good morning again your honour's jason hit on behalf of the united states as we've been arguing in the related rodriguez case in this case the district court heard in the serai a grant of sensing reduction because the defendant was ineligible given the quantities of methamphetamine cocaine and other drugs that were found in the p s r and adopted in the factual basis to the plea agreement i don't want to belabor the authority of the court is obviously very engaged on the major issues in mercado marino and how they apply here i think the only distinction to add that was alluded to in the earlier argument is that we're counsel has argued rodriguez is a close case because it's four point eight versus four point five i don't think there's any dispute among the parties that this is not a close case in terms of quantity and it is that because of the factual basis for the plea or because of what happened with adoption of the p s r i think it's both the factual basis supports an overwhelming amount that would still be thirty eight now and also the very specific i have trouble with the idea that the judge adopted the in the p s r because the discussion started as to your other argument with respect to the amount of drugs which you specifically reserved in the plea agreement i have considered that and i'll hear from you on that later so and then goes on to say all about the rest basically i don't understand how we can say the judge adopted the drug quantity in the p s r when that when the discussion has that sentence about we'll talk about that later so what he was referring to is i had reserved in this particular case the ability to argue for an upward departure within the guidelines because of the quantity of drugs being so great there was actually ten times what was needed for a thirty eight at the time of sentencing he's not talking about a dispute about the quantity he's referring to counsel i know you have an argument you want to make for a higher i mean maybe what you just said is what he meant but can we tell that it's a twenty eight is where he says this thing about i'll consider drug quantity later right so how do we know and as far as i could tell he never actually did come back to it he doesn't come back to the never did so then i don't know what he thinks about the drug i guess it's a two step to understand the context with the familiarity and being in the weeds it's hard to explain it but if we take that phrase in paragraph twenty eight and look at your fifty lines nineteen through twenty three of the that's what he was referring to in so if you're fifty lines nineteen through twenty three is my argument about quantity related to sentence departures so maybe so i guess we do i charge you know looking at that whether that's the only thing you could have so but it sounds like you're relying on the factual basis of the plea anyway  this argument you don't need to win or is this i'm going to do when i think the reason i went to the factual basis was in the reply brief for the defendant's opposition brief it focused on a part of the police greenman and so in response i thought well if we're going to go to the plea agreement which is judge resigns as is always treacherous would we go into plea agreements like this plea agreement actually forecloses relief as well but i think the earlier discussion we had about more kind of merino undisputed findings equal findings that can be relied upon that's consistent to just so you're not concerned that this is different than rule thirty two what we're kind of merino dylan other already have said the reason it's so restricted in the reason you can rely on undisputed portions of the p s r is the very limited nature of these thirty five eighty proceedings so it's consistent with that in that eligibility is just a sort of a quick determination and it's either there or it's not and when we do you know hundreds of stipulations that i've entered into in thirty five eighty two for eligible defendants the core document rely on is the  were your knowledge and that we should be concerned about using the factual basis i think factual bases and plea agreements as judge resign as well i have also spent a lot of time with categorical approach i think the court's framework can w that because i wore the objections i mean why should anybody make an objection to a p s r that says that there was four point five kilograms of only one point five kilogram matters i think the reason is twofold rule thirty two requires a in  two the case law makes it clear undisputed findings are undisputed facts become a factual so i understand that but why isn't the same perception that leads to the skepticism in the context also applicable here that is if you were a defense lawyer and the p s r says you know you hit him with a knife with it with a baseball bat and you actually hit him with a  you know the back of an axe you're not going to contest that because who cares so therefore if a later becomes relevant whether it was a back of an axe or a baseball bat you know ten years later we're going to accept the fact that the fact that the p s r said it was a baseball bat in the and the judge said i had to up the p s r therefore that's the end of the story well i think the reason it's different in categorical here is that you have the finality of judgments and sentencing and bill and the supreme court of made clear thirty five eighty two is a very very righteous what's final i mean that's the issue is what's final and something final that nobody has any reason to worry about well it's final yes because it's over and rule thirty two says if you have problems make those problems you know right that you don't have a problem i have no problem about whether it's a baseball bat or are an x because it doesn't make a difference i don't have a problem because thirty five thirty two is so narrow that you can't you came in to support getting a in terms of what we can fairly infer from what happened then i think the answer then comes from what were called a marina says you can rely on i think that's the best answer so his do you think his plea factual basis is clearer than rodriguez's it certainly has all the very specific