call that we have a light system when the yellow light is on you have two minutes left when the red light is on you stop unless we're questioning you that isn't a way to run away from our questions but if you're if you're talking it's time to cut off please recall that rebuttal is for rebuttal only and when you're citing to the record we always appreciate actual citations and not just somewhere in the record this exists so with that we'll call our first case eighteen dash  five three five united states versus guy  distribute methamphetamine ptance responsibility giving him a thirty three total offense where the issue in this case that we have that we appeal has to do with his criminal history he was given the present report said that the defendant was under a criminal justice sentence of parole at the time and that because of that he gets two more points and so we c conduct rule and set out for maybe the sentencing guideline range that you think is applicable versus the longer judge actually used because it's always sometimes hard to discern it's a bit of a moving target in the range that he was set in the p s or in which the judge district judge dealt with was two hundred thirty five to two hundred ninety three so it's quite a difference in those two ranges in that was really almost entirely different that we're arguing for due to the crime has three points eleven chromo different points so i had quite an effect the the convictions there were involved there were three texas convictions all of them were methamphetamine drug offenses one was delivery of a drug and the other two i think were possession charges they happened in two thousand and thirteen and two thousand and fourteen i think you're right for those offenses so if an offense was growing coming conduct then it should not have been given criminal history points is what is what we're saying all three i'm sorry the judge said that this is a sense that would otherwise be imposed even if your arguments are correct so why doesn't that make it harmless error well i think the error was significant the difference was significant he had said in the statement of reasons well let me say this in the statement of reasons he said nothing about that he didn't say this is the same sentence that i would give regardless most of the cases i've had where a judge does  issues in objections to p s or we said this is roving conduct he should not have been assessed chroma history points he didn't really go into that at all when he talked about the same sense he just said this is the same sense i would give so it's very difficult to tell from that what was his is reasoning for that other than it has an effect obviously on on appeal and harmless error and that kind moline a case it says that if the district judge had a reasonable probability that he would have changed that had he known of the magnitude we should given the chance i think that's that's the magnitude i mean later martinez while it's obviously a supreme court opinion we look to it for guidance in all cases was dealing with plain air where the judge would not have known hey i make an error that's the whole idea in plain error is that nobody brought it up or is here they did and the judge didn't know and didn't say for better or for worse would do the same thing so it isn't like we need to give the judge another chance because he didn't really realize what was going on he didn't realize it was going on well i think i think it's the case is a little confused on this on this whole issue for this reason the judge adopted in his sentencing the facts as stated in the pre sentence report from the probation officer as his facts he adopted the conclusion set forth precess report as his conclusions when you look at the pre sentence reports the probation officer concluded burton offenses that took place in two thousand and thirteen two thousand and fourteen were relevant conduct of the so when the judge adopted those conclusions i think he adopted those same conclusions about relevant conduct if there were facts but the conclusion so he adopted both of those so here you have the judge adopting something that's really contrary i think to what some of the argument is as to whether it's rove or conduct so it's a bit confusing i think as to if he if he did he adopted the facts and the conclusions then he adopted the fact that the probation officer said fourteen there were related by a confidential source in the pre sentence report under the heading of guy goes under the heading of current conspiracy and under the heading of offense conduct it was right there that it said th source said that he and gays a number of transactions in these years i forget what it was twenty five is that possible that in for a long time he was involved in a conspiracy that finally comes to the fore in the case that at bar and then also in the meantime he's also doing stuff just personally that gets him convicted in two thousand and fourteen i think in other words can you work for two employers or can you be self employed and also working for an employer at the same time such that twenty thirteen conic could be part of a conspiracy where as in two thousand and fourteen could be sort of the self employed self medicating if you will piece was it is possible certainly that that he could have been doing some personal things in those same years but i think that that's really not the issue here because if you look at what is an issue because if if the judge is conclusion is possible we got to go with it you don't get to say well i would have found that whatever were just the appellate judges so if it was you know sort of by physics not possible or wholly impossible then we have to set it aside but if it is possible that the two thousand and  thirteen behavior could be connected to the twenty sixteen behavior whereas