and i know at least the first was a veterans of this so don't need the rules of anybody else out there probably the most off not follow this just stand in a microphone that's not a problem with the first crew coming up but we like to make sure we hear what you say and we do record the argument so make sure that you stay in somewhere for anybody in the courtroom with a later page will probably take a recess somewhere midway between these cases but i'll give you a heads up when that's to case hard sixteen mario was sentenced to one hundred eight months that was the low end of the sentencing guidelines and it was based in part on an enhancement of two points for an aggravated role under three b one point one two as a leader of a criminal activity of less than five people so this morning we raise in issues for are three twenty four pointed out that the average participant in a criminal activity involved people who actually participated in the crime  guy actually was addressing the mitigating role but it's all one hundred three be won so we would suggest that the notion of a criminal activity be consistent both with an aggravating rule and a mitigating roe and what the district court did was look at the war and count that mario pled to and that studio who was the distributor to his downstream network so in that regard the district court i used a three person criminal activity apparently or something less than five and applied an aggravating role for a two point enhancement now although maori as duties are distinct so the duties are in fact distinct but having just a small network of three people when in fact the criminal indictment is with nine total defendant is on fairly prejudicial we burst spectrally suggest against mario to carry his burden as we judge the level of his culpability in this appeal w suggests that the criminal element in a prize now the nine co defendants that are actually in the indictment under this scenario we have you see the complete picture of an existing meth ring that was run it delta downs using the delta down stables if you will is their stash and you have in this scenario you've  got omar you've got custody of and a fellow by the name of creepy arrow referred to as the cuban who actually ran their own separate networks they had downstream distributors downstream purchasers obviously money came back upstream through them and what they would do is they would they would hit on  to supply him with some more drugs we need some more drugs so the connection there is that for example that's castillo's on my case for example this this is the tube and he had his own independent drug ring there was no authoritative figure that said you must work in lockstep with me you somewhere out there that the rest of this party or you know you've done this part of my argument on trying to impress upon you that the criminal activity should include nine people because when it includes nine people then trying to movie yes and down the road a little bit to where i thought the pressure points were the procedural error that we raise at first is that the court assertion that the criminal activity was only three people as opposed criminal unit of less than five people and i'm saying i'm not arguing for the enhanced night my second argument is that we need a mitigating role here but the procedural error is in fact oh point the objection is the judge makes a mistake so many objects and points it out if it's procedural the judge looks at you know what's correct so nobody objects it's you know neon lights here but then we get  appeal appealed and it's like hey you know sort of gotcha to say you lose because of it i'm just sort of saying you know your star not of the gates with this issue of this apprehension of the conspiracy in the guidelines in this and there were well placed objection brings to light ok that is there no less move on so instead they are even as well we ought to fix it you know up here just a and so following my second my second issue following the threat of amendment seven ninety four the commission encourages the courts where appropriate where appropriate now to use the three b one point two mitigating role future more regularly more consistently and this court in castro case decided after of the average participant the culpability of the average participant in this crime and second of all the defendant must carry the burden to show that he is substantially less culpable than the average now under the criminal activity of nine people you've got your average your average participant if you look at the activity of error ok studio and actually brought the drugs three hundred ten miles of the trip from new mexico up to down as he was the line from dallas to delta downs is that three hundred ten miles he made that trip five times in about six months he joined the ring in december two thousand and twelve and was arrested in july of two thirteen my mom point is that when you compare his activities to the activities of these guys that i call average participants i can't help but think of the relationship of a tangent line to a circle he is tangent he is right here he is a peripheral we we have had some cases recently one of our common scenarios is the mule transports the drugs usually in west texas and all he does is his carrier an argument has been made you need to take into account the fact that all he is there for is just literally transporting him he didn't get them he didn't you know he has there's been no showing that he did and there has not been a successful argument well this is not a tour as a name and this case at all where tourists in india as you have tuned of these guys who carry was the same way the same backpacks with the same amount of drugs together across the border and this court was right to say no no no you can't just say you're a courier for the big mexican ring what you have to do we are going to look at your enterprise your criminal enterprise was the act of walking across the border each of you aiding and abetting each other in the same manner you are equally culpable here of criminal activity and that's not the case and the delta down scenario what we have is mario he gets hit from one side of his studio runs out of drugs pierre runs out of drugs i need more drugs and so he goes and he contacts the mexican smugglers and sends him up to his place he drives them back down and fills up the barns at delta downs there is absolutely no indication that he even has a salary he's there to try to make his brother whole to save his brother's life no indication in the record