and public defender's off may please the court my name is brandon back and i represent guadalupe castro the appellant in this case your honors this case is about the correct interpretation and application of the mitigating role guideline and there are two reasons why this court should reverse in remand for a resurgence in first amendment seven ninety four to the u s since in guidelines manual was clarifying and therefore retroactive second when the correct interpretation of the guideline is applied in ms castro's case she qualifies for the reduction brings me to my first point your honour's the nimitz seven ninety four is retroactive  the beginning of this presentation i would like to note although it's certainly not binding on this court that the government has conceded that amendment seven ninety four is clarifying and therefore retroactive and they did so in a twenty eight chain letter filed with this court on friday but because that's not binding on this chord i would like to examine this particular issue because i think it is an issue of great importance the sentencing commission issued even though they've conceded it you're going to make the argument that you came here prepared to make one where your honor if this if this court would be willing to adopt that concession i would be more than happy to move on to my second point that it applied to ms castro's case that in the twenty eight j letter that the government very clearly stated to this court and i received a copy that this that they are concession is not binding on this court and in fact in that very letter they and identified a basis for which this court should not find that it's clarifying and therefore retroactive so perhaps i'll address that particular basis especially what what they stayed in that letter and what they've argued in their brief in your hon is that under the several factors this court considers one of valuating whether an amendment is clarifying or substantive the one they highlight in particular is that it over rules prior fifth circuit precedent and in fact that's true in a case it overrules a case called united states versus franklin decided by this court in one nine hundred ninety eight now they treat that factor as if it's dispositive of this issue and i want to be very clear on the point that if we look at this court's opinion in the united states versus huff which is the opinion that lays out those five factors it's simply states that if it overrules prior precedent it's evidence toward a substantive substantive or clarifying which is united states versus play shows decided just a couple of years ago in fact that case overruled prior fifth circuit precedent on bomb yet this court still determined that that particular amendment was clarified and when the sentencing commission first proposed amendment seven ninety four it did so for two reasons it is based on a study and it found that the mitigating role guideline was of being applied  inconsistently in drug cases and it was being applied not frequently enough generally but specifically in economic cases and it provided a reason for the amendment in that reason the s commission just ask you this she said that she qualifies for it it didn't seem to me that the district court was saying that this was there was some disqualification like there was some  like with the safety valve sometimes there's a barrier to applying it because you don't meet one of the tests i think that this records you're saying you didn't persuade me by preponderance of the evidence that i should grant you this reduction and so why would that matter then even if we accepted that it was clarifying why wouldn't we simply affirm because of this court you didn't find you persuaded the court well your honor the reason that we would send it back to the district court is because the district court in making that statement was applying the in correct interpretation of the mitigating role guideline and i want to be very clear on this point i think this is a very important point the quote from the district court from the record on page one of two is quote i am not persuaded that the defendant has carried the defendant's burden to prove the lower participant category but the question i would ask is what in the district court's mind is the defendant's burden with respect to the minor participant category now opposing counsel as a briefing would seem to imply that the district court did said something along the lines of i've considered and it was considered editor of the two thousand and fourteen version i've considered the amendment and i find that she doesn't qualify either way that's certainly not what the district court did here and we know this because the district court adopted the adinda to the pre sentence report and that's found on page one forty six of the record in here's what the adinda him said about the relationship between the two thousand and fourteen and two thousand and fifteen guidelines it starts first and foremost by saying we're applying the twenty fourteen guidelines here then points out that the twenty fifteen guidelines have not gone into effect yet if then states that the courier in this case clayton in to go roll and that's the very language rejected by amendment seven ninety four but here is the really important point this is what the pre sentence report a dent i'm states in this is what the district court adopts it says in this case the court may consider the anticipation of changes to the guideline and structure are reasonable senates thr a variance pursuant to section thirty five fifty three a if the court finds a variance to be appropriate so the district court adopted a framework that you can't go down under the guidelines if the person plays an integral role instead if you want to do something with that information you have to go outside of ins into the thirty five fifty three factors because in this case this castro played a quote integral role that the very analysis rejected by an inmate seven ninety four and that's the very analysis applied in this case now it's not to blame the district court it's true that amendment seven ninety four had not gone into effect but what we're asking this court to do is remanded back to the additional record and give the court an opportunity to conduct this analysis under the correct factors put