we're now going to move to case number five of the morning united states versus ramirez appeal number eighteen dash two thousand seven hundred and ninety eight we'll start st mr hollis with you morning they please the court my name is daniela sue the federal public defender's office they represent mr ramirez he is raising one issue on the appeal and that is whether the judge correctly denied safety valve eligibility and relief in light of the facts and circumstances here one of the times sentencing a defendant truthfully provides the government all information he has about an offense that that's part of the same course of conduct the defendant is entitled to safety valve relief under eighteen u s c thirty five  valve requires because other potential participants aren't within the scope of what my client is engaged in by way of the course of conduct they could be anybody else doing anything else and if that's the case  is a basis to quickly deny safety valve relief i suppose we deny safe valve relief to everybody because there is a whole host of other people who have potential information but are not part of the same course of conduct in the events at issue and so the judge just misapplied the text in our view but furthermore if that weren't sufficient as a reason to send this back and remain and there's a flaw in this that goes beyond that and that is my client did disclose who is customarily he identified relies on we find a lot of very stark differences between that case and this one and acevedo fits there were multiple proffer sessions there were proper notes that were given to the district judge to review in to assess those things didn't happen here there was as i recall a single safety valve proffer it happened sort of on the spur of the moment before sentencing my client has a very significant language barrier required interpreter and after about ninety minutes they terminated the proper session because they thought that my client was not giving complete information he didn't even get to the point where he was able to provide information about one of the disputed transactions in the quantity involved under brac which is a th circuit case you cannot hang the incompleteness of the defendant's information on the defendant when it is the government that is responsible for the incompleteness because of the terminations of a proper session or some other impediment that the government energex that makes it impossible for the person to complete the eligibility portion of the safety valve problem was that the government here or is it the district court assessing credibility during it and making a determination that the client might not have been fully forthcoming are multiple problems that judge brennan because if there's a safety valve issue based on credibility and there's no information provided to the judge other than counsel's argument without the proper statements etc that were necessary for the credibility determination acevedo fits so that's one problem in this but i don't think that that would be correct anyway because the government would have to provide information that would then put it on my client to rebut in provide the detailed information it seems to me that to show that those lapses in the lack of detail can be accounted for in his proffer it seems to me that he did by identifying mr ray's he does not necessarily have information about other potential participants customers sources et terminated before we can get that far chronologically but i thought i thought that one of the points the government makes in its brief and that i'd like to hear your reaction to is that in over the course of ninety minutes there were several questions asked about you know the continuation of the conduct and the defendant had every opportunity to address it and and surely knew what was being inquired of him i don't think that's it i mean that's the government's interpretation of it by our estimation there's a language barrier there's a very short window here this is ninety minutes into a pretty lengthy period of conduct and with the questions that are being asked we only know what those are to make an assessment about where he's being forthcoming or not with the proper notes judge got or i think that we'd have a much different set of circumstances if you don't know what's being asked it's hard to say that my client is answering the questions completely and truthfully can you go back just briefly to your point about the interpretation of a five that the conviction here is an eight it's an eight  right so so how how is the if if we think of it as you know a conspiracy in potential multiple members of that conspiracy and conduct in furtherance of it why doesn't why doesn't that fit within f five because i thought you i thought maybe i was mistaken it's just a straight up a forty one plea but it's not it's in a forty six plea record so if you have conspirators there in a camp that is different from potential conspirators it's a simple as that i don't know every potential conspira is in who their sources are who their supply is i can't imagine my client does either and so when we are broadening the textual language to include potential participants we now have no possibility of providing the information about who it is who can get safety val relief because you may think that somebody knows who somebody is potential clients are but that's unfair to hang that on a client or rather my defendant here because he can't know who the potential participants are i suppose it's everybody and nobody more fairly it's everybody and so that's just not consistent with the so that's the problem seeing are going to context does the government have a motivation to have get this information for purposes of for future prosecutions sure know they didn't for the government to be charged with shutting things down precipitously seems to be contrary to what their underlying motive would be what do you think the motive is the frustration by the case agents thinking that there is somebody who's not coming through on the answers the questions they have and again we knew those questions were we have a better sense of that judge but we don't and yes they have that but they may simply think that they can't get anything more from him in any event terminate that no harm no foul on their part the problem is there is a harm there is about my client was a safety valve eligibility because they pulled the plug on the property and i turn briefly to the proffer excuse me to the harmlessness because the government is expected lee relying on harmless air but there is a problem with that everything that i've just explained is baked into rejoinder to the harmlessness and that is when the judges incorporated a lack of honesty a lack of providing the necessary detail not giving information about drug quantities for a time in the chronology that's cut off because they pull the plug on the proper session then everything the judge is saying by way of his explanation for an alternative rationale is now infected with the very same then turn around