the twenty fourteen could be separate if that's possible don't we have to go with that well i think you're you're on to it it could be plausible except for the fact that i think  probation officer when the probation officer filed the a dent them to the present report responding to our objections on this relevant conduct criminal history issue she was quite clear in saying that that the acts described in paragraph forty two this was one in two thousand i think and thirteen a series of acts the the acts described paragraph or two were committed by the defendant and occurred during the commission of the conviction nobody thinks that they showed that at that time when the government says well he wasn't really involved in this kind of activity because he really got in this conspiracy and he got out of prison is not true both of these things show two thousand and thirteen transactions one thousand one hundred sixty two grams of methamphetamine and that was killed against him there's a chart paragraph sixty one and i make sure i understand are you contending that  that would be saying the same thing yes or in a says it is what i'm saying that he did adopt that but i don't know that the court really focus a sentencing hearing was rather short i don't know that he really focused on these these are these are relevant conduct but the reason that she says it it it's not a an issue here is that these were these were user amounts the drugs involved and so therefore it's not part of the conspiracy because this was a distribution conspiracy well i see no where where user amounts have been defined any basis any cases any citations what is a user amount i think somebody just came up with with the balkan clues restatement here and said these are user amounts based on what the chart that list the drug quantities diagonals those charged with the first two first two audience and their chart they involve small amounts one of them in fact i think it's three point five four maybe it's eight point five think there was five one gram transactions in one three point five four transaction for eight something grams that's one of the things he was charged with started out with that on the chart and the other one was in the top two were the same way so you can't have it both ways you can't say with any smaller user around doesn't count  the eleven points that are what kay says that says what what you just said you just said you can't do this i'm saying what kay says that well i don't think there are any cases that say what do you support the is us what we're saying that were used as relevant conduct it is not about the convictions i realize all of this has a timing element to it i'm not disputing that but your answer to judge graves i think is a bit off because it suggests that the that the p s r directly linked the convicted often says with relevant conduct and that's not what is happening here in this forty two forty three that is that part of it in it is pretty convicted offices now i understand what you're saying this all seems to be the same because it's in the same time zone and i get that but the probation officer didn't say that there's not a direct conflict in the facts here well  romantic conduct acts that he was engaged in and i think that the the problem with you is that the only reason that the probation officer comes back on some of the larger things and she says well it not being i'm not you're not are saying i'm saying ok on day one mr x possesses one hundred grams of meth on day two he possesses three hundred grams of meth and is convicted of that those are not the conduct day two is the convicted often you can dispute that but that's not the same thing as treating data it is relevant conduct in some places and as a convicted office in other places or as a prior conviction in other places so what i'm saying thousand and thirteen fourteen and the argument has been made in the government's brief that while he didn't come into the conspiracy and we got out of prison two thousand and sixteen we're saying that's ridiculous because when you look at the pre sentence report here it is in two in two different paragraphs saying he's responsible for over a thousand grams and want to eight point five four grams another he was involved in that conspiracy the only reason he was out of it he went to prison that wasn't a voluntary action here in voluntarily was incarcerated he come he gets out and what happens he's back in it again so we're saying this conspiracy he was involved in it at least from two thousand and thirteen onward so then you have to look at was he charged for quantities in this charge the answer is yes the quantities and program forty two forty three were not large quantities but it didn't matter ok but how do i know that this is this confidential source and paragraph forty two forty three is also the vents that that confidential sources reporting are subsumed in the prior convictions that we've been discussing that he got the eleven points for well i don't i don't know that it is absolutely shown but this time here is the same from february to i think december two thousand and thirteen that's the same time period that offenses involve defenses involve methamphetamine the same place wichita falls two of them in a hotel room one of them a codefendant in the same consultancy case all right thank you preserve a little bit of time for about a lot ok it please the court gil hayworth on behalf of the united states now wrote to his records relevant conduct finding in this case can this court can easily affirm based on the deference that associated with the sentence imposed prior to the acts constituting the instant offense is not considered part of the same course of conduct as the offense of conviction and here goes how can those four paragraphs forty two and forty three be counted qana