good morning your honors my name is john braman and along with paul braman we represent the defendant appellant in this case alfredo vasquez hernandez we're here in this court because what happened below fundamentally unfair after making adverse credibility findings to the government's witnesses margarito and pedro flores the district court imposed the sentence of two hundred sixty four months after saying the appropriate sentence was three hundred months which constituted  upward variance a significant upward variance after the district court imposed an aggravating role and hence meant to defend and sentence not only was there an upward variance and an aggravated role and handsome and but it was based on no reliable evidence as the only evidence the government submitted were the two grand jury step statements of the florist brothers along with a transcript of a recorded conversation with the interpretation of the flores brothers in the grand jury steams the district court said i cannot rely on the florist for others based on their credibility problems  who have motive to shift responsibility away from themselves and i will not do that so the dish or court was left with the plea declaration that alfredo vasquez hernandez and turd in april of two thousand and fourteen and the sentence the brothers  received was what it was fourteen years judge i think there was a contemplation of a twelve year sentence but based on the florist brothers and gauging the misconduct and criminal conduct while actively cooperated with the government sh imposed a higher sentence on them but certainly they got the benefit of extensive cooperation the investigation in this case it was a two thousand and nine indictment and the defendant spent some time in the mexican jail under horrible conditions which the district court took into account it was an extensive an investigation that was ongoing at the time that mr best western and as was sentenced in november of two thousand and fourteen and yet the logistical coordinator for the sena low a cartel was only supported by the written grand jury statements of the forest brothers in this transcript that the government had the florist brothers interpret so the district court was left with the police declaration and the defendant's admission to arranging to transport two hundred seventy six kilos of cocaine from los angeles to chicago with individual context given the drug quantity here and contextual evidence that this was part of the chappell cartel well because in making the sentencing determinations an aggravating role we focus on the offense of conviction not the broader conspiracy and in this offensive conviction the only evidence was that the defendant participated in this this scheme with individual and the forest brothers well he was right convicted of transaction but he was convicted of conspiracy in the context of the conspiracy as this is part of the el chapo cartel right and that i mean isn't that enough plus the quantity itself to support the judge's finding that the e this was extensive otherwise extensive a for purposes of supervisory and hansen's and that individual a must have had assistance from other  to move this quantity of drugs the distance that it was moving well in terms of the role enhanced one hundred three b one point one euphrosyne a sentencing court focuses on the offense conviction not the broader conspiracy offense of conviction is conspiracy it's not a single sale right in that ok the point of view you can't rely on that well his plea of guilty was supported by factual basis that was confined to the single two hundred and seven rights that he pleaded to conspiracy s judge is entitle to consider that this transport that he's taking responsibility for was part of this broader conspiracy which necessarily entailed multiple co actors to move this quantity even though the judge was limiting sentencing to this two hundred seventy six q a transaction that and he said there had to be more than one person involved in moving as it's too much sure individual they also helped move it but the enhancement doesn't require the government to identify particular persons if the conspiracy is otherwise extensive and it's his role was that of a supervisor and in this case the evidence  support him being a manager or supervisor while he admitted to the description of the offense in p s r and there was a confession at the top of the sentencing proceeding that he had no objection to the description of offense conduct and allegations and basically says the defendant cements and that the government alleges so he wasn't admitting to the offense conduct that he specifically said i'm not a logistical coordinator for th and there's no reliable evidence that i am that's what the district court found was that he wasn't going to rely on anything but the defendant's plea declaration which is what the plea of guilty to count one was entered through the plea declaration so that's what we're confined to here and sending a part that prong that we've been talking about five or more participants or otherwise expensive there was no evidence that mr bass was hernandez managed her supervised anybody so in terms of cases on this otherwise extensive do you have you know case law that in the disk the district court didn't talk about that language specifically right otherwise extensive any cases that you have where you have a descendent summer of this defendant that got the enhancement under that otherwise extensive palm porton did not get it or we said it was there well judge i think the government sites to figure row in terms of their analysis of the other excess otherwise extensive prong the defendant focuses more on the requisite finding that the defendant manager supervised anybody that the dis supervise five unless and then that otherwise extensive means what and why is that i'm not saying that judge i'm saying that there's two prongs and the first that we focus on is that there has to be reliable evidence and the district  defendant and when the district court announced sentence it relied on its personal feelings about drug trafficking it talked about speculation about the defendant's prior crimes which there were no reliable evidence of and when it came time to its written judgment order it said the defendant's upward variance which was five and a half years if you take based on the district court's calculations for eleven years based on the defendant's calculations without the erroneous aggravating roll enhanced meant that that was based on the defendant's non cooperation with the government and that the defendant was involved in a sophisticated international drug shipment neither of those reasons were stated orally at the time of sentencing the the basis that the noncooperation with the government serving as a basis for an upward variance is prohibited by the guidelines and this court's precedent in cl aggravating role in the offense the court likewise committed no error in its explanation and justification for the above guideline sentence issued to defendant so have we have or a firm decision visor enhancement on the theory that the crime was so complicated  r explicitly states that this was a conspiracy offense that involved eleven total people counting counting the defendants but that didn't spell out the supervisor right that is  the as as