this court essentially arguing that pimentel lopez and the courts ultimate sentence in this case is not inconsistent and that's simply incorrect here we had a case where the jury was  special verdict made a finding beyond a reasonable doubt an affirmative finding that mr gutierrez both conspired to distribute less or more than five grams and less than fifty grams of pure or actual finding there was a stipulation by the parties at trial that the government seized on september twenty sixth i can read the exact stipulation either point nine that's eighty seven percent correct here and that works out to forty eight point six but the stipulation is not the same as the jury's affirmative finding beyond a reasonable doubt that this was the amount of pure actual math he possessed that's the problem and that's what binds the court and both the parties under conversion on the mix the eighty seven percent would be fifty five point nine the problem is is he was convicted based on pure actual which would be forty eight point six grams which results in a base offense level of eighteen or excuse me twenty eight excuse me twenty eight but at sentencing the court sentenced him based on a base offense level of thirty and the reason being that the commentary to the guidelines requires that the court take whatever conversion whether it be the pure amount or the meth mix amount that results in the higher base of friends level and so the problem here is that's where the tension is application but it's only attention if you think that the court can make a find who are going to have a basis for making a fi right but i think where the problem comes in is yes it is true that the commentary must be followed it's binding but there are exceptions those exceptions being punished violates the taking it into account but the jury never made an affirmative finding as such but that doesn't make it contradictory though it simply makes it not to the jury didn't find it but that doesn't mean that it couldn't be found are you arguing that there was a contradiction i think in essence it's inconsistent there is why that's what we're not understanding while essentially when you go with the mix level you're at a higher base offense level and it completely changes so back us up through it because it seems to me that the fifty five point nine eighty seven percent cure that gets to forty eight point six this judge went at it under fifty right here between five and fifty were but the jury's finding was as to pure and so if you're going to simply allow the judge to find out and i are just go to don't skip over it because we're trying to catch up with you to make sure we're not missing something please the jury's finding was between five and fifty of pure right correct ok then take the next step please so that is what mr gutierrez should be sentenced based upon case the government and you think it was suppose this had been john in a more orderly fashion than it was and the government had come in at the sentencing hearing and said a jury found forty eight whatever pure meth  are if you do the percentage now eighty seven percent and that makes it i guess you're saying the judge cannot make that finding the second finding even if he had right evidence for if you have the correct evidence but the judge didn't make any findings he simply incorporating the jury special verdict because the stipulation is only as to what was seized mr beauty or is was not present at the drug transaction and so that is not what is attributable to him which is how the jury's verdict differs the jury specifically affirmatively hold mr gutierrez liable four forty eight point six or more than five less than fifty grams of pure actual math that's the difference it's what he says he's handy argument you're raising it's not it's more just like the court's logic in pimentel lopez when the jury makes a special verdict an affirmative finding beyond a reasonable doubt you have to give weight to that you can't simply ignore it the parties are bound by it here the government chose to proceed this way they indicted on forty eight point grams they threw out trial on sixteen different occasions referenced forty eight point six grams there was no reference by the government in their argument in their closing their senate mation the problem this of course that it's not at all unusual was that as i understand that they the the requisite finding was actually made by the judge and yes we can hear that but that's why i went first to the hypothetical where he actually essentially make findings but i don't think in this case he could i think he's bound by the special verdict the court so it's not just that he didn't you think he couldn't have in this case in this very small small universe of fact circumstances i don't think he could it was the government that proposed this verdict form they're the ones that asked the jury to find not only the type of drug that it was math but that it was pure an actual and  between and so to simply ignore or disregard that because obviously there were no factual findings made he's bound by that the court is bound by that the parties are bound by that there's relevant language in pimento lopez and it's a special findings are just positive of the questions put to the jury having agreed to the questions the government cannot now ask us to ignore the answers to do so would be a clear violation of the petition petition or sixth amendment right and i think when you simply disregard the jury's special finding that they proposed in the court adopt it the parties are bound by that so that would be my argument as to why that sentence control system forfeiture issue here given that the specific argument was raised in the reply brief i don't mean the government didn't brief it in the in the read brief because they didn't have an opportunity to respond to it right correct