addressing the issue aiding and abetting issue and then the sentencing issue raised by the government on cross appeal followed by the insufficiency of the evidence to support the drug quantity finding however initially i want to reiterate our position that the government did not adequately preserve its cross appeal issue for appeal of the sentencing issue the government's objection was at the last minute after it had acquiesced and agreed with the sentencing court to the reduction by ten months giving credit for adjusting by the ten months state sentence that had been discharged by mr salt on the objection was not supported by any legal argument or legal precedent relating to the government's position and as a result the trial court was actually just word up for the district court who acknowledge it and then move right on didn't invite any further discussion briefing or anything well i think it's not sufficient because the only however i do believe that in most cases and maybe this is the exception the district court should have the st opportunity to for a lee digest months is what it should be it's not like there's anything for the prosecutor to anticipate or respond to this record didn't see collaboration and i understand did i really do understand what the district  trying to accomplish what i'm hard pressed to say why it is if your client doesn't present the argument or the government should be are expected to respond with chapter and verse counsel in addition to that didn't d someone include in fact i may be mistaken on this my memory was that the prosecutor said that the sentence was discharged  yes according to what the government said it referred to paragraph fifty one dollars of the pre sentence investigation report which indicated that the ten months started in the state by mr so donna had been discharged and your honor i understand that there is a some basis to determine that maybe the government did adequately preserve the issue but i did yes the i think your honor and looking at the due process equal protection argument the course and drake was quite instrumental in our argument and also the court the case of us hill cited by the government which reviewed and discounted some of the attempted justifications for a rational basis however under the cases the distinction between discharged and undischarged sentences creates an atmosphere in the sentencing environment of unfair treatment and there is certainly under chapman the direction that once a convicted once a defendant is convicted the court is free to impose whatever penalty as long as the distinctions in the sentencing process are not arbitrary distinctions and to the distinctions between that are set up and the sentencing  regimen provides that in a undischarged sentence a defendant actually would be able to adjust the discharge portion of his imprisonment under as long as there is an undischarged segments to run concurrent with the federally imposed sentence as the drake court pointed out that does not actually puts the defendant who has completely served a sentence in the same position as discounting a portion of  mandatory minimum based on time that has already been served and in fairness i think that if on the undischarged sentenced sentencing court can say or can take the position that whatever the satisfied return is will reduce the period that you will serve and the fact on the federal mandatory minimum there does not seem to be a rational basis for that and although the government has presented a couple of scenarios that it advances as a rational basis for example the government indicates that continuous service of a sentence would be an appropriate basis to make such a distinction however i think fact with this example that the government provides if a undischarged sentence is almost completely  satisfied and there may be just months left on the undischarged portions to run concurrent with whatever the federal mandatory minimum would be in this case and twenty months essentially the defendant who might have satisfied all of the mandatory minimum under a state sentence which probably is unlikely would be penalized and in the government's situation the on charged sentence the defendant serving the end charged sentence would be a benefit and i don't believe that that is the type of fairness that the sentencing reform act had in mind when it promulgated the sentencing commission for the purpose of  eliminating disparity in sentences the hill chase points down to that if a court is concerned with the uncertainty then with the with the defendant who has satisfied or has discharged the state fully discharged the state's sentence there would  be no difference as far as the certainty of sentence because the sentence has already been served and so the federal sentencing court will already know how much of  sentence would be served and most importantly perhaps is that it would be the aggregate the federal sentence along with the adjustment for the completed state sentence that should be more important like to point out that on july rd mr saul donna who is homeless and lived and slept behind six o one which was directly in front of the apartment complex at five hundred and thirty eight dollars referred to as the jungle he had not prearranged to be on the street to meet the c w  cooperating witness whose identity is subject to a protective order so i won't mention her name but he was not if this was not a prearranged  event and her the c w the cooperating witnesses statements to him would you please let this person who we now know is the informant know that i am behind six o one she did not ask him to look as to function as a lookout she didn't request that he do any kind of screening of the informant when heroes so she was actually asking for a favor and this type of event dictates against a finding that he associated himself with the transaction or that he participated by sharing  this transaction between the cooperating witness and the informant moreover i think that the troublesome element whether or not he had a shared intent with the cooperating witness is not established by evidence beyond a reasonable doubt there is the  statement itself is not a direct indication of what his intent is and one way of establishing a person's intent would be circumstantially by determining whether or not he had some stake or benefit in the transaction that was not established in this case and therefore when he when the informant appeared and he was outside and he had missed out on had forgotten actually that the cooperating witness had asked him to tell him that she was behind sixty one he just engaged in casual conversation with the informant and then he remembered and he went back and he checked with this in no way was actions designed to ensure which i think the gov is the language that the government uses to ensure the success of this drug so donna was on the street he hung out and i mean it's no more than the court said in hernandez that mere presence and around drug activity does not equate to criminalise ability however on the th of september when the co op when the informant asked for two ounces so donna merely indicated you know to call him which was an affirmative declaration that he had the informant had to look elsewhere for this transaction mr sold on the he did direct the informant to but who was across the street and i don't believe that fat rises also to the dignity of some coming to designated or designed conduct that would ensure the success of any type of future deal that mr cho and the informant might enter into and i see that i am over my time so the government has preserved its objection to the below minimum sentence for appeal there's simply no requirement that the government five specifically to kill or statutory or other guidelines provisions that would preclude homes is a big surprise or would come as a big surprise to the district judge who was a very experienced judge and why do you think he did what he did recently we have also we pursued appeals up and i believe one other case where the district court actually afforded