thank you brian come for is also a third year law student at the university of michigan and i will be supervising him today thanks for your  erred in giving mr newman yes a two level leadership in hansen because giving such an enhanced it is inconsistent with both the spirit and the letter of the sentencing guidelines it's inconsistent with the spirit of the sentencing guidelines because it fails to take adequate account of mr news is relative responsibility as compared to his coconspirator mr benavides rodriguez as is required by background commentary to the guidelines as well as this court's precedent in cases like gibson and  it violates the letter of the law because it is inconsistent with application notes to inform on the scent of the commentary to the sentencing guidelines in this particular case mr newman yes the  break and also because i think that the particular sentence is what is appropriate under booker not unfrequently i will i will very al often very within the an enhanced guideline range and this judge did even more this was a variance even without the enhancement and if i'm wrong in my assumption and that's my question to you that there's no harm no foul from having imposed the enhancement but then adjusting the sentence on your book or by varying to remove the effect of the enhancement and let me give you my response to one argument is well judge we don't know what sentence the judge might have given had the enhancement been implied point in first place my answer to that is no because we're charged according to my understanding of the guidelines looking to the guidelines as a as is as advisory but then we apply the section thirty five fifty three a factors to impose the sentence that is sufficient but not necessary and then i said not sufficient i greater than that necessary to accomplish the purpose of sentencing and that's ninety six months i assume that the sentencing factors were already looked at and made manifest on the record and so if that's the judgment that's sufficient but not greater than necessary and the up and down movement the enhancement is that it sets it sets an anchoring point for which from which the judge and the judge the district court judge will determine where when a variance is appropriate and the judge gave reasons for the variance in this particular case and they weren't related to mr newman years that the question the question ability of mr news is the leadership enhanced and they were related to the relatively minimal scope of the conspiracy and they were related to  fact that mr news was a first time offender and b because because those factors are present with or without the enhancement the fact that the enhancement is found in this case means that it's more likely that the judge took the enhance into consideration when when he when she was calculating the guy when she was both calculating the guidelines range and also passing since sentence so the example you gave your honor if the judge were to say i'm not entirely sure about than the enhancement or because the enhanced in here is questionable then we would have reason to know that the the particular any party's proceedings are previous to make a judge for purposes apostle paul review or for the record please tell us had you imposed had you not imposing a handsome is this a sentence taking into account all the thirty five fifty three factors that you would have imposed or judge please state on the record what role the fact that you found leader ship role plays in your determination that this variance is appropriate so knows that the record would be to make sure what it is the sentence for flux and i've never had a lawyer ask me that but i'm trying to go through this process as we talk because i was it would be helpful to me to understand your honor yes or in this case but also in my job yes your honor for deval i'm i'm not aware of any preston on point on that particular question and it's in speaking speaking specifically about that particular matter i think i think what the attorney did by objecting both to the p s r and to the sentencing in hands during the hearing the sentencing hearing was state your honor this is not an adequate grounds upon which to base a sentence so that that objection sons might have been less and that's right and we don't know and that's the problem trying to raise it was ok whose responsibility is to preserve that in the record so that there is a record so the reviewing court knows and the defendant and the prosecution so i don't know i'm just a kurd to be sitting here yes your honor and i think i think just again just by raising raising the objection and noting that the sentencing enhancement is not warranted in this  harmless error when the departure doesn't make it win win the enhanced it doesn't make a difference because even if the enhancement were not applied the sentencing range would be below the statutory mandatory minimum k i find enhanced i think a belongs there i've stated why i think i've done my job but you know but let's go from there and why  issue that is there's i understand bostic if there's some loose thread and you want later to raise the issue on appeal that's why we have at the conclusion of a sentencing we asked the boss to  formula so that we try to sweep everything in so that the records are preserved and shouldn't somebody have the burden whether it's the government or the and it may be the government's burd think and i know you didn't come prepared to talk to us but it's a matter of importance to me i do want to say this is first the government's burden in this particular case the guy the guidelines in this court's press to make clear that the government bears the burden of proof preponderance of the evidence of the enhancement and in this particular case the p s r did not find that they enhanced it was appropriate in this case the government objected stating that the enhancement should be applied and defend and defense counsel responded by objecting in terms of the the application which that which the probation officer adopted who i recall correctly and i thought of the final p both parties get a chance usually of course it's the defendant who's objecting anyway sort of the final p s r the judge considered included in his and that's why the whole issue was there  that that case found that there wasn't sufficient evidence to either support a relative responsibility for the defendants or to support that the defendants exercise control over the good morning your honour's may it please the court adam reeves on behalf of the united states yours i think it's important to start off with this notion of relative responsibility