that delivered a plot really were coaching and other drugs including methamphetamine in the oklahoma city area the question i want to focus on this morning  error made by a district judge concerned in considering what actually not having the information needed to and to find that mr sanchez who's responsible for one they talked about information she had suggested that this information had been admitted into evidence but she was incorrect as well the government appears to acknowledge would have happened had the trial court if it had had the correct information in front of and what what would have happened had the trials for the make a decision on the appropriate sentence for this defendant based on the correct information judge christgau do you have any questions on seventeen yes i do counsel i was looking at the record in this case and it seemed to me that the f b i report contained statements from the agent that dealt with an interview with mr lopez and it tells us about two calls on march two made it into the trial evidence for that information in the pre sentence report that information was not in the present report at least not specifically there was i think there were general  understand did the total amount of methamphetamine that the district court relied on did it include those amounts that are involved in the march th transaction trial but the trial judge clearly was not considering anything other than what was included in the trial evidence and as we showed in our papers there simply was no evidence that was supported that supported that one town one l and that was i don't have a lot of the questions on this issue are you waving the conspiracy issue i'm sorry are you waiting your st issue i'm guy just wanted to focus on i don't have much more to say about that beyond what we put in our papers other than to say that if if the court even if the court finds that there was no price there is the question  with a stronger firm belief that the district court erred when it made that conclusion but even if this court were any error was harmless as this court conceded there is the march th drug transaction which the district court put at one count and one else did not affect the guideline range and this court explained in battle that any error in the district finding is harmless if it does not affect the guideline range yes the district court in this case very downward from one hundred dollars two hundred and thirty two months where the session for a minimum for a conspiracy involving five hundred grams or more methamphetamine was one hundred and twenty months and present this means that the one hundred and thirty two month sentence which there was a variance downward force is only twelve months above the statutory minimum the even playing and even ignoring battle for a moment which this court would be bound by is published the solution there still would not be there still is not a show of harmlessness because the district court lost so little and terms of those trucks it went down from believe it was two thousand and about two thousand six hundred and sixty grand with a march th transaction then went down to about two thousand one hundred and eighty grams that it only establishes with you participated in a small conspiracy that was distinct from the larger activity while you're in evidence the court reversed on the defendant who had only purchased one time here mr to ensure that there was evidence presented that he purchased upwards of seven times additionally the defendant and evans who conviction was reversed only purchased four ounces of drugs sanchez said that he had clients waiting to purchase the drugs where the defendant truth conviction was reversed and evans did not have clients waiting and with court said that it's possible that he was not distributing it for profit and therefore was not part of the conspiracy that was charged what this case is more akin to are cases like edwards where this court has said that defendants who purchase large quantities of call up and fairly promptly get anywhere between have towns and three pounds of methamphetamine livered for clients he had waiting showed that he knew that mr lopez had drugs on hold like edwards could infer that he had other buyers and that he wasn't a part of just this isolated conspiracy thank you judge briscoe well i'm curious why we're talking about the larger conspiracy when we care is it enough for your case to prove that he was guilty of participation in the smaller conspiracy that is a chain conspiracy as opposed to when we will well you know  the argument that the defendant is making in other words let's get confused about this and determine whether or not this decision evidence to determine that this defendant is guilty of involvement in the large lopez conspiracy and your honor and i fully agree that the court doesn't have to go there and in fact my backup argument is that as pointed out in the brief that any variants would not be  only and just to give a slight bit of background the only reason for the main reason i'm pushing conspiracy to the broader conspiracy is our office often prosecutes large scale conspiracies now if this court wants to bypass th potential problem would be prejudicial to deliver this court until explained there are three factors prejudicial spillover st whether through the separate conspiracies affected the jury's ability to evaluate each defendant's actions this reference know if you look into their record and look at the verdict form and it seems significant to me that although this is charged in the alternative even or math or cocaine you verdict form is very clear and says not guilty on cocaine so you can talk about spillover and prejudice that can be seems to be the strongest evidence i'm surprised that wasn't referenced in your bri your honor and i don't have the page number but i do believe whenever i was discussing the prejudicial spillover specifically the rd sub factor of the nd factor and so i believe i did reference that the jury did not find the defendant guilty of cocaine because there was an evidence and to the extent that the question to the extent the question was whether the jury could actually demonstrate that it compartmentalise the evidence form finds him guilty on count one conspiracy for five hundred grams or more suggesting at the very least that the  jury might have found more than one conspiracy has to as to these two remaining defendants how do you square the verdict forms with the points that you were just making in response to judge  well your honor v and i did i do not have the case off the top of my head but i do remember it this issue came up about four or five years ago about whether a defendant can be accountable for the entire conspiracy of drugs the drugs that the entire conspiracy dealt with or only the drugs the defendant was personally accountable for and i know the to be guidance at least enough but my my belief would be that he didn't have an exit he wasn't personally accountable for an excess of five hundred grams of methamphetamine who only  do you agree with mr de that that the the sentencing court the district court relied only on the  tile evidence in determining in determining the well and attributing the the one pound one ounce the district court said evidence the is that alone enough to infer that you actually received that amount whether whether ultimately whether or not and i don't believe i made this part of the argument in the briefing but ultimately whether or not he received the amount it shows it would be sufficient to show that the amount was destined for him and i believe under relevant conduct standards would be this is sufficient to show that he was a that because let's assume for a moment and i know this is not the facts of this case that let's assume for a moment that police to be intercepted the drugs prior to help him accountable for that even though he never actually physically bless them i would say that you know and so i would submit that the phone call probably would be enough but and really i was responding to mr d's argument whenever i pointed out that there actually was therefore the defense counsel did not know that it was supposed to be rebutting this evidence because the drop where it said it wasn't considering that there's a fundamental problem with with the government's approach that