well here in the next case united states versus he we john affirmed when the record strongly suggests that the district corey relied on an outdated version of section three b one point to the mitigating role just in the section of the guidelines elysia was a drug courier he cooperated with the government upon his arrest the probation report never specifically refers to the amended provision in its analysis gives no hint that it was refers to the two thousand and fifteen version including all amendment it refers to that when it states what guidelines book it used but in its analysis it mentions only two factors it says he was you think that it were going to rely on this one but in fact it relied on an earlier very well i think based on the fact that it doesn't address any of the factors that are laid out in the amended guideline that it doesn't grapple with those in any way i think suggests that it is possible that the probation office was not fully familiar with the memmott of the guideline we've seen both in savors ski in this circuit and cases across the country where there has been i guess slowness to recognize that the old way of doing business under three b one point two was meant to be upset by the commission the commission said the guideline is proposed to sparingly and they specifically talked about drug courier cases like this one the government's brief cites we also submit to the wrong version of the provision it quoted out dated language court had before it when it's made the decision so you have the pre sentence report which doesn't do the analysis under the new version of three b one point two and you have the government's brief which for at least three reasons appears to be talking about the old version of three b one point two and it's understandable why that would be the case this is been the rule in this circuit and in the southern district for many years but it has changed now and there's no indication in the record that anyone at the government or probation or the court took notice of the way in which it had changed and it and in fact the government specifically says that the district court deny the role reduction because the defendant played an integral role in the offense that integral role this is one of the things that the amendment here and then at seven ninety four specifically says should not be a guiding consideration in deciding whether to find a minor role so although savor ski we recognize the summary order it's not the analysis of that panel of this court is persuasive and relevant here as in suborned skee my client was sentenced within one year of the amendments passage as in support of the district court did not receive the defendant was planning organizing the activity the absence of that fact mitigates in favor of a role rejection that he exercised no disk decision making that he had no discretion in performing his criminal acts and significantly that he had no proprietary interest he was being paid the evidence shows as a courier as a mule he did not have a piece of the action so to speak those are four of the five factors in three b one point two i mean i'm looking at the summary and the government brief page eighteen and it says that the defendant argue that he had no decision making responsibility and that he was merely a functionary who had made no choices  sound like they are covered by the amendment so the defense counsel didn't make arguments that sounded in terms of the factors but because the district court is silent as to its basis for denying it and because  government put before the district court outdated provisions and an incorrect reliance on the question of whether the defendant played an integral role in the offense which is not supposed to be a guiding consideration after the amendment it does appear from this record as in suborned that the that the district court was not considering the new guideline in suborn ski the panel actually concluded there excuse me that the district court correctly utilized the no member twenty fifteen guideline but was concerned that even a judge familiar with that guideline wouldn't be aware of the sens and commission statement the reasons which it found relevant to the analysis of three b one point two that same type of political here in particular and the discussion in the separately bound volume which the support the panel said would not have been necessarily looked at by the district court specifically talks about the question of whether at the fan that played an integral role for many years that was considered an important factor sufficient to deny a role reduction the amendment states and them and seven ninety four states that they revise the commentary to emphasize that this should not be a significant factor and that a defendant who performs in the central role should still be eligible if they otherwise qualify for a mitigating role reduction so ski similar to the ninth circuit india as the fourth circuit in the crew shank decision from out of circuit as well this case is in that trend where in the short period of time amendment of the mitigating roll reduction where there is some ambiguity substantial doubt to use the language of that the raid guideline provision was applied the court should remand to give him an opportunity my client an opportunity to make the arguments and have district court make a finding he may well conclude that this rule reduction was properly denied we don't know but there should be a fair fight so to speak on three b one point two we also my name is andrew beatty i'm in a usa in the southern district of new york i represent represent the government on this appeal and also represented in the district court below the defendant had a fair trial after which judge daniels sentenced him to a below guideline sentence of eighty six months in prison meant that sentence was both procedurally and substantively reasonable and nothing in the record shows that it was based on the incorrect version of the guidelines the district court did not err let alone plainly air when it declined to give mr  points he also got reduction in his guidelines for participating in a safety valve proffer judge and was also acknowledged the difference in age and ultimately judge daniels was well within his discretion to give whole does not show any confusion the record suggests that every participant in the sentencing was aware of and was relying on the correct version of the guidelines so as judge chin noted the p s r on its face relies on the correct version of the guidelines that's different than some which relied on the incorrect version of the previous version the defense submission as the defendant acknowledges here discussed the new amended guidelines compares the defendant considered any factors that were inconsistent around a little bit about the fact that you have a it affected mule albeit the deals can't go forward without it mean drugs get reported into the country but the person is not given a piece of the action a person has just given is paid paid a commission i paid a fee for this and that that role is considered the same as the is the true the current guideline why is that just a matter of discretion within the district court it is your honor it's the district court considered on the record at sentencing mr leisure his involvement and his role compared being paid over the few times that he had done this this was the third time and he had increased the number of that he had increases compensation from three thousand dollars the first time to ten thousand dollars and the trial record shows that that's as the court notes that no one at the sentencing including the court quoted from the new commentary of the amended commentary but the defense is seeking to turn that silence into ambiguity and the general rule is that sentencing judges are not required to recite robotic incantations to prove that they consider any particular factor at sentencing the defendant's asking this court to make an exception to that general rule and there's no go there are things we have them in the sense in court is required to consider a whole host of factors but if the sentencing court does not read through each of the factors and thirty five fifty three day this court has regularly held that that is not have to consider yes your honor but he doesn't have to read each one and if they are if if he doesn't consider one or the record doesn't reflect that that's not a reason for remained and this  regularly held that any particular factor there's no requirement for these robotic incantations the defense argument here offers no limiting principle it would essentially require any time the guidelines were amended or that there is commentary would seem to require that the p s r and the sentencing court expressly say that they were lied on this new amendment and how long does that go on for at this point unlike  to the sentencing court had focused on the average participant now amendment seven ninety four how does one of its primary motivations to clarify a circuits let about whether the court should consider the average participant or the average participant in the criminal activity we don't have any so that was the court had expressly relied on things that were inconsistent with the new guidelines here there's nothing the court considered that was a you know unless the court has any further questions i will rely on my  didn't fully consider all of the implications based on the guidelines commentary the sensing was ten months after the new guideline was put into effect whereas here you are there reliant on in fact relying on the old guy line all right right but the district court which was imposing sentence this court concluded relied on the post amendment guideline and nonetheless the case was still remanded because of substantial doubt that the district court fully appreciated the impact of it there was about the meaning of three b one point two and how to apply it here there was no consideration on the record by the district court at all the same as in the ninth circuit's decision in where the district court long for someone in his position he cooperated promptly upon his arrest his cooperation led to arrest for reasons that i don't know i wasn't trial counsel his cooperation didn't mature into a cooperation agreement then a five k letter but he certainly did much more to help the government than the ordinary trial defendant does his trial itself is virtually a slow moving guilty plea he wanted to contest the idea that he did this freely as opposed to under some so they had a two or three day trial had the minor role been granted his sentence would have been sensing range would have been seventy eight to ninety seven months so the low end of that range is below what he received there was a substantial reduction from the guidelines range was appropriate of eleven months or so there's no reason to think that if the guidelines range would change the sentence would have been the same and molina martina's the supreme court says that in the ordinary case of the fan in satisfies his burden to show prejudice just by pointing to the application of an incorrect hire guidelines range even if the ultimate sentence would have been within that range  miss just misses the fact that the government's own brief focus is the court's attention on the significance of whether the feminine played an integral role which is not supposed to play a significant part in the analysis given that there is