good morning to all of you welcome to our court at the outset and we are just cards that i wanted to introduce to you our visiting judge judge paul kelly who sits on the united states court of appeals for the th circuit he sat with us on any number of occasions in the past and we are delighted to have him help us with our work this week he was evasions for those that you who may not have appeared before ready us and in the past one you see we have a lighting system and a timing mechanism and  will tell you how much time you have left as you proceed with your argument there's a green an amber and a red light the amber lights a two minute warning the red light indicates that your time is  would be much appreciative when you see the red light if you could bring your remarks to a conclusion it doesn't mean you have to stop dead in the middle of a sentence or a thought but would be much appreciative if you could bring your remarks to a it reasonable conclusion nd observation for you as you proceed with your argument you may safely assume that we've had a chance to review the briefs the record excerpts and in some instances we've had a chance to look at the record itself so feel free to go right to the to the heart of your argument with that we will begin with our st case may please the court actually late land and behalf of same for johnson the rd today we're discussing a bunch of objections that were made in front of the district court and preserved on sentencing the thread like to focus on our drug quantity acceptance of responsibility the government's decision not to give the defendant the extra points and obstruction of justice as to drug quantity in the supplemental authority that hearsay testimony was not sufficiently reliable to find drug quantity here the court also relied on an agent's recitation of the same co defendants intellects hearsay statements to determine drug quantity now of course they were different here's the statements we're talking about different defendants but they were here's the statements nonetheless and as i understand it from charlene's that i pronounce his name in the lips testimony was quite was i give him drugs every other week every two weeks whatever you said it was quite begun the panel thought you know that was didn't seem very reliable here and as i understand the record the government had better information and that they had fed ex shipments and things where they could pretty much estimate how many shipments were so are you saying mr cent aleck would have it would have been helpful to hear what he had to say about the number of shipments are you also packages but the only testimony relied upon to determine the quantity isn't the only one who says six pounds and i don't believe your honor that the court said that it was single x statements the vagueness of it is what made them unreliable it was the fact that it was just this your say testimony is what was relied upon and that there was nothing to corroborate that evidence based upon the record what are we to make of the testimony from agent m that johnson himself said in an interview that sen lek paid him one hundred dollars per pound to receive and deliver marijuana and that he johnson made between sixty one thousand two hundred dollars a week from january or february of two thousand and fifteen onward doesn't that corroborate in a particularly salient away the testimony of said look and provide a basis from which to extrapolate not just the number but the about itself no your honor because that's per week not pershing it and i mean some of the conspiracy ended june two thousand and seventeen so that's roughly about a year and a half which i did the rough math last night looking into this i mean fifty two dollars weeks a year twenty four weeks for the other half a year that's about seventy six dollars weeks so if he made six hundred to one thousand two hundred dollars per week that's seven that would be if there were only seventy six dollars shipments but the government is relying i believe on one hundred and seventy four dollars shipments so that figure of how much he made doesn't affect the quantity per minute and you have to get out from your rough math based on his o why isn't that sufficient to meet that low fairly low standard because there was no actual testimony it was based upon cinda likes hearsay statements that was at or hearsay statements not permitted in a sentencing situation or your honor in a sentencing situation the court would for have to make a finding that those hearsay statements were reliable and there was no finding and so absent a finding in a sentencing what the court can the this court can say that let me get the exact language is that it has to be the reliability has to be apparent from the record and in this case intellects hearsay statements were not apparent from the record because there was no other testimony that there were six pounds per cent men specifically johnson side and it was also a pair there was other discussions that johnson received lots of personal use marijuana from spend a lot there was no explanation from the government's testimony which packages that were sent to him that fit the descriptions that they used  personal use personal use your sanction town in the and the counting of the drugs if they were sent to him just for personal use well your honor i mean that would be a different argument i'm more saying that the personal use he said was one pound per time so i'm saying this is what your your client says he got some one pound shipments what cindy like did say he sent him stuff for his personal use as well so cindy like never said i sent him a one hundred and seventy four packages they were all six pounds the government is extrapolating from the specs information that all the packages therefore were six pounds let me go back to the question i asked you before that is to say the statement from the defendant himself yes he says in an interview did i'm is my math wrong or of i misapprehended something here when i did the math your honor again i assume that was about seventy six dollars weeks because again it's about a year and a half i did it by nine and came to six hundred and eighty of time was from february of fifteen and because he said it was from january