this case is chiefly about interpretation and application of this in that it marijuana sentencing guidelines i'll be addressing three points here today the st is that the sensing guidelines do not distinguish between powder any thinnish synthetic marijuana product for calculating the converted drug weight sakit that the district courts miscalculation was a harmless error and lastly i'll be addressing the two level met for maintaining a pregnant premise in relation to distributing a controlled substance to my st point the sentencing guidelines do not differentiate between chemical powers in finished or usable direct marijuana for calculating the guidelines in order to understand this we have to get into a little bit about what is in that it marijuana and how does it become a usable products there are many different kinds of j w h o eight hundred and eighteen these chemicals are mixed with the sol it and they then they are sprayed are soaked on leaves the leaves dry and then you have a product that similar to organic an organic marijuana leaf it can be ground it can be smelt and used similar in similar ways now instead of trying to keep up with all of these different kinds of chemicals that keep coming out each day the sentencing commission decided that it was going to that it was going to take a class based approach prior to the passage of the two thousand and eighteen amendment to the guidelines which includes the definition of us and that of synthetic marijuana the courts rule left to determine what was the equivalency of our analog to all these different chemicals so instead of trying to do that cannabinoid receptors this is the definition of synthetic marijuana and in this definition there is no distinction between our chemical powers that are recovered or the finished for or usable product that only the leaves that happen after under this definition definition of this is that it marijuana there is a drug conversion and in it it says that one gram as in that marijuana is equivalent to one hundred and sixty seven grams of converted drug rate this ratio should seem similar because it is it is the same ratio that apply to t h c it is the same ratio that the courts have been applying to synthetic marijuana chemicals in the past prior to two thousand and eighteen and now this case is different because the district court took an improper step in the conversion it took the power that was recovered from mr knightley apartment multiply it by fifteen and then apply the one to one  now we believe that this is an improper use our does not fall under the guise of the guidelines it is not under the definition of what synthetic marijuana is and we have some cases that are illustrative out of the st circuit about sixty seven ratio that is in the guidelines and under the definition of synthetic marijuana then if the court felt that it wished to account for the differences between the chemical all the recovery of a chemical made to the desert who're the objection was made that it was an incorrect guideline range calculation because the fifteen multiplier happened prior to the one  twenty seven dollars that he believed that the guideline range was correct with that fifteen multiplier and this case is similar to what is what happened in united states versus costs and in that case miss causton marijuana batter and the court was trying to determine whether they should use the marijuana guidelines for who should use the t h c guidelines definition of what the mission or in substance was it says substances containing an end to terrible amount of t h c in the court held in costs that they're not they're going to take the plain language of the sentencing guidelines that there was just a detectable amount of t h c and therefore they're going to apply the one to one hundred and sixty seven ratio here the district court is trying to do the same thing that m costed they're reading into it a concentration multiplier or purity multiplier that is not in the definition and not in that conversion they're creating two definitions of synthetic  that i think what's happening here is the district court is using application no five in contradiction to the definition i think that marijuana and what we've seen in application  want to get into whether how it or or usable substances are usable product was recovered then we use application no twenty seven and that shows that's not the way a particular court handled the differences you're not i don't have any specific case law and honestly this is a very new is a very new sentencing guidelines so there's not much out there in terms of what is the definition of synthetic marijuana so i would just tell the court to go back to what's in the sentencing guidelines that it doesn't make that distinction and it does it when it does distinguish it's in twenty seven and it is a s part of a upward departure and that really makes sense when you think about how we came to the synthetic marijuana guidelines there are very there's many many different don't have that technical in the scientific ability the guidelines say let's take a class based approach let's you know we might over sentence at some points we might understand at some point but this is the best we can point even no matter whether that fifteen multiplier was done prior or that fifteen multiplier was done after under application no twenty seven dollars the miscalculation of the guidelines is not a harmless error in this case under eve our loon of the government has that heavy burden to show that it was harmless error and they can't they cannot carry that heavy burden in this case they have to show that the court would have senates had it not made the error well the district court was clearly influenced by this erroneous guideline range mr knowing was sentenced to one hundred and eighty eight months this is not around number it's fifteen years and eighteen months is the bottom of that incorrectly calculated guideline range this is just like united states versus martino's romero rigolette he and poor as in this case that improperly calculated range is calling the court's attention to that guideline range to begin with and you can see in the