and say i would give the same sentence regardless of the safety valve issue because you didn't give complete information you didn't tell me completely about what i wasn't as i read the transcript differently and i you know you can correct me if i'm mistaken on it but i read the gado statement is more driven by what the district court saws obstruction at the plea so the conduct at the time of the police would of course be different about what the facts are relevant to the safety  me that there's a language barrier and there's a problem about getting your footing for the police to admit only what is necessary to admit for the police you don't and you shouldn't as a defendant was defense counsel ever have somebody admit conduct that goes beyond what the elements are unless it's part of a plea agreement and in this case my client was trying to be careful of course there's a language barrier cetera who's trying to navigate that and that's different from the state but that's what seemed at that's what seemed from my read of the transcript to trouble the district judge  is that is that fair yes i mean he tied a very directly to the the plea but i'm saying that that is again relevant to what the information was that was given during the safety valve proffer those are related things judge those are about the facts in one bent the proceeds then him in particular the brother right the brothers role or lack thereof or whatever and i have to credit the district court judge he said that you know these are difficult circumstances where you have a family member who's implicated you're so used trying to be respectful of that family relationship my client's trying you in which the defendant with not truthful any one of them provided a concrete fact based rationale for objecting the defendant's argument that the safety valve applied st the defendant claimed he believed the backpack additional calls where they discussed that the defendant would be picking up eleven little boxes the fact that the backpack full commitment had over ten kilos of heroin in it any of these would sufficient grounds for the court discredit the defen and here i'd like to respond to some of the discussion took place already the defendant of course had his pleas not required to come to admit anything beyond the elements but in a safety valve proffer the defendant is required to in and admit the entirety of the conduct charge and other conduct that is part of the scheme or plan here the defendant was charged with four other unnamed individuals and others one explicitly referenced in the charging as individual and that as the district court held he did not come clean about all of those individuals the defendant stated he got no heroin from any supplier besides the codefendant  mr when the district court had calls before it where there were discussions with an unnamed supplier not miss c s and the defendant never came clean about that person he offered no specifics on transactions with customers and he had to be confronted with a name before he admitted to one customer that he had in milwaukee finally the defendant omitted any mention of not how to trafficking that continued past march two thousand and sixteen when he was involved in our transactions that took place in december two thousand and six so the defendant doesn't just have to answer questions that the government poses to him in a safety valve proffer the last clear that the defendant has to come in intending to admit the conduct here the defendant was well on notice that the december two thousand and sixteen conduct was something the government was interested in it was referenced in the investigation report it was referenced in the government sentencing memo that was already filed at the time of the safety about proffer the december distribution was part of the scene common scheme or plan it was the same heroin the same gold bar the defendant describe it he'll remember it at about this december th two thousand and sixteen transaction involving this fellow choa yes were was the defendant in the safety valve pro confronted with details that kinda those laid out in your brief i don't believe that information is in the record i can answer the question i you i mean i just curious i mean there's a whole bunch of he wasn't forthcoming about the december and i just want to know how much how much detail was was it was he given an opportunity he was not specifically confronted with those details in the safety valve proffer a judge  as i stated those details were in front of him in the sense that they were in the p s r they were in the government sensing memorandum which which were was given or defense counsel had a copy of at the time that's correct finally any error that the court were to find here would be harmless due to the district court statement that it would have imposed the same sentence regardless of whether the safety valve applied if there are no further questions the government requests that the court  thank you the quantity was one of the things the government mentioned but at the appendix page nine there was an explanation that my client gave about having not looked in the backpack so if he didn't look in the back pack he would know if one of the was and so in any event and or stood that he would be getting one kilogram of whatever the substance was heroin and if there was additional quantities in there that may not have been something that he was interested in anyway it wasn't part of his transaction with the supplier calls with others and that's fine and well but you can make calls to somebody if they didn't supply you with the drugs that they're not your supplier they may have been a potential supplier i don't know the particulars of those calls are not in the record my client did as the government said identifying mr ray as he was his supplier and so it took some prompting the government says but the information was alternately provided by my client when asked who was your supplier in the milwaukee area and you identified him as a raise so that was good and it's not a matter of that it come easily or with a little effort but whether it was provided at all and it was as far as the defendant december conduct goes by the government ended the proffer if it's going to rely on matters outside the record i am in a bad position here because i don't know what those facts are and i don't like to ever come up and have to respond to matters that were outside of the record as i supposed to be running in that any way  the proper session is very definitely terminated around the november mark before we get to december chronologically if there's information the p s r that would suggest my client should have given more information i would like to know what it was and of course my client wanted to know that too so that he could have button that down and gotten the safety valve relief and i don't know that there is anything in december that wasn't already accounted for or could have been accounted for but not any that we think remained is appropriate so we do not have instances where people