good morning me please the court my name is amy krouse and i represent mr hernandez a costar he's in custody serving the fifty two month sentence imposed by the district court in this case and i would like to reserve three minutes of my argument for about there are numerous issues that we raised challenging both the conviction and the sentencing in this case but in light of this court's recent order that asking the parties to address the right minor role adjustment following the decision last week and united states versus i'll start with indiana as this court room mandated because the district court applied an incorrect interpretation of the guideline amendment respecting minor role in particular this court looked at what it meant to be an average participant in the guideline it speaks to whether the defendant was substantially less culpable than the average participant would you say is the average but disciplined in this conspiracy i didn't hear the i said who do you say is the average participant in this offense so in this offense on which he has teaches us is that average participant has to look at the criminal scheme as a whole and that would be this particular as opposed to comparing mr carranza coasted to some hypothetical backpacking schemes and there was no was there any was there any evidence that the court was was doing the math i mean one of the things that i  court had trouble with was the fact that there was a record that was not elaborated very well the same exists here and in this case what we know is that the just record adopted the findings that were in the pre sentence report and with respect to my own the pre sent result is compelled here for that very reason because the district court did not enumerate the factors even though they were they were clearly before him but that's another problem as is the fact that both the government and the district court argued that the minor role adjustment adjustment was improper because mr hernandez opposed to had prior convictions for drug offenses and he was an illegal entrant and we know those two things are irrelevant to the minor role which pertains only to his the marijuana conviction and she your question your honor the relevant comparison would be who are the other players known and unknown in a backpacking s people who obtain the marijuana in mexico how it was loaded into the backpacks who brought it to the border who gave it to the people who backpacked it across to you didn't make those arguments to us on appeal on appeal you said the district argue to us this the substantive issue as to whether there was an error in the district court's determination i believe i did your honor in saying that the factors would have supported the role that just meant because when the district court said i find no factual support in the record that was clearly incorrect because the district court looked at the factors that we know that the district court is obligated to consider although not taking them off one by one they weren't considered here but more than that we know the be as to why there wasn't there so the theory of why there's an error is because as a backpacker and maybe it just seemed obvious to me and it was maybe obvious because in the district of arizona particularly in tucson we see so many of these cases where individuals are bringing parts of marijuana across the border they're referred to as human mules the referred to you know as mere backpackers and so they're in the conspiracy or in that activity even if it's not the conviction is not conspiracy is it's a very discrete task it's an indispensable task indeed but we know from palafox me zone and we know from and we know from a guideline amendment which was specifically meant to address the situation that even somebody who plays an important and essential role and indispensable albeit a smaller one in the scheme of what it takes to bring that marijuana from mexico into the united states is worthy of a minor role adjustment and particularly where as here the person in possession of the marijuana at the time that he's caught has no proprietary interest in that marijuana so your theory before us right now is that all of the backpackers are like six of them are and that all of them should have a minor role adjustment that they were not the average participants is is that the argument you're making now well i want to be careful about saying that not because i'm i'm trying to be coy but because i don't know the circum to read the pre sentence reports of all the other backpack in this mission i mean the only argument you make to us is that the court heard by not considering the factors and in fact as the fact that they're in the defendants and sing them randomly in them to be adequately considered to the comparison being this codefendant this one codefendant even among all the backers that were stopped at the same time and charged separately we know that that's incorrect so i think it would be but then the district court was advised of the correct here was it there were objections to the pre sentence report that was filed and that's what the probation officer went off right when the probation officer issued a sentencing again done that declined to apply the right he declined to he said i reject those objections there's really directed to the probation officer but it's clear from the sensor import however that the district court judge was aware of what the objections were because he specifically had to rule on the minor role adjustment but  sure another sentencing issue was the amount of marijuana that was attributed to mr hernandez a coaster which defense counsel at sentencing objected to him being held accountable for the entire load of six backpacks and that was a letter already conceded earlier in the re so at the time at the time of the plea allocution didn't counsel not contest that the weight that was going to be assigned so i think your honor the change of plea the factual basis reference the weight that was to be assigned but i don't think it was clear and there was no plea agreement so certainly there was nothing in writing that of what amount would be attributed for some guidelines sentencing calculation purposes well he said he pled to the making his factual basis in fact he said i don't know what the total amount was i was just told to carry this backpack was interrupted and said wait a second we know that if he if if the government says it was that much that here today that the district court was provided with a list of all of those factors considered those factors and said i don't find any factual support for this or does that mean what does that mean because because he says he also says that he adopted the pre sentence report yes he did but unchanged yes and that there were no factual disputes coronet in the pre sentence report however if you there's a couple of key things first of all he pled guilty to conspiracy so he's agreed i'm working with the entire group and as you've noted today the average participant is at a minimum all of those backpackers are in the group with him so he's  and this is distinct from the just backpackers or is it also those who organized it in mexico who gathered up the marijuana and put it into the backpack and figure out how much they were going to try and ship across and how much they're going to pay the how much they were going to pay that backpackers who was going to lead them across the border who's going to get the back