the morning honors alexander silvered on behalf of defending the pallant mr right and i when asked to reserve one minute for rebuttal i'd like to start off saying this case was kind of framed below to raise the tension between and the case of hunt that's how from the very beginning in this case we looked at it however as you can tell from the appeal we actually overlooked what was right in front of us which is that this is not relevant conduct and the court should have ruled based upon one b one point three there is obviously the issue of hunting jefferson is of concern is intention and i don't think given the law as it stands right now this court need to address that issue but turning to the relevant conduct issue i want to point out first that in two thousand and fifteen the sentencing guidelines amended and clarified rule one be one point three and actually highlighted a new concept that was in the application notes but it brought it to the forefront by adding it to the actual main part of one b one point three which was we want to look at the scope of a conspiracy and what did the defendant agree to do what did the defendant what was his scope in there and all the application notes and examples actually served to highlight that the government contends we don't go to three b one point a one b which is the clause that deals with what happens and how do you deal with a conspiracy the government says all that's important is that he committed an act which was possession of the unopened box and by m possession of the o on an open box we don't go to one b one point three a one b we stay at a one of what he committed and they point to this court's decision in salazar and for that argument that all that's important is that he possessed the box and therefore whatever was in the box he's responsible for there are several problems with that argument the first is that if you look at paragraph eight of the pre sentence investigation report the only thing mr wright possessed was point eight four grams of methamphetamine the rest had already been taken out and this is not an attempt case this was a charge of possession with intent to distribute meth and an unknown quantity of methamphetamine is what he pled to although at the  argued that he didn't know what the substance was so if you look at salazar and carranza which are in protection cases the act was complete the minute the truck or the item came through the border the crime was complete and court held that it does fall that falls under a one a it's an act that was committed and the act that was committed was importation and it's done and it doesn't matter whether the defendant knew the quantity or the type but here if we go down that logic which we're not suggesting the court does because we believe that's the wrong section but even if we go down that logic and that's what the argument the government argues in its brief the act that it's claiming falls under that in this kind of case is through the next section which deals with how you deal with conspiracy liability and in that in that section it's very clear especially after two thousand and fifteen and then amendment that the first part of the test is the scope and the scope is what did the defendant agree to do and there's no question here and this is what the district court relied on that this was a rather unique case everyone agrees that mr  no idea what was inside that box in fact he thought he actually had an idea he thought it was marijuana he agreed to marijuana with a coconspirator and that's what was supposed to be sent to him so if you look at a one be the scope clause you can punish him only for what he agreed to do in furtherance of this conspiracy and all he agreed to do was bring in marijuana he can't be held accountable under that section for someone else violating the agreement and bringing in and giving packing methamphetamine so our belief is number one that this really does fall under just a simple relevant conduct test that i have to admit we did not raise below i think if we had we wouldn't even be here today because if you look at the court's comments about the fact that could he have and he would have given him probation he just felt it was too much of a dr drop to go from the methamphetamine guideline so our position is it's really an eighty three type of relevant conduct case which we think on all three prongs we win but we only have to win on one but if you go with salazar in kuranda which i think is distinguishable for a number of reasons all you can be held liable for is what was inside that box for possession and that's point eight four grams and i did the calculations on that it ends us right back where we are with our argument that he would have been in probation the hunt jefferson issue your honor unless you want me to argue it i know you're on a rope hunt  we know given the case law that's developed since then you're on a road on so you're in a better position and i am to know the exact kind of hunt what's been happening in the district courts is that they've been trying to cabin hunt to only apply to attend cases and then there really is a conflict between jefferson and hunt that's a very viable we think hunters better decided because it goes along with apprentice and all the laws about mens rea of it specially the recent survey supreme court case we were dealing with  interpreted and we think that hunt is a better decide if you look at fletcher's this this concurring opinion in jefferson where she lays out that she while she concurs with the conviction she doesn't concur with the punishment portion that it has to be the mandatory minimum ten we think that's actually a very