thank you your honor and may please please the court will have a big winner anthony lucio the issue in this case turns on relevant conduct determination made by the district court that resulted in  extreme increase in the severity of his sentence under the guidelines based on a determination of a cryptic text message conversation a court added twenty four kilograms of methamphetamine to mr lucio is relevant conduct as well as converted all cash proceeds found at his residence and on and on a co iew what the district court did here for clear  we supposed to fund it that is i understand your argument and maybe i would've made a different decision but how is it clear well your honor the court has to make a fine name based on a preponderance of the evidence if and when the court in sitters this review it has to find the district court had to find an adequate evidence your id basis for any kind of shift to dispense to show that it's on true or unreliable and here i think it's there's not sufficient evidence for the court to conclude  of the evidence even under a clearly erroneous standard that those narcotics were methamphetamine because there's nothing really to distinguish it from the different drugs found in his house well couldn't couldn't it just so i'm reading you know i'm reading more marijuana found there's two dollars kilos of marijuana found in the in the car and at the residence there's one over a kilo of cocaine found at the residence and there's half a kilo roughly of methamphetamine just over half some there's some tension here as to whether the district court really found those statements of mr wilson's to be true because none of these quantities were assigned to him in his relevant conduct and this is precisely what the government had argued that this is basically a moot point because he would have been over forty five dollars kilos anyway under a mixture theory that was their argument for why the downward variance shouldn't be granted because even if you treat ice as the same as mixture meth we have over forty five dollars kilos based on these this paragraph but it's clear that the judge didn't make the finding that these statements were true because it didn't go into the relevant conduct determination to the judge did not statements you know we know that because they're not in the drug quantity determination that his quantities never go into the relevant conduct determination as to the appropriate amount of methamphetamine attributable to him and we know that because he even though the government urged it twice in its objections and three sponsors to the defense objections and in its  response to their requests for down variance it overruled the government's arguments that this issue is a moot point because of these statements which would have kicked his method venom in above forty five dollars kilos so we know the court those are the reasons we know the court didn't make those findings i know that the government the district court did say it adopted or it it it overruled the defense objections based on the probation officers statements and it's denim in the government's response but i point out that there were or objections raised and i think it begs the question of which which particular arguments were relied upon by the district court when making these various determinations but what's clear is that he did not adopt these statements of wilson where he identified these kilos and i think there was a good reason for that because this this forty eight kilogram storage place we hear nothing about that there's nothing to follow up about that where was that methamphetamine there's also this alleged twenty four to twenty five culo transaction via text message took place the evidence that was and i don't i think that the work relied on looks as a translation was the text message transaction was setting up a deal where lucille was providing something to someone else zara i know food but let's assume food is some kind of drug use lucille is providing it to someone else is that it well i think the way the text messages read is that is that lucy is receiving the drugs ok from from  supplier i think you could argue maybe there are twenty five kilos of of anything of meth well it could your honor it could be it could be cocaine it could be marijuana it could be pounds it could be ounces there's also discussion of gallons in the record there's there's nothing to specify what it is and and i also think that it's strange that they interview mr wilson the day after this took place and there's no such weston's about this he doesn't ever discuss this transaction and even though he's incorporated in the next miss just as it said he was sick one day couldn't go in never there's no discussion of a day after or a week later there's a discussion about a month earlier there being forty eight dollars kilos in a storage shed which the judge didn't rely on i think for good reason because there there isn't any evidence that that act and i mean there's no evidence of meth well  so i guess it comes back to my original point which is what kind of in additional reliability do we need to have you know p s r i understand that just saying something in a p s artisan so facto make it case would be if the court had relied on wilson's other quantity statements so that it showed that he actually found his quantity statements to be reliable with respect to the other transactions and he had specifically made a discussion or are common it on this very transaction if they just asked him what are these messages oh these messages are they're talking about twenty four to twenty five kilos of methamphetamine i just new cases where we use a current based on that you know just duncan is asking these sort of the cases on the side of the coin you know where's the demarcation line where we have clearance so my question is what reversed that own the own the clear ear because surely if we did you know we wrote carefully to make sure that we're delineating that this is you know sort of outside of the of the heartland and so said another way you know what's the land of demarcation that if we were to rule in your favor that our district courts with no oh ok this is how you know you get outside the white lines because otherwise we've got this you know ocean of other cases so  here is it your argument that the trial court improperly relied on quote the case agents expertise and that's sort of the feel to reenter what is it without further it provided there's an adequate evidence or basis was dish of a liability in the well i would stand there but you know we know what the stand we know what the jargon is what is quote an adequate basis you say is not i mean that's that's legally i mean we all agree what standard is i'm saying was the bright line in the cases where we've said