because as mr starr dina's points out it is the spirit that motivates the application of three b one point one however in this case i think mr surgeon is misconstrues exactly what we're looking at when we consider who is most relatively responsible for the crime charged mr sardin of cast this as a competition to see who is the worst drug dealer among those in the conspiracy but what three b one point one really focuses on and what it enhanced is for the sentence is what responsibility did the defendant have for advancing or expanding the actions of the joint criminal enterprise so it doesn't consider whether in other circumstances mr rodriguez might have been involved in other drug dealings with other conspiracies unrelated to this point it asks solely about the conspiracy that's charged in the indictment and what we see in the facts of the record in this case is that mr dean is directed another member of the conspiracy mr rodriguez to deliver a quantity of oxycodone pills to a third coconspirator named only chino by the evidence that we have and that in following those directions or in giving them rather mr starting this exercise control or authority over at least one other participant in the conspiracy this is what the case law from the six circuit has pretty uniformly said is legally justifies the application of three b one point one there are several cases i think that are particularly on point one of which was in fact just raised by mr starr genuses appellate counsel and that is that if united states versus munoz there we see a very similar factual scenario one in which the defendant has discussions with someone who turns out to be a confidential informant setting up a drug deal and then directs another coconspirator to do liver the drugs to the person that turned out to be the confidential informant now there are a few i think what are minor differences from that case but nonetheless the court munoz identified that it was the instruction of another coconspirator to act as a drug courier that justified the application of three b one point one and it did so in the context of the defendant in m z arguing that he was really just a middleman that he wasn't sort of the worst drug kingpin even within his own conspiracy limited as it what was there were a large i think number i think there were twenty five but nonetheless this person was arguing he's only sort of in the middle of all the people in this conspiracy in the court said well it doesn't really matter if you're the only leader because there can be more than one supervisor or manager in a conspiracy and indeed the commentary t one point one makes clear that as the conspiracy gets smaller under five participants is set out in the letter of three point one the distinctions between things like being a manager or a supervisor become less important and in munoz the sixth circuit says look you exercised control over or authority over your coconspirator by telling him when where to go deliver drugs and in that case the coconspirator did so i would also point this court to another decision and this is not raised in the united states is brief in large part because it was issued at the time that the united states finalized its breeze it's united states versus andersen and i will note for the court that the seven ninety five fed third six thirteen it was issued on august the fourth of two thousand and fifteen and they're one of the issues that is court of the one of the issues that is raised by the defendant in that case is the application of three b one point one b because there the conspiracy exceeded five people but the court discusses all of the evidence and what was shown is that the defendant in that case who was in fact i think the girlfriend of the drug kingpin effect conspiracy instructed two juveniles to transport drugs from nashville to las vegas and ultimately los angeles and the court noted in its opinion that there was some dispute about the extent of the supervision but it held that simply acting as a supervisor this person supervised the juveniles who transported drugs as couriers simply doing so was legally sufficient to support the application of three b one point one in that case it's a part b but what i think is even more important from the court's holding in that case is that it says this was legally sufficient notwithstanding the fact that the defendant did not recruit the drug couriers to enter the conspiracy or meet any of the other factors set forth the no four to the commentary of three point one and i think this sort of gets to i think the bulk of mr starting this is argument which is that well the government shown maybe they of course the debate this but maybe we've seen the instruction to act as a drug courier but we don't really hit any of these other factors that three point one finds to be so important but what the six circuit says an anderson and what it says in the case united states versus us and this was cited in the united states is brief is that the government doesn't have to somebody can be a manager or supervisor without recruiting all of the members of  conspiracy and it's important to point out that simply recruiting somebody to join a conspiracy doesn't lock in your participation or the role that you play in that conspiracy and i think freezing one's relationship to the conspiracy at the point at which you recruit someone else into it ignores the way that the facts can develop an investigation into how a conspiracy operates this is another argument that's raised by mr starr dina's which is that well because it was mr rodriguez who nonetheless there's nothing that prohibits you mr starr dina's from being recruited however we want to define that term and then later exercising a managerial or supervisory role over anyone else one might follow the other indeed i mean first of all am i correct or am i wrong or do you understand the law if you if you happen to have it in mind that my safety valve approaches a district judge work if i wind up giving a sentence that is within the unenhanced guidelines reign that and apply the thirty five other with the factors otherwise and recite my reasons that this challenge should not be heard or am i wrong about that or don't you know i'm not entirely sure i can point you to a case that is exactly your theory but here here are my thoughts on that because the united states didn't raise the harmless error argument in it brief i simply can't swing at the pitch that you're throwing here that this is a harmless error so only gleick to do so but i think that perhaps the better practice for the sentencing court or perhaps even for the united states in this case is