is based on the amendments to the commentary to guideline three b one point two which provides that the fact that it offended performs a essential or the other word criminal activity it's not dispositive but here you've got the fact that your client bought heroin shoulder when transported heroin distributed heroin well it's not not sufficient you describe are subject to interpretation in other words if the district court had to make that there's there's no direct evidence this man did any particular thing all that was found guilty by the jury that to to be sure but we're talking about what did he do he did the jury's verdict said he is a member of this conspiracy that is that is true  the question then is what did he do the court identified what the court of the district court said that he bought and sold helen with mr guyton and that he bought heroin from mr berry now these describe the fact that he's guilty of a crime that doesn't assess the question of whether he substantially less culpable than the o as guilty as someone so or more guilty than someone else those determinations were never made but they are we've said that these can be implicit right but but we on one of the trips when mr barry came back from houston he stopped off at somebody's house ripped open his hair when packaged through the package in the trash and then drove over to mr porter's house and stayed for five or ten minutes how we can only guess that there was a transaction that occurred then for how much and how many times we time that we just talk about the one time and then we have quarter and mr guyton the only connection in the evidence that supports a transaction is mr mckenzie were saying mr porter make that inference but but the district court hasn't made the jury verdict since he's a member of the conspiracy that doesn't say what he did and the district court needed to make findings is to what he did and then said what his relative culpability was  so we think that if you're going to operate on the wrong stand the legal standard one that's much harder to me the district court didn't go didn't go into the depth that it needed to do because which case this case this this is some failure on the part of the district court such that we should send this back for recess and well it would be sanchez malarial which tells us which holds that the no case is actually decided that the peripheral the this court's jurisprudence about if you're more than peripheral you don't get it but that is plainly inconsistent with the guidelines and say if you're essential and definitely definitely adopts the peripheral rule but i point is that that has to be revisited in light of the amendments to the to the guideline commenta did you offer not you necessarily but what evidence was offered at the recent unsing or the original sin and seem to rebut the district court's findings or otherwise establish that he's somehow less culpable you don't have to but you could all be culpable that we don't make a hierarchy in every case sometimes people are just all in their lumped in there together no question so what what what evidence did you offer in contact that he had where he where they think he might have distributed some some heroin i mean that's all there is this a third of them wanted to do that or one in council do that at the sentencing hearing the well i think that he did at least in connection i mean he threw a bunch of objections out at once but he he made the argument throughout that he added that actually he wasn't even involved in any criminal doesn't preclude the filing that doesn't preclude his argument that he you know that there are no transactions where he's actually been caught with drugs and that is that that is a factor it seems to be really challenging the jury's finding of guilt they found him guilty the evidence tying him is that he did was engage in these transactions and there was a debate about that but the jury found him guilty so then the question is just becomes assuming that conduct that the jury found is he is entitled to this mitigating rol well i mean your basic theory is he did not what did he do what did the jury find him guilty of doing in your view firing him being a member of a conspiracy that involved based on what conduct based on what conduct that he engaged in well the certain certainly the verdict doesn't say and then and then and then you have to you have to look at what evidence there is and look at the p s r the pre sentence report details what the evidence was going pertaining to him a trial and you it's very very reasonable to assume the jury found that conduct but it only had to find one thing right i mean it only had to sign if he did one particular thing that what i'm getting at is what you're really challenging in large part is in the application of this guy not as a matter of law you're challenging whether he was really was evidence of the jury action that agreed with that he engaged in those transactions and well let me give you some clear air here one of the reasons the district court and this goes to our second arguments well one of the reasons the district court found that he wasn't with mr with with mr porter but there is an evidentiary basis for a not implausible finding that he sold drugs to gotten it's the mckenzie weber testimony and it's the phone call about that issue yeah practicality right but what there isn't is anything in this record in the government could correct me if i'm wrong that says that mr porter bought heroin back many gates you know you know more on what he's from his actual role was but that also takes me and in the brief time i have into the into the next issue which is all of the drugs that they attribute to mr porter came from mr berry all of when you when you consider that there's nothing that says he got drugs from mr gotten nothing so therefore the probation officer and the district court by adoption is double counting the drugs that are personally attributable to mr porter with that which they hold for seeable which they say is mr barr if it's the one point two five kilograms directly attributable to mr porter that's still in the his one fifty one syncing range is still that's it doesn't make a difference  back and forth and it's too much too much if you go back down to what he's actually attributed with yes since he got it this court has never held that that at least with an objection that being sent in the wrong guy like range test is one of reasonable foreseeability and there is no double counting in this case the p s r went through the different drug transactions that porter was involved in came up with one point two district court err in concluding that the drugs purchased by mr berry reasonably foreseeable to mr porter when none of the communications between mr order and mr very involved drugs well and that's not true that would be totally hand so that with the risk to sufficient evidence to believe that that conversation involved a drug transaction so that it's in hands at seven thirty six seven thirty seven that's discussed extensively by the court because it was one of the counts of convictions and in fact the district court in discussing it at the third sentencing hearing said that it belied reason and the fat conversation wasn't about drugs it was a it was not about the n b a playoffs the timing didn't work out didn't make sense he was only there for a couple  minutes he was on his way back from houston and you know just to say that there was just because there was no drugs on the supporter the evidence in the case was all about the phone calls that he had with the coconspirators the weird times that they occurred that's all in the trial