or february but even if you give them it was february and even if you say it was nine hundred box rather than six or twelve then you had twenty seven months there you had one hundred and twelve weeks if you multiply that by nine you were to go over a one thousand pounds just that way alone without even considering range which is what the government was trying to do here and i think that would change the quantity i would only have thirty seconds really want to dance you go ahead and you take a moment to address the other matter you want ok thank you so much ana because this is a really unusual case regarding acceptance of responsibility it's that issue that i'd like you to zero in on at least to help me with ok so your honor unlike typical cases where this court has to give deference to the district court's determination that the defendant get acceptance here the defendant objected asked for three mill levels for acceptance of responsibility and the court found that he qualified he found the court found not only that his obstruction of justice was prior to his decision to plead guilty so shouldn't affect his acceptance but that he timely agreed to accept responsibility and therefore he should get the extra point it was the government who refused to give it to him i'm sorry i did you she gestured to the government decide on whether to grant the rd point well your honor i believe the government has discretion in order to decide whether or not to file the motion based upon only under amendment seven  raised about the rationale for the refusal but your honor i mean that's if you if the court didn't granted or took the government didn't do it because of the dual race or religion or whatever  other than the fact you disagreed with the acceptance responsibility issue or your honor was objected to i mean the lack of getting the point did not raise any improper grounds that have been relied upon by the government that your honor they did not say that that was improper but they did say we timely accept responsibility we therefore deserve this enhanced went under thirty one point one which was the relevant criteria i mean the court even said to the government did he t responsibility in the government agreed they said he time we accepted responsibility so i mean everybody at that moment agreed but the only thing that matters under three a one point one the had been determined had been found in favor of the defendant he had done what he was supposed to do for the government to file their motion at that point the court now going to the court you can tell from the sentencing hearing he doesn't believe the court doesn't believe that the court has the discretion at that point to give the defendant the one point but under after man meant seven thousand and seventy five dollars it seems clear that he does have this discretion the amendment specifically says that the government should not withhold a three hundred and eighty one point one b motion based on interests not identified in three easy one point one such as whether a defendant agrees to waive his right to appeal as an obstruction of justice in interest interest not identified in three d one point one but obstruction of justice is identified in three d one point one therefore why would it have been inappropriate for a court think the problem that i have with your argument is that obstruction is an interest delineated expressly in three point three one point one and therefore given the fact that the argument was made that he did obstruct justice and there was a finding about it that was a sound basis given the broad discretion the sentencing judge had to refused to accord him that one level why is that wrong what am i missing ok i mean there's two answers to that the st one which i'll get to later is that i do i believe that the plain language of the statue it means we should only look at might be but before that going to if we did look at the entire statute as a whole here i think it's different because the court found that the obstruction of justice did not a fact except ends in a different scenario where there was obstruction of justice maybe a court could find that that was sufficient but in our record we have the district court on record saying more than one time that this obstruction of justice did not affect his acceptance because it was before he pled and so therefore it shouldn't be considered but stepping back from that if you look at three a one point one b it just doesn't make sense for the government to motion to be able to be based upon anything in thirty one point one the construction of it it says if the defendant qualifies for a decrease under subsection a and then there's other things and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate the resources efficiently then we should decrease the expense by an additional level so this would be requiring the court to look at thirty one point one eight two different times in order to put thirty one point one b but extra point and that just doesn't make any sense a precondition of getting to three b one point one be a precondition to getting to the nd point in three a one point one b is that they've already gotten the two points under three a one point one essay so it just wouldn't make sense to say ok you've got me two points under really only talked about two of them i certainly have something to say about all those claims i'll just give you an umbrella answer that then on the drug quantity the argument misapprehend the evidence on the disparate treatment argument that misconstrue the law and the three sentencing guideline claims are blocked by the plain language of the of the guidelines on at issue if i may a less your honour's have any additional questions for at the outset i'll start maybe in reverse we have talked about the acceptance of responsibility i'm afraid that council is reading the new language just say knew it was probably get it in late two thousand and thirteen under amendment seven hundred and seventy five i'm afraid that that she's reading into the language language it doesn't exist that language says that it cabin the united states decision to not follow the motion for the one dollar acceptance of responsibility based on as your honor pointed at any interest under