it please the court she made well on behalf of isaac ramos mr ramos pleaded guilty to possessing and conspiring to possess cocaine with the intent to distribute it the issue on appeal is whether the one subsection c the dependent must have been the leader organizer supervisor or manager of one or more other other participants or the defendant must have exercised management responsibility of the property assets or activities of the criminal organization the role in the offense adjustments or about relative responsibility in that set out in the guideline background notes here the district court adopted the revised pre sentence report that recommended the aggravated role increase the initial pre sentence report did not recommend an aggravated role increased the facts in the context sent o conduct about the initial report and the revised report are the same the initial report said mr graham as the codefendant negotiated with the undercover agent and that ramos supplied t says no sufficient evidence to determine domiciles role but then it says rama gets a role that's the two level aggravated room and it gives three reasons for this one that he supplied the cocaine in the transaction two that he coordinated with his cocaine supplier crusty yo and three that he invited castillo who had a gun to accompany them to the drug transaction  first fact is incorrect it was rebut it at the initial sentencing now the government says not numerous times in its briefing that ramos offered no rebuttal evidence and that's incorrect he filed written objections to the aggravated role adjustment and there was substantial rebuttal evidence that came in from the prosecutor himself at the initial sentencing so the issue at the initial sentencing was whether because the initial pain presents report and recommend road so the issue there was should get a two level increase for having a firearm because cus theo had a firearm i don't want to minimize the importance of rule or down but do you know of any circuit case that has yes it's it is a very difficult standard to meet but it is not an impossible standard or there would be no rehearsal i do agree there are some obscurities in this case in other words that unusual first p s r says no enhancement because then naturally we would look at is what's the fact that it appears that it's not that that enhanced as having originally not right i have two questions legally wouldn't the district court have it here too  decision there have been some questions by some of the judges and other opinions on whether that was actually correct or not because it is actually set out in the guidelines as a particle you put delgado on block together with the first r where there was no objection to gammas a statement that he supplied me with cocaine wouldn't that in be enough by itself to get a two point organizer of assets and handsome an underdog i would say no because the facts in delgado are different ok and this is a factual determination which is one of the reasons why the standard is so difficult last the p s r didn't recommend it knowing all that to begin writing exactly there's no recommendation people yes but that still wouldn't be sufficient wouldn't be and why oh well there are there are cases that sold that you can be can get an aggravated role as  he brought him to the party i think that fact is i think that fact is possible i think there are other inferences that could be drawn incinerating there's no evidence from this ever had physical control of the drugs and it's quite likely who got the drugs and had known rameses entire life and knew he was mildly mentally retarded chose to come along and kept control of the drugs they were in the front seat on his lap at the drug transaction my difficulties just would we reverse as clearer if you accept the fact that he is the critical guy who not only is dealing with the end seller but also is the one who invites in the ultimate suppliers sounds like he's organizing leading managing more than one person i and it may be spin facts but would we're is in the district court did not make any findings that that promise was has to consider and those factors have to do with relative responsibility decision making authority nature of participation recruitment of accomplishes larger share of the fruits of the crime this court cases have talked about control over the drugs over the storage facilities over the transportation length of involvement ramos was involved for one day preparing or packaging the drugs there's no evidence about how other participants referred to to  consider these factors then it is a very difficult standard district judge just observed that mr ramos had what he called limited intelligence and i think there was some evidence presented that he had an i q of sixty three which is which is pretty low i'm just asking you is is that a record is there any case law on whether that's a relevant consideration yes there is a case that talks about low i q in that case however the court found that there were another of a number of other factors this is a in the good case the government cited as a six circuit unpublish directed the codefendant to deliver drugs for him called the defendant defendant my man and the defendant and got a larger share of the profits and so we don't have anything like that in this case i mean there's no finding that he that's how they came to discuss also this role you know why shouldn't ramos be held responsible for custody of his actions when he brought him to the party and so the prosecutor explained why he is the broker is a middleman this is this is how it was set up so that the ramos on a prior drug crime and they gave him a lenient sentence and the district court says because at one point the prosecutor said to him to the court that they didn't think that he would actually be eligible for safety valve because of his prior conviction but it only got one point but they thought meaning the government that sixty months given this man's mental and this a physical disability was a probably a pretty good hit for this and went back to the present report and the precincts reporting its role in the offense put exactly down what the court had said in sentencing he advised him he coordinated with him and then defense counsel filed an objection to that p in all these other facts from the government's discovery that talked about how much larger this drug organization was meant to get pre sentence report thanks something different and we get to the second sentencing and the court says do you have any objections and you said can we go off the record yeah i don't i don't know why that happened because at that point everyone needs to know do you dispute the fact of his recruiting inviting to steal the court explicitly says do you and the correct word says let's go off the record the court comes back and says anything to put on the record nothing well what the court said first of all no one ever said we created a direct invited that's it secondly when they came off the record if i'm if i changed and don was tells the undercover agent that it could he could only deliver three kilograms and maybe two later now from this it can be inferred that damas was communicating with someone else in order to get the cane now the p s r also states that gomez made arrangements