convincing evidence would be the standard that judge should use in order to prove the one charge conduct what is the one charge conduct in this case first you've got the methamphetamine sales second you have the sales to the second confidential defendants and the government also in respect to these plea agreements how to no alternative purpose in entering pleas rooms both sides both parties who are negotiating these plea agreements were doing so in order to obtain benefits as a result there was certainly no incentive on the part of any of those caught offenders that we can see to challenge the factual predicates that were contained in their agreements agreement so if one were to say well they're reliable because what's contained in those predicates are statements against interest that would be true but it would be only be limited to the defendant who is pleading guilty under the agreement the driving force in her sentence was this hundred twenty six grams of cocaine base that she said she was responsible for and that was part of her relevant conduct if you can recall the conversation it serves the basis for that one hundred twenty six grams you're going to see that this was a conversation between her in armando which dealt with inquiry about the availability of that drug if anything at most it might have been a negotiation possibly to  obtain this drug in the future but when it was determined that the price involved in this particular transaction was so high it was decided not to go forward that it would not normally be considered relevant conduct under the law i again gloria call the road didn't care because she was getting a great deal under her plea agreement just like all the other defendants who pled guilty what type of cooperation would therefore be necessary in order to establish the reliability billeted of these plea agreements well unlike the district court the government here has conceded that we can't rely on the discredited testimony of special agent levels this court in his published opinion indicated  that that testimony that was received in the trial was simply unreliable and some of this this calculation does rely on some of this calculation that was used to support the sentencing does rely on some of original pre sentence report there were only two distinctions one was that you had a new probation officer assigned to the case and the second was is that that probation officer conceded on the second round that you could not consider the special verdicts that were found by the jury other than that all of the relevant conduct which is quoted in the present support was identical to what you found in the first report how did they get that information they got that information from the testimony round the second round that was the government's decision we thought about that and thought well doesn't the defendant get to weigh in on that the answer is no because what the government did was they fell back to the default provision under section there's an excellent watching of the clock people don't do such a good job case i'd like to address the argument that the court committed clear air buy in hansing the role it just meant by adjusting his role culpability by increasing his offense level by four levels on the basis that the court found that he was an organizer at least leader of the drug trafficking activity and bishop manor area the government in that argument relies on three categories of evidence to support its position the testimony of geraldo reyes who was c i one in the trial and detective franks and in looking at the government's argument on america they referred to their excerpts at page one for pages one forty three to one forty four regarding geraldo rivera's reyes's testimony and pages one a wage to ten to ten excuse me to zero eight to two ten for detective franks and testimony if you look at that testimony that the government asserts it is essentially general information about the many his game getting except for reyes is testimony that he didn't know salvador because he lived in bishop manner if on and off during the nineties he said nothing about  knowing that salvador had exercised authority over all of the drug trafficking in the area and would in force the authority through violence as the government suggest by the excerpts next the government indicates that it is relying on its excerpts at pages two sixty three to two sixty five to seventy seven it's up to seventy nine and two forty three to sixty four and to seventy eight to establish that the organizing characterization organizer characterization is established because salvador at times would defer to armando as far as price  if we look at to the level of evidence required by the courts to establish an organizer's role we have the case which we cited of u s vs which was decided by this case by this court in twenty fifteen and in the doe case it was clear that the level has to be equivalent to a coordinator for example one who puts together the deals negotiates the type t quantity price of the drugs for each transaction and ensures that the participants arrive when and where they are needed for the accomplishment of the enterprise so looking at the government's excerpts which it cites in support of its argument we see excerpt page two sixty three to sixty five which is a phone call from shorty who is also known as go i conversation is not indicative that salvatore exert any type of control over the drug activity the government next refers to  put out wasn't there testimony by ray s or maybe maybe it was somebody else that to the effect that salvatore doesn't pay any taxes and so because he played a leadership role and if you weren't one of his authorized dealers and you got caught you would be beaten up isn't that indicative of a leadership role well if there is evidence that specifically indicates that a particular person does not pay taxes to the higher levels and echelons of the many street loper gang yes that would be an item of evidence but my recollection is that reyes was speaking generally about the culture of the many street loper is that he did not know who the suppliers were he never heard of the suppliers related to solve the door so we don't have any specific evidence that links salvatore to actually paying taxes we don't have anything in the intercepted telephone con calls and when we rely only on the evidence that is suspect because of his background as far as having multiple convictions being in an ounce of prison and even when he was cooperating cooperating with the government he violated his parole and was return prison so i think when we look at the content of all of the conversations in the government's excerpts we see