three he one dollar it's not cabin to a subsection b interest which we would concede if that were the case i take it you would agree at the outset that the court has the power to inquire into and review the basis of the government's choice at least in so far as the government's choice was based on an interest or it may have been based on an interest not identified in th one absolutely that there is that there would be in the course that wasn't the case here and that as your honor pointed out that objection was was never was never made there was never an opportunity to to question whether there was an unconstitutional motive or some kind of arbitrary he or your rational decision in fact i would submit that based on this record that that such an argument never would have won the day because our argument was not only rational and constitutionally there really wasn't any argument to the judge that i'm not and i'm in suspense whether if the judge had pushed at you all would have said yeah give him the one point but we just they went to another topic and the issue never really got joining in and  in your position is that's really up to the defense counsel to say you know there's an exception here to the government's power to make this motion and here it is and fence counsel never said that you know i got i totally agree and if we had been you know who knows whether we have been you know put to the test on that whether we would have just you know conceded the one point because it wasn't worth the argument i can certainly see that in the reality having been in the courtroom but i can also say that if we hadn't we had a good reason and would have had a good reason to insist on the one you know he if that be says if the defendant qualifies for a decrease then you jump right to the title minus thing and she says that's what we should be focused on that's the that's the statute or essential a that was the direction that congress gave in the protect act and this is a this commentary where the commission says we live broadly to the whole the whole she bang that what we really should be looking at is this particular language such that the government can be inquired into if they don't make this motion for a written any reason other than an timeliness how do you respond to her argument that another words obstruction of justice has already been found the district court decided that notwithstanding obstruction of justice he qualified for the two have said that the united states decision to not move for the for the actual point is cabined to interest in subsection b which we would have that were the case then we would have no no issue here because that is because pointed out there are several interest under three a one dollar which include the timeliness of the play but go well beyond that it's in fact the application it's very explicit thomas of the plea is not the end all be all for that and decided it was extraordinary and therefore it falls out of the equation i think that if there had been there was no objection of course if there had been an objection of the court found that it was an extraordinary case i must say i don't know on what basis that would have been found this is a very average situation well the judge found it needed an appeal so we have to sign the judge's findings correct of course yes yes but here we had no finding of extraordinary circumstances of course because the issue was never raised by defense counsel and of course the defendant has the burden to demonstrate acceptance of responsibility at that every juncture and they didn't do that there they didn't make an attempt to show that there were any extraordinary circumstances that the need to get off that the judge decided that that  so for me that's the end of the that discussion ok ok you know i'm i hope i answered your question did i did so good now and i'll just say this and we that you know in preparation for this argument you know i've looked at cases from all over the country and the other circuits are very much in a line with with what i've suggested that commentary the application of language is not cabin to subsection b are our position  satisfied that apple well i'm playing the area you on this issue since there was not a specific objection to the regions the government gave there was not there was not any objection you're right so you know in reviewing it the matter before this before this argument i mean it seems to me that that would be playing air we did not refer to that in our brief but upon a  nd look it would be a plain air argument in the sense that that that there they've argued that the judge has some sue a sponsor a obligation to raise this to review it i haven't seen any support in the law for that whatsoever thank you your honor i move on to the question of drug quantity i'm afraid that the significance of mr that the hearsay testimony about what mr cental it had to say is is not significant or doesn't loom large the way that it did in mr chalets case and this case you got one hundred and seventy four packages based on eight different addresses that fed ex and u p s packages were sent to addresses that m johnson controlled and that is not in dispute there are eight different addresses that comprises one hundred and seventy four packages what we were able to prove at the sentencing hearing is that we have been able to verify all of those addresses those are actual addresses that he that he control like you're in good shape on the number of shipments and i don't think missile it when disagrees with that but she's saying that the climate the amount of sometimes he that her conscience positions sometimes he got a pant he didn't get six pounds and how how was your statement from send a letter labile enough to establish something different than that assertion well cindy lex statement was reliable and we can talk about what he said but it was it dollars a week from when he began his consecration activities which was around you know february of two thousand and fifteen about a month or so after he got a job at a jail now if you do the simple math on that you know that's dollars packages a week if you consider those to be six pound packages which is absolutely what he was held responsible for to get to his base offense