to meet up with the agent at a mall and when the meeting takes place gomez shows up in a car with ramos and another person  steal the important thing about that scenario is that the district court in the final sentencing theory made a specific finding that gone as never new custody and before he showed up at the at the communicated with gomez about the location and time of the mole the relationship between gamez and ramos was before the government and the district court of the original sentencing the government didn't object to the probation saying there is no evidence for an enhanced later on the twenty second suddenly given enhancement some evidence that the defendant could test must have been presented yes in the case of just focusing on that ok in terms of evidence your honor i think evidence to allow an enhancement you don't i don't believe any case is now case would it's got to be factual by a preponderance so then when we look at the a den dome it suddenly says you get two points as i read it it just says on information ramos isn't i could say now viewed as an organizer so what's the available information of the b s or is god i think it's not new information your honor it's an explanation of the the information that's already in the p says slow down no enhanced with probation agrees defense agrees government agrees the guy doesn't have an enhanced role as is running the show no one disagrees but now you're telling me something happened in there at that original sentencing where everyone agreed it wasn't that way now you are no i'm sorry if i'm being unclear i'm not saying that the the government never conceded they did not take a position in terms of whether they didn't oppose the p a so it did not oppose and that was something i knew the has to be something new and you're saying it was that the briefing yes i think that's basically what changed and the district were then in the second sentencing says now we've heard that he organized that's seven days from the agenda before the we sensing that didn't happen right it was just one day later so there's a process problem but then you get to that next set setting and i would say we have now material dispute a fact the court must under rule thirty two must resolve it where's the court assess whether the new facts are true or not under the original sentencing hearing your honor and that would have been where any of the facts would have been fleshed fl out so if the original sentencing hearing the court notes was trying to clarify in its own mind why he wasn't getting the firearm adjustment and then he says he's the court is making it clear he's the supplier of the three kilos and his the supplier and band who are arguing under delgado that is why he got two points it isn't because he supplied drugs you have never argued that no that was not below i don't believe it has been argued to us now it's an interesting legal point but you have not press that is the basis no i think the government's brief pretty much is based on the finding that he was an organizer of to steal of allows or proffered to support a fact that enhances a sentence but i think it's not new information is more clarification of what's in the p i and i accept that but then when the defense objects i would think the district court would have to resolve it factually now maybe sensitive if you're going side bar seal the first sensing then we have this very unusual off the record all parties agreed the second sensing so there's something that's not being disclosed that appears to me to be the basis for the conclusions about organizing to steal but neither side really seems to be addressing that and it could be a waiver issue on the defense side but to me you have to address directly is that this is stuff that's not being talked about the way we know and under the explanation that the prosecutor game which again is not new information he was explaining to the court how he became the supplier and one of the great great consequence but i never thought of the us are simply a working draft in  think the court was basically saying and i don't think the p s r is meant the court at the original so i can't remember if it was the original something or the second something here and he said i don't even have to rely on what the so the court could make a reasonable inference that god knows have been communicating with us neo now in terms of having him there during the drug transaction how does this translate in terms of ht i think the guideline range would have been reduced because under to the one point one if he had qualified as a organizer he was invited to another two levels down so i think that there would have that not of not being the original something wrong and i think again and of defense counsel did clarify and i don't know what wendy boyd the the rationale was for not objecting to this i think it one point the prosecutor said that you know they assumed that he was not going to get a safety valve so that he would have been sentenced to sixteen months so that may have been the underlying reason for not objecting to it but that's just not clear  from anyway if i can just quickly move to the mental capacity argument there's no i'm sorry before i move on with regard to what's in the record what is  was the memorandum the sentencing memorandum of the defense attorney and it's in there where the defense attorney and the the sentencing memo states that he was in the front seat and he was holding the bag no where in the p that castillo was actually the supplier as opposed ronald in again referring to the mental capacity there is no evidence that get anything more than a mild form of intellectual disability and his disability and gave him a very reduced sentence so when he realized that he didn't get that when he found that he didn't get the gun and got bumped and he applied to two levels off for safety that he was not happy with that  but we are not under mandatory guidelines we don't have to we no longer have to feel obligated to make the facts fit and adjust the court could have imposed a very that's been given is the idea that he himself possessed the drugs or controlled the drugs and there's no evidence that he had in control over that and wanted to stay about the evidence about the the objection that was  the fact that christie you know was in the front seat and had in islam a gift bag with the drugs and the gun under his friends and that came from the government's discovery but the only objection you made is there is one and role in this affects in fact i mean that the judge a person must you got to say to the judge we need to result disputed issues of fact but attorney mcmahon says i do not need a record and he's the one who says i want to go off the record how is that not a why are we in play there if this is all about are there facts support an enhancement but the defense attorney himself says your honor can we approach you need a disputed facts no i don't believe that the defense said exactly those words i will say that i wish my trial attorneys made the words a saint objections but it's also in the heat of everything and quite the undercover agent on the phone my boss isn't comfortable doing ten so he says he agrees to us doing three and if it goes to ok he has the other two so this is it and then they agree on