good morning ok please the court for counsel omar korea was convicted of drug trafficking conspiracy following a trial along with other related drug offenses he was also acquitted of possession with intent to distribute twenty kilograms of heroin following the trial mr correa council through me frankly contacted these listing united states attorney in the attempt to establish a safety valve proper to qualify him for the application of the safety valve production this proper was scheduled on three occasions during the first occasion mr correa has counsel actually both of counsel arrived for the proffer and were told that there was no spanish interpreter available the assistant united states attorney offered to act as the interpreter herself which we believed would be an inherent conflict of interest and i believe the record reflects i mentioned that to the district well during the second schedule proffer mr korea was not brought over to the court house and tell the parties had approximately somewhere between seven and ten minutes to complete the proffer depending on whose calculation of time  after that seven to ten minute proffer was completed the assisting united states attorney who was assigned to the case at the time contacted counsel me and indicated that she did not believe that mr korea had been completely forthcoming during that proffer during those seven to ten minutes in subsequent conversations which took place in large part by e mail and were actually submitted to the district court for review and the parties discussed the nature of the limited proffer and mr corey's inability to tell the government everything he knew and make a full statement in seven to ten minutes of time the district court encouraged the parties strongly to meet for a third their proper was scheduled several months later and for upwards of one and one half hours mr correa met with and if the sea united states attorney to agents of the da along with counsel during that period of time mr correa presented gave a statement that was so lengthy and so detailed it actually took an eight page single spaced six report to recount all the information in that proffer he provided names date places manner and means and all of the details that he could recall about any for a transaction at no time during the trial for did he refuse to answer questions at no time during this proffer did he make any statement that was contradictory to the evidence in the case despite this detail proffer the government continue to oppose the application of the same  specifically the government argued at the district court and continues to argue here before this court that there were unanswered questions three in particular the government says a myriad in its brief but then identifies three one is the question of how mr corey and his brother mario korea could have coded conversation coded language conversations that that indicated a more in depth closure to drug trafficking mr correa answered this question he told the government during the proffer also during the sentencing part me that mr korea mr omar korea and the state mario korea met prior to their telephone conversations and developed this coded language that this was an in person meeting and during that meeting they developed this language so that they their calls could not be intercepted by law enforcement which of course they were and were here today the second the second the second question was why mario korea who was a known drug trafficker would trust omar korea who was not a known drug trafficker with a quantity of con quantity of cocaine and again that question was answered these their brothers mario koreans the older brother omar korea they have a close famil admitted that he had previously become aware that his brother was involved in drug trafficking but it's not a stretch of logic at all to consider that an older brother wouldn't trust his very close younger brother which  and third the question whether mr why mario korea would give omar korea some discretion over setting the price of the drugs again this is a familiar relationship these two brothers are very close the government intercepted phone calls indicated hundreds of calls between the brothers the overwhelming majority of which did not involve our trafficking those questions were further answered were fully a government particularly emphasizes his having said that he had never sold or even seen heroin or cocaine curd of february twenty first two thousand well and then the government essentially in full in my brief they did that for a reason not to irritate the court because i think it's important to see the content of what was reported from that meeting mr korea in fact said that he had seen drugs that one he had seen drugs in his brother mario's possession on a prior date he didn't know whether they were heroin or cocaine that distinction was irrelevant at the time but in fact he had seen them and he was specific about that in a those were the kilograms of cocaine that omar correa admitted to seeing in his brother's garage at at least a month prior to the events in question in this case nonetheless the district court essentially relied upon one word one word in those conversations and that was the word soft the district court said looking at these calls and the content of these calls the one word that stands out is the fact that they said that these drugs were softer  court interpreted that to be a reference to the tactile and the judge said the tactile nature of the drugs but there's no evidence that soft in this content meant the tactile nature of the drugs in fact as they say state in my brief the potentially twenty five different definitions under the merriam webster definition of soft any of those could apply here and that could include rounded edges or just the actual visual picture of these packages the safety valve