in the first issue relates to the application of safety valve mr entrant espinosa was convicted of title forty six u s c seventy five zero three and there's a big objection was made that he was not afforded safety valve and the probation report and bell and the court agreed found that this should not apply a safety valve doesn't apply under the statute because thirty five fifty three have says it's not an enumerated office we understand that obviously the ninth circuit has reviewed this in the eleventh circuit has said that is the case and that's the law but the fifth circuit has looked at it and we're asking the court to review the statute we believe over review we believe that it is an ambiguous and six up to bowl to a different interpretation and therefore not engage in a plain text reading of the statute and i think our main argument that we look at that we bring forth to the court is to the dissent judge fisher had in the ninth circuit case of gambro or cardenas in he put forth that there is a another interpretation and i think what he's saying in the dissent what we're asking the court to look at is what is the purpose of safety valve because i think what he was saying was this really goes to punishment and in forty forty six u s c seventy five of three it says the punishment for these offices are found in twenty one c nine sixty and so that the punishments are the same and so safety valve really is more of a punishment issue than a statutory office issue and so we believe that it is acceptable to two different points of view and we've asked the court from under no it it does it does simply say an offense under thirty five offense under one thousand nine hundred sixty it doesn't say punishment and i agree that's the way the ninth circuit the eleventh circuit have looked at it and the others as any circuit gone the way you're as far as the role would duction go i think what we're trying to say in the rolodex and i think he did preserve the objection and laid out in his objection to different factors the court can look at and should look at in the case i think the issue that we're having that we bring to the court is how judge mizzy at viewed him viewed mr and should be espinosa as a related to other participants and based on his ruling what he would he seemed to do and say he just looked at the people indicted you there was some secrets there was but that it wasn't really developed because there is some suggestion that there was consistent relation of what happened that they were approached by unknown people that said hey here's an offer to get on the boat there was other people involved there's other boats that came and picked them up gave them fuel so it was seen to be quite an extensive operation but was never expanded beyond that and they did it in say these people were in charge of other people in charge but he did suggest that much about the beginning people back in ecuador and we don't really know much because they never get to mexico or what he did know was they used these three boat to go through international waters with thirty five bales that's what they all did captaining the boat brett i just have a really hard time saying he committed clear error in finding that that's not a peripheral that just seems immensely involved in in a major drug trafficking so we would be saying well actually it's a proof that what they did was peripheral to i'm not well i'm not saying it's peripheral obviously in order to they needed pilots to you know people to drive the boats to get for our loss as is the minor reduction it's for people that are peripheral i think i'm quoting from our law a good apart get away from this comparative thing it may be he slipped saying well i know much better th george people what happen to them i really have no idea about other people could be big people could be low people i just don't know so i'm not compared to them and none of these guys they kept in with so many amount of bales of cocaine are peripheral wh at his analysis to determine whether or not it should apply i think that his that the approach he took was very myopic very sure it was very it was should have been a little bit more expansive because the to the point of that these people are you know certain low level people would always get a minor role just i'm not suggesting i'm not suggesting that what i'm saying is the sort of it's been his burden to show he's mine or he would have to somehow straight up the other guy's got the e c one seat leads right yes how could he not say if there are other bigger people and yet then fay it's error not to assume there are other bigger people well because he did he didn't cooperate post arrest but at the time of his arrest he did sit down and interview at his arrest and laying out how how this happened that he was approached by somebody in ecuador to say we will pay you a thousand dollars now if you pilot the boat and get it to this location we'll pay you in additional mind thousand and then fly you back home and the other thing that's critical is when you look at the other co defendants they all in the p s are also did the same thing gave post arrest statements and they all corroborating each other they were approached by these unknown folks that said hey we're going to offer you this and they did that so he did provide information to show that he was this kind of a peripheral person because he wasn't somebody that was already involved in the drug trade he was approached by somebody to do it he made a poor decision by accepting it in the end he pled guilty and took responsibility for that but i think when they rely on the facts of the p s r he clearly stated how he got involved what his role was and when you look at that i do think he was peripheral because i guess it doesn't matter since he took them up on the offer but if he said no i'm not going to do this they would have moved on to somebody else so he wasn't  part in the whole scheme of things they clearly had a plan laid out they were just trying to recruit people to to help them do it so i do think it was necessary to look at the bigger scope of things to do that and also address the issue about the other people had eleven c one sees the problem with that and i think that with that analysis is that was their choice to enter into that agreement they could've taken the same choice to pled guilty without a plea agreement and made the same arguments but they chose not to and so judge was and i think does say the record well i didn't give it to the other folks i didn't consider that for the other people but he couldn't have because they entered into binding plea agreements and so the analysis is shouldn't be looked but everybody as a whole and then the other people that put this operation into place so i think that is important for the court to look at and i think when you look at all the different factors that his counsel laid out in his objection about how he would need all these factors i think he clearly met as a as a minor role that he should have been given a role reduction and so i think that was clear for the record and i think judge was it made an error by not considering the larger group when he did that last question is it sounds like you can sit down you have rebuttal time the government files a brief and it's says we reviewing this for clear air and you didn't file a reply brief that is your prerogative so you accept that this is a clear where we're not asking whether the judge made a legal mistake please the court counsel now after being apprehended in about an issue of international