morning your honour's and may it please the court the briefs in this case discuss some wide ranging issues unless the court steers me otherwise i want to focus on a comparatively narrow and that's our argument that the district court clearly erred in attempting to derive the net weight of the substances found in mr arrogance car from the gross weight of the overall packages that were found in the car so the drug quantity guideline applies only to drugs themselves and not to packaging containing the drugs so to increase mr aragon sentence for the packages that were found in his car  the package for the packaging materials and so he thought that he was deducting for what was there but in fact he didn't and that's because he clearly misunderstood the evidence he was using the wrong photos in attempting to account for the weight of the package so when the defense objected and said look only the gross weights have been reported we don't have any evidence of the net weight the district court said well i'm going to counter that by subtracting half a gram from a little plastic bag and he initialed the photographs to show this court on appeal what he was looking at and that is in our appendix at d c seven d eight where you can see the drugs in a little plastic bag but the problem is that those photographs don't show what was weight the p s r says that that it's the packaged weights that were reported the photographs the judge was looking at don't show the drugs and packages but these other photographs that we have to do if you look at still subtracting a figure from the weight the gro draw but he misunderstood the evidence in doing so so if he says look i'm accounting for a baggie but in fact you look at d one through d five and they're packaged in all this material so we know it's a lot of plastic maybe some packing tape could be some for oil underneath there so what the judge needed to do is to say look i'm looking at the four and the five i see it in all of this packing material i'm go try to estimate how much packing material is in those photographs so if the district court clearly misunderstands the evidence of what was wait that's clear air well ok and so i want to be clear understand your  position are you saying that by virtue of the photos that he looked at he did not fully understand that there were other posts that had additional packaging on them exactly and that the record is clear that those calculation well they would have been involved but there was additional gross weight that he didn't account for and that's the problem so i've given it we talking about i'm sorry which way do we talking about well so this court can determine that for the first time did the public defender department determinant when they were divine even the public defender know the public defender's position was we don't have any net weights in the record there's not enough information to determine what the net weight was because we have these photographs showing all of this packaging and how do we know how many p s or with the net the gross weight or the p s r stated the following are packaged weights so to get to the show we took off  nevertheless the question is whether in the record there was a basis for this deduction right right so it's twofold the first is he's looking at the wrong photograph that's enough the second is there's just no basis in the record for saying all of this packaging weighs half a gram so let's assume contrary to the facts that he was looking at the right photos there's just nothing in the record to say that all of this packaging is half a gram and again the government says you can estimate and i'm sure it's going to say in its rebuttal argument that you can estimate but you can't guess and there has to be a reliable basis for the estimate and so this is what this case is like is this court's decision in higgens so in that case there was a police officer executing a search warrant and he personally looked at these substances that were in coffee filters and said you know i'm  estimate the sub one of the coffee filters looks like a weighs about one hundred grams the other coffee filter looks like it weighs about one hundred fifty grams and the court this court said that was clear error for the district court to rely on that because there's really no basis for estimating quantity from appearance and that's what the judge did well that's the evidence that we have of this package you just have to be guessing about how much this package it weighs and even  not we were not and really we weren't permitted to make much of a record at all because whenever we you know she started making the net weight argument he cut her off said i've already accounted for that and then he said you know do you want to make an affair the record she said yes your honor and before she could get a word out he says do you know what he means i know what he means you better ask him what be means it's and then he said let me make my route so there really wasn't any way to make record there's another problem with the judge's finding so he's looking at the wrong pictures there's not enough information you can't speculate but so we shouldn't be speculating but if we're going to speculate  there's this half a gram finding is a close to correct and you know that if you look at the five you can see the what's probably the suspected methamphetamine because it's the biggest package you can see what was weighed in d five you've got this ziploc bag and underneath the ziploc bag you've got all of this wrapping and then if you go to  eight you have this third layer of this little what looks like the bottom of a cigarette wrapper so there's a lot of packaging there we can deduce that from the photos then if you look at the the substance itself you've got this little cigarette wrapper and then the suspected meth takes up maybe a quarter of that there's just no way that that weighs an ounce there's just no way that it is the packaging is a lot bigger than the actual substance and without any evidence about whether meth is denser than thickly wrapped plastic you'd have to say that the plastic probably weighs a lot more than these little chips of methamphetamine such that the gross weight that you had was mostly wrapping and a half a gram wouldn't cut it so i think we shouldn't be speculating but if we're going to speculate it sure looks like the packaging weighs a lot more than them so that essentially what i have and that i have one other issue please go to one other issue that the government raises is this issue of preservation and i think a couple of things about that the first is that the government's argument is just foreclosed by this court's harrison case so in that case all the defense did is say we object to the amounts that are on there that was i was all the defense said and  court said that well the district court