level and as your honor pointed out that's over a thousand pounds which gets to the requisite number of kilograms to get to that particular base offense level here here's why a couple of things and i hope this clears it up for the court we don't know exactly when mr johnson stopped his drug dealing we don't know but what we do know is that it continued for about two years a search warrant was conducted at his house and march of two thousand and seven thing we have some information from witnesses report that some of the shipments began to taper off at that point we don't know exactly when they ended from our standpoint what we're really looking at is about is about two years of packages come in and well it's six pounds  package you know even at you know one a week you know that's one hundred and four packages in two years if you got two packages which is the upper end of what mr johnson personally admitted to that's what two hundred and ten he's being really held responsible for one hundred and seventy four that's pretty much can't imagine that with the obligation of judge benson to find that you know that this was a fair and accurate and conservative estimate based on actual financial records that there could be that this could not be beyond reproach that that's how we see it and i also think that's what's really significant and what sets this case apart mr johnson's case apart from that of his codefendant mr sha that you that you had actual verified addresses where he received these packages agent packer all testified that that in terms of four of those eight addresses he actually observed text messages from m elect have ordering mare wanted to be shipped to four of those addresses four other addresses were found on labels that were seized one a search warrant was conducted at mr johnson's residence and those address ease for those times confirmed that to the agent that they had received marijuana there's no dispute that he received marijuana at those addresses he those were eight addresses  we know that for a fact and he received one hundred and seventy four packages splintered out throughout those those eight addresses and the agent you know weeded out packages that couldn't that weren't likely to  have been you know containing marijuana and i know there's information in that you know three thousand and forty five pound packages packages sent to suspicious names suspicious you know you know variations on the names and that sort of thing so there is  so the suggestion that that this drug quantity which stems from one hundred and seventy four packages was in any way dependent on hearsay testimony from mr senate leg i believe is not true you have again you've got to somebody you've got one hundred and seventy four packages based on actual verified identified addresses to fit the criteria you've got an admission by mr johnson absolutely consistent with what you've got the packages found at the search warrant and so yes mr cent i think what's significant about mr sente lex test testimony or his hearsay testimony that came through the agent is that it's a just further confirms or butter says the other on a case like this says you know i'd like to hear from you say something like senate let's hear from similac i'm curious why the government just didn't put the witness at we wouldn't have these briefs we wouldn't have to you wouldn't have to be bringing the senate saying cholly why that would would imprudent on the part of the government not just to end that issue right then and there well that's that's a question i don't have a good answer for you on that i just know that you know from my own experience from trying cases in the past is that think one of one of your honors pointed out in this little ins portion of the argument that apparently that was never pushed by mr johnson's counsel in any way that he had that had happened i don't know how that would have come out it would have been would have been dean have been way or in an applicable but i do understand the concern and i want you now pass that on absolutely and i see that i have about forty seconds left but there are three other claims i'm going to tell you that the obstruction of try to try to go quickly on this is that the law requires that the that st of all this this court views with a jaundiced eye these kinds of claims and has said so and for good reason because these claims are awkward and when you have a defendant raising a citizen disparity claim under one of the three thousand five hundred and fifty three dollars a factors it's a nonstarter to be for your compared torture have been sentenced after this defendant but doesn't work also the defendants have to be similarly situated they were not similarly situated in terms of they had to be similarly situated really in almost all respects they had different criminal histories their offense conduct it did defendant try to suggest in their briefs that the offense conduct was  it was not they were and they were not similar situated even in that respect and two to travel on that ferry ignores the the importance of the calculus behind the federal sentencing guidelines in fact in a hypothetical case you could have two identical abstraction justice and then we you probably could but but we don't typically we're not too terribly aggressive with that what's a game changer for us is when you see conduct after the indictment been returned and after the imprimatur over the case and that's exactly what happened here mr johnson's obstructive conduct which could be viewed four different ways occurred you know after the district court had a same jurisdiction over the case we actually had cooperating witnesses who were impacted by this we had a protective order the judge vinson entered that was flagrantly violated that was intended to prevent the very thing that happened in this case and i'll just leave  leave you with this as to obstruction as i see it there are actually four different dimensions to it any one individually would have warranted that the two points the flagrant violation of the protective order they suggest it was a mere discovery order this was much more than that and i think your honour's understand that you had the threat in and of itself you also had the dissemination of the