waters loaded with over over eight hundred kilos of cocaine the stretch in the air was indicted in the eastern district of texas he was indicted for a title pretty six united states code section violation of seven zero five zero three and he pled guilty and he received one hundred seventy five months for that office he now challenges to aspects as indicated by public counsel the first is whether and he's asking that this court file of the dissent in the ninth circuit and we're obviously asking that you follow the other circuits that have found accordingly and this court has also in an analogous situation in the philips case looked at that specific issue in looked at  title twenty one united states code section violation of eight sixty and that's the distribution of drugs within one thousand feet of the school and it looked at that particular violation because of the fact that that violation incorporates by reference the penalty in section eight forty one and section eight forty one is an enumerated often hundred thirty five fifty three but this court rejected that argument that because eight sixty incorporates by reference the penalty provisions that would necessarily put  the often since contained in thirty five fifty three or as well as in section one hundred sixty now interestingly enough your honor i would point out that in two thousand and fourteen a section was added to section one sixty in two thousand and fourteen added title twenty one united states code section eight twenty five so if congress wanted to address this issue they could have very easily added seven zero five zero three two and often under section one sixty just like they added section eight twenty of stand from the ninth circuit case the government used to actually take the position that your colleagues were asking that you follow the majority in the ninth circuit and i understand that but the government itself did the government itself take the position that defense counsels take it or not the government took the position that that the statute was an ambiguous and that only the numerated often says under those particular sections should qualify for safety valve reduction if you disagree with a majority  qualify for safety valve consideration in regards to the statutory minimum ok now there's one exception to the rule of the plane in ordinary language in a statute and that's when a giving the statute it's plain ordinary meaning leads to an absurd result and that's just not the case here the plain ordinary application of the of the words in the statute don't lead to an absurd result it's a basic criminal and there's a principle in criminal justice that states that more of the more serious the crime the more serious the punishment and that's exactly what is going occurring here the statute in stature in texas and in big risk in that sense the difference between nine sixty offenses and seven zero five zero three it lies in the prohibited context of conduct their read so i in my brief i gave an example of a violation of nine fifty five because it also occurs on a vessel but it not fifty five criminalizes the possession of a controlled substance on a would first of all rely on the quantity of drugs this this circuit has indicated that just based on the quantity of drugs alone is sufficient to negate or deny a mitigating role or just in regards to the questions that he was posing to defense counsel as to what a that he was looking at the p s r he was looking at the facts and the evidence in the piece or he was looking at the fact that the defendant had the burden of two things the first burden was to establish who was the average participant and the second thing was to say how he was substantially less culpable than the average participant and in this case the judge was sent went through the analysis he looked at the facts in the p s or he reviewed that it's a very spect pacifica evaluation that the judge has to do and in this honor there must be higher ups here and as this court just mentioned there are always potentially more individuals there's a problem asco are other people that are producing in the labs but that that was not the evidence that the court had before it on this particular day the facts that the court had was these individuals four individuals live on a boat out of ecuador they go on this voyage they run into it or they meet other individuals and refuel they then go to another boat and meet three more individuals they transfer the load they put the load in the the  boat that's nearest to mexico and this was a five day trip so it didn't happen from one hour to the next it was five days that they left ecuador and traveled in this best city they met these individuals to refuel they individuals in the openness of the sea that they refueled on two occasions that took a lot of coordination and effort by the individuals in the book and judgment that looked at the fact that he was holding all of them based on the information that he had he was holding all of them accountable for the entirety of the eight hundred and sixty something kilos of cocaine that was on the boat the actions that all of them took together that they were working in unison with one another that they were working together to advance the criminal objective which was the transportation so that's what he viewed and that's what he used to determine whether this individual was a mitigating or deserved a mitigating role and after he went through that detail analysis he came to the conclusion that he did not so that's why he will the way he did know the defendant had the burden of producing evidence to suggest that he was less culpable than the average participant and he failed to do that so it's the government's position that he waived that argument and secondly that probably produced no evidence and because he produced no evidence there's no plane ever relies on eight forty one but it says you're going to have twice that there's multiple different penalties so i think that's distinguishable then what mr cheney was convicted of because it simply just refers to the penalties and nine sixty so i do think there's i've corrected it so but i do want you to point the court to the record because i think it's important because it's some point the government's attorney made a statement that they would agree with  conspirators or people in charge of the drugs initially in hiring they probably did have a higher role but this defendant is no less culpable than the other three co defendants and so but then judge maziar at goes on to say he talks about he makes the statement i understand the government doesn't see that you're less culpable than some of the other coconspirators in the case that hard you to take the shipment but that's not the way the court looks at it the court looks at what is the average participant and based on the evidence before the court and what's contained in the pre sentence report the average participants are the other three co defendants that participated when you left ecuador and i think that's the that's the issue that's the crux of it i think said simply comparing him to the other three that left ecuador and not as a hoax is a legal error not a sufficiency of the evidence i think it's both because i think that the evidence was there to say the t describe the scope of the operation so i think the evidence the evidence was there but then i also think he the subset that he used that is the legal area should have considered the entirety of the whole and so i think that's our position we've asked the court to reverse and remain