of over fifty grams of methamphetamine which had the consequence of establishing the mandatory minimum and and requiring the implementing implementation of the higher guidelines for methamphetamine which was a level thirty rather than the lower guidelines for the amount of hair heroin in the case which was a level twelve under the guidelines jury the jury convicted mr mandeville of the crime of conspiracy to distribute heroin and meth and made the finding of over fifty grams of methamphetamine and under one hundred grams of heroin the defendant then moved for motion for an acquittal and a striking of the methamphetamine finding and it was denied by the district court and then he was sentenced to twenty years one hundred twenty months and the conviction was based on eight eight phone calls that were intercepted over the wire chaff there was no evidence of any drugs seized from mr mandeville there was no drugs these from his house he was never involved in any methamphetamine negotiations only thing that the conspiracy involved both heroin distribution and methamphetamine distribution  of the conspiracy it's all one conspiracy it is but for purposes of sentencing you have to have to just separate analyses now there is the jury can say that it's one conspiracy to distribute heroin and meth and fed to me and he's guilty of it but then you have to turn to the question of is he responsible for the higher amounts of methamphetamine which trigger the mandatory minimum ten years and is he responsible for the higher amounts of meth unfed amine which determination made under the facts and the evidence and there has to be evidence supporting that and the unfortunate thing in this case is the case was tried before the ninth circuit case of united states versus tories which was september it was decided right around the time my client was being sentenced by the ninth circuit and it really laid out and clarified the law and it said for in the tories case which we cited in the in the briefs it's it says that for a defendant be held responsible for joining on to take a criminal activity based on the conduct of others for both the guidelines drug quantity and the a fifty one mandatory minimum drug quantity there must be evidence to show both that the conduct was in furtherance of the jointly undertaken criminal activity and was reasonably forseeable and what what i'm focusing on is that first prong of the two prong test and the question becomes what is the scope of mr mend agreement with mr brokers when he when he became a member of this conspiracy and that that determination what the government's theory in the evidence they presented which the jury accept that was that he was mr bro this right hand person was responsible for collection so given the fact that it's a single conspiracy during which lower level member members distribute both heroin and methamphetamine and there's no indication that his collection was somehow  limited to one type of narcotics and exclude it the other how do you address that evidence whether the there was really only a little over eight telephone calls there's really only two that were recriminating one is where he called up and asked how much does a small package of heroin cost the answer was ten dollars and he said thanks i'm going to tell my neighbor and then the second one was he collected one hundred dollars from him from a person named lucky who owed that money to mr brokers and there was never any proof as to what that was for because the collections were for taxing the gangs it would be for collecting money for drugs could be taxing drug dealers and assuming the jury found that that was drug money there was never any any evidence concerning what drug was involved it could have been cocaine or heroin or methamphetamine or even marijuana and and so if if there's going to be evidence establishing what the scope of mr mende of ills agreement with mr brokers was there has to be some evidence pointing to it well why isn't that evidence presented through expert testimony talking about the hierarchy of these organizations the tax system his role as the collector isn't that evidence enough to fill that gap that you're identifying in certain circumstances expert testimony can establish credible evidence upon which you can make these factual findings but they can't opine expert testimony on a call involving money and say in my expert opinion that money is for methamphetamine because it just can't be that's speculation here we have a call where he where mr mandeville says i've collected one hundred dollars from lucky that he owes you and then there are some discussions there after about the drug trafficking and the reason people have trouble paying is because they use the drugs themselves but they never done a fight what the drug was in all of the eight you were a bigger producer excedrin so we get back to the foreseeability issue that it was foreseeable that the more you sell the more you make the wrong in this judge when pointed out he was because the telephone calls never established that he was a seller of drugs he had he appeared to be not so much the right hand man of mr brokers as a gopher i mean there was a calls and he was he was sent on little missions chicken on prices for certain quantities yes but then once again we come back to the question what's the scope of his actual agreement with mr brokers is it methamphetamine or is it heroin and the black tar heroin telephone call is the only telephone call in which this subject of the identity of the drugs is is disclosed and is the burden is on the prosecution we can't just presume that because he was a member of this conspiracy that he was involved in selling and distributing methamphetamine or having anything to do