but at the time the opening brief was drafted pimentel lopez had not yet been decided should they have an opportunity to well they filed the twenty eight j this friday addressing why if they if they wanted to obviously you wouldn't object right no i would not object to supplemental funding to no clarify are there other you don't want the question is why isn't that enough of a conspiracy right there and then there's what i understand that the government's theory seemed to be that your client was kind of the ringleader and that he was he was getting the drugs and given the other guy but suppose that wasn't true at all wasn't what was in there still a conspiracy well that's not exactly how the facts played out it was more so you have a confidential informant contacting mr gutierrez repeatedly mr gutierrez not counting to contacting him back and finally when saying to them here's a number talk to this guy i'm not doing that i'm just not doing that but they're my people and we're all the and the other guy says we're all the same i'm wrong the same company and and  getting and finding the guy when they can't find him in other words i think it seems to me that that you were in visioning or he wasn't vision was that the government had approved one kind of conspiracy but i don't know why what they well i think the facts are being kind of when you step back when you when you go to the my people and it's ok you have to look at that in the context of which it occurred the first conversation it was called this guy and the cia responding with why should i call him it's ok he's my people it's my nephew which obviously can be interpreted as simply this is my family member you can call him you can trust him and and so why is it not a conspiracy to distribute drives because there's been no agreement as to the refer to you and you're going to solve a little bit of trouble but i don't i don't think that there is evidence of that in the record that if someone calls me and wants a little then i would say that all you get and i thought that was perfectly clear and well for you only there is a recording during the transaction in which whoever this person in the vehicle is which we obviously dispute that was even where to in the vehicle ok is somehow implicating mr gutierrez that he does a little amounts and  the government kind of fell into into the same problem they were trying to argue for something bigger too but i don't know why i don't know why why it's simply their force is an inadequate conspiracy to distribute drugs well i think you know first off there was an agreement secondly you make the point that mr gutierrez contacted the nephew when the c i couldn't get a hold of him i think you also need to look at the facts there it wasn't here's my nephew's number let's get this deal going and lined up it was all have him call or i'll call him and have him call you and it's kind of up in the air there's no affirmative desire to push this transaction forward it's a let me call him i think your argument is a pretty tough one because had it been just a referral to the nephew you know i'm interested in buying drugs hang the guy go ahead and go you know do the deal with him that's a different case but in this case the cia did push back against the defendant suggestion deal the nephew by saying well i don't really know him you know i'm i'm the i want to do the transaction with you and your clients are just that but that's the same thing they're my people or it's the same thing because that's my nephew so that's the link right there isn't it understood  as i mentioned in my brief you need to look at the c i and you know obviously the jury didn't prove believe all of the cia's testimony when they acquitted on count seven and so you have a case where the government paid one thousand dollars provided the cia to the c i provided him with immigration assistance paid his parking ticket call this finance company and this was all over a nine hundred fifty dollars drug deal so i think with what the cia is saying obviously it's not for this court  credibility but the jury didn't necessarily believe everything the c i said so with that i'd save my one minute for rebuttal thank you it will give you two minutes when you come back switched that one is that gutierrez was just a big ice but he wasn't charged with distributing ice your honor that's correct he wasn't charged with the forty eight point six grams of pure methamphetamine however a child there was a respect to what was seized and then what was a deuce that trial with respect to evidence presented through c i testimony as well as through testimony of other agents was that what was what the jury had a specific finding of less than  fifty grams right between five and fifty between five and fifty but with respect to a specific category under the guidelines pure or actual methamphetamine and now that is not contradictory to the ice finding as  evidence by the stipulation you can have a sample that is both at the same time forty eight point six grams pure methamphetamine and simultaneously five fifty five point nine grams ice based on the eighty seven percent pure quality when when you look at the drug lation table under the relevant sentencing guidelines and you calculate the sentence for meth do you look at the weight because that seems to me to be what the application suggests that for methamphetamine you go to the weight of the controlled substance not the weight of the mixture so so now i'm trying to if that's mike if that's a correct reading of the guidelines then we're just trying to figure out what's the wait here right well what the application note says as interpreted by the various pieces of case law is that you need to look at the various categories and determine which one results in a higher base offense a lot of the case i mean says as much in the application notes as use