the just reading the record the supervision is effectively inferred through the court's explanation of that continuum of these drugs a massive amount of drugs being transported over over great distances and there it is again the combination of the p s r combined with the defendant's admissions and those alone are sufficient for this finding it but even in that summary that the court adopted he was not identified as the transporter was he or or perhaps i didn't read that correctly i don't believe that the word transporter is used your honor and instead what the actual language is of the defend it made it to arranging for the transportation and arranging is a synonym for organizing and in the context of the indictment the findings of the p s r and the emissions by defendant and then the findings of the court reading all of that together  it does become clear that what occurred here is that the defendant conspired with with the flores brothers and others even in just the vacuum of this singular transaction to move two hundred seventy six kilos of cocaine so  make sure i understand so well in this arrangement for transportation i did i'm just wondering whether that's adequate enough so for example if someone schedules that expected that's in the range organization the fact that he arranged the transportation meant of necessity there were lots of other people that had to implement the plan yes your honor and more with respect to the that the quantity of the drugs and just the physical volume on the two hundred  below is that with it a transaction of that size to move it from over great distances would have necessarily required where the defendant has taken responsibility for arranging it would have necessarily required the defendant to have directed subordinate members of that criminal enterprise to move the drugs from from point a to point b and on that note your honor the the counsel just pointed out that there was no record that this was actually an international effectively being advanced here jessica c e o said quote and also i think in the same category that it is nonsensical to think that two people could bring in two hundred seventy six kilograms of cocaine from the country of mexico all the way to chicago so those to me are like nonstarters and that's that's exactly the essence of the issue before this court that defendant's actions are such that it is right in the heart of what this guideline it the existence of the god and that the purpose of the guideline is a bottom as the application no states itself enhancement the purpose of that section three b one point one is to provide a range of adjustments to increase the offense level based on the size of the criminal organization in the degree to which the defendant was responsible for committing the offense so a bottom with the commission is really saying is that the offense defense level should go up in step with the size of the organization and defend its role within it here the it is a conspiracy count defendant was charging played guilty to a conspiracy that was defined as the leadership of this in a little cartel his reign his role i'm sorry within that conspiracy was exactly what occurred in this in isolated incident of the two hundred seventy six he was moving he was a logistical that the court specifically found that this was not an isolated incident even though he agreed to sentence based on the two seventy six alone rather than the larger number sought by the government that it was clear that the court did not consider this to be an isolated incident but part of the broader conspiracy and that he did not accept as remotely credible the contention this was the maiden voyage or words to that effect something like that that is absolutely correct your honor that the that the court expressly found it exactly that that there is no way there's some his first foray into drug trafficking that they could step up to the plate and engage in a two hundred sixty was being trusted with this quantity and what was the evidence about the value of two seventy six kilos of cocaine coming from this organization it was approx little over two point one million dollars it at a wholesale level your honor right so he's not going to be entrusted with that if he's not a supervisor or manager with that kind of credibility and authority within the organization corrects it as a matter of the only logical inference i think that's the fair reading of the judge's ruling correct order and that's exactly what put that what the standard is th court in united states versus kerry which is cited in the government's brief stated that it is and it's slightly different sentencing context but a court is not required to be explicit where anyone acquainted with the facts would have known without being told by the judge had accepted or had not of course an organization a sophisticated organization like this into a cartel or not and trust an obvious trafficker with with drugs of this quantity to move over that back rate of a distance and so putting all of that together the only reasonable conclusion is the one issuing above guideline sentence there again it's the totality of the record that shows exactly why that was was proper counseling we have pretty much assume that he had been involved in prior drug trafficking right because of the quantity absolutely are for the point that we were just discussing that there's no way that one can be true without having that background in drug trafficking to be able to accomplish something like this and be entrusted with something like this so that the court was effectively making its  sentencing findings throughout that what it is that the core to curating its basis for the three b one point one and handsome it can it's certainly appropriate to read that into the court's later findings there be no need for the court express lee talk about the exact same things again but the but the court did in fact do that the court made an express reference to taking into account the totality of the thirty five fifty three factors and placed the most emphasis on the seriousness of this offen a step by step walking through the statute nor does the law require that he do so but the again a full reading of the transcript shows that that was his intent so with the seriousness of the offense that two hundred  seventy six kilos is a subset of the global conduct the judge addressed that throughout it as well as the need to promote adequate deterrence and respect for the law which which i in defending characterized in his reply brief is the court's personal opinions it wasn't anything of the sort that those are all gone after the court referenced thirty five fifty three and was issuing the court's findings with respect to an appropriate sentence there was sufficient were there what other factors that he looked at other than the really the quantity the sophistication in terms of his family characteristics or education or anything else i understand he doesn't have to go through the whole nine yards i'm just trying to figure out what elsie the judge just you know did in way that a person could engage in conduct of this kind without a lengthy criminal history which in turn required at that the sentence that was sufficient but not greater than necessary was in fact this about guideline sentence and so for all of those reasons and m