandem here they may have known each other they even spoken in the past but we argued that the minimum these are separate hopes i mean the first level answer is you must i think where this becomes important if i'm not able to persuade the panel sufficiency arguments in this case you see a very similar set of conditions come into play at sentencing i would ask the court to look with regard the procedural dimension here all bearing at the beginning of that quantity about which probation originally some evidence in your favor but there's also some evidence going the other way so i don't quite get there to be didn't apply that specific offense characteristic that objection p s r was overruled but when it came to the disputed quantity amount and again the reason this is guidelines impact this isn't take very much to get a two level decrease which is very significant is a lot at this high level of the guidelines they are what happened to take them off them was judge police just said well i quote as extensively in my brief did the correct sufficient in to see it or liability here this is a point disagreement we have with the government it is not true that mr daniel longer it did not contest did not refute that fact he actually objected and didn't just say it was less then you probation say is the awfulness of which is delivery was made which they then agreed with we said his testimony was so ambiguous and specifically looked at what that testimony was but that amount of quantity has to come off entirely as our position t