forth in a menu of seven so i guess i do you believe if it goes back in the court conducts an analysis that it will matter how well i think it matters in a couple different ways your honor first of all i think that is castro qualifies for the reduction under the mitigating role guideline in section three b one point two that's number one and number two if she were to receive that reduction that would drastically minor minimum or in between your honor that's ultimately for the district court it's my opinion that she's minimal but at least mine so i think minor is an easy call in this case i think an argument can be made here for minimal incent fact since you asked that question i want to reference in particular the definitions of minor and minimal participant and then we can talk about how we would apply the facts of ms castro's case under the new factors and seven ninety four and why she would qualify there now the definitions between minor minimal or kind of connected to each other a minor participant is someone who's less cup culpable than the other participants but could not be described as minimal right in the minimal participant is the person who lacks because of their lack of definitions of sharp difference between those definitions but exactly rahner it's certainly on a gradient and there's certainly a gray scale here but i will mention that minimal part of it is it's kind of like saying there's that we're going to provide a definition of minimal then minors everything that's up there but not quite minimal right that's how they're interconnected but it mentions understanding and scope of knowledge in particular in the minimal participant definition and also your hon part of the problem with these definitions is addressed by the students a commission by providing a link to a commentary to assist courts in applying these course the problem is that sports weren't plying it as often as the sentencing commission intended and they've provided quote additional guidance in the form of these factors now the five factors the sentencing commission recommends are under one the first one deals with the scope of a person's understanding the second is the level of their planning in the criminal enterprise typical drug mule and that's the person that is the lowest level person within the conspiracy and so the question will become what do we know about her level of understanding or her level of benefit we actually have all of this information and it can be found in the record through officer brown's testimony and it can be also described by the pre in the pre sentence report by u s probation so here was her understanding she only knew things through her own personal experience personal knowledge so she knew number one the cities she was driving between she knew where she began and where she ended and she them to her but presumably your honor he would be a reasonable inference that she least sol another human being that would have loaded the drugs in the car but we know that her level of understanding certainly didn't even extend to what type of drugs she was transport g in the instant case she thought she was transporting cocaine as it turned out she was transporting heroin and if you look at her participation in planning of the organization she had no planning authority or discretion in fact at one time her vehicle broke down in the middle of the highway asking just a very basic sort of appellate question which is you're basically arguing to us that the district court could have arrived at the same sentence even with giving her minor or even minimal participation credit however that the district court applied the wrong legal standard because the district or didn't apply amendment seven ninety four but you all never got a direct ruling on that the judge simply said i'll deal with the objection i'm not persuaded the defendant has carried the defendant's burn to prove the law or participant category no one said judge are you applying a minute seven ninety four are you not and so to me the statement i just read that the p s r response to the objection it's a little bit vague if you ask me so i don't see here where the judge clearly ruled on the applicable law that we then can say ok that's an er judge thing seventy four made no difference in this case we don't know that so how could we say the judge made an error your honor two points in response to that observation the defendant when the pre sentence report does not apply the mitigat guideline the defendant in the defendant objects to the police in its report it's the defendant's burden to carry that objection to change the judge's mind when the judge says the defendant did not meet their burden that is a ruling on the defendant's objection because the defendant has the you got a ruling but we don't know what law the judge applied because there was no further discussion of that i'm not saying that you didn't make an objection or the judge  but you have made the statement that the judge who ply the wrong legal standard and i'm not seeing now so that's what i'm asking about is a very specific question yes your honor and i want you to be satisfied with my answer on the very next page of the record and i i believe it's page one of three and i'm saying that from my memory the judge adopts the pre sentence report as affected by the adinda so the judge's findings are the adinda to the pre sentence report with respect to the mitigating role guideline that pre sentence report addendum states the fairy first and is using the current twenty fourteen citizen guidelines the defendant does not qualify for admitting mitigating role reduction that's the finding of the district court or that's the finding the district court adopted the pre sentence report then says if you want to give her benefits you have to go outside of the guidelines report doesn't take a position on whether seven ninety four is clarifying or s it just says if you want to do this you need a variance of this exact legal point that you're making which is really specific i don't see that we got a ruling on oh i see your question was not the district court's role to rule on whether the admin is clarifying or substantive is the district court to apply the guidelines as the sentencing commission intended now the district court went by the twenty fourteen guidelines which