ok you've crossed the rubicon you've crossed the line of where the you know this broad areas what is it in this case for you when it's somewhat of a friendly question what i'm saying is this case there's an overreliance if you will on the case agents infusion of would be where you have evidence of contemporaneous drug trafficking in multiple types of drugs with of comparable quantities and there's discussion about that details a transaction encrypted language or not quantity nor the drug specified we can't conclude i promise of the evidence that it's any one particular drug and we really need to treat it as if it's the he these facts you know somewhat tried to give you a passage way but you say not willing to want to go there but in a way that's good you've got rebuttal coming up so you can just think about that and we'll hear from from from the you when i was hard on mr biggs as judge stewart would think ill of me if i did that act you know i was reading this case the tell you my st impression was i was looking at the whys that drugs are attributed missile and twenty three grand is a marijuana ok so i'm getting the idea all right i understand the quantities here and then i did some twenty four kilograms of methamphetamine and i did a double take and i thought my goodness gracious that seems so out of  line with the other amounts what is that based on when i read the text messages i thought wow that seems like a leap into the dark twenty four to twenty five specified nothing of food ok let's even grant that there refers to drugs let's even grant that refers to met how in the world do we get to kilograms from the text messages that was my st impression  wasn't just a short period of time it was a long period of time while history lucille was involved in the drug conspiracy to which she pled guilty mr lucio is known to sell different types of drugs including ice cocaine and marijuana deliveries of narcotics he didn't get paid for that service but he got to live in the house rent free so he had incentive to continue that business and was certainly familiar with the nature of that business he talks about how one month prior to january of twenty and one month prior to his statement which you know was picking up multiple gallon size ags of meth and he also talks about this forty eight kilogram meth storage in a shed that's certainly part of this record that's different case altogether if wilson had said something about two thousand four hundred and twenty five dollars he was a mess because it would tie together with text but really it doesn't time together does it well it does in the sense that it shows that mr lucio was dealing in large all humans large quantities of meth and it means the other aspect of the nd statement was that he was aware of who mr lucio sources supplies were and he was present when someone deliver kilograms on four separate occasions so that's evidence that mr lucio was dealing in multiple large kilogram quantity sizes drugs in another instance where a man delivered one kilogram of cocaine in asked showing that there those drugs into his possession so that he can go sell them and he has a level of trust with the supplier of those drugs that that supplier will give him the drugs without having all the cash on hand and b because he knows mr know is good for it to sell it and you know ultimately pay that money as he hold those drums on consignment you also have the nature and urgency that's reflected in these text messages i think when you read through them this was a series of text messages over the course of multiple days it was not just a quick easy simple transaction it was multiple days where these two individuals were talking about this particular transaction and the person sending those text messages the cinder is certainly eager and concerned to make sure that this particular transaction goes down it goes down smoothly and everything works out there's discussion in advance about what's our do i take you to food do you have the paper or there's a question of how much there is the next day there's a continuing series of text messages between these individual where dyster lucio is unavailable to go but there's a sense of urgency in these text messages to make sure that this deal goes down and goes down and then ultimately after the deal force officer that it's common with drug trafficking organizations to communicate the recipient or the customer immediately after the transaction to ensure the customer satisfied with the quality of the drug and to ensure the customer was not arrested by law enforcement this isn't just a hand to hand by simple controlled substance small amount that's being discussed in these text messages just this is a significant deal for somebody who is in who is in it it to to obtain these drugs on consignment or this list of the bugs but this isn't the case ok let me say that this way it's clear this guy is a big time drug dealer and has more than one product that he's willing to the spends no dads disputed so this is a case of where his reputation precedes him in other words he's got a reputation for dealing in both types of drugs so  in the case and so the pushback is not getting into a why show you know a mass of people but this defendant this charge and so aunt yukon trying to get us to see that well he's a big time drug dealer he admits that he does both kinds of drugs so it's a fair inference that in this transmission it could easily be x rather than y and therefore the p s r has it there therefore you know no clear where you follow the line of my question i understand the question just do it and i don't think that's what i'm suggesting at all what what what i am saying is that the district court has this court's precedents have said over and over and  the court can rely on any information that has the vision indicia reliable and looking at these text messages that are certainly sufficient and issue of reliability that it's about a drum transaction number one a coded language t urgency to pick up multiple days that the series of text messages occur the task force officers statement and ultimately the the fact that he was charged with a meth conspiracy and that he admitted to a meth conspiracy there is also separate occasions and that there was another instance where mr lucio picked up multiple gallon sized bags of methamphetamines and stored forty eight kilograms of meth of methamphetamines in a shed and then ultimately wilson's statements were did not credit the amounts that wilson's talking about or do not believe wilson that's the gist of it that we shouldn't we shouldn't look to wilson statements to give the amounts in the in the wilson in the record at page one hundred and ninety one dollars this is the sentencing hearing transcripts the district court makes his tentative findings