who's going to get the guy you know all of those those are all the that's the scheme that we're talking about sure those are all participants i'm not sure i would agree that those are all average participants some of them have more may have more of a protect prior terri or a controlling interest in how the operation works but at least and again not a lot of facts on the record not disputed on appeal but i think we can look at the group that he is with which is seven people and there's no indication that he had any less responsibility than the seven her i would also note that the defense objected and asked for a minimum parole not just a minor role so they really had a burden to show that he was far substantially less culpable than the other backpackers in the group in addition ok just looking at the factors here he's got a criminal history he's pled guilty to conspiracy he now the really key factor here is the degree to which he stood to benefit now in the the aguilar case that defendant was making a thousand dollars which which the  court considered to be a fairly minor amount but here this is the defendant who's from honduras who submitted a video saying living conditions there are so horrible that i need to come back to the united states he's got this is his third felony drug conviction this is his third felony re entry conviction he's on supervised release from his prior thirteen twenty six he's got five prior de ports and his plan is to gain entry to the united states and work and send money home to his brother who's in the d v d the court watched who is apparently mute so this is someone who has a tremendous amount to gain if he successfully reenergize the united states at that he has been very unsuccessful but been very entrepreneurial in coming back correct sure this is someone who is not been deterred which is another reason to deny any sort of a downward departure but however i think it's also really important for the court to understand that the judge at the outset of the sentencing said i've done the guideline calculation and i think it's too high so this is a situation where the judge looked at the guidelines looked at potential departures said i'm going to lace the guidelines wrong we don't that's a procedural defect in that sentence that's five levels below the bottom of the guideline range under the lowest calculation the twenty six and thirty six and thirty two months below is a reasonable so i had forgotten about that we had a case i think in mohamed and here at the outset of the sentencing the court says guidelines are too high and then at the end of the sentencing after the discussion and a conversation with defense counsel this is a page or eighty eight  the court says at the very end i think the guidelines are not reflective of a sentence in this case that would be no greater than necessary to accomplish the thirty five fifty three a factors so what the court saying is i looked at the guidelines guidelines aren't relevant here i'm imposing a sentence that i think is fair and no greater than necessary so in a sense a lot of these objections are very relevant in my role th put in the guidelines to give the judge's discretion but they're called departure is so is this a departure is this part of like the special offense characteristic or a hansom and it was well what is it this is a departure because it falls under five k chapter five k and if you look at the ellis case which is discussing departures it says gosh and i have to find you're saying this has no effect on the computation of the total adjusted offense level that's what we've held if it's if it's a true departure under the guidelines if it's a departure and if you look at the language in alice and i might not find it in my notes here but it says departures are a special kind of category those are subsumed in reasonable miss the porches don't  as judge of a tally i was saying if there was an error in the calculation we need to read and i don't i don't think that our cases consistently say an error in the calculation is  per se reversible yet we think careful not to say it's per se best it's darn near close ok well in any case i do think applying a minimal role and just not here or a minor role and just mn is not supported by the facts as the court said and factually looking at that at the factors it's very different than this i got ideas case and it's also clear that the court had he had discretion he made a decision that he was not going to apply the minor role and then he looked at the sentence and said it's not fair i'm going vary downward i'm going to impose a sentence i think that's correct here in addition one more practical matter if you look in my answering brief  page pages and eleven in twelve now this is there was a grouping here right he has a thirteen twenty six conviction he has the drug conviction if you look if you run the numbers on the grouping  one the offense level that the court was using was twenty three under the twenty fifteen guidelines and a very downward to reflect the twenty six team guidelines which took you to twenty two so we're really talking about one more offense level lower if the brawl it just meant more applied and the defense and the and the court obviously very downward five levels partially to reflect the two thousand and sixteen guidelines but also just sentence that was reasonable for this particular defendant so if there were it's harmless this is one of those situations where i don't think it's necessary for the court to look at this one role is to send the case back because the sentence was reasonable and appropriate for this defendant as the court articulate ok so i believe what the government is asking you to do is to say is to skip the and alice of whether procedural error occurred and go to the substantive reasonable most of the sentence and just say well right to the bottom line is that a reasonable sentence under the circumstances but you can't do that and you can't and i will say you know just to just have a basis for comparison can tear labor as a case that we talked about in context of the minor role and in that also with respect to the colorado conviction card conviction being an aggravated felony and thank god we're not having to do all those categorical you know matches anymore since that was fixed but in this case it did have to be done and it was done i a defendant who's pleading guilty what the outcome of you know what the guidelines determination would be in that case so this is just a pure rule eleven era and that alone you believe would would want remit well what showing that the defendant would not have pled guilty absent the error and i know i will agree that the record on this could be better obviously if the defendant objected at some point or you know   i appreciate your time i would ask the court to consider both the arguments that that go to the procedural reasonable miss the procedural correctness of the guidelines calculation the briefing points out numerous ways that there were errors in that regard and and then when you get to the reasonableness of the sentence because the guidelines more correctly tackling it because the district court judges explanation was fairly thin it's very difficult i think to be certain that all of the factors that needed to be considered and that were probably appropriately before the district court actually work and centered and for those reasons i've ask your arguments this morning the matter is submitted