with methamphetamine there has to be proof in the record it's clear that there's evidence that he was a helper of mr broca's but the label of him being the right hand man is just a label that's that was just claimed by the government they really never had proof of that they never called mr broca's as a witness and in the case to to explain what mr mandeville's role was and so we're left with just those eight telephone ten dollars and then the collection of one hundred dollars from lucky and we don't know why that money was owed we can speculate that it could have been a drug dealer but it could have been taxes because part of the conspiracy was to tax the gangs  d our tax drug dealers and or it could have just been a loan and that's the problem if there has to be proof what we're looking for is what is the scope of mr mandeville's conspiracy and did that scope include the distribution of over fifty grams of methamphetamine and you can only find the scope of that agreement from those eight phone calls and they're just simply not there it looks as though the  was he properly sentenced to over fifty grams of actual methamphetamine which is a level thirty and a mandatory minimum ten under evidence that shows that he made inquiry concerning a ten dollars purchase of heroin and collecting money and so i have so i think there's a there's a grave concern that he was overly so over sentenced and and the district court didn't really  conduct the the correct analysis of the evidence and the problem was is the law was kind of in flux at the time the case was tried and the jury was just told you know now that you convicted in conspiracy what amounts of methamphetamine was evolved what amounts of heroin revolve and of course the government introduced that methamphetamine seized from co defendants so there was over fifty grams actually in the case but for sentencing purposes and mandatory minimum purposes there had to be a determination that those fifty grams were part of the scope of mr mend avails agreement and that has to be based on the evidence in the case and the way the case was tried they just presented eight phone calls and only one phone call dealt with drugs and that was heroin and the other incriminating phone call was collecting money and we don't know what the money was collected for and then the rest of it was sort of gang conversations back and forth between mr mandeville mr mr brokers so we've got your argument you want to save a little bit  save some type of a thank you good morning your argument is a court my name is julie recent i represent the united states the evidence in this case was sufficient to conclude that mr mina felt understood that the conspiracy involved both heroin and methamphetamine the evidence was sufficient to conclude  viewing it in the light most favorable to the government and drawing every inference in favor of the verdict that the collection of money and the enforcement of the hierarchy were necessary components of furthering the conspiracies drug drug distribution operations and there was no evidence whatsoever that mr mathilde's agreement with mr brock as distinguished between deals and collection of money involving methamphetamine or deals in collection of money involving heroin the evidence showed that mr minimal helped mr brock is collect money and including the call from regarding the collection of money from mr lucky which it's apparent involved drugs from the discussion afterwards about about smoking and using drugs to parent th problems that ms that lucky was having paying back the money that was owed to mr brock as related to a drug transaction drug debts and based on that evidence it would viewing it again in the light most favorable to the verdict a rational juror could conclude that mr mandela was involved in the collection of money relating to drug distribution the jury could also have concluded that mr minda bill played a critical role in the enforcement of the hierarchy and sort of defending the role that mr brock is played at the top of the hierarchy as the supplier and the person he was anointed by the mexican mafia to collect drug revenue there were multiple phone calls in a in which there a call at one fifty seven going out to so most home another drug dealer to making sure to make sure that he wasn't doing big things i e selling more drugs than the drug taxes that he was paying would suggest that he was selling and  given the role that mr played in enforcing that responsibility again there's absolutely no evidence that mr mina bill said brock us mr brock is i'm willing to go out and talk to solo but i only want to do it if  you or the drugs is so low is selling our heroin if that's methamphetamine the no deal i'm not going to do it given that there was no evidence at all that mr mandeville drew a distinction between methamphetamine and his heroin when he was working as mr brock is his right hand  and the other thing that i would point out is that in order to collect drug revenue in order to collect taxes it's reasonable to infer that mr mandeville who had a close relationship with mr brackets and who was intimately familiar with mr baucus is a business model  it's reasonable to infer that mr minimal to collect money would have to know what he was collecting for including if you have to know exactly what the type and the quantity of drugs that were involved in the conspiracy to know the type of taxes that  individual should be paying to mr brock s and given that it's reasonable for a jury to draw those inferences the drug quantity findings with respect to both methamphetamine and heroin should be should be affirmed  would your argument still hold because i'm worried about you know in the next case well the government is not going to