that he collected any money he just is kind of like this wall when the mexican calls and says look what's going on move the drugs they are a nation of going to your organs is a factual determination which the question is ok now why isn't there a different way to look at it was a reversible error but then more to the point i thought your bigger issue was on the senate imagine you've got a minute seventeen seconds and i don't think you have dealt with my point is that his culpability is substantially less that the average participants in this role or oh mark as studio and the cuban and then mario is simply and gentle he's a peripherial actor to think that he could come in to an established drug ring a meth ring and assume a leadership role when these people are our hardened drug criminals he is nothing more than a contractor he live you don't even live in venton he lives in dallas he one has his own contracting business married with two children so he's not a part of this ring he is peripheral is tangent to the circle of the of the delta downs meth ring and for that reason is substantially less culpable and we say that the court erred  please the court i'm commando mang i'm fearing for the united states has the lead in this matter i'll begin by addressing briefly the applicable standard of review sort of touching on chief judge stewart's comments about how we are here on plain air and to whatever extent the parties disagree about a lot of things in this case the thing we do agree on is that at best the issues the arguments in this case the issues the determinations are reviewed under the plane  standard and i say a been asked because the united states has cited in its brief what sometimes called the lopez rule i cited the claiborne case which in two concurring opinions discusses in great detail the pros and cons of the lopez rule but basically it's a rule that the circuit has followed for over twenty years that factual determination is capable of resolution in the district court upon proper contemporaneous objection  cannot be plain error and many cases including claiborne actually say that review is foreclosed on appeal and so that is our first position every time i see that every time i see that case get cited to us all the time and it's very rarely relied on i mean people the judges just surfing is there some other way we can decide this case so i mean we there my sense of it i agree judge it's true that there are that we are going to be playing there i mean i don't know that i would make that statement about anything that's true and that's one of the criticisms that judge judge prado makes in his concurring opinion in claiborne that this is a this is a rule or or it's a line of cases but it's often not followed by the court and i think that what often happens is and i know i do it in my braves i cite the rule because as we stewart's comments that the the when we're talking about a plane or a review of a factual determination you know we keep in mind that clear error is exceedingly deferential to the district court that our cases say that something is not clearly erroneous as long as it is plausible in light of the record as a whole the record as a whole so for a factual finding to be plainly erroneous it would have to be worse than that so we're  basically talking about factual findings that the defendant could have challenged in the district court the defend was represented in this case by experience criminal defense counsel at the trial level the p s r was issued well in advance these are points that judge jones makes in her concurrence in this was not a mystery that the defendant was going to be tagged with this two level enhancement for a leadership role obviously he could have objected he could had an obligation if he objected to put on that if he had done so then the united states would have had an opportunity perhaps to develop these points and i think if there had been a proper objection and the district court had  sort of go in different inferences from these facts plus others that you know it would be difficult for me to challenge that ruling on appeal and that's because of the authority of the discretion the deference given to district courts in making factual determinations the case i cite in my brief which stands for proposition cited hundreds of times that the district courts can make these these leadership role determinations minutes i want to touch briefly on what counsel spent a lot of time in her argument on and that's this so called procedural error i think counsel's argument is that the district court used three b one point one  which provides for a two level enhancement if you're a leader organizer manager or supervisor so if you're any of those things you get of a criminal organization or a criminal activity i'm sorry of five percent less than five participants if you have more then that kicks you to three b one point one a or b and you have four levels if you're a leader organizer and you have three levels if you're a manager or supervisor the united states argument is that even assuming that an error to use subsection c instead of subsection a or b because the court counted fewer people than it should have that is an is an error that benefits the defendant because it produced a lower did tie it sentence to the advisory range if you look at our zero a one ninety eight that's where the court says i'm giving you the low end of the guidelines only because you don't have a prior history because this is a whole lot of i think he says stuff but from context he's referring to the quantity of drugs so we suggest that even if that's argument i mean if it's error if it's plain it doesn't affect substantial rights because that error benefited the defendant that's the kind of thing on which the united germination that experience counts of below made and why not make an objection if counsel proceed what you say be true that the error although arguably there may have benefited his client that have absolutely and you know it's hard to stand here and second guess why i counsel didn't didn't raise an objection but could it could easily be that he thought let's quit while we're ahead that and i'll get to this in a few seconds but we're going to talk about and now we're talking about it just and who is judge king points out was a source of supply now the defendant argues in his brief and in his reply brief you know sort of some mitigating factors that well he wasn't always the source of supply he became the source of supply later on because he was trying to help out his brother and