were in effect at the time and so the district court i'm what i'm saying your honor is they please the court will hear it on behalf of the united states now even if this court considers the amendment castro fails to show that the district court clearly erred in denying the mitigating role reduction she claims that contrary to the amendments instructions the district court did we have one in the district court no the defendant never asked for a clear ruling and we don't have it but we don't need to know we don't need to have that ruling to know that the district court considered these factors in these facts raised by the defendant because even under the law before the amendment the district district court considered that and said no even under the preeminent law you're not entitled to that so even though we don't know whether implied pretty amendment law or post amendments and i don't want to read this to death but of a potential legal error if you will is we don't we know that the court didn't do that one because the record he says nothing that he's denying it solely because of that and this circuit law doesn't make that had to determine a factor the commission never cited anything circuit law that made that a determining bunch of facts a bunch of factors that the court consider consider and said after considering that i you just haven't shown me that you're entitled to this mitigating reduction you just not have satisfied your burden which was implicitly referencing the arguments the defendant had made and then in addition to that the p them contrary to the defense counsel's arguments didn't just say we're denying this reduction solely because you we think you provided an integral role it's that we don't think you qualify based on your participation and involvement in this conspiracy which the p indicated traveling thousands of miles making multiple trips for the d t o delivering kilogram amounts of heroin and we're returning drug proceeds back to the d t o and getting a license plate for d to your vehicle and more than just is based on her participation and involvement it also invoked the authority in the government's response of the defendants objections which was specifically rostral and thomas and thomas is peripheral test and thomas is perfect test is that if the defendant must do enough less so that if they are powerful to the criminal activity and a prior panel of this court in company said that that test focuses on whether or not the defendant was substantially less culpable not on whether or not the defendant provided an essential and necessary role moreover the very language of that test the defendant must do enough less indicates that the inquiry is not a binary one in which the defendant is either necessary or unnecessary but one that looks at the matter of two add to the defendant's involvement in the events moreover the facts of thomas further reinforce this because in that case the defendant picked up cocaine packaged it and gave it to couriers but and he also did it on a daily basis and focusing on the defendant's daily role the court said even though you did enough in the top i mean did less in the task that you performed you didn't do enough less so that you were peripheral to this criminal activity because you were found that caster was not peripheral based on her involving using multiple occasions would make a preference even if you do the same thing picking something up at one location driving it to another location of being a specific amount pre determined amount for the delivery constantly involved if you're a mesh in this conspiracy we're not going to say you were on the outskirts that you were peripheral if you were a national and she was doing this multiple times over the course of only three months and so the she's not peripheral in addition to considering what she actually did the full context of what she actually did with applying this amendment going forward is going to be this issue who are we comparing her to because every drug conspiracy  resizes been have you know some person at the top and then it's going to have a low level delivery guy and as you know la la la and who are we comparing her to the other low level delivery guys or the kingpin if you will and so isn't that kind of the problem here the judge directly compared her to you reba where they were pretty similar gave similar services which is kind of what district judges are supposed to do to get similar sentences for similar offices assuming a similar criminal history and so on i mean if you compare anybody really to the very top guy back somewhere that's running the cartel everybody is going to be minor compared to that guy or woman whoever's running the c what the district court did here is compare her to people that were specifically involved in the activity she was involved in so there was a defendant that look at what he's supposed to do that's what he's supposed to do and in that group she's pretty criminal activity because in the clarifying language say others in the criminal activity not others i'm sorry not other drivers your honor she's supposed to be compared to other participants in the activity so she drove to the stack to this hot supplier in el paso there was someone there that loaded the car she drove the car to for work there was someone that directed them to a residence and the other person that unloaded the car there and another person that bought a car when it wouldn't broke down so that all these participants involved in this  activity that she was involved in the court compared her with them and felt that she was you are saying you can you can call out different segments of the criminal activity and she's only to be compared to those  saying i can't apply seven ninety four because it's not been effective yet or even upon seventy five who want to make any difference to my analysis because she's still an average participant that's what we don't know or at least you all have pointed me to anything that we really clarify that we don't really we don't know if she found that amendment to be clarifying so that it's going to apply in the mitigating role analysis but would have considered those factors their the pre amendment analysis he would have considered those facts under the pretty amendment analysis so it didn't really affect that analysis