cocaine mr mohican specifically objected to the drug quantity because he felt that there was no factual support for this finding in the record the district court stated that is based this findings on  when you look at the pre sentence report the eighteen point zero eight four kilograms which is based on his statement to probation agent rocha statement to probation they guy o testified that the drug trafficking which resulted in a mistrial or the second trial as far as how much kyra believes he purchased during that period of time that they were using the apartment now if you look at the underlying record as well you can look at the telephone conversations the seizure of the drugs the recovery of the drug proceeds along with guidance testimony and none of that adds up to the eighteen kilogram finding so we would submit that although the district court found this was the basis that they have to support the drug calculation with some sort of evidence and there's no evidence in the record to support that finding it is only then that the district court can consider the advisory guidelines and the determine the appropriate sentence that we would submit that the eighteen kilograms finally finding is clear  government says you know even though he doesn't give you you know the time schedule that the testimony taken as a whole would get you up above that fifteen kilogram level correct but if you look at guys testimony  sorry that's ok he pled guilty to that over the entire conspiracy and what we're talking about is eighteen weeks and if you look at his testimony and you look at the telephone calls it's very clear that for at least three weeks of the eighteen weeks he couldn't obtain any cocaine at all so even if you looked at the amount that was was found in the search so you have the about one hundred grams of cocaine and one hundred fourteen thousand based on a twenty to thirty thousand dollars per kilogram you only have four to five kilograms of cocaine then if you look at some of the telephone calls you have a kilogram here or kilograms there it still doesn't come close to the eighteen kilograms and although the government this is stating that in spree i don't see anywhere in the brief itself where you can get to the quantity of the eighteen kilograms or if you can even get to the fifteen kilogram quantity based on the record that was before the district court so now the government relies a lot in this affidavit they frequently runs to the supplying of leaking needs to replenish on a weekly basis and they give some examples and that he's obtaining new supplies of cocaine at least seven occasions and we really just need to be over fifteen right doesn't matter if it's fifteen or it's eighteen right correct if it's over fifteen the same guideline and if you look at what the government siting on those seven occasions there's several of them that fall outside of this period and again guy was having difficulty during the time that they were at the apartment obtaining obtaining quality cocaine that he could sell so we believe that that the district court that this should go back to recent and saying the district court should take a look at the quantity make a finding as far as what the quantity was during the time that mr mohican was involved in this case or involved in the conspiracy excuse me as far as the motion to suppress we believe that the district court erred when it denied the garage some of the time she goes in to get a soda she goes and she there's some indication that when he's at home sometimes the door is open so she doesn't seem to have one hundred percent access to it and he has the only keys but on the other hand presumption that because she is the wife that she has the authority to grant access if you look at her testimony she testified that she went into the garage when mr mohican was there and when mr moti go left the door open  occasion that she went in for a soda a month and a half before the search they were having a party and they had left the garage door open because they were running an extension cord from there to rhyme i'm not sure exactly what they're running but they were running an extension cord so that door is open and they had used the fridge in the garage on that day for the purpose of kind and so did because they were having a party but ija nse but it just goes to show that it's a little bit fluid right so she might have the ability to say you know if we can get in go on in would be our position that the agents especially with the parent there were ready on that day have to look at whether she has access to mutually and control over that area searched to what did she tell them time at the time she told them that she did not have a key she told them that the workspace was mr mohi cars and that she had been out there in a month and a half and she told them she could not enter the record does not establish that she told them that she could not enter the garage unless there's any further questions oh ok that's time thank you that this apartment was use between may and september end of september he was doing the higher quantities he was storing up to three kilograms justify that in the beginning of his of his drug enterprise in two thousand and nine even to two thousand orly or in two thousand and twelve he was dealing in single kilogram quantities but at the end there he was when he was dealing with the defendant musing the defendant's house as his stash he was at the higher end of things and what he said was that basically in his testimony he doesn't say i ran out every week i ran out every seven days i ran out every nine days he couldn't do that this witness could not do that but what he could do was say whenever judge was rejecting was he was saying you can't just look at what the defendant had argued there was you count up the amount of cocaine actually listed in the complaint or in the telephone conversations during that eighteen day period which came to like two point seven kilograms or something and the district court said you can't do that you cannot look at just this one mini vision of this of this war conspiracy and and this large organization that gayle had by all had but you have to look at that as you have to look at his testimony which is that i was all i'm whenever i ran out i was dealing in malta kil knows he's dealing with a lot of suppliers and he doesn't and that was never the argument