logical argument and should be adopted by the court we know the court's probably hamstrung and we probably have to do on bach if we're going to reach that issue but we don't think the court needs to go there this really was and should have been treated as a strict relevant conduct argument and if it was done that way we wouldn't be here and i believe the court as it said would have given mr right probation he allowed cocaine to come into the country but believed it was marijuana he didn't drive the cars there's no evidence even touched the cars if he was held accountable for the cocaine that actually came into the country if that was his own act then surely mr wright who actually put hands on the parcel and put it on his moped and drove off with it is accountable for that act the rest of the drugs the other than the point six grams that were actually in the parcel those come in under one b one point three eight two because they're part of the same course of conduct that's why he gets up to the one point three kilograms that he admitted on the record were in the parcel so this is not sellers are squarely holes that this is not a case that involves the relevant conduct of a coconspirator it squarely involves the relevant conduct of mr right and i will note that  is the first time in this case that the defense has taken the position that mr right is accountable for only the point eight six grams if that's what he's arguing argument sort of evolv so i think it's a jefferson issue your honor the defendant right was charged with possessing methamphetamine that's in the information he pled guilty to possessing methamphetamine and he admitted on the record under oath that he possessed methamphetamine that's all that's required under jefferson in the suit was an eager case in subsumption unpublished decisions show that jefferson applies to the forty one statute that's at issue here and were done  case closed the fact that mr wright believed at the time that he was actually possessing marijuana is something that the district court clearly took into account when it did its sentencing calculation both through a middle man or to be a seven level minimal conduct adjustment because he got four plus two followed by seventeen month downward variance mr wright was looking at the the factors about mr right that he was employed that he didn't have a criminal history in imposed a just sentence in this case in jefferson and so it was an ego control the outcome year it was here it was determined here it was but then in hunt it was he didn't admit to anything your honor i agree with that and i guess one possible way if the court were to attempt to distinguish hunt would be to say the colloquy in hunt was far less clear than the colloquy here here we have crisp admissions as to the actual drugs involved in the quantity and in hunt he basically just said i don't know i don't know what it was right and and we s want to start with something i think a pretty still a big deal a lot of issues have been resolved right i want to answer just respond to two things first of all when the government says of the defendant clearly admitted to the methamphetamine that's not true at all what the defendant admitted to it is guilty pleas what he had to admit to which was that what was in the box which he didn't know they said was point eight four he didn't even know it well how are you going to contest it that was what was in the box because that's what was in the box he that what was received was taken when the box was received an intercepted by the government had x amount of methamphetamine in it that was not a fact he was admitting to that he intended to bring in bring in but this is a possession with intent to distribute and the court understood it when he took the plea in the district court understood that so to come in here and say there were clear admissions and this is different from hunt is not correct he did exactly what one did which he said i'm pleading generically i'm not emitting anything i'd have to admit that there was meth in there because there was but that's all he admitted to and that's what the charge was a generic charge but secondly i want to address one quick thing the government said about foreseeability that that's how we get to the rest of the box that was that he didn't possess you can't do  that you can't jump from section eight a section and pick foreseeability out of section b section a stands by itself and if you read the last note in section application three subsection d the last paragraph foreseeability is not to be considered under section eight so you can't can't jump to section b and pick out a well that was foreseeable that somebody might have stuffed the box with more drugs you can't do that once you go into section b you have to do the entire test and you have to cite it for the government to succeed they have to satisfy each element but scope in this case very clearly says what did the defendant agreed to do and there's no doubt this is what was unique about this case everybody agreed and the government agreed and the court made sure the government agreed he agreed when he entered the conspiracy to accept the package and possess with him to distribute marijuana given that he cannot be tagged for the methamphetamine under b three and so when the government says well we're just going to jump to foreseeability and grab the rest of the drugs other than the point eight four you can't do that not under section eight the government chose the police here they chose the information they could charge attempt and then we squarely would be and what they didn't charge attempt they said possession with intent to distribute