moreover if you believe that he only applied it or considered the the amendment as far as a variance then it would have been harmless because he was considering those factors and facts in a variance in the variance stage and the defendant even they've been asked the court to consider is a variance the p s r indicated that the district court could consider it and determining that thirty five fifty three factors and then the defendant at sentencing actually argued those factors again in favor of a variance so whether or not the court considered it under the mitigating role analysis which i believe he did a concert looking at the record or into the variance he considered it and it didn't she got the sense she got going back to the question of what is the criminal activity so she was charged with the conspiracy to possess with intent to distribute a controlled substance so that's the criminal activity for them the question is i guess you know there's always i imagine some alternate supplier you know the person in el paso has it in his house got it somewhere it's owner etc are we comparing it just to the people involved in the conspiracy that we know about are we imagining a factory back somewhere with a c e o criminal c e o of a cartel and having to compare it to that i think that's a question we're turning around criminal activity the guidelines as you compared to the criminal activity that she was held responsible for if you want to include the actual people selling the drugs of the amount that she's delivering then that's for the defendant to argue for the court she never argue that here she argued these purchase offense that the court did consider and i mean essentially gives the court factors to consider but it doesn't dictate a result and here the court considered those factors and in light of the record showing her multiple trips to live very substantial amount may please the court judge haynes a question that you've been going with or you've been asking us to shuffle with in this proceeding is what did the judge do and with the you know i mentioned this before the first thing that the judge did here is applied to the twenty fourteen interpretation of the guidelines the non clarified version but it's important to for me to stay true to understand that when a amendment is clarifying it's not saying what the new law is versus the old law it's saying what the old law always was it's saying what the can soon it's in commission intended from the beginning so whether the district court had applied twenty fourteen or twenty fifteen we know it was twenty fourteen in this case the into interpretation is incorrect because it's inconsistent with the interpretation the sentencing commission intended and at the time it's certainly true as opposing counsel noted set  seven ninety four was not effective but the court knew about it because the defendant objected and mentioned seven ninety four if we had not mentioned seven ninety four it would be a waved objection perhaps it would be under plain error but here the judge applied to seven ninety four in which case the fifth circuit was advising that this court was advising that crucial or integral were two considerations for the court that is not consistent with the sentencing commission's intent we know that the susan commission has been very clear on that point and because of that it's important that we go back and allow the district court to evaluate this in the light of amendment seven ninety four another essentially is that all the delivery people are always going to be minor participants because there's always going to be sort of the king pin guy that has the big trucks full of the and so on so forth and these people that are delivery  delivery drivers are always going to be minimal in your view and i don't see how it is that limited i mean that's why we have district courts to sit there and assess the different factors in the particular case and the judge did that here well respectfully your honor the judge did not do that here the judge adopted a finding that her role was crucial are integral to the offense and that's certainly true because drugs can't transport themselves with the sentencing commission said wait a minute we don't look at that we look at their role their knowledge in their understanding with respect to the average participant in yours excuse me are and considerate is just not a determining factor it's not a factor at all according to the sentencing commission so it certainly would not be a determinative factor but to answer your question judge haynes the typical drug mule in a large criminal conspiracy yes into our position would almost always qualify for the minor or minimal participant category and we think that's consistent with the sentencing commission's intense the sentencing commission believes that this is not being plotted consistently but also not nearly often enough noting that some jurisdictions are applying it in the ninety plus percent in some only in the teens and what the sentencing commission has done is provided additional guidance to back district courts off of an analysis that was preventing the mitigating role reduction and then adding factors to help us understand it when we look at these factors i give a talk to every people and i can just say you know if you're just the delivery guy getting paid to some certainty and i or woman getting paid a sum certain to deliver product from point a to point b then you get two points off i mean they can say that they know how to do it they do it all the time they didn't do that they've got a lot of shit would it could maybe my consider this that and it's still very fluid and very and that's where district court discretion is integral if you know because we aren't in a position to come in and look at at these people and assess that kind of information yes your honor but it's a clear abuse of discretion for a district court to apply the wrong legal standard and that and here your honor the reason the scenes the commission i think didn't make a bright line rule saying all drug mules qualify for a minor mitigating role disc reduction is because some there are some atypical circumstances but the typical drug mule fits all five of these characteristics in such a way that they would apply for the minor or minimal participant category and for these