that it does not satisfy the elements of controlling to the degree necessary under doe the various parties who are basically in their own elements of drug trafficking we know that madrigal and for example and the related in the trial as i recall to sell drugs independent of anything that salvatore was involved with so we have these parallel conspiracies and we have no link that salv tore had any kind of control over them matter of fact in one of the conversations salvatore had with pinky he invited him to to to a baptism and then he had no excuse meet with richie he asked could you do me a favor that's not someone who has control over another drug dealer that's someone who is searching on his own for perhaps whatever he was looking for at that  plea agreements in the contained in the factual basis of several of the play agreements that they i don't know that they obtained their drugs from salvadoran armando and when we look at the case of garcia sanchez we know that the gov that the court is required in drug conspiracies to undertake an individual ised evaluation and sentence a defendant only on that quantity that he is responsible for not for the entire quantity of the court did not apparently do that when we look at the sentencing transcript and i would also like to say that as agreements the plea agreements were entered at the time before the first appeal and the object was to resolve and get some kind of concessions for  in which we also cited in our brief and in that case it indicated that slacken who was prosecuted for fraud he entered into he entered into a plea agreement and his incriminating statements were attempted to be used against third persons his investors in order to it to assert to establish bankruptcy fraud as well but that court held that the fraudulent intent could only be considered relating to slacken himself it could not be transferred to be considered against the investors who are third parties and i think there is some parallel morning honestly i please the court bramall than for the united states there are multiple routes to the same result here which is that the district courts drug quantity determination of was not clear error i want to try to convey to the court  think is the simplest route to that conclusion now there are two principles here the district court using base offense level of thirty which corresponds to a marijuana equivalence of one thousand kilograms armand x per calculated a base offense level of twenty eight based on a marijuana equivalency of seven hundred twenty kilograms so the question then becomes whether there is enough in the record for the district court to have reasonably gotten from twenty eight armando's experts estimate to thirty the level that the district court used or from seven hundred twenty kilograms armando's experts estimate to one thousand kil ms just two hundred eighty kilograms higher the government would submit that even without looking at the co defendants plea agreements there are plenty of ways to get there are mondo's expert did not look at codefendant plea agreements whatsoever his entire analysis was based on a review of intercepted phone calls that were introduced at trial however can i ask you to clarify the the premise of your argument that we start with thirty the district court in this case calculated the use of fence level much higher right was at thirty two thirty three so the district or adopted the base offense level of the government calculated of thirty two but then said that in order to err on the but but how do we know that if the district court had started at eight twenty eight that he would have gone down three levels so the reason that the guidelines as to starting point so i don't know that we can assume that the district court starts at thirty and look for the amount of drugs that correspond to thirty so the district court went down from thirty two to thirty because it was concerned that the government would be accused of being vindictive given that it had used a base offense a little thirty in the initial sentencing and therefore wanted to use the same basic fence level in the recent saying i think that the question for this court though is was that clear error so in order to determine whether that was illogical or implausible or unsupported by anything in the record it doesn't make sense to look at the difference between what defendant's own expert who is trying to look at this evidence in a life favorable to defendant calculated and what level the district court used and the reason i say that you don't need to look at the plea agreements whatsoever is because even defendant armando's expert excluded massive quantities of drugs that we distributed first he excluded the entirety of that them fed to me and opposing counsel points out that methamphetamine was not found by the jury he described it as uncharged but that's not true th conspiracy was charged as a conspiracy that did involve met them that in the in and the read of the other defendants pled guilty to distributing methamphetamine but again there's no need to look at those plea agreements because all of the methamphetamine that the government calculated and that the district court used was based on actual seizures in this conspiracy by the second confidential informant so that was seventy about seventy nine grams of methamphetamine that was sold to the confidential informant in controlled by at bishop manner which is the apartment complex over which these defendants exercise control of the drug trade calculating that seventy nine grams of methamphetamine  acquittal and amounts to over fifteen hundred kilograms of marijuana so again the difference between the thousand threshold for a level thirty and the seven hundred twenty that armando's expert calculated is two hundred eighty kilograms if the methamphetamine alone amounted to one thousand five hundred kilograms it wasn't unreasonable for the district court to use some quantity of that meth of methamphetamine arrive at a base offense level thirty another made each or unaccounted for quantity in armando's experts calculation is the fact that he looked at phone calls that were introduced at trial but only covered a five month this conspiracy which was alleged as a seventeen month conspiracy so based on just five months armando's expert calculated a marijuana equivalency of seven hundred twenty kilograms extrapolating out from that to a seventeen month conspiracy what be more than triple seven hundred twenty kilograms but again there's no need to do so much to get to one thousand kilogram threshold of a base  fense level thirty ok also this is i think of a very compelling argument for re sentencing i think you're making a