the honorable united states court of appeals for the st circuit is now in session all persons having any business before this arbel court make give their attendance and they shall be heard god save the united states of america and this honorable court court is in session the resulting guideline is the government's burden to prove judge quantity by a preponderance of the evidence it's the court's duty to find judge quantity by a preponderance of the evidence in this case probation converted three amounts of cash to drug quantity they converted five thousand seven hundred and twenty dollars found in a safe to judgment and a converted a five thousand dollars with bank withdrawal and three thousand three hundred bank withdrawal to drug quantity now the last two bank withdrawals were converted to just quantity because they were withdrawn on april th april th which was two days drugs on april th and the court couldn't find out by a preponderance because the defendant both the defendant and the government contested the drug quantity in this case and defendant didn't just contest the drug money but he submitted evidence that the five withdrawal of the amount of his bail was five thousand dollars the amount of the withdrawal in this case and that he repaid that bail to who to his stepdaughter who paid his bail he submitted receipts from the state case so that that amount cannot be found by a preponderance in this case to be used to purchase drugs on the twenty six more input more overly in addition there was another drug deal in this case and it was on may nd and the amount of that drug deal was four thousand five hundred dollars now the court attributed both withdrawals the three thousand three hundred in the five thousand to the able to any six i'm not i'm sorry probation not the court probation attributed both withdrawals to to the april th drug deal but that's eight thousand three hundred dollars and there's no evidence in this record that defends drug dealers good deals with that amount the only other drug deal in the record was for thousand five hundred dollars so that adds to the defense that adds to the argument that there's no preponderance here that five thousand dollars was for bail and defendant paid that five thousand dollars for bail so you can't attribute that  can't convert that five thousand dollars to drug quantity and so that he and so the court erred in finding that that was just there are five wild things was there any indication of the district court ruling th five thousand dollars was itself drug proceeds as opposed to money to used to purchase drugs yeah you know and that's very interesting because probation said that if these monies were used to purchase drugs  quid just because you couldn't answer my question which is there's one possibility is that the drug that the five thousand dollars were used to facilitate what would be a subsequent purchase of drugs on the th and you're saying that's once and he says that five thousand dollars with withdrawn on the day of the april twenty six drug deal that's all he says about it and that's wrong for actually so he doesn't even say that and there isn't any evidence in the record to quote such a substantial amount on hand for someone who's been on disability and then said i don't see any way that this individual could have accumulated those sums of money and with no employment in a disability benefit it sounds like he was saying what good parent was suggesting that the judge was referring not necessarily to the intended use of the money but rather to the source of the money in the st instance i think he was saying that i mean i think he but i think he says a lot more i think he globally says that all dependents money is drug money including these and i don't think that's a valid but it is for me that's not that's not that's not a finding of fact that's not an inference based on your i know it's not a finding  circumstances well it's not a reasonable inference as under the circumstances but i would say right off it's not even an inference it's an assumption because there is no you don't have any any evidence of where that money comes from but it's not a reasonable inference because defendant because once the court made this statement and then went on to defend himself by submitting evidence that he had a two hundred and fifty thousand dollars insurance proceeds that he banged into two thousand and thirteen so he had other  money he also went on to say that you know the judge talked about all his assets his house was in trust his house he didn't purchase his house he had when he talks about all his assets he's talking to you snowmobiles motorcycle in a truck conduct here it's got to be related to the course of conduct the conspiracy in this case you can just go back this way and say oh everything's drugs you got to go this way and say he used it to buy these drugs in  bet would be a mark to justify the well iran under that theory that he doesn't have to connected to the course of conduct in this case of this conspiracy every dollar he has in the bank can be drug money every  asset he has can be drug money under that theory and think this i don't think this court wants to say that because way back in one thousand nine hundred and nine this court said you know we're not even going to address the speculative and remote possibility that courts will start converting houses and and cars into drug money into drugs quantity i mean we've never done that we don't do that because we are we don't do that because it's got to it's got to pertain to the course of have set the sentence at the same amount any no yet the court did say that the court has a single sentence where the court says you know under either guideline under thirty or twenty eight i would have given him one hundred and eight months but that's opposed to sentencing statement and that statement follows two hearings a hearing in the continued hearing where both where the defendant presented evidence the court except it is well i mean  when you use the wrong guideline range it's prejudicial if the parties ground anchor their sentencing arguments in the application of a certain guidelines and that guideline is the focal point of the hearing and that's exactly what happened here and it's the government's burden to prove that this area was harmless and they can prove that based on a single who sentencing statement i mean if that was the case he didn't have to decide drug money could have said yes i'll go with the dream and completely him it was for a base off and  and that when there's a guideline error we have to give it to a different judge we don't ordinarily give it you don't ordinarily give in to a different judge but in this case i think that that in given this case in that may have occurred in the guideline calculation would be harmless because as you pointed out it just record we stated that its sense was untethered from the appellant was a long term drug dealer starting it the age of twenty nodding to career dealer he continued to be involved in dealing drugs through the president that time he was fifty one years old  e continued to to deal drugs even after his arrest in state case he had no intention of obeying the law and no respect for the law and be only way in the district court's view to error apart from that the court correctly calculate the guidelines range there was plenty well look i mean let me just go back to the correct analytical framework here that so take the five thousand dollars in the say what in the record give pointers to that would suggest that that five thousand dollars came from drug dealing instead of from the two hundred and fifty thousand dollars he previously received it was if i think you have to admit it could be either so what makes the drug dealing more probable well your honor i think that the best piece of evidence that ties and its remaining thank you that this five thousand dollars was the result of a drug transactions and not money that came from the two hundred and fifty thousand dollars windfall is that admitted that two hundred and fifty thousand dollars had been spent by the present day and that's in the record in the continuing in the continuation of the sense in proceeding at pages three dollars and four  the legitimate source it in he's trying to prove was already spent by the time that the ins to conduct occurred so then what you have left and i think i thought you just said that the judge asked where's the money dollars had been spent prior to the cash issue really what the court wanted to know and why it left it continued the proceeding in order to permit the appellate to provide it to tional documentation and proof essentially said here was we bicker who are providing you with you know true documents that showed that we received a windfall but we aren't able to provide you with documents sufficient to trace the money to today because that money has been spent and so the five thousand dollars whether or not it went to two dollars to pay bail it was drug proceeds the appellate was a career dealer he had no source of legitimate was it was right to conclude that the majority of thinking that it's just to the to me is if the district court was basing the conclusion that the five thousand dollars was convertible to you think is wrong that well the half that seems harder to support is the idea that it was withdrawn to purchase drugs even that there's pretty good evidence that there was a five thousand dollars for there was a five thousand dollars payment made around that exact same time to pay the bail in the state case so it seems at least five thousand and fifty dollars whether that five thousand dollars was being withdrawn for that purpose or for the future dr salem and so if the district court was under the impression that it was drug money that could be converted to drug quantity because of the future purchase and the record doesn't support that i'm not quite sure what we do if the district court also sort of throws in this idea that with all proceeds in other words just a court seems to have both theories going with respect to this one payment half of that theory seems to me hard to support on particular five thousand dollars related to the bail pay man was a receipt that in the if that bail was a party on that day and his own self serving statements that that five thousand dollars withdrawal went my questions no thank you thank you that concludes argument in this case attorney leon attorney fock you can disconnect from the hearing at this time