the next case on for argument is united states versus lobo i'd like to thank the court for allowing us to discuss some of the issues that appeared in his sentencing i have asked the court for two minutes of rebuttal time if that is acceptable to the court it's acceptable thank you and you don't have to thank  thank your honor i'd like to focus on we've raised some issues but i'd like to focus on the direct involvement in the importation of controlled substances into the united states  this section two d one point one b fifteen c right that is if you're on the right and in our research and work on this we believe that this is a case of first impression for the  court there are other circuits that have addressed this enhancement this two level enhancement but for the second circuit we did not find any and my colleague from the government does have not found other authority also from the court so we think it's an opportunity for the court to provide guidance to practitioners who handle this a lot and more and more recently as a criminal case law is involving people being in other countries and importing substances to the united states the language of the applicable guidelines along with the commentary but let's look at the language clearly doesn't require that the defendant who is subject to the enhancement be in the united states well the authority the case law goes along that line but what you answer my question the language clearly doesn't require and you may have other arguments but if there's no explicit requirement that the defendant be in the united states that absolutely the only the only the only language we're dealing with is the direct involvement in the importation comparing we highlighted a comparison and just  pardon me for the interruption but the cases on which you rely yeah the circuit cases are cases on the stand where the defendant was in the united states  indeed there there's a common thread that runs through those it's physical presence in the united states which just before we get off that point which you've agreed is not required under the start of the guideline it's not specifically stated it is merely directly involved in the importation there is not the language of directly involved and being in the united states no that's not there however direct involvement does change within the sentencing guidelines because there's another section that involves amphetamines and methamphetamines to the one point one five which merely speaks to involvement we've highlighted that difference that's t united states something that somehow brings it into the united states world the physical presence is one aspect the affirmative steps related to something crossing the border and we say i give it to our give that goes in line with one of the circuit cases where it talks about the fact that the person was induced across the board could you answer judge is actor director involved yes according to that i believe that's the case is the the val but let me take you to the other side of the transportation range which is right now there is a person in colombia peru south america taking cocaine please and processing it and the person is going to take that and put it into a bundle as to why your client wasn't directly involved is what he was that person driving a truck in colombia he was that person taking a boat from the coast of colombia to maybe panama and he was that person specifically in our case in honduras driving from one point in honduras to another point and not tourists so if direct involvement and to the one point one five to one point one b fifteen  to apply then we have to carry it all the way down the chain all the way down to the coca fields in colombia and that does not seem to be the way that this enhanced mint has been interpreted well i mean you're you client has to have involved others in the project to getting these drugs to the united states if nothing because of the just enormous quantities of drugs he was moving we nobody could move these  quantities farm self need other people well he was used by somebody that was that enormous traffic only way of viewing the evidence or was he not in a range he was a he was a person who had the ability in honduras to be able to get through a roadblock to be able to show his face as the son of the president and have those people at the roadblock say come on through was it not directed because his activity never touched us soil his activity never was connected to crossing us soil as a ghost to drugs guy confiscated because he drove you know they were driven up one of the roads they weren't supposed to be going up they never would have reached the states we don't know that the facts of the case don't tell us where exactly these drugs ended up how they were transported across whether if they reached the mexico guatemala border after passing through guatemala from under us whether they were sold in mexico city put on a boat and sent it to europe the one piece of testimony that we have from the cooperator that the government presented was that he pretty much thought it was going to be going to the united states but for some reason the sentencing commission has decided direct involvement is the standard and direct involvement given the other circuits how it's been interpreted seems to be that there has to be one level above and unfortunately for mr lobo's case in the government's position he does not seem to carry through with that he's just in honduras from one point in honduras to another point in honduras i see please the court good morning my name is a member of a i mean a i say in the southern district of new york i represent the government on appeal and i represented the government in the district court judge schofield conducted a very thorough sentencing proceeding in this case including detailed fact findings that support all of her conclusions we've focused so far this morning on the today one point one b fifteen enhanced meant and i'll follow suit as a factual matter john scofield found after this hearing that the defendant was directly involved in the importation of cocaine that's not a factual or legal or some mix question of the law i didn't the question before us what counts is direct involvement i think there is a legal question before the court yes judge i don't think that that the full scope of that term needs to be resolved but i do want to address from my perspective what that term means in the guideline in the sentencing commission told us in an application no twenty b what it means is a defendant who himself imports cocaine or someone who in effect causes in the commission use the terms three will be sufficient for the application of this enhanced meant because the default rule under the relevant conduct guideline is that there are a variety of things that will count to apply the enhanced meant including acts by others that were reasonably to the defendant in furtherance of the conspiracy things that were the object of the harm of the conspiracy so even in kohut conspiracy as well as things or part done by others that were part of the same course of conduct and those are all provisions and  b one point three that the commission has made clear in this application notes the enhancement we're talking about don't count what the commission says in