the next matter on our calendars the united states versus germany waiver morning counsel good morning you may please the court my name is more about clay i'm an assistant federal defender in the district of connecticut and i represent mr jeremy wafer i also represented mr waiver at the sentencing in the district for the district courts determination that a sentence of more than twice the top of the guideline range in this case was appropriate was driven by a clearly erroneous factual finding which ultimately results in a in abuse of discretion the factual finding that mr waiver knowingly risked  it's life because he knew what was in the heroin that he it sold to her clearly drove the sentence in this case and it drove it by way of either an upward departure or a i do want to point out it appears that in the government's brief the government focuses with regard to that argument and the erroneous factual finding on the upward departure but we have argued it as an erroneous basis for an up particular is now so when we look at the sentencing to which we give a lot of difference and what do we do with him saying also say that even if even if the facts here did not meet the requirements under the upward departure to provision of five two point one i would still barry grant an upward berry variance on account of all the aggravating facts before me as i describe them and impose the same sentence that i'm ultimately going to impose your honor the aggravating facts that the court has articulated up to the point where his honor states that includes very vehemently that he believed that mr waiver knew what those drugs there was no evidence to that there was thank you your honor there was no evidence to that and if i could just turn to flip flop the argument  purposely it was clear error to find that mr waiver knew because there was no evidence because the government offered no evidence and this wasn't and i thought what the district court was saying was it's twenty nineteen we have deaths from fentanyl placed heroin all the time in this country it's a scorch and anyone who's been dealing drugs as much as mr weaver has can reasonably be presumed to know that he is risking at least serious injury as five k to one cop contemplates and that he didn't need a specific finding as to intent or knowledge based on the pattern of activity that mr and i i may be missing this your honor i apologize if i am but i would disagree that he didn't find that there was knowledge on mr waivers part and i part as if that's not your honor so i think he's saying it is fair to presume knowledge that he wasn't looking for testimony  like a king is a professor yes yeah and all of those are reasons frankly you're correct that the district court based its decision that he knew or it's assumption that he knew but the problem is frankly they are sanctions it's not evidence so the judge had to assume the district court judge had to assume mr waivers reading the paper watching the news it's shocking how many people are woefully on his arm he's in the business well and i'd like to address he was in the business you don't have to read the news people i would like to address that your honor and you're not correct however if we look at his record and i don't think it's fair to draw that he was some high level drug dealer is sort of inference or someone who was mixing the drugs but if you look at his record the majority of his drug offenses however they were negotiated ended up as possessory offenses this is a low level street dealer if the district court's assumption that someone who has many drug offenses has some grander business plan to mix these lethal drugs in assume that they now know excuse me not i think i read the district court to look also at the fact that mr waiver had no gain ful employment over a sustained period of time is that correct it's not incorrect i'm not debating that mr waiver delton drugs what i'm debating is that he if you look at the district court entire exposition as to to why the court believe that mr wafer knew that there was something more lethal in the drugs that he sold the cd it covers that you know an assumption that mr wavers actually mixing the drugs or that people are that that he had an idea that's that this you know i'm not you're right that that's so if you're dealing drugs i mean someone brought mister brought in to see to mr wafer my understanding is correct and mr weber we don't know where he had procured the drugs from but i think with the district court was saying is that anyone who is dealing regularly in heroin women even if mr waver himself didn't package the heroin that anyone in the business and dealing with heroin today could be reasonably presumed to have knowledge that he was at least risking that there was something else mixed in fentanyl and that he was at least risking a very serious injury on the people to whom he provided the substance interpretation of the district court is that night i don't necessarily disagree with the interpretation but i do want to sort of correct or add in at some point the district court was talking about the scale and puting that mr weber had been mixing the drugs because there was a scale and that you know there was no evidence that he was packaging the strike so i our position is that the district court found just a bit of our no evidence bags in his apartment so that some of us but i think the direct mr waiver knew what was in the drugs and what level of knowledge do you think the government should be put to proof of showing by a preponderance reckless disregard of the the purity of the heroin or having absolutely kind of mixed with certainty knowing that you know having asked someone that this is least with right and gotten an answer yes what would you propose i well i think your honor if the government had been able to demonstrate or had even brought up the fact that he had any awareness that customers were coming back talking about you know issues with with the use of the drugs he had been selling and i don't want to be bound to this less time in front of this court on a simpler issue in the future but i think at the very least something to that effect a report back by customers as to what was happening to them when they were using it certainly people may overdose not necessarily die and be a repeat customer but looking at some of the cases that the government cited in its own br bag don't you know use an entire bag in here goro a fifth circuit case the defendant didn't let anyone use the drugs or the heavily was heroin outside his presence because it was inferred that he knew just how dangerous assumption that you know mr waiver and i not trying to be you know frankly cute by saying had some sort of business plan this was alluded to by the district court that this is what drug dealers do to get repeat customers but there was no evidence that mr waiver was even at that level of you know i don't mean to elevate the level of functioning or thinking that this is what i'm going to add in this is what i'm selling it's incredibly telling that the government never offered any evidence and they had plenty of opportunities to rebut my statements at the change of plea because we did not want there to be an issue with the fact that mr waiver had disavowed any knowledge of what was in the heroin or crack cocaine but  also at the sentencing itself the government stated he may or may not have no that's not a preponderance of the evidence i know it's a low standard but may or may not have known doesn't sound like a very since this is already implied in the two previous sections that the judge relied on i'm not sure if i understand the course question double counting with respect to the death or double counting is your honor if there are two bases for the for judge miers decision as the court knows one the court found the departure under section five q two point one that was the specific provision of the guidelines which references death section two d one point one which would otherwise govern a typical drug case except in the circumstance where the government has caught has charged the he isn't the risk of death implied in the sentencing guidelines just for the drug offense always there your honor respectfully