the higher whichever is higher which are greater exactly and so here we have two  categories of methamphetamine that we need to consider for the sentencing both the eighty percent or greater purity which is ice or the pure level now the pure level is in fact the forty eight point six grams but at the same time we also have an ice quantity which is the fifty five point nine grams and they're not contradictory it's unlike him it's held lopez which is where the court finding and the jury finding s'posed dealt with mixture and substance of  methamphetamine it was the same category so there you did have an instance of a direct contradiction here there complimentary which is why just as an example in the stipulation you can stipulate so both the pier and the ice amounts but could you back to judgment question since that the guideline application of b is what i'm reading under says to use whichever is greater right and so she asked you about the guideline calculation correct so here we have two we have two quantities we have fifty five point nine which is ice and then we have the forty point six grams and so you have to look at whichever is greater and that is going to determine the base offense level and that's what the probation officer did in this instance which was which the court excuse me which was which was used i'm trying to figure out what's the calculation the calculation in this instance was the fifty five point nine thank you as based as evidence in the p s r so let me make sure i understand the argument that the government is making here you're saying that trial you proved both that the actual weight as you term and by the jury is less than fifty grams of your actual math but you also proved that it's over fifty grams of a mixture more than eighty percent purity therefore it's ice and therefore it's eleven thirty that's the government's argument the government's argument is that at trial evidence was a deuce that the sample that was passed was stipulation fifty five point nine grams of eighty seven percent purity ice as well as forty eight point six grams of pure methamphetamine when that stipulation is combined with the testimony of other witnesses was going to be adopting those guidelines because there were no objections by either party the separate instances being in the present report and were asked two separate instances at the sentencing hearing your honor of course mystically said that he was accepting the guidelines he felt like they purposes with under a pretty obviously we need a jury finding for any type of quantity that's going to trigger the mandatory minimum but when you're looking for the relevant base offense level for guidelines there's nothing to indicate that we need a specific jury finding yes we do have this new pivotal lopez case but that's different that is only saying that when you have a specific court finding that is directly contradictory to a jury finding on the same substance that cannot stand well while we're at it can i just clarify do you are you requesting an opportunity to separately brief this issue because it was raised for the first time because given the timing of the new case law only if the court feels it is necessary i do believe that the government has address sentencing your honor i've seen it done both ways i think that oftentimes there's a focus on the purity levels because that is oftentimes more right persuasive to a jury when you consider the pure amount of methamphetamine however the government does not see the decisions to be determinative of what the ultimate sentence is going though i understand that i just wonder what the practice is do you charge ice if you're going to basically proceed and ask for something is based on ice you're i've seen it done both ways proceed on a different point fifth in this case was convicted not only for his role in the discrete september twenty sixth transaction but he was also convicted for his role in the larger conspiracy to distribute methamphetamine that conspiracy was the one that was alleged in count one unproven at trial and then a conspiracy says that beginning on a date unknown and continuing to at least october seventh two thousand and thirteen the defendant conspired with others known and unknown to the grand jury to distribute methamphetamine that was because spears see that was proven at trial in addition to the discrete count two substantive counts of the actual distribution on september twenty six it's important to draw the distinction here because many of the defendants argument seems to rely on this fallacy the fiction that the conspiracy only related to one transaction the argument that the coconspirator statement somehow did not directly implicate the defendant but argument that the other acts evidence somehow was not inextricably intertwined or that work was not sufficiently involved all phone counts and the evidence that do such trial was ample and the government cements properly admitted we admit it evidence of the defendant's statements as evidence and recorded calls and the fin twenty sixth call you need it you needed a small one essentially asking him did he need a small amount and then when he found out that yes he only needed two ounces then the defendant went on to say well i'll tell him i'll call respect to the october seventh call the defend it says at the beginning when you first start speaking that the informants go to work that if you quote if you need a little bit and that's it she are sixty six but then when he finds out that the informant wanted more he actually says yes i'll give you warranty and everything in addition to those very telling statements the defendant also makes another of a number of other statement showing that he's involved in this conspiracy with word that he reassures the informant on several occasions that she continue on with this transaction this same