cooperation agreement in and of itself and then you had the combination of a threat with the cooperation agreement you could look at this four different ways any of which independently would it would justify the two point enhanced mn i think we've got your argument thank you your i think you honor starting with the acceptance argument which i think was what the courts are most interested in i would like to start with judge kelly's point as to what was done or whether it was preserved in the district court in this case the defendant objected from the outset asking for three points he said he timely plead guilty and he therefore deserved it this was preserved on the record i think it's creating too high a burden on the defendant to not only say something to file it to file an objection just ignore the sentencing guidelines what do you mean by that your honor well that the government is the one that's got the responsibility and the obligation is on the defense  improper motivation for refusing the rd point and it's clear that the guidelines covers this exact situation and i'm amazed to you if we just ignore that say we don't we're not going to look at that sentence he provision when of course not your honor we shouldn't ignore the guideline but the guideline says that if certain conditions are met that the government should ask for this and explains under what circumstances and in this particular case the defendant said those conditions are met the government should ask for this and the government chose not to and therefore i do believe it's preserved i guess i'm not following your argument your honor the argument goes way beyond acceptance of responsibility point which is whether or not the government can rely upon the obstruction of justice in order not to ask for this enhanced meant and if the court is inclined to find that under that the government cannot ask for this enhanced meant under anything  under based of three a one point one right not limiting at just a three hundred and eighty one point one b then i think this court should remand it to the district court for the district court to make that determination because clearly the district court didn't think the obstruction of justice in this case affected it we gave them the two points right but he refused to give you the one point why did he refuse to give you the one point because the government didn't move for it your honor so he didn't he was laboring under the misapprehension that it was without any power to review it that is what it seems from the record yes around there because he says government will you give it to him i think he deserves that it literally the court says i'd like to give him three points so the only reason he didn't do it is because the government didn't move for it and that court should have the opportunity to make its own findings and decide reason because three one point one gives the government discretion yes your honor that discretion is  employed yes you have relief but it was not short well your honor i mean the relief is simply i mean the way that the guidelines are written a says that the government cannot not seek this nd this one point unless certain circles unless it's based on certain circumstances and those circumstances were here were based upon whether or not they played timely and they did so therefore by lodging the original objection by asking for this extra point the defendant did all that he should have done to preserve this issue and the district court wanted to give it to him but didn't only because the government didn't move for it but i'd like to use my last minute to sort of quickly shift into discussing to eight locations and they were attributed to johnson and to johnson himself conceded that he made between sixty one thousand two hundred  bucks a week for each delivery even giving you the benefit of the doubt that it was limited to six pounds per shipment that comes out to one thousand and forty four dollars pounds that's four hundred and seventy three  three kilograms and that's above the four hundred kilogram limit so and we were reviewing what the district court did here for a clear era where's a clear era well your honor and the math that you had was i think you said it would be  hundred and twenty seven dollars weeks right well but i'm just saying if you start with the packages that there were one hundred and seventy four dollars packages mailed right let's start with that there's no dispute about that and let's assume that the court could properly minimum if that's right i'm hard pressed or even if it's arguably right i'm hard pressed to see where the clear error is in the trial courts for what so i think your honor the only reason we're looking at that data is to determine whether or not it's apparent on the record that cindy likes hearsay statement testimony of six pounds per package is reliable and the numbers if we do those weeks the way we did it which i think you said would be about one hundred and twenty seven dollars shipments yes if you if you made the calculation not based on one hundred and seventy four packet used but simply on the testimony of the defendant himself or the statement of the senate himself you got two  hundred and twenty or something like that but your honor the testimony of the defendant itself would be about one hundred and twenty seven packages not one hundred and seventy four paragraphs but i think that that is really important because it shows that cindy likes hearsay testimony is actually unreliable because the defendant's own testimony is different than what cindy lacks said syntax as that there were six pounds per packages and there was one hundred and seventy four dollars shipments and so this is the government's burden the government could have gotten up there and relied only upon mr johnson's testimony to come to a different number but that's not what happened because if you wish and that the government relied upon was cinda lex testimony and so we're only now looking at the evidence to determine whether or not this makes that more apparent from the record and i think it actually does the opposite it shows that it was not reliable thanks very much thank you both for your efforts will take the matter under advisement and proceed to the next case