the united states court of appeals for the th circuit is now in session morning and welcome to the th circuit court of appeals my name is morgan crist's and i'm one of the judges on the circuit and i want to say that i'm really delighted to be sitting today with my colleague from phoenix to talk and i'm joining you from anchorage alaska so we have this virtual courtroom  cute together today dutch hawkins and i want to think judge wisner for joining us and really well and hearing to participate and help us out on our calendar this week we're very grateful for his help counsel can i just get a sound check and make sure  just wave your hand and let me know that you can both hear us ok and see us ok right ok and my colleagues can hear and see counsel is that right yes looks like we can so we're ready to go that's great thanks very much for that i'll just start with a little bit of housekeeping and then we'll jump straight into to the st oral argument we have his head have submitted a several cases on the briefs on record today so we will decide those without oral argument and those are st united states versus heights men sixteen mr sanchez a thirty year old man with no felonies in a criminal history category of two was a middleman in a supplying drugs to a distributor in phoenix named t which started out as conduct that would have resulted in a guideline range of ten to twelve years and at sentencing with a guideline range of thirty to life mr sanchez now appeals this thirty year sentence for this crime there are two sentencing issues here one is an increase of the base offense level by two levels from thirty four to thirty six incidentally the base level would have been thirty it had to go to a right and there so there's an ongoing investigation going into other people in other players that doesn't involve this conspiracy that was charged can i add in that specifically what is your understanding of which provision of the and is your argument that that was not is your argument that the september th transaction was not properly considered because if it occurred outside that the timeframes of the conspiracy is that your argument that's part of my argument not only did it occur outside the time frame the conspiracy of it didn't involve the criminal activity from the conspiracy because dexter had removed that before it was a guideline of one being one point three a the use of relevant conduct it's how the yes and bottle of maybe look at that in the interim yes all right let's do that it's a pretty specific question so i'll just repeat it my question is whether the trailing clause applies to one b one point three  day after miller ok you bet we could hear from opposing counsel now and forgive me for getting your names backwards i think your honor good morning my name is lacy cooper and i represent the united states  matter and may please the court in two thousand and sixteen the defendant was the subject of a wiretap investigation which had two separate wire interception periods the defendant was only charged with conduct that occurred during the st interception period but the district court found the defendant responsible for conduct that occurred during the nd wire interception period as well as relevant conduct that's the additional four pounds the court has been inquiring about  opposing counsel the district court did not clearly error when it found that the government had proved by preponderance of the evidence that the additional four pounds of methamphetamine artwork treatable to the defendant as relevant scheme or plan for continuing course of conduct ok if that's the case do you agree that the that the trailing clause applies to a two year and i also do not know what the court is referring to when you say the trailing cla and august of two thousand and sixteen obviously the transactions were very close in time they used a similar modus operandi in that the defendant had a courier that would distribute the drugs for him for the august transaction as well as for the september transaction counsel i don't want in this way all a whole lot of your time on an issue that you may not but it is going to be simple for me so i'll just tell you the trailing clouds from our case law i think from the commentary is reefer refers to conduct that must have occurred during the commission of the offens so and during the commission of the offense a conviction in preparation for that offense or in the course of attempting to avoid detection again i don't mean to throw you a curve ball that's what i'm referring to as the trailing clause and view is that a district court judge relied on a two day boot to add these other four pounds as relevant conduct since the conviction is for conspiracy and the charge conspiracy i had was over before september th that's why i'm concerned about this language whether you want to call it the trailing clause or not doesn't matter so much but did this offense on september th occurred during the commission of the offense in preparation for the offense or attempting to avoid detection for that conduct or common scheme or plan as the charge conspiracy well where would it end then where would it end well i think that the the guidelines certainly give some helpful instructions in the note section about how to determine whether a subsequent transaction is close enough in time and character to the charge to conduct so that it be included as relevant conduct and i think that the offense here falls within the scope of what the got it guidelines contemplate for closeness and time closeness and circumstances and nature of the offense you know maybe but here's my problem i'm trying to figure out what this rd option is that a two option or treating some of the substance as can be as relevant conduct and what you're describing is would be two of   st and nd options so the rd option does something else and i know for starters i think we're the only circuit i can find that his said as we did in the miller at the trial and clause apply to this rd option other circuits don't do  that but what you're describing which seems entirely reasonable to me i think that would be true of options one dollar and two dollars i think you're right that the district court probably relied on option three as best i can tell which is that they too option as i'm trying to figure out what the differences forseeable to the defendant all relate specifically to the offense of conviction this being the conspiracy where the software need to can be conduct that falls outside of the offense of conviction so long as it otherwise meets the requirements of being a close in time in nature i think that's probably very plausible and that was my read of it hence a collective i don't know what a two is doing air and i don't know what difference it makes  course it's there for a reason i think you're reading is very possible that's why i run into miller so you see this miller case that we have is the one that indicates that the trailing clause which requires that it relate to  contact the district court also of course found that the defendant was a manager or supervisor because he exercised control or organized at least one other participant in the conspiracy and the district court judge a did not abuse its discretion well your honor i think that the circumstances are so so closely related here that we're not we're not engaging and hypotheticals of us you know a transaction that happened a year later here we have the same  same players we have the defendant working with david who is a member of the leone drug trafficking organization the same person that he was engaging with during the time of the conspiracy it was only thirty eight dollars the as part of your argument that this was closely related to the conspiracy i've expressed that before but the overreaching argument that i have here is that this sentence is excessive and it does not com even though our guidelines can't technically apply they shouldn't always apply and his exact quote was the overreaching requirement of the department of justice is that we do not presume and automatically apply the guidelines we make if you were to exclude one and not the other about your question right right and that the reason i'm having trouble with it it's a little bit difficult to tell exactly what the substances were or what they were these four pounds had to do with methamphetamine but it is go right ahead that's the best chance of a question thank you ok actually i'm i'm done unless you have any other questions just check with my colleagues any further question no it looks like no further questions thank you both for your argument will take this