then went on to say i'm making the findings i'm adopting the p s r because it was based on the trial testimony the defense didn't didn't then go take exception to the judge's ruling and say well i've already argued there was insufficient evidence but in fact the p s r was not based on the trial testimony but this court said that just saying i object to the amounts that were on there was sufficient to preserve  in the judge declaring the p s r as being based on the trial testimony when in fact it wasn't and so that is we have an even stronger record here because we specifically object to this net weight gross weight issue we told the judge you can't do that by just taking off for a little plastic baggy you haven't accounted for how these things wrap so i think this is preserved it's clear error for a number of reasons and you should vacate remand for rescind it saying there was no question there was no question here was it that this beast rugs whatever their quantity were irrelevant conduct in this case so i don't think that there's question there's a question that it's relevant conduct if the identity and the quantity was proven by a preponderance of the well the quantity has nothing to do with whether it's relevant conduct it could be it could be in less it's clearly user quantities it's it's it could be relevant content right in this is not user qualities you're not saying that are you that's not an argument and no it's also not our argument that that he was not responsible for these that these were connected to the other offenses were solely focused on the quantity and to a lesser extent the identity but one issue is the quantity well i ask because in the brief you're taking exception to the district court's inquiries here and i'm very troubled by this  i want to understand how you think it's ok to have a plea agreement in which you hide relevant conduct from the court when the court is responsible it is its job to make a determination of an accurate calculation of offense conduct do you think this is ok to do this i think that the guidelines allow for it i think the and what provision of the guidelines allow for that the that well actually it's rule eleven where it says that the parties can stipulate to relevant conduct i think it's best to what is relevant conduct but the but i mean the notion that you know it's relevant conduct and then you say oh well you know this is inconvenient this is not going to help our deal so we put it to the side and come up with another deal which is why the court thought there was something wrong here i think they didn't hide anything from the court because they told them they were limiting the relevant cond after being after an inquiry was made by the court indicating that something look fishy here which in fact it was because the court wasn't told about drugs that existed and were relevant cond i also think it's proper for the parties to stipulate where the evidence is dubious at best and here there just wasn't enough evidence to prove this up as an increase the defense where you below acknowledge that this was relevant conduct i looked at it as recently as last night and that in fact was the case so it's not a question of whether you thought it was relevant conduct you knew it was and then you decided oh well you know this is inconvenient we're going to put this aside and let the court create a plea agreement based upon they weren't true it wasn't true so my admonition to us no it's not ok and that's why the court as it indicated was not able to do its job because it didn't know what the situation well again i think that the court can reverse on this and there are ground and doesn't have to consider that issue so that would be my position and i'll reserve the remainder of my time thank right beyond being in the p s r it is only in the p s r and radio star was challenge so what what good does that do because the challenge was raised in the question then is it accurate end special agent cohen was it was present at the sentencing hearing and did he testified he said he responded to the court's questions regarding a separate issue regarding your identity of the drugs but you not regarding the quantity that's right you that net weights at the p s r also indicated that the district court could rely on state the statement in the p s r that following the search of the vehicle clear plastic bag it's clear plastic sandwich bags and that's a quote from the p s r were found in the vehicle and this is a volume two page thirteen paragraph thirteen of the p s r and that's so the district court could reasonably conclude that the packaging material that was used to packaged the substances f in the vehicle were clear plastic sandwich bags and word and where you get from that to a half a gram and particularly when you look at these photos in which the wrapping use not in any way the uniform as a relates to these drugs and so there is different wrapping on these in these drugs and so how do you get to a half a gram the cord estimated that the materials weighed half a gram in the court can rely on estimates as to drug quantities and estimates to wrapping in in reaching a determination as to the net weights it certainly can but it usually does that based upon evidence that has been presented before there was no evidence here the court eyeball this and came up with a have a gram right that's correct your honor ok and was the defense lawyer able to cross examine this eyeballing the defense counsel could ask the court could could ask the court yes and defense counsel did object to this and this is an issue that counsel raised a moment ago and the issue was whether this issue was preserved or whether the plane or review applies and after the government reviewed the record in this case and reviewed the  the other material in the reply brief the government agrees that there was an objection made to the weights of the packaging material soak the standard review here is the clearly erroneous standard we are not pressing the plane air stand  any more any more as to the weights of the packaging material in so the district court is only required to rely on an information with a minimum indicia of reliability but you're only information since i'm sorry i can't do that and i think i'm not stupid i mean i can't i can't sit there and look at that and say that's a half a gram but the core of the district court recognized that its estimate as to the packaging made may not have been accurate and the district court said it didn't matter that even if the drugs were packaged in a hefty bag that it wouldn't matter the just the court said that if the drugs were in a hefty bag that mr aragon would still be in the same guideline range the ceiling or rather the floor here was one hundred kilograms of marijuana equivalency and the district court found that the at the base often so level was