things like they're the same they're my people he's my nephew it's the same thing in addition to the defendant's statements another key piece of evidence is the price negotiation here the ultimate price for the methamphetamine was four hundred fifty dollars per ounce that is telling because where  initially quoted six hundred dollars an ounce the only way it gets back down to four hundred fifty dollars per ounce is by the defendant's intervention showing once again his involvement in this conspiracy in addition of cour the government a duce evidence at trial in the form of the informant testimony which was corroborated by toll records and then of course is just the mere fact of the transaction turn which would not have otherwise ha not been for the defendant's involvement now when you consider that it is you and i can interrupt you and you're doing a very nice shot but i would like to talk a little bit about the evidence  because your time's running down i must say that i was traveling although i question the precious by both the evidence or your shoes that were raised that is particular person what were terrorist did with regard to somebody else of some other child i don't understand the relevance of well your honor actually thank you for bringing that up with respect to the other accidents i do want to make a correction in the record the defendant in the  reply brief at page twenty three claimed that the government relied on the other acts evidence the statements by defendant with respect to mr hernandez that in fact is not the case if you look at the citation given by defendant that he are five thirteen to five fourteen there is no mention of those statements all that is said is that the informant knew defendant for longer the conspiracy started before nine nineteen and the informant asked for drugs all of that could be based on the informants testimony the very beginning of the informants testimony completely separate and apart from the other acceptance so i did want to clarify that that even though it was introduced at trial it was not in full sized inclosing going to what we think it's been a been introduced as well and so even if this court were to determine that the admission of the error of the evidence was error the error was significantly harmless in this case it was only fourteen lines of testimony it was not emphasis you know what that's what the government always says and if the government really overreach is i'm really troubled by it so what is your best argument because because the one you're giving right now is the one that we hear every time unfairly prejudicial evidence is introduced your honor i want to focus on the content and the well the brevity we've already mentioned the content the statements themselves were not emotionally inflammatory they're not the type of statements that would stay with the jury and when you compare those statements to all of the ever other evidence provided the finance statements the informant's testimony with respect to their one on one meeting as well as the october seventh call the toll records the everything else that was jus leather case here in happened i don't while ago not with the right saying people are not the same conspiracy i mean there's no wonder that that's the same conspiracy right well no your honor but we would say that the other evidence presented which is where the defendant essentially know lodges that he's able to distribute and willing to provide pounds of methamphetamine with warranty and everything where we have where those strong statements saying they're all part of the same company one finger of one hand that's much more than these fourteen lines of testimony was a sort of reckoning and maybe it didn't mean we were getting it from the same person excuse me we're getting the drugs from the same person it's all the same company meaning he gets it from to show even though it's not the most persuasive wanted to show i don't know what it shows it tends to show that someone who was using the someone someone who was using the phone a phone that was used to coordinate on the day of the september twenty sixth transaction with someone who was interested and probably involved in our contacts trafficking which tended to show when combined with the evidence on the phone connecting it to work that it was where who was involved with narcotics trafficking it was not the  been it didn't object to fin it had an opportunity to cross the country you know we really take it seriously we hold the government to a higher burden and i and your presentation today is really excellent i can i can see that you take that very seriously but i hope you get this message yes your honor yes you do your own i ask you the sample that was some purchased was crystal form what it was yeah it was a crystal form called pink champagne if that were yes when it was eventually turned over to us though it was processed and smashed down because it had been tested i think interrupted judge present did you have another question oh no i did not i think my time is just about at the other one point that i did want to know for the for the court what you've got two minutes on the clock but could you put three minutes because we we went over thank you go ahead thank you i can just very briefly make two points one looking at the evidence that was a dues to trial the narcotrafficking blogs and the prior drug transactions standing alone maybe it's not enough to warrant reversed so we would x this court to reverse based on the cumulative effect of the error in light of the evidence and then secondly as judge mentioned the government could have charged ice and mix and they didn't and the government could have proposed a special verdict for ice and mathematics and they didn't and we're asking this court to enforce that special verdict thank you now are we done ok thank you so much