it was for a more limited period of time and it was only a limited number of loads in which he he was the source of supply i would suggest to the court that none of that matters under one b one point one those kinds of considerations and i would also point out look at our way one ninety six those facts that he was helping out his brother that he got involved late in the game those facts were brought out by defense counsel in an argument in mitigation of sentence those particular things at a one ninety six are not in the p s r those are not specifically the facts on which the district court to award the leadership enhanced meant those were arguments made by counsel in mitigation of sentence where they properly belong you know the drug quantity would account for how long the defendant might be involved in a conspiracy but not the leadership in handsome and so he he is the source of supply the p s r sets forth the sort of summary of conversations that were taken from wiretaps there were two different wiretaps in this case and obviously they captured telephone conversations as well as some text messages so there's text messaging between this defendant bronzer caroll and his other ome are talking about one of their distributors sergio castillo has sergio sold his sergio paid you for the drugs yet no well maybe we need to do something with sergio maybe he needs physical harm and then arm our says i know somebody will break his finger fingers and then mario bros chorale the defense in this case says that's what we need we need somebody to break his fingers so he won't take what's not here is these are the kinds of conversations that that managers supervisors leaders organizers have these are not the conversations that very low level people who don't have some sort of managerial authority in a criminal activity half they talk about marriage talks about in one of the conversations cited in the p s r can you find anyone who can work the defendant in his reply brief says well you know work is an innocuous thing again we're talking about the district court's authority particularly with out a contemporaneous objection to infer that work means drug trafficking not selling insurance or do you know doing some other kind of legitimate work work meant drug trafficking and mario on the telephone with with omar says can you find someone who's willing to work and there's another part of the p s r that talks about a conversation that or i think it's text message exchange between mario and the mexican source of supply mario has a mexican connection that's not something that a lower level person in a conspiracy would have that's the sort of connection that someone higher in the conspiracy would have he's got the mexican connection and so they're going back and forth well how's it going anybody working the sort of an allusion to someone jose who was murdered since it happened there's only a passing reference to that in the in the p s r but you sort of get the feeling that you're talking about something that happened and how it affected the business the mexican supplier talks about we've adjusted the price again these are current these are the kinds of conversations that leaders organizers managers supervisors have not low people in an organization which sort of brings me to my last point and that's to address whether this defendant should have been awarded the two b i'm sorry the three b one point two reduction for a minor role first i would suggest it's going to be very hard for him to get that on plane air review it's his a burden so that's the sort of thing on which he would have carried the burden in the district court to bring forth facts that would entitle him to that reduction but more importantly judge king as you point out there are cases in the circuit and post amendment seven ninety four tourists who mandate as is a case in which this court affirmed the district court refusal to award a minor participant reduction to a courier a mule who transported one backpack of marijuana across the border now he did it in connection with some other people but again he's operating as a on one occasion bringing one backpack of marijuana across the border there are other cases involving mules this defendant who is a supplier who's talking to the mexican connection about about prices we're lowering the price i'll see what i can do is anybody working what are we going to do about omar may we can break his fingers that's not a minor participant and if the members of the court have no furthe questions i thank you very much or couple of points your honor if mario were a leader he would not be asking omar to drum up other people in his distribution network on the phone and you would have wiretaps of mario speaking to other people in this moring he is not listed in the wiretapping portion of the indictment  omar is mario is no where his teeth three taps are only to omar and second of all this is conversations that are going on between brothers so if you say things on the telephone he's sitting there trying to save his brother trying to get him out of whatever hole the brother has lived in so you can't just peg an emotional conversation with a brother  some case that puts this into zones of you know plain air to where you can say well has substantial rights are affected now what about the argument council officer may that even with respect to your argument about which enhanced mage rather than what he got out three to a four level increase rather than to the level that he got so my our response to that is that he is not the facts do not support that he carried in any way and leadership or managerial role it could very well be said there would be no enhancement under the arab or vacation it could very well be that this court determines that he has not carried his burden know we have not carry the burden to show that he is worthy of a mitigating role but in that instance we say the court did err in applying the aggravating role and we still believe that it is a plane air and it meets the standard it is a plain arrow under the seven ninety four amendment which encourages the courts to look at a criminal activity where everybody participates in that criminal activity we believe that oh i'm the guidelines range will be one l then he sentence now and under the molina case that's a reasonable probability that he will get a lower sense now i do want to say i do want to say that the district objection in the district court should not i think we can overcome that very difficult burden thank you sir do you did it all right thank you cou