sentencing transcript on page one hundred and twenty six of the record says the guidelines range sentence is appropriate sente the court says that he would have imposed this giant range eric using that he said he would have imposed the guideline range regardless of the calculation so that certainly was a application no twenty seven and with her the clearest path here is eight express a authorized the court to do what it did but i'm not sure as judge sautner was saying that application no five was totally wrong under the circumstances  are i don't know miss burton said in the i think it's true that is much more on this yet so i think it's important that we get it as close to right as we can you do have one of these two potential sources for it's always hopeful to give guidance by i also will it seems like a very specific and unusual case and let me explain what i mean by that is that this isn't just a powder case st powder cases are pretty unusual austin it was in the record in the seventeen and i confirmed at the trial attorney it only have a ton of powder cases i mean usually they catch it when it's a consumable k two and want to testify that the sentencing hearing that of is two hundred and sixty seat cases they were all they consumable k two situations so not only do we have powder but we also have an industrial manufacture of the powders in mr not only isn't as apartment you don't really has the powder but he has the capacity to convert the powder with all of the material the acetone would save bags all the dany on a lead then he has the finished key to the consumer product and then interestingly enough capacity could convert this is not a situation where it's just the powder so application it five if we look at it it's as where the amount sees does not reflect the scale of the events and so served using it as a proxy for application no twenty seven he's not doing something that the guidelines don't allow him to do he's doing something in his discretion at the guidelines specifically authorized him to do it which is to sort of take the fact that th you feel like if anything that the pre sentence report and the government sort of maybe created a diversionary tactic with as application at five that you know that was the path the probation officer and initially suggested it the government suggested as an alternative to application a twenty seven dollars and it's memo i think they were all grappling with this was probably maybe the st use of this amendment in in this division sentencing disparity it doesn't make sense that what the sentencing commission has put into their i mean i know it's part of an outstanding job of explaining the reasons to the amendment but one of the things that's clear is that we're not treating this as a class based approach seven but that did not constrain the court's ability under both application and twenty seven dollars under its variance ability under the plain language of application no five from taking different types of circumstances into account including this one  fifteen times that amount and it pretty much released trying to apply the gate guy once basically in this case and then he went and you know in addition to the power we have this sort of it's rooted in this industrial manufacturing ability that this that this particular defendant has that he's not just transporting the powder he is he has a lab in his apartment that he's using to convert it so under the unique facts of this case was application five appropriate i can't say the judge will do the wrong thing here under a different case where a judge is using application five to sort out contravene what's in the guidelines that would be a because the other sentence was too low for two to reflect the defendant's conduct i mean drugs or quantity again that's that's that's how we sentence right or wrong that's what that's what the court is charged with doing so great the improper gun and i get that in a normal case that it is troubling when a court says i made this huge guideline error but i would have done the same sentence anyways it sort of tethered to the guideline but in this situation application no twenty dollars gave him the ability to do that exact same departure it's not that so if he had an error was he just not supposed to take a purity into account the guidelines say to do that and that he has the ted to take into account the fifteen all to fire and if it was long under application no five it was certainly authorized under application of twenty seven so using application notify as a proxy for application no twenty seven dollars this is the most harmless error when the guidelines authorize it in another way and not just authorize but sort of encourage a district court to do this it's not the same crime as someone who has twenty two kilograms of power in their apartment and i'm not sure the court has no most part didn't have a chance to address the other two aspects but it's just the government freshly sprayed drugs in his apartment so there are no further questions i would just ask that you affirm a sentence capable there is certainly evidence that there was manufacturing at some stages in his apartment it is not a industrial lab is a one bedroom apartment in austin texas note five was not included in the p s r and hill after the objections came through they did this conversion this one and one hugo gram of power to fifteen here grams of finished usable same day marijuana they just did that in the they just use that conversion based on ion based on their talks with detective gall and other and other officers investigators in it they use application no five in an appropriate way and they used it under the they use it can to convert the cash that was found in mr nunn lead apartment in to synthetic marijuana so they have been judge just because the judge says he's going to give the same sentence does not make this not harmless that's guideline range was chosen because of an incorrect guideline range judge told you that in the record that the guidelines got it right and because of that and because the and now says that he did not perform under twenty seven dollars it makes that incorrect idling range