this application note is that direct involvement means the relevant conduct covered by one b one point three a one is that also mean that there's got to be evidence or finding my apartment's that there was evidence that the defendant understood that  controlled substance whatever it was would be imported into the united states i don't think so that's not what the guidelines says however in this case if i am a very low level person helping out in the coca fields in colombia and i a because i am doing something in those fields to produce cocaine but i have no idea w going that and i get caught and brought up and convicted in the united states district court and subjected to this two point enhanced with no judge explain to me what your positions in that regard  the the first i think most important answer is that the enhancement has two prongs the first requirement is that there be an aggravating role of judgment so somebody in the coca fields playing that type of cultivation will i think wouldn't get that enhanced and so we would talking about the fifteen there is an additional for the first prong really cat it's really very limits the category of people who are exposed because yesterday and when this enhancement was promulgated it was done pursuant to the fair sentencing act in two thousand and ten and congress said that for people where an aggravating war adjustment is appropriate these other features in the enhancement or quote super aggravating factors so involvement direct involvement taishan according to congress was a super aggravating factor for people who play management roles in this type of conduct and that's what the enhancement requires but i think there's another point i'd like to make about the question of somebody  somebody managing a coca field the process of importation i submit for purposes of this case begins after the cocaine is produced and is sent norse from south america  so i think there's almost two legal questions here with respect to enhancement the first question is what does direct involvement mean and so there my answer is it means pursuant to the application know only the relevant conduct covered by one b one point three the second question that sort of floating around is what does importation mean and with respect to that question i think importation starts after the cocaine is distributed and sent north towards the united states and is a summary order in this circuit that address the question of discussed the question of importation in that case the defendant was managing cocaine shipments that were leaving on planes towards the united states planes don't leave from colombia and venezuela on clandestine airstrips and flying to airports in the united states they stop off in honduras or in central america and the drugs are then transported over land to be imported into the united states in suarez which i submit is persuasive the court looked at the term importation and said that act of dispatching the plane from colombia north counts is importation and that makes sense it makes sense for reasons that i think are similar to support the concession we have that importation also includes upstream distribution conduct in places like chicago and pennsylvania and that are some is some of the reasoning in the out of circuit cases cited by lobo if importation continues for that upstream distribution conduct thousands of miles north of the u s border there's not a logical way to explain why it doesn't also include people working thousands of miles south of the border to send the cocaine here when their objective is to import the cocaine and here we know that was lobo's objective because he pleaded guilty to participating in a conspiracy with that object so i think for for all of those reasons that is what direct involvement means and that is what importation means for purposes of this appeal i don't think that the court needs to reach the outer bounds and i think that's what you see in the authority that both parties have cited is no court has felt the need to address it because on the facts of each case it's clear that this fits within the definition and i submit that's the situation we're in here with are you also suggesting the with respect to the importation part affectively the guilty plea is taking care of that for us i am  honor if i can take you back to columbia the question that was being asked about whether that person sitting in the coca field would be responsible is downplayed by government counsel because there have been cases numerous cases where there have been in the coca fields who are supervising five or more individuals and they have received aggravating rolen hansen's so that person would immediately qualify for this direct importation  enhancement i think opposing counsel government counsel was drawing the distinction not between the people who were organizing and coordinating the development and production of the product in the field but the example you gave earlier which was you know the poor fellow who's out there picking the leaves and carrying them over to be processed they would as an example the southern district has prosecuted what was the colombian guerrilla movement before that case dealt with not what was happening in mexico central america but dealt with the jungles of colombia where they were processing collecting  packaging making the crystal cocaine and importing it up and aggravating right to admit the facts of this case are significantly different from indeed i pathetically we're kicking around our yeah real case that we're getting  right i think what's interesting is i think mr bush is right i think that there is a there there is a scale here there we do have to try and figure out where this direct importation stops our position is we have the cases which show it chicago it's pennsylvania it's it's the other cities that were listed miami haiti those are there that's where circuits have said hey that's where direct importation applies some of the district court cases  down that same line moving with the concept of physical presence moving across the board this court has the ability to say look we're going to go down into honduras and because of the factors say he was directly or as we would argue the facts do not support that he was directly involved if again if this were involved in mid that he physically escorted cocaine  given the guilty plea so we're really just talking about whether that's directly whether he is directly involved in that importation yes because the general chart in general to crime is possessions tend to distribute redistribution with the intent to import he pled guilty to that so it's that direct component it's the direct that even the even the district court judge said look i'm going to give you this but it's going to be i'm going to have to resort to aiding and abetting what i think was we would argue no we had our you know folks so that would directly contradict the language of the commentary well but but the commentary is the way the circuit courts have taken this it moves it into that you can argue the aiding and abetting but her interpretation and then application we would say is incorrect if she's resorting to aiding and abetting what he did did not get to that point did not qualify for the aiding and abetting for that commentary