record and the judge had  all that before her in addition there are four objections never argue they're actually argued at the first sentencing hearing and then there is a different spin mr robey gave a different spin on them in the second sentencing hearing district judge heard all of that at twenty five to twenty eight or nine she went through all these different facts boom boom boom boom boom which kind of dovetails into the next argument and going through all these factors such as the criminal activity that he was involved in all of the things that she stated correspond to the non exhaustive factors in a moment seventy four so right before she denies the amendment just i think few lines above this district court says that in considering the drug porter had conversations with coconspirators that revealed the relationship of drug dealing in the past that was something that of course was in the quantity of what was in the context of quantity but but directly corresponds to these factors like c has the burden to show that she was less culpable than the average participant and then she engages in this comparison which the district court judge is supposed to do she says and i'm quoting twenty eight eleven the district porter and guy in supplying each other with heroin then she goes on to say that porter must show to get the enhancement that he was peripheral he must be for for all to the illicit activity and says he wasn't this is not a drug mule this is and this court has said you know not every and i think judge out on mention that not every case has to have the mastermind not every case has to have the minor participant this guy was smack ed in the center he was just too involved with these higher players he was supplying that in market in which this corn hands direct recognize was a major was a major drug dealer who had a source of supply in houston he buying from barry who had a supplier i mean sorry st louis was guy in houston was buried so i don't know how this guy could ever get around those facts i think every man in this case would be futile i think the judge is going to make the same exact determination if she gets the case back as far as a judge or question about castro castro is controlling it's the part prior panel decision here  was in fact post amendment seven ninety four so the court had the opportunity not to use the must be for a language i think that defense counsel is trying to co and say that must be preferable is in thomas no two indispensable an essential but it's really not they're not opposites because you can't keep her for all and essential just like the drug courier right you can be essential and i'm in seventy four doesn't want district court to eliminate the amendment for the people the little pianist that are essential but also prefer the porter was personal he was so close to the center here he was  and so the the must be this court's use of must be peripheral there's nothing wrong and it doesn't contravene a none at seven hundred four it's just another way to describe substantially less culpable than one in the average participant if because being peripheral just describes the degree of involvement that you have with reference to the center just like substantially less culpable to the average participant it's all there all relational agita go to how someone is central or not central but you could be essential like as a drug courier like the drug organizations cannot operate without the little people that are willing to risk getting arrested on the front lines but just a drug courier if you just in a one time transaction brings the drugs in from mexico or whatever she may not know all the other players so if you still prefer or like in this case we had someone and this person didn't was a girlfriend and didn't qualify for a minor role because she ended up pleading to a lesser charge but a girlfriend who runs a car for somebody in the drug conspiracy is part of the conspiracy because without her you know they need to use cars that are anonymous these rental cars they can't rent cars themselves because they have drug convictions that person could be essential to as you need someone to help you do these things so you can be anonymous but also be peripheral actually it really answers the question here says it's improper for the court to award the adjustment simply because a defendant does last the must do enough class that their best peripheral so i think that answers the question say the as this court is using it is how far away the person is from the center that they still could be essential link in the chain of causation but just far away from the center of the action and that's a very factually determin on how critical that person was and didn't discuss any other factors but that's not what we have here we have the court using a substantially less culpable framework discussing factors that are relevant to the seven so ninety four factors and then she was the trial judge she had the p s r in front of her there were at least three people that had less culpability than mr porter and at least three people that  arguably greater culpability than forder he was right there in the middle and the judge again went through all these facts that she found it's not like there weren't arguments about these facts counsel in defense counsel in making the argument for the adjustment argue actual innocence which suggests she had no knowledge and all these things the court rejected it she looked at it she was thinking no this belies reason no i heard this it doesn't make sense even the stuff  and so you're honest i just if you know i would just conclude if there are no further questions that porter failed to carry his burden this was his burden to show that he was less culpable than the average participant the district court did it's the record is what it is the and the hand certainly is what it is and made certain findings as well that the court the court would actually be wrong to have given hanson here i think it's fair to say and so if the court has no further questions the government will rest on its brief and cancel just to sort of try to restate the position on the minimum a world court found him to be not peripheral he didn't say he wasn't relatively minor there is evidence in the record for the court didn't i'm not saying it had to he wasn't forced to come to that conclusion but there's reason to do so in the court didn't assess it under the proper  he there is one time were very comes to his house not so but it really knows what happened there nobody there's an assumption that there was some drugs transfer ok the court could have found that that there was you know an ounce or whatever meanwhile guyton guidance a big drug dealer but if if if mr porter's given him nine ounces of drugs on one occasion and mr guy is getting all his drugs from the rest of the world houston awareness and constant communication are measures of culpability knowing of course that mr barry and mr porter were great friends who who managed the basketball team to get it and knowing that believe it or not there was one hundred thousand phone calls intercepted and not one had any drug content in it there is the suggestion that you know come up to my house means to own a house and trade drugs these are reasons for this court to conclude that no matter what mr barry or what mr porter mill was going on that he still played a substantially less role in this gigantic case just the point being that there is a basis for that and castro i realize i did say castro in the brief the problem with castro is it doesn't cut we would argue that doesn't constitute a holding it did it did make the peripheral