escobar argued that you should receive receive this adjustment because his role was quote limited to that of the courier and nothing else he was working under the direction of under other individuals and was merely being paid to drive the drugs from one location to another and quote it pointed out the factors in how things you know three see that should consider and emphasize that under the application note a person who does not have a proprietary interest in the criminal activity is simply being paid to perform certain tasks should be considered for an adjustment judge alvarez who is the judge responded that he would consider their request and shield we denied it saying i don't i do not think that it is warranted under the circumstances here however it's clear from her own words that her denial of this was essentially based on her preconceived idea that persons who are paid to transport drugs are always average participants sit specifically she said here's my real problem the average bent is paid for their services and that's really just the way it is and the average participant is the person loading the drugs package into the drugs moving the drugs you know storing the drugs and it's our position that these words that she spoke of the best evidence of why she denied the mitigating role reduction here and her reasons to the new guidelines if you will say that you should consider their relative culpability so what do we know about rearrangements that he had intended to deliver this marijuana to another individual and at the time of the arrest the p s r indicated that there were others present the border patrol agents saw several more individuals in the brush for the prior burglary offense and determining criminal history category a court ascough any prior sentence exceeding one year and one month that resulted in the defendant being incarcerated within fifteen years of the the date of the last release from incarceration on such sentence determines whether the conviction falls within the fifteen year period ok so we have this kind of messy timing with him and kind of a messy situation and i found not guilty arrested and then released and never found anything but we reserve arrested put in prison revoked stays in prison and only grant is transferred and the revoked and stays in prison is within the fifteen years you have a case and he ultimately was not revoked but the end of the analysis there applies equally here because there wasn't any kind of revocation or incarceration imposed on revocation basically  he was he was revoked on january fifth released on january twenty sixth to federal custody that's three weeks what are those three weeks that's what i started with the question i started with that i don't believe has yet been answered but i have that is that custody after the program revocation state custody i'm wondering how we treat this whether we treat that is continued incarceration on the pro revocation for purposes of the fifteen years or the retreat it is a not explicit finding about that but i also don't think that necessarily matters because what is the key here and what separates this case from say the stewart case that mr escobar cites and his reply brief and the gal of these cases that you're mr actually some revocation so upon revocation in the catering that there is actually a revocation not just that the defendant has been held in the new revocation you're being held based only on allegations that there is some basis parole so in that regard my summation would be that it's that two thousand and one the actual revocation fact that there is a revocation is which seriously matters and whether it's the three weeks after that revocation or th years were good that's your ar point to the day of its cup what incarceration you argue that occurred within the fifteen year period any time will the entire period between october of two thousand and january twenty sixth of two thousand and one when he is rated over to federal eight mitigating all that just meant oh if we don't know if the whole idea of the mitigating role is comparing it to the other people involved in the off chance don't we need some analysis of that by the court in order to assess whether it's significantly less hopeful than the average participant because what part does the record show about what his activity was irrespective of what wasn't put in the record but just a records show really all we have is that he was caught city speaking in spanish mr escobar say come get us in here which suggests that he had some kind of leadership role itself over those other people around him whoever they may be a knew who he was who he was and was they were expecting him for some reason to guess it's unclear whether those are persons connected to the drug trafficking itself or just happen to be even new people in the area the record doesn't reflect that which goes back to the fact that as far as developing a record for save time for bo do the time you've already served here is your discharge your pet past your maximum parole discharge date which was december second two thousand you being held on these carjacked federal carjacking for the ninety one burglary defense and the whole reason that under forty one point one we count it's focused on sentences punishments for offenses so that we so the federal court doesn't have to go and try to points in this case your honour's on the on the first point regarding the mitigating role the government has pointed out that the p s r vendme said that there is insufficient information about the other participants and so on and so forth but as i said when i stood up here earlier these facts are very similar to the facts and sanchez virial which this court found to be debatable mitigating role seems clearly consider that and i mean the fact she did say i don't like you know i think the guidelines commission is a little out of whack here however i know i'm supposed to consider it so i would know and why isn't that ok i mean  happens you don't like what a higher court does for example you don't like what congress has done maybe you should keep you shouldn't say anything as a judge but you do but then you go you know i'm bound to follow this so the fact that i don't like what you know the court above me did or what all consider the factors and application note three c which think it decides it means well she clarifies i'll consider it and any requests made to the court i do consider it and then later she says i'll consider the request so i mean i think it's we don't i don't see any evidence here that she actually considered inspectors the p s r certainly didn't get into them there was nowhere was there any analysis of these factors of life in a case like castro there was a recent case where there was a comparative transfer to another individual there are other people in the brush and also now the government has said in his brief that his conspirators placed in his possession a large quantity of marijuana for movement into the united states so that everybody at that hearing understood that he was being paid so our position is that it is the facts are as at least as debatable as they were in sanchez that there are these other people are people paying and he was just transporting it he was going to give it to somebody else it's mr sanchez be a relative going to do the same he was transporting it for some guy with a nickname that's all they knew that a nickname if you can transport it to an unknown individual at a convenience store and the court found that's debatable i see my time is