twenty four based on its finding that one hundred forty three grams so the district court accounted for the fact that it may have not estimated the packaging accurately but that difference between the court's estimate arriving at one hundred forty two point six kilograms and the floor which was only  kilograms is a significant difference and let me ask you mr johnson on that it was least minor standing that the defense can test the notion that i mean the lack of prejudice would make sense ok that's a logical thing to say that even if the court erred soman its estimation it wouldn't of harm to him because of where he would have been on the offense level but is is is that uncontested i mean is that in fact the case that it would not have impacted the guidelines calculation if the if the court had not included the marijuana and not including the heroin and methadone and fed him in from the car i'm sorry and if i thought the point was even if the court was off on its deductions that would not have had any impact in what the ultimate based alternate offense level was because of the the drugs that were in question in totality that's correct because that the court gave a very conservative estimate as to the possibility that it may be making some some errors in estimating the packaging and that all turns on whether we agree with the court's adin of a case in which was again an eyeball  these drugs were run that's correct but the court doesn't have to find that the drug war the weight of the drug there's no question about what the world right there is no question about well that's not that's not being press this court doesn't have to find that the district court did not clearly error in finding one hundred forty two point six kilograms of marijuana equivalency the court simply has to find that the district court did not err in finding that  floor let me let me ask you if i may on that let's assume for the moment that you're correct about the fact that it really wouldn't matter in terms of the the i'm reaching the threshold under the guidelines that mean that the court can apply any methodology as long as it would not have been prejudicial in other words does it matter to us whether the court roll dice and decided that i'm going to pick this number as opposed to this number in just a long as this number did not impact the total amount that the methodology still matters doesn't it does matter but the district court did  determining that the packaging weigh the amount that the court found which was point five grams for each of the package one here and one methamphetamine the clear standard  generally is is favorable to the government as the court knows the just a court was only required to reach an approximation as to the packaging weight it wasn't required to determine those with anything more than a mere approximation and we submit that there was no clear by the court in in reaching the conclusion that it did as to the packaging i have i have one  quick additional comment your honor your honor we noted it as to the as to the issue regarding the methamphetamine whether the material found in the car included methamphetamine we provided websites showing that the slang term clear is a reference to methamphetamine we did not include websites or other information indicating that the terms ip that the district court relied on is a reference to to an ounce but we do we would request the opportunity to submit a twenty eight jail letter to the court we have three websites that show that the term zip is a slang term for ounce urban dictionary dot com internet also i think that's been dictionary i follow that quite closely i mean are you saying that we should take you dish will notice based on what's in the urban dictionary as to what the definition is have recognized that the term zip is a reference to the to announce with standing without any reference to any evidence that would have supported that determination i will review that there was no evidence here right this is what the courts had out of its own head yes that's correct ok and before you sit down i want to know whether you defend this plea agreement that was restructured here so as to exclude what everybody agreed was relevant conduct and if i've never seen such a thing tell me that's not ok it is not ok your honor the government the u s attorney's office would never normally present a drug case in this fashion and proceed in this fashion in a drug sentencing matter so we submit that the procedure here was not one that our office would typically follow the evidence here is is sufficient to affirm under the under the standard review here the clear error standard of review the court has no further questions we ask the matter be affirmed thank you thank  you couple of things first the government says that what you apply the clear error standard review is is to the ultimate offense level that the judge arrived at but that's that's not correct what you apply the clearer standard of review to is what judge holmes said the court's methodology and it's finding that the packaging weighed point five grams so once you get there then you ask could then you ask was it never the less harmless because it would have been offense level twenty four anyway and the distinction there is important but because on a harmless error question you ask does the record compel a district court to find offense level twenty four and it definitely does not compel that a a district court could reasonably find that attributing any weight to the packages of the drugs would be too speculative that there just wasn't enough information so a district court could reasonably fun to be clear there are two parts of the clearer standard one is arbitrary whimsical the other is without foundation in the record the part that says that it wouldn't matter in terms of the guideline offense calculation that could go towards the record thing if there's enough in the record despite what you know what the district court here did that that could be fine the question would be whether the methodology the court use was one that was arbitrary i think that's right but then the question about the record supporting it would be read whether the record supports point five grams not whether the record supports the offense level and so whether the record supports the offense level you have to ask whether it compels a finding and it doesn't compel a will how much would have to come or you get below you'll so i've cited several examples in my brief if the packaging weighed about sixty five percent of the total weight of the package that would be taken down to offen level twenty two and i've cited lots of examples of cases including cases from this court where there was an even greater disparity between the packaging and the net way thank you so i'd ask that you vacate and remand for reese and thank you counsel