in response to the defendant's junctions and he pre sentence report and then when asked of defense counsel whether any evidence was going to be submitted in support of the objections and no evidence was submitted to rebut the information contained in the p s r in the to address its motion for variance based upon the distinction between actual and and regular asked because the district court i don't know disagree is the right word but some sort of i also think that the fact that the government didn't push even harder to clear the forty eight kilograms only further shows why this district course actual finding on drug quantity is not clear error the government used the evidence from wilson the evidence from the text message to reach a conclusion that is plausible in light of the record as a whole this wasn't a district court judge means he was not trying to put every single drug that he possibly could on this defendant to raise his guideline mr bigs what his best case was so i'll ask you if we are looking for a case shows i guess flexibility in making an estimate breeze from the score in two thousand and eleven there are this court looked at the defendant's criminal history that he was known to you or that he had evidence of control purchases in the house that showed more drug evidence coconspirators to determine the drug and rejected the speculative argument that money could have come from some other drug not believed cocaine in that case because there is no evidence that  eight no clear error even when the basis for drug quantity didn't disclose the type of drugs involved in the border crossings there was a reasonable inference that the defendant was involved with cocaine given evidence of other crossings and that the smuggling in iraq was primarily dealt in cocaine and if i could touch just briefly on that the issue of the money a couple of things that i think are important to keep in mind number one this defendant the record shows that he was unemployed for the two years preceding his arrest that's it the record to twenty eight dollars prisoners report paragraph seventy i think it's also relevant that he was significantly in debt at the time of the pr explanation for eighteen thousand dollars and certainly the evidence supports that it is part of his drug business so to that point though about eighteen thousand dollars in the quarter converted that i think certainly plausible that this defendant would keep other proceeds of drum monies somewhere else and certainly if he just engaged in a forty eight kilogram or twenty four kilogram transaction in recent days before his arrest he may i think it's roughly one hundred and fifty thousand dollars your honor i think your st question hit this on the head is that the question is whether the district court's finding was clearly wrong hand that requires an analysis of whether it's plausible in light of his record and all the available evidence we have shows that it was  bronner in response to your query during my national argument i'd say if you were to try to draw some kind of bright line rule it would be that the m opinion of an agent as to what the drug is in the quantity of drugs is not sufficient without some particularized basis for that opinion there is no basis here at all that's cocaine in pled guilty to that but with that argument suggest that we should assume it's twenty four kilos of cocaine and not methamphetamine because of the particular drug that the government insisted on inspection resume and that just seems to me like not is a sound basis to be deciding what drug it is and what drug it isn't here again we have higher quantities of the other substances and i'd like to highlight this is the difference between some of the cases the government cited coded language for drugs sure we agree we were great with that it doesn't tell us what drug and the case the harrison case  which does discuss the cash conversion that was an interesting case where the cocaine the agents found cocaine and crack cocaine and they converted all of it to crack cocaine as far as  the crack cocaine in there was an argument they would also cocaine was found well the court pointed out that he has a history of distributing crack nuts based on his criminal history if the quantities were found in twenty dollar bills and there was some evidence that hey a rock of coke crack cocaine sold in twenty we don't have that particularized basis here in fact of let me ask you this so i said i'd take what you just said you can see that the text messages back and forth are related to drug transactions right well your honor i wouldn't fully could see that but for the unclear review i would say doubt would it be fair just can't hardly argue that it's not to be could be firearms evidence so we know by punch the evidence in this line of inquiry that the discussed messages involve narcotics but we can't really go beyond that so i think that the only fair way to do this would be to presume it's the least culpable of the three narcotics brings your case with the court or as your case all to support that approach i don't have case a lot of support that approach but i also don't have cases that have dealt with this where we have multiple drugs at issue and there's total ambiguity as to which narcotic is being discussed and we have comparable quantities of each of these other cases that are cited there isn't there isn't evidence of distributing other narcotics and in similar quantities and i point out his criminal history unlike the harrison case where there was prior crack dealing here his criminal history actually is cocaine and marijuana the other two drugs there is  money as opposed to product but i think that i would be i can't really argue on clear air that you couldn't assume that he was receiving a product but i don't think there's any basis to say he's receiving methamphetamine in particular it's basically just the to the cast of herbal d i mean i think you'd be unfair to convert it all the methods venom mean i think that perhaps a perhaps looking at the ratio of narcotics they could you could convert the cash in ratios commensurate with the dope with them with the the drugs found i think that would be one way to do it though i think that even that's speculative and i think you know the another good can defer the least culpable drug but it look at the very least in proportion with the panel as well as the entire court we very much appreciate your service and those other c j counsel who take on these cases for both briefing and oral argument and we thank you for your service in those cases but especially in this one and used binds the thank you represent the government we appreciate the good service of both of you your candor to the court we'll get it figured out and we'll let you know as soon as we can with that that c