mr good morning your honors may please the court i'm peter henderson they represent and matthews let me start with some of the procedural portions of this case in particular the standard of review this is a somewhat unusual case mr matthews was sentenced originally to a mandatory minimum term of imprisonment of twenty years he appealed that he could not challenge the sentence because any error would be harmless as he was sentenced to the minimum term and a fifty one notice meaning the mandatory minimum sentences not ten years rather than twenty and so an issue that was not raised in the first appeal was then re raised in at three sentences hearing namely this  enhancement under the section three b one point one we think that mr matthews has done everything that he can to preserve this issue for the court's review he certainly made this argument  appeal because it would have been harmless error at best now asked to the standard of review there are a number of cases in the circuit asserting different standards our proposal in this case is that the court through view of whether the facts as found by the district court merits in unhandsome and under three b one point one is a matter of law that would be reviewed to know we are not contesting the facts of the government presented so i think the government is wrong to say that this is an issue of clear error a number of the cases such as weaver and figure wrote a treat this as a matter of law meaning do these facts establish or support this enhanced so we think these facts don't the main problem with the facts in this case is that we had to conspiracies going one was the  zambrano conspiracy in northern illinois and one was what i call the matthews conspiracy although we don't know exactly who was involved with that out of cleveland and my client was a customer of the same brand of conspiracy and so all  information that was presented to the district court concerned the zambrano conspiracy we know all about its inner workings we know who's on top who's it who's just a courier who's a middleman but we know next to nothing about  matthews we know that he showed up in chicago or joliet a few times we know that at one point coconspirators appeared on his behalf to receive a shipment or just to pick up but we don't have information about the relationships all of the evidence that the government uses to suggest that mr matthews is in fact in charge here or is in fact a supervisor our normal incidence of conspiracies where one person might play one role in this case for example i think it's clear that mr matthews was the link to sam he's the one who had the contact actor in hall who are coconspirators also involved in the drug trade in cleveland  used that connection to obtain heroin as well but we don't know if mr matthews received a larger share of the profits we don't know if he had any control over egg learn all well actually we do have  up the heroin mr matthews is of course going to give them instructions on how do you deal with this first right now why is that not enough to support the court's finding that he supervised them because that's a normal incident of a conspira relationship that's that's that doesn't suggest that he had any control over them we drew an analogy the court has drawn an analogy to supervisors as you know judges are supervised by or appointed by the united states government etc we've drawn this analogy with with lawyers if a lawyer is presenting an oral argument for a case that is another lawyers lead counsel who is not appearing will tell that person here's how you present an oral argument here's how you need to you know speak about this case speak to these particular judges at souter they'll give them instructions but that doesn't mean that they're supervising them as as a role because again with the enhancement refers to is not one time transactions where somebody may say i want you to  do this for me and i'll tell you how to do it it's about a role it means continuous ongoing supervision and the evidence here is just that we had a one time transaction where mr mathews was telling them how to conduct  transaction but that doesn't rise to the level of an ongoing continuous role that this court has required for example in the must read case the defendant there had somebody else transform marijuana for him got him a teenager etc told him what to do and the court said that's that's just a favor that enables them as conspiracy tours to work more efficiently together that doesn't suggest a supervisory role one thing that for example the court in weaver said was one thing one characteristic of a manager or a supervisory role is the ability to punish or the ability to to control to impose a sanction if if their orders are not carried out and we just don't have any evidence of that here it's that lack of evidence there's we don't know if mr matthews got a larger cut of the profits we don't know if he controlled how the heroin was distributed in cleveland we don't know if mr matthew to recruited legler and hall or whether it was the other way around or whether they all joined up together we just don't know and so that that's the basis of our objection here i think the courts said more recently that mere speculation is not enough to sustain this enhanced and we think that the facts presented here don't arise to more than just speculation about whose role what was whose so i'll reserve the remainder of my time for a bow thank money and what to tell the people that he had negotiated deal with in a series of calls in august twenty eighth well during the course of one of these deals as well as based on the evidence showing that defendant had used couriers in other just to say there were multiple people involved in these transactions and it's undisputed that mr matthews was the contact with mr zambrano we don't know the woman's name we don't know the names of the two people who came with mr matthews to these deals to characterize them as as couriers is wild speculation we don't know if they were couriers they certainly mr hall submitted an affidavit at sentencing saying no we were all in this