lot of good points the issue i have is that i didn't see the district court go into the level of analysis that you are now have a disc or done that we may be in a different position here but the district court if i recall correctly said that the i'm paraphrasing here but one the most important to be the most important factor he looked at were those plea agreements which i appreciate why you're trying to have us look at the case aside from those p do you have any authority that lets us essentially kind of redo the sentencing here maybe the way it should have been done and i don't think you were the counsel at the sentencing in this case notice them and then you don't provide job on that but but i'm not sure here we can do what you're asking us to do you have any authority that would allows us to to engage in the analysis you're engaging in right now where that's not what the district court did maybe with it's what should've done but let's just kind of redo it now so i would submit that that is a principle that is inherent in clear air review because the clearest standard is this court has made clear again and again involves an inquiry into whether the district court's finding was illogical implausible or unsupported by the record it is appropriate for this court to look at the entirety of their record to determine whether the district court clearly eric i would secondly submit that that's a principle of harmlessness or view that when the district court arrives at a base offense level of thirty court determines that it was appropriate or could have easily arrived based on the offense level of thirty pursuing a different route to the same result that any error in the district court's determination was therefore hopkinson how do we know at the proper way which you're advocating for now that he wouldn't have reached a different base fence level or higher or lower and and just and at least have something that's more readily reviewable them up we have in front of us right now so i wouldn't can see you necessarily that what the district court did was wrong and i would like to address the use of the  this is correct without using the plea agreements because obviously you started your argument without regard to the plea agreements because you obviously didn't think that they are alliance on the plea agreements was your strongest argument so which should we have the district court redo it and tell us how he would do it without regard to the playground and if we think that wasn't the correct approach so i think the answer is no because the district court actually did parole officer relied upon were interpretations of the phone calls by lavis who we previously said was unreliable so i would make a couple points first with respect to lapses testimony first this court specifically sad in its prior opinion that some of the lab misses opinions about the meaning of recorded phone calls were permissible so that's obviously a quote from this court's opinion right so how do we know which ones were permissible and which ones were not when when the government and the first place didn't make that distinction because he was to testify or not that's why i think that the most conservative approach or defendant fan friendly approach is to use the interpretations of defendant's own expert so defendants expert does exactly this analysis of the phone calls and that is why armando's expert's opinion is where i think the baseline should be began and then just to consider well looking at that expert opinion and i would refer the court to armando's expert excerpts of record if it's one ninety what is left out from this analysis and could the district court have readily concluded based on other evidence or what is left out that an offense level of thirty is appropriate and the government would submit that any way you cut it any way you look at it any route you take arrives at the same conclusion another piece of evidence that i think is really critical here that would arrive to a much higher conclusion is the testimony of the informant he specifically testified about quantities at trial he said that salvador was engaged in the distribution of i want to half an ounce quantities of crack cocaine every single day an of crack cocaine is about twenty grams half an ounce about fourteen if we just looked at the five month period that armando's expert is focused on and used a half ounce quantity for every single day during that five month period not the entire seventeen month conspiracy not the high end estimate of one ounce per day that the informant provided just a half ounce or more five months the marijuana equivalency would be over seven thousand kilograms pushing trial if the government hadn't wanted to and been extremely aggressive it would have said well the testimony at trial was half an ounce to an ounce let's take the mid range of that and extrapolate out over the seventeen months of this conspiracy and arrive at a base offense level of thirty six or even thirty eight with a far higher than what the district court used and that's why i urge this court to find that this was not clear  fourth piece of evidence that i think that the court should consider is the fact that armando's expert in his own analysis of these calls did not count any quantity of drugs that for which the drug was not specified during the call that he analyzed now i think judge wardlaw you're raising an important consideration which is that it's very hard to determine exactly what is going on in this conspiracy and exactly how much is being discussed in these calls and that is why there is some level of suggests that the court reliance on the plea agreement is not the government's strongest argument let's put it that way so if we were to say that mr court should not have relied on the plea except for except to the extent that every single quantity that's discuss in the plea agreement must pacifically be corroborated corroborated not not as to the existence of a conspiracy and the defendant's involvement in the conspiracy but specifically corroborated as to the quantity in the plea agreement how do we know that the district court's decision in this case wouldn't have been different so the district court said ok the plea agreement is is kind of the centerpiece of the government's required the government to basically specifically prove that up so if the district would accept the level twenty eight couldn't the district court then also go to three levels whatever he did ritually to give the defendant the benefit of that so that there is no punitive measure for prevailing in the ninth circuit with regard to the expert testimony that was presented in the first trial the of the record is a