to put on the record that regardless of whether the enhancement was applied or not this will be the sentence that under guidelines thirty two or thirty and then the question is you're willing today this morning to to accept that as a burden of the government it certainly would be in the best position to do so along with the other make sure that we tidy things up under bostic and bostic is a terrific mandate from this court because i think it does avoid a lot of the appeals that we have somebody overlooks and simply though your honor if you look at page three fifty three of the record that's where we see the district court's explanation of the actual term of imprisonment ninety six months and candidly i'll admit that the district court does not clarify that this is a sentence irrespective of the guidelines because we do have a law we do have cases that say that that is the setting judge makes a mistake in calculating the guidelines and that's a procedural error that in the event he does that but he says i would pose the same sentence anyway well they will say oh it's harmless but ok and to be clear i think what we're discussing here is maybe best practices and i'd hate to be misconstrued as saying the government always has to do i mean i do not except those of confession are the attorney general that that's where it's going to be because i do think there's a burden a preservation issue here and i think it really belongs on a defendant wants to preserve the issue that the enhancement notion that the deliveries of pills to chino by mr rodriguez were not in fact deliveries but they were instead separate transactions where mr rodriguez was selling pills for his own benefit and i think this conclusion the record beyond what it can support because let's look to the testimony of mr rodriguez where he says i bought pills from mr sardine is for twenty to twenty one dollars a pill or we had to then believe that he takes the quantity of pills that he receives that he paid twenty two dollars per pill for and then resells them for one dollar per pill because that's the testimony that we have from mr rodriguez which is that he was paid one thousand dollars for every delivery and delivery is a term he uses of one thousand pills that's a one dollar per pill price if he is indeed a drug dealer at that point and not just a courier he may be the world's worst drug dealer there's no indication f mr rodriguez that he was ever paid any principal amount or that even cino was quote his client mr rodriguez in his testimony describes and i believe this was even on cross examination describes cino as a client of mr sardines and this is where i think ultimately the court has to reach the conclusion that it was not a clear error for the factual determination of the district court that these deliveries were in fact that deliver these pills and in effect remove him from the street level drug dealing and this seems to be a concern in the application of three b one point one and this is in i believe the gonzales case from this court how did the defendant organize structure  hierarchy of the conspiracy to create people that might assist him to remove him from the street level dealing make his drug dealing harder to ascertain from law enforcement personnel relationship overseer and under wouldn't put it in a strictly hierarchical sense i think this is a far more practical sort of consideration because these conspiracies can be very fluid but what we do have here from the record is two occasions in which sardine as instructed mr rodriguez to deliver pills and that he did so to a man named chino that with this court's decision not only the one that i mentioned in anderson but also the ones that the united states relies upon in munoz in washington and in pluck albeit unpublished the court in plant said or a panel of this court said that the use the recruitment of another defendant to act as a drug courier and in of itself is sufficient to support the application of three b one point one notwithstanding the prior relationship that they may have had and even if this courier activity only occurs once or on seldom occasions i think that holding i'll be it again in a number of cases perhaps the most instructive and looking at how three b one point one views the exercise or control question and unless the court has any further questions i think that's where all and i am thank you you have three minutes  to address something that the government said about the role of relative responsibility and i think initially he misconstrued our human then that he got it right we're arguing that mr benavides rodriguez bears at least as much if not more responsibility for the conspiracy because if you look at the conspiracy as a whole mr benavides rodriguez was the one who initiated the conspiracy he's the one who approached mr nunez he's the one who proposed the initial transactions and this court and the application note for both hole that recruitment is an essential function even the case they get the government sites pluck relies on the recruitment that is the bringing into a conspiracy of another individual as as the as the key factor in determining as one of the key factors in determining whether an individual is more relatively responsible for the actions of conspiracy in this particular case we have we have recruitment element where mr benavides rodriguez was the one who approached mr nunez and proposed the criminal conspiracy the other factors th government alluded to that we that we rely on in assessing relative responsibility are explicitly stated in the background commentary talking about the the relative threat to public safety and the responsibility and it should be examined by looking at the conspiracy as a whole and not just at that by carving up a conspiracy and looking at separable incident right  right and if if you if you look at the entire scope of the conspiracy you come to a very different conclusion than if you just hype off the specific portion the government would like to focus on which is the  the drugs that he delivered to chino he was paid upon their delivery about one thousand dollars per one thousand drugs so he was not out twenty one dollars a drug as the government tries to imply he was taking advantage of an opportunity that mr newness had provided him with and we don't see the see the control exercised in this particular case that we see in cases that the government relies on including in anderson and anderson we we have a case where the defendant actually accompanied the miners to oversee them and make sure that they comply and for those reasons we asked this court to vacate the sentence and remand a