the argument was never made that this was a perceivable to mr muvico the argument made is that there was not there was insufficient evidence to give us an estimation was he resupplying every week was a day every two weeks and what the government has put pointed out particularly in our brief was that you can make that extra extrapolation from both the complaint and both and these recordings and you do it by looking at slices but not say we're limited to those places but saying you can get a reasonable estimation based on those places so for example the reason why it's relevant to look in the complaint to a period outside this can but also the market time we're looking at now he's dealing in be able quantities because his testimony is very clear that in that period i was using the apartment i was i had i'm still cooking there the government's not saying there's no issue here this is a you know we understand that this isn't you know completely overwhelming evidence here we're extrapolating from a rep from men from a record but i don't think the court should be left with what you'd have to be left with to find that this is clearly erroneous which is a firm conviction that a mistake was made here that there's enough on this record and through this witness's testimony about dealing with this large scale operation and i think it's also supported your honour's by two other things that all supposed to this and i take your point judgments that it's we just have to get to that fifteen kilogram threshold so i think that's important but in addition the you know we do these eighteen weeks based on may twentieth exactly may twentieth through september twenty seventh so the date they move the drugs into his apartment to the date close as well the defendant agrees on may eighth to enter into this stash conspiracy to hold this so there an even wider period and that in the indictment charged that this conspiracy charge started well before may twentieth i think even earlier than may eighth so if he knew one eighth what he was agreeing to again there's been no foreseeability argument here so the government argue there's even a few more weeks in there and in addition he also by his own argument here in his brief you know that gallo did admit to fifty to one hundred fifty  kilograms and if you go to the high around which we would argue is supported that higher end is supported by the fact that he's dealing in greater kilograms towards the end and particularly during the period relevant here you're almost at the fifteen quantity amounts of beer and the fact is there's another eighty four grams you know on which you get into the you need munitions that he's actually buying individually they get you over the fifteen kilogram so i mean i know we're slicing hairs here but in general in terms of i feel like there is no firm mistake you're getting eight hundred kilograms and it seems even safer and more giving advantage to the defendant to say fifteen kilograms is very clear conversation i don't know if you have any more questions on that particular issue before i move to the search on the search issue but i would say first of all is that the judge  rejected the wife's testimony to the extension mismo his testimony to the extent she was and found her to be expressed late exaggerating has been expressed finding to the extent she was saying she never had access to these keys except through her husband he found the agent testimony credible that she had told the agent a week before the suppression hearing when he interviewed her that her husband often left the keys in her house and so in terms of just actual authority not only was there a family possessions in their garage the bikes the lawnmower the soda you know the refrigerator with the sodas not only did she you know never testify she didn't have you know that he ever told she testified he never recollection is that that's what came out of my mouth i believe it was that my recollection is yes and then in addition and if not she was silent on the point but she definitely never testified that he told her she could not enter and moreover that that the court made the finding that she had access to those keys usually i mean the main argument against actual authority on appeal has been she didn't have the key that day that morning he took the key with him when he went to drive his daughter to school and you know as we point out in the brief who has the key at any given moment in time is really not determinative of this issue there's a number of factors and they all for the reasons we are brief argue toward actual forty but even if there's not actual forty apparent authority is really overwhelming here it really counts a left out of you additional facts that she told the officer at the time which was that the wife had been married that she'd been married to the defendant for nineteen years that they've she lived in the house with the defendant and their children for over seven years that she was a cohen or of the property now that's what she told the agent that day in her testimony she said she was an unknown or she just helped  the mortgage but the fact is i stop or can i continue this thought finisher but at the day she said that she was a connor owner of the property and she said i rarely went into the garage but i did and when he asked her what was the last time you did go in there she quick points on the sentencing first as government counsel just stated if you look at the high and of the hundred fifty kilos and you extrapolate that over the hundred eighty five weeks you still get below the fifteen even based on what counsel saying adding that point zero eight four kilos which amounts they needed for grant in my brief but i we explained that you're still under that fifteen kilogram mark which would lead him to a lower offense level second as far as the conspiracy starting earlier the phone call occurred on may eighth but there was no i think of the largest number of quantity that it would support would be that high and the three hundred fifty kilograms extrapolated over the hundred and eighty five weeks which still gets you below so it's i think it works out to fourteen point something fourteen point four about i mean reasonably a district court could use what he pled guilty to as an estimate as far and divided by weeks we've seen that done in many cases but  to fifteen range it be in the five to fifteen