drug quantities yes but you're you're acknowledging that we shouldn't actually use it i'm not saying you can't use but so but in mercado merino the judge did adopt the p s r findings and if we disagree with you i mean i'm not sure like so your opponent said we should read mark on marino in the context of the judge actually did adopt the p s r there so the fact that it's just in the p s are not an pounds whatever the judge whether the judge said i adopted or don't adopt they had no reason to be worrying about it and they are that's really what they're saying so and that i mean there seems to be a contradiction between a sentence that says you know it's accepted as true and then the refusal to rely on it directly and the reason they have refused to rely on it is because it wasn't really at issue at that point but when looking at it through thirty five eighty two eligibility they said we do see that four point three while it may not have mattered original sensing it matters now and it's and it was i didn't say ok fine and so far they still had this as you say supplemental proceeding where they considered both the p s r and other information they didn't say there's there was a binding finding they said there wasn't a today i think the only state is being a defense attorney for twenty five years there's often times where you can make an objection to a specific point in the guidelines it makes no difference to the guideline calculations and when you have limited time in front of the district judge rather than bog it down you really a lot of times are going to be arguing thirty five fifty three a factors are going to be arguing other things and as you can i don't think rayna was that the judge deciding the thirty five day to motion was a different judge and then was deciding at the initial sentencing so there was no way for that to be able to determine what he was what he was actually finding at the time sentencing but here in particular you had the same judge both at the same initial sentencing and the thirty five a two motion and he specifically said page nineteen of the excerpts of record there when i got the  doubt the findings in the p s starr honestly i use that language primarily they adopt the findings with respect to the sentencing guidelines not with respect to every paragraph that's in the p s r his finding in this case was that there was over thirty thousand kilograms of marijuana under the drug acquittal and see table he's not specifically finding so it isn't that parsing words if he isn't adopting the quantity as you just argued in the prior case doesn't that put him in the position of well then it could be less than that amount if it's less than that amount the defendant would fall in a different guideline range well he has to find there's a least over one point at the time of the sentencing one point five kilograms of actual methamphetamine or thirty thousand kilograms of marijuana only the quincy he doesn't have to make the full findings necessarily that it gets out to ninety thousand kilograms of marijuana or four point five kilograms but well so why is it only counted as to the bottom and not as to the top because that is kind of necessary to his finding that's necessary when you calculate the guy's lying range the district judge is saying i find  b thirty eight by saying that the offense level is thirty eight at the time a sentence it's necessarily required that he finds that there be a least one point five kilograms of actual math or thirty thousand kille kilograms of marijuana if there's multiple drugs involved it doesn't necessarily mean he's finding every fact how can he find that there's at least if he if he's not making a finding as to how much well he could he could make the determination that based on what's in the present report and the party's stipulation agreement that there's over one one thousand five hundred kilograms of actual math in the substance that that  is sufficient and it's my position that if the court remains the court should could should instructed district court that it may but it is not required to make supplemental findings and it has broad discretion and how the government is saying that that when the judge said he was adopting the facts of the p s r it really means the whole p s r and he wasn't reserving drug quantity for later discussion because that statement about  your argument with respect to the amount of drugs we'll talk about it later means something other than not an accepting the p s r quantity do you agree that that's what he was reserving for later well it's its own clear does he did say he adopted the guideline calculation to doctor the pre sentence report but i think that it had to have adopted as he later said at least the finding that there was at least one point five yeah and that's my position is that's the only thing that's really established by the record of his specific findings and then what do we do with the factual basis for the plea because this one seems to me clear one this one is more extensive i think my opponent actually brought out some of the problems with using the factual basis in the context here it's also the factual basis starts i think that the  government would prove at trial beyond a reasonable doubt he agrees with that statement the court still has to make an independent finding at the time of sentencing and i don't think that that the factual basis is sufficient  so so it's your position that if we did re mand say that mr serratia would not be bound by the statement defendant specifically admits that he possessed the cocaine and meth discovered in the residence which right above that with the quantities  of the change of plea colloquy and he agreed that the fact that he agreed with the factual basis i don't think that necessarily binds to district court and i think then we may have additional things to look at  it's the overall record might be different so you're saying that district court might decide to just not accept that factual basis even though the defendant admitted to it district court may decide to not make any additional findings beyond what it did initially and find that he is eligible for the reduction ok thank you