well they weren't speed does the government are you that they are not relevant conduct and the district court adopted the government's argument in rejecting the relevant conduct objection by the defer to reste see that have how can can you walk me through that sure so in rejecting the defendant's relevant kind of argument the government or the district court said that it was doing so for the reasons stated in the government's response and that's that r o a nine d then adopted the p s r it did adopt the s r but because the government's objections didn't change the calculations are the ultimate offense conduct level in the p s are that the way to harmonize that is that it agreed with the government's argument that those prior increase the office level in any way and therefore we're just dealing with the fact that we have these prior convictions that give eleven points and we have all this other stuff in twenty sixteen etc and that's it that's your argument  cannot show that the district court clearly erred in finding that the sentences for his prior drug offenses were imposed before the acts constituting the instant sense of conviction and he can't show that it was him in other words he can't show that was implausible for the district court to find that the acts constituting the instant offense occurred after august first two thousand and fourteen the date that the senses were imposed in his prior drug offenses and he can't show that that was implausible given the factual resume the undisputed incarceration record and the acts for which he was ultimately held accountable in this instant offense in the factual resume it shows that the defendant committed the acts underlying this instant offense some time after august first two thousand and fourteen the date that the senses were imposed for his prior offenses in it the defendant stipulated that he committed the underlying acts beginning in or before two thousand and sixteen and he specifically struck out the prior language saying beginning in or before april two thousand and fourteen thereby clearly showing that he didn't commit the acts underlying the instant offense at any time in two thousand and fourteen after all why strike out the year two thousand and fourteen if it was correct the most plausible reading of the factual resume then is that the defendant committed the acts underlying the instant offense of conspiracy beginning  before two thousand and sixteen but sometime after two thousand and fourteen and this is especially true considering i i guess undisputed incarceration record that record as we're supposed to do what you said at the outset which is where there seems to be a little bit of a question mark because the judge says oh i agree with the government target but this is zero but i doubt the pearsall which is somewhat in conflict with the government's argument one says we're supposed to harmonize that the way you did i mean i guess just based on logic what was before the court what you're interpreting what the court was saying based on everything before it and the most logical inference of what the court was saying is that i'm not including those amounts which shows that guy goes was incarcerated from february two thousand and four in state custody for his prior drug offenses from february two thousand and fourteen until march two thousand and sixteen reading the factual resume in light of that undisputed incarceration record it was more than plausible for the district court to conclude that the defendant committed the acts underlying this instant offense sometime after two thousand and fourteen or after his release from state custody in march two thousand and sixteen so therefore no is no evidence of a common source supplier accomplices or modus operandi similar to the prior offenses in an instant offense regarding regularity there was no intervening criminal activity to connect the prior offenses of instan and the court has no further questions thank you on your just one brief point out i would like to make in the short time i think the acts that were charging three texas offenses the question is whether relevant conduct or not relevant conduct we raised that objection the government provided no basis for these three not being relevant conduct except for one statement in the same the dental statement was included in all three responses to those three particular paragraphs dealing with the three offenses this is considered a user amount not a distribution of mail and therefore not relevant condo docs and what we're saying quite simply i think is that there is no basis that i know of in any cases of say what a user amount is or what a user amount isn't as far as cause what about his admission the conspiracy starts twenty and twenty sixteen mr guy i guess is a mission well he was he was obviously involved in two thousand and thirteen fourteen from what this could have confidential sources saying in the confidential different firms but so in other words if you can handle this can speak conspiracy number one then you go to prison you get out you do conspiracy number two the fact that you're kind of in the drug business doesn't mean you're in the drug business in the same one the same firm so to speak yes i understand that but it all through these events there were other people involved with it wasn't just him sitting at home using drugs in one  transactions but one of the other of the three offenses was in the hotel room and we attached to our jackson city down to a statement from one of the officers a case agent or or one of the agents in there that said that everyone knows i know from my gets out twenty sixteen and meets a whole new set of people jane smith and starts having a conspiracy with them would we say that those two that the first one is relevant conduct a second just because they both involve drugs