good morning your honor my name is david avery and i represent ms techniques having hamilton although miss hamilton raises four challenges in her appeal i think this is a fairly easy case for several reasons first of all one of the issues and that would be her eligibility for the safety valve is completely substandard by another issue in that that would be to question of whether she should have gotten and he asked me for a managerial rol the case is also easy because the relevant case law with respect to the other three issues to the managerial has meant the acceptance of responsibility and to drag them out as those issues play out in this case is its clear case father not a matter of which who's more culpable than the other with respect to drug amounts likewise with respect to the acceptance of responsibility issue the case law is clear that that her guilty her guilty  other demonstrations of acceptance are very significant evidence of exceptions that cannot be undercut by such insignificant incidents like the drinking incidents that occurred close to her change of around the change of plea and they both involve alcohol intoxication and there was the issue of whether or not she pulled over slowly when there's a traffic incident but when you put those next to all of the demonstrations of her acceptance which included the fact that she pled guilty much earlier than most anybody else in this conspiracy the fact that she allowed herself to be deep grief numerous times that she testified against her sister those are much more significant demonstrations of acceptance then and the relatively minor incidents is that she had near her changes and the government's conceded that ms hamilton is an extreme or was an extreme addict at the time and as we've reached people in her circumstances most of the time have difficulty she's quitting using drugs including using alcohol that quickly and sincere demonstrations of acceptance she admitted she had a problem and so i think the critical time is after that before the change of  difficult question for me and for ms hamilton is their complete reversal that the government's taken on appeal and if i could draw the court's attention to the extremes to record pages ninety one through ninety five those only new facts and so for the government to say at sentencing that there is no evidence in my investigative file that i could present that ms hamilton exercised control that she determined when sales rep take place that she exercised any kind of organizational of authority and then without any facts and its response to say that the court was within its discretion to find the managerial han first of all i think that's the wrong standard of review the courts never got discretion to find something that's not factually based but my main point is that everybody agreed at the time of sentencing that that the plea agreement in this case i think there has become a serious misunderstanding about why we're here this isn't about the government's position that we took at sentencing where the government's position on the brief but it's really about what authority does the does not imprison the independent obligation of the courts to decide what they believe the facts are it was interesting to sit and listen to the first oral argument today because there was some significant discussion about that although in that argument the for drugs that she had possession of for purposes of distribution not for personal use and the p s r zone contradicted she used enough to more than account for the one of the that was at her the whole scope of relevant conduct under this period of conspiracy because even though she pled guilty to possession with intent to distribute there was evidence of the conspiracy that came in under relevant conduct and i think in reviewing the record that's why the judge didn't make  she won the lottery well there was there was some there was some discussion about that it didn't end up being a hotly disputed fact and i guess the reason was because the court didn't say as to this amount found in the house at that time i make a decision half was for personal use and how it was for sale because i think he felt the overall conspiracy in the relevant conduct amounts were so big that it wouldn't have mattered and so he picked on that as being the director was that was the head if you want to say that if you were a mouth bear that that she'd tended to share her common law husband that would still fall within the amount that she would be distributed absolutely because she's distributing to another person even if she's not selling finding there and i think the judge felt well what's your interpretation of jupiter's whether that's a mandatory requirement i don't think that kim says it's mandatory if you have a if you have a discreet amount i would argue that it would be if you have a person you have no other evidence that there is no relevant conduct and he's caught with a gram you need to decide if you possess that with intent to distribute it was that personal use but when you have this case which is a conspiracy over a number of years with large amounts of methamphetamine i don't think that c several more run ins with the line clue drinking which is you know a violation of her conditions of release and failing to pull over when one person wanted her to so i think that when the facts are the facts and you review that for clear error and the judge thought that she hadn't accepted responsibility the manager guilty and there was no trial but there were no witnesses called in the sentencing hearing so we're not in the same position as the first argument where the court then had some some testimonial evidence upon which to base its conclusions the court relied very heavily on the pre sentence report in the findings within the pre sentence report and we were to look at that down on appeal for clear air and the question would be were the findings of fact that he made supported by a preponderance of the evidence  the interesting part about the managerial discussion and decision i think was in the pre sentence report you find a very large especially for that area of the country one of methamphetamine in a pan under the bed three other large baggies of methamphetamine almost seventy five hundred dollars in cash and a police scanner a number of scales and interestingly enough the bailiff camera that has been set up to capture people coming and going from what is a very very rural area and so i think the judge was looking at all of those things including statements made by mr berg some of which the government absolutely concedes were unreliable mr berg he wanted to be confidential informant and then still the transmitter and the money that he was given for the buys and so there were some things that was clear that mr bur puffed about in terms of drug amounts but it's also clear that he was the rest of the fifteen hundred dollars fifteen grams worth of methamphetamine on him that everybody admits he just purchased from tapi hamilton so i think there were some some facts within the pre sentence report paragraph i think if seventeen is calling her up whenever she wants that i can say come over here and come to my house drive to my house i need some drugs with respect to the amount i can get off track for just a second the government these huge amounts are that the court didn't make any finding about outside the four hundred eight grams if if there was some kind of mechanism going on in the courts mind about drugs outside the four hundred eight grams it's just not on the record i don't think this court has any way to determine whether it was something that it was a mechanism that is useful or was helpful actually determining the amount of drugs i think the government if i hear them saying well the district court basically figured four hundred eight was somewhere there in the right amount and just threw up its hands and didn't want to make a kid finding under rule thirty two once we and the government for that matter disputed some of the four hundred eight grams as personal use math then it's the district court's job to either find that that doesn't make a difference i want to check my ruling or if you make a ruling on whether or not that was personal use methamphetamine or not and if you look at page ninety seven of the excerpts of record there was no fifth analysis whatsoever the court just went and said i find all of that is attributable to her not to use alcohol and as the government pointed out at the sentencing hearing those kind of issues speak to whether or not she should be out on pretrial release or release pending her case especially when you're talking about did she have contact with law enforcement and she didn't pull over in time yes she's not allowed to do this while she's out on release and she got put back she got put into jail because she violated those terms but those kind of issues that aren't related to methamphetamine