no i don't think that's the case if the government had charge mr waiver which it could have in this case because the government's evidence is this court is has seen did meet the bird standard if you're an elf and all was determined to be the cause of death in such a circumstance we would be under a completely different guideline provision and in the government's brief point the court if i can turn to that page mr weaver would have been facing a mandatory minimum term of imprisonment under the statute of twenty years and in addition would be facing a much more significant term under the guidelines as well and i believe that is actually in the government's footnote eight pages forty four to forty five of the government's brief as judge arterton discussed in one of the district court cases this is rousseau which the government cited well the govern the drug guidelines do take into account an inherent risk of drug dealing they they don't except for those provisions where the death is charged don't take into account the most dire circumstance which is the death and i think that's why section five keep two point one is is is a potential option for courts to to include that it is the government have to make any showing at all in if it has not charged a death related office and just charged drug drug distribution in order for the court to impose a five k was in the year two thousand the court there discussed just a plain reading of section five k two point one which doesn't presume our doesn't require that the government show any particular knowledge it says that if death results the court may elect to depart and does this action does require that the court consider the other factors that are identified and that includes the intent that includes knowing risk it includes a dangerousness of the defendant's conduct it does require that and i think the revolting case is a little different because in the revolting case the causal connection between the death and the offense was not a pa the language if i could to point one says to the extent to which the extent of the increase should depend on the dangerousness conduct extent to which death was intended or knowingly risked yes your honor certainly for the extent of the departure but i don't think eligibility for a departure that's the government's position is that the court would be entitle to apply an increased sentence and the amount would just depend upon how what kind of knowledge was shown that's the government's position your honor and that's this on the language of the guidelines if death results and then the question i think before us is the level of the departure upward under five k two point one you have a s i says that there was no factual basis other than the government's initial restitution a reference to you know everybody in connecticut if you read the papers you read about overdoses that result and that is that enough and if that's true then why isn't then the for every drug deal well your honor i think that we have a lot more than that so that in and of itself may not be enough what judge meyer did in this case is he bad a very is  i think that the court did make a finding that mr weaver was aware that he was he was selling something that was highly potent he later referred to that as an order he made a finding the entire argument i think from you have serious but the finding was without evidence surely basis yes your honor and there are a number of undisputed facts that the court had to rely on and so one of those factors for example is that mr weaver admitted as part of this case that he just tributed dangerous drugs for a fairly lengthy period of time he was charged between late two thousand and sixteen and may fourth of two thousand and seventeen which is the date of his arrest when he was arrested law sentinel i don't think that there is separate sentinel your honor i don't think he didn't do the mixing i don't know if it was to be honest or i don't remember the answer to that whether that it was mixed in this case there's been a lot of discussion about whether it was a mixed but in this case it was actually fear and in fact no there's not we don't have evidence it was mixed with heroin it was fear and often all that was the government's evidence i don't recollect precisely what was this position i think that it does depend a little bit on the circumstances in a case like mr waivers where a defendant is aware and is intending to sell a dangerous substance whether it's heroin whether he thinks it's heroin or whether he thinks familiar honored because there is a very real risk of death i think that that is widely understood particularly by people who are surrounded by people who are using drugs and who are selling them themselves that's a fair argument but that's the very very scant employment history and there's a digital scale it's found in his apartment i think that judge meyer drew a permissible conclusion that mr weaver was a career drug dealer a professional  convictions were possession except for this one right and there were four convictions i believe your honor for possession one with possession one for possession with intent to sell it believe the arrest it was in two thousand and thirteen there was another pending who had been resolved at a pending case for possession with intent to sell that was pending at the time that the drugs were distributed in this case i see that amount of time your honor your honor to few if the court doesn't have any other questions i will rest accounts really is just for the amount of drugs we take issue with that we don't agree with that i think it's a well settled fact that when drugs assigned certain offense levels under two d one one consideration as to how they impacted people when used was built it was built it thank you your honor otherwise we wouldn't have higher base offen levels for more serious dangerous drugs like sentinel or heroin and i do cite let me just interrupt for a second to ask so when when those levels were assigned it was decades ago now  the quality of drugs that seems to be being dealt right now and their purity or lack of purity seems to have changed and got much more potent and lethal is so i mean is that a fair statement would you agree or not i don't i don't know that i have the basis i think it's a very logical statement but i'm i'm not sure and i wouldn't disagree that just don't know that i have the expertise but but certainly you know one of the cases i cited in our reply brief and it's really just sort of  a peripheral reference to what i'm talking about but i think i think it makes the point in charter e when this core was upholding the district court's finding that the pills and i apologize i don't know exactly what pills in that case were but they they were sort of these unspecified bills that weren't covered by two d one one this court determined that the district were correctly categorize the pills in line with m d m a an ecstasy because in part because of the similar considering the impact another point i just want to make has to the facts the deceiving for an optional was in this deceiving system we have and debated causation  purchased the kiss me bags from mr wafer is is what the facts essentially show the kiss me bags were seized from his apartment and they did have heroin and them you know at some level or it was believed that they contained heroin but heroin if you if you look at issue i can see i think the year i think that the government is saying that that the those provisions of to the one point one counting and i apologize your honor i probably well i don't think i had an opportunity to correct the double counting argument actually went to considering mr waivers offense level that was actually separately meant that i didn't even get to today  t i think double counting could be a way to characterize the initial argument i think the point of the initial argument really is as i apologize one of your honor said sort of crystallized that the factual basis that to upwardly depart a very short because there was no such evidence preponderance standard was not employed and we ask that you reverse the factual findings vacate the sentence and remand to the district court thank you very much