was intended to apply to individuals low level first time nonviolent drug offenders who inform the government of their knowledge about all relevant circumstances related to the offens question the burden lies squarely on the defendant to establish that he is eligible for the application of the safety valve and the court's decision is reviewed for clear error but in this case the court's decision was contrary to both the clear evidence and to reason mr correa statements were consistent with the evidence they were internally consistent and he had no motivation to make a statement anything other than the truth he'd so because defendant failed to satisfy his burden to prove beyond a preponderance of the evidence that his safety valve interview provided full and complete information to the government prior to his sentencing the district court did not clearly err the defendant was convicted after a forty trial on feb fifteenth two thousand and twelve and participated in a safety valve interview on march ninth two thousand and sixteen from two thousand and twelve and two thousand and sixty that i'm sorry that that note that's incorrect or out  clarify the use of the term proffer is not appropriate here these are c p l interviews this information provided by the defendant was usable against him at the sentencing hearing thus when you address the incentive of the defendant to tell the truth had he been truthful about his prior involved in drug transactions this information could have been used as an enhancement for the offense level for the defendant and certainly would have come against him in the consideration of any thirty five fifty three eight factors so one defendant did participate in the third it was determined that he had been untruthful in primarily his statement that he was not involved in drug trafficking prior to february twenty first and twenty second of two thousand and twelve now as defense counsel addressed there were several inconsistency with regard to the call developed this code with my brother before this call it's a something that is inferrable based on the fact that they had this agreed upon code that they both comfortably used throughout their several contra quarter conversations and this code was used for the type of drugs they referred to it as motors and paint the price of the drugs they said twenty four and a half twenty five when referring to a kilogram of cocaine costing twenty four and a half thousand dollars or twenty five thousand dollars and the quality of the cocaine when they use numbers like seventy in five and ninety five either agreed upon terms the defendant and his brother had discussed previously and use just four days after the wire went up on his brother mariel korea's phone on february twenty first two thousand and twelve  the calls also reflect defendant's power to negotiate the price the defense counsel says that because they were brothers they had a trusting relationship but if this was truly defendant's first experience in dealing drugs would he be empowered to negotiate a twenty four and a half thousand dollar transaction the district court in its discretion decided that it wasn't plausible and it was caught clear error for the court to do so furthermore the call records reflect a familiarity with the customers you see reference to my quality and he also talks about his dominican guy so there are several references here to customers by the defendant on these call records reflecting prior experience in drug trafficking furthermore there were two specific examples that the court highlighted as on a call on february twenty second two thousand and twelve the wrapping of the drugs and how they were different than a prior occasion he said that his body noticed it too on a separate call he also mentioned the texture of the drugs being different from another occasion seeing that they were more soft and simpler now the defendant argues that this could simply be a reference to a january two thousand and twelve two thousand and january two thousand and twelve occasion when defendant says he saw some drugs in his brother's apartment but if you look  so to be able to make a comparison of drugs on february two thousand and twelve and texture that the softness of i'm talking about bricks here it certainly goes beyond just simply viewing two bricks of cocaine on another occasion and that's the district court determined think the three prior attempts are important that three attempts to have a safety valve meeting of the court if the prosecutors prefer because the the granting of the application of the safety of our production is limited to those who make a good faith effort to cooperate with the government the fact of repeated attempts to meet with the government provide this information even over the government's objects and repeatedly does show good faith that the government suggest that mr korea would have something to lose  admitted to additional drugs but the quantities of drugs that we're talking about and that's it in this case because it did include the twenty kilograms of heroin for the fears he purposes would not have been affected in any material way by admissions  prior prior contact if they would not it particular because mr b mario korea who was most certainly the more culpable of the brothers had already been sentenced to one hundred twenty month term in this case so it's clear i think that the writing was on the wall if you well that judge levy did not intend to sentence mr omar choreo to a greater sentence even if he had admitted to additional drugs it wouldn't have made a practical difference with respect to whether or not mr omar korea had the ability to set the price of drugs in fact he did not the price was set by mario korea and omar korea was told to get as much as he could for the drugs that not a can it's not equivalent to setting the price of the