the individual are directed to be a key to award the individual credit and that was reversed in an the mandatory minimum results in years that was for somebody who's selling the lowest level street dealer twenty dollars bags something does not seem right as well this is a all along time for low level activity let's see if we can try to offer a little bit of correction here we are in the government alexis across appeal really got a couple of responses your honor st mr paul thomas role in the conspiracy he may have been a low level dealer but he was a low level dealer day in and day out and he was the evidence that he was involved in the conspiracy for many months and so that interested these did actually distribute quite a large quantity of methamphetamine over his entire time period being involved in the case but as to the issue is an appropriate sentence speculation that doesn't have a legal impact it may have been this started down this road and this wasn't the key guy in the conspiracy and maybe there was hope to be rolled up and so forth but at the end of the day this looks like i'm awfully heavy charge and sentence for somebody who is at the end of the distribution chain and there may be nothing that we can do about it and maybe nothing at this point that your office can do about it but i think it is the source of a lot of concern not just in congress but here and and i'm not saying that you made the charging decision but it's some point at the end of the day there are consequences one of the consequences here is that we several bases for distinguishing between discharge and under start sentence is in its brief i think some of the most compelling ones and one that i find particularly compelling is is this issue a loud when individuals who think time i precluding credit for a fully discharged sentence the sentencing d scheme basically doesn't sent and i did somebody from rejoining a conspiracy upon it serving completely a sentence for related conduct if you didn't have that then you could have a situation in which every time somebody served some marginal sentence on a related state con that they would have ever greater incentive to rejoin the conspiracy upon their release so let's say if i was going to join a drug distribution is your zipper example at the very beginning i would know perhaps that i beat the ten year mandatory minimum but if i was arrested and i served to your state and suddenly now i say ah i've got those two years down now i've only thirty eight years the disincentive that the ten year sentence originally applied to my participation in the scheme is reduced and so that issue of banking time i think does it encourage individuals or discourage individuals from rejoining conspiracies upon their release from the unrelated conduct that cuts both ways the the government could reserve on its charging until after the sentences s that is that is a concern i don't think that that's a concern that totally eliminates the concern that the government has identified which is again the disincentive dozens and citing individuals to rejoin the conspiracy upon their release from custody and that and i think i want to emphasize here what is your thought of burden is on the equal protection protection claim he bears the burden of negative and every conceivable rational basis for the distinction it is in and not that it sometimes will produce it and arguably an equal or unfair result what he bears the burden to do is to explain that in every single factual scenario it would not have a rational basis and the baking time example that i just gave that is a baffle scenario where it is a rational distinction to draw because it is incentivizes for their misconduct now the other act the other thing that someone's life and given that disruption and that that link of destruction the further dozens and surprises in deter someone from future misconduct and deter someone else who sees that when the sentence for joining a conspiracy in the st place now that  cooperated and ultimately testify in this trial and i do i'm not sure what the sentences were for the other individuals that were involved we have reason to be concerned that the person who's got the longest sentence is a person at the end of the distribution chain in this particular case i don't believe so i don't believe so i can and i can check on that and i can submit a letter to the court but i believe i believe that there were other individuals who were subject to the ten year mandatory xcept as a given i mean you are the person that made the charging decision but your office did and your office still has the prerogative of dropping the cross appeal wondering who should we pause for making a decision to give your office time to consider whether it wants to continue pursuing its cross appeal i honestly cannot answer that question i know and i can take it back to my supervisors and  and that is the department of justice the plays a role and has exercised its judgment in a certain way that strikes me as questionable and so that's why i raised the possibility of the apartment of justice whatever office within the department saying well you know under the circumstances maybe we don't believe the extra but as a ten months so i just raise that as a possibility have no say over the decision but people who do have a say might want to look at it again and again time is really can you tell me give me a few bars on count nine as i read that hernandez who is considered who is called c s who sold drugs methamphetamine several times to the informant he received a sentence of thirty six months and five years supervised release release r c l who also so drug methamphetamine several times to the c i he received a sentence of forty eight months with a five year concurrent hung out on the streets he had no place else to go he had no car he had no phone as the p s r point found he had been addicted to drugs since one thousand nine hundred and five he had been addicted to methamphetamine from the the testimony of the cooperating witness he was make excuses why he was not able to provide her ochoa with their cut of the methamphetamine and she did you know that he was an abuser of methamphetamine she also i also want to point out that at the sentencing the government did not object to a ten month reduction one hundred and twenty month sentence the government actually asked the court when the court said it would be a departure not an adjustment and the government's response was the government believes that's correct your honor and then the defense attorney indicates that it was his inadvertence not to bring up the reduction in issue but the clear government also indicated just to clarify this is the government speaking quote your honor just to clarify we understand the sentence would still be one hundred and twenty months but would receive credit for the time when the court is imposing the sentence which would have been the state sentence so the government's position is i think questionable and to answer what i would judge o tara consider an adjustment he did say on the record quote it appears that mr salt on a has a long history of substance abuse themselves and he was a low level drug dealer and if the court had discretion it would sentence him to less than one hundred and twenty months well under five k two point two three as we argue in our brief and the court does have discretion is some discretion that is given to the court and when the government indicates that mr selden the knew that a drug deal was going on well that doesn't make him an accomplice or an  and abettor certainly courts have indicated that even one charge as a coconspirator it may be imprudent but being close to and present at the location of a drug transaction does not implicate that person as a coconspirator and i would suggested in this case mr so donna had no reason to know what the c i and  the cooperating witness actually had decided on i think it could have been a good assumption on his part that he was there to buy drugs but that's an assumption it's not supported necessarily by the evidence