very muddled and so it's hard for us to discern what the district court a pace offense level of thirty two the district court's threshold of one thousand kilograms to reach a base offense level of thirty is very unlikely to change if it's calculate if it only needs to rely upon a third of the quantity that the plea agreements actually set for a second point i would make about those plea agreements is that defendant armando's expert has her operated them his review of the phone calls is the evidence that corroborates at least seven hundred twenty conspiracy would surpass the thirty offense level threshold of one thousand kilograms so there is evidence that corroborates these plea agreements in addition the fact that twelve co defendants named these defendants and five of them specifically named six of them specifically named both defendants and the rest of them specifically named armando is evidence that this that was that did satisfy the minimal threshold of reliability for the district court to rely upon them the only other point i would make is that there was discussion about salvador and mando not controlling the drug trade that is not true the evidence at trial was that salvador was the head of the street gang in the new street low purse that controlled the bishop mounir drug trade and it wasn't an reasonable there for for the district court to use these findings in the plea agreement as relevant conduct frankly it's almost impossible for the district court to reach an approximation where every single quantity is corroborated because these weren't all controlled by is these weren't all drugs that were actually seized by the government however it  reasonable to use the plea agreements as they are corroborated by the phone calls by the seized evidence including the methamphetamine and by the police reports and the complaint up to date in this case thank you  minutes not sure how to prioritize the two minutes so i'm going to start out by saying that it appears that the government is suggesting even a new methodology of for sentencing today not one that the district court judge adopted and certainly not one that the retired supervisory special agent from the da da adopted and when you when you talk about a finding of a level thirty versus a thirty two or twenty eight you're talking about big jumps in the applicable guideline range for defendant so i think that it's very important to nail down exactly what the range would be we've got to level twenty eight on the basis of the defense expert that's what we've got what he's indicated is that the only direct evidence concerning relevant conduct in this case other than the one controlled by to the c i one or the recordings and so the problem as i indicated earlier with the plea agreement is that they don't necessarily overlap part and parcel with those recordings and when you talk about whether or not the judge should have used a  clear and convincing standard as opposed to a preponderance standard which he indicated in his order he used has to do with whether there was clear error in using the lower standard we would maintain that he should have used a clear and convincing evidence standard in this case because of the nature of the evidence he was considering he was considering plea agreements of the co defendants i've indicated already why those on their face are not reliable without cooperating evidence and i'm not talking about other plea agreements to cooperate i'm talking about other evidence like police reports we only have police reports as to three of these defendants monder grand  let's have a very basic question and maybe just says how confuse i've gotten over this case but so my understanding of the role i'm using clear and convincing the clear and convincing standard is that you have a base you're starting with zero so your argument is that you use clear and convincing to calculate the base offense that's right well it's it's both it's it's the calculation the methodology that you're using and it's it's also the nature of the evidence which being which is being proffered in order to establish the guideline range where the defendant r t concedes that that it should be a level twenty eight then be uniquely and convincing to go from twenty eight to thirty is that a disproportionate well would require clear and convincing well that begs the question as to whether the government should be relying upon that the defense's own expert to begin with it would seem to me that they would want to rely upon their own evidence in their own arguments in order to establish what the sentence should be we indicated that under the shield decision that this court or the district court should have erred on the side of caution in determining what the guard language would be and that's wh we said you should start out at a level twenty eight not at a higher level you started hearing a level thirty two the only reason why we went down to thirty was because the district court considered the vindictive or news argument the codefendant council did salvador joining armando's expert report i believe you joined everything that was filed by armando at the district court level yes so the problem here is that this court has already signaled to the district court in the prior opinion that agent was she's opinions resulted in the admission of specific drug quantity opinions that did not rest on reliable methods so there's really no way for the government to rely upon anything that agent loudest may have testified to based upon that that opinion however you do have another opinion of another expert to consider and that expert came came to the conclusion that the applicable range would be lower than what this court but the district court found and for that reason we think that the case should be sensibly vacated the in the matter we mandated because of the unreliable methodology that the the asked is because the government is asking us to effectively use armando's sensing position as a floor and it's one thing to use that against armando or maybe another thing using an salvador salvador did not join in if you joined it then maybe they have a stronger argument to use it as form that's why i was asking the question all right and the government also relies heavily on race is trial testimony that saw the door was selling for half an ounce of a half an ounce per day i believe he said without corroborating reyes's testimony and it's not corroborated in any of the intercepted phone calls given his sketchy kind of background i think it would be inappropriate and  somewhat subject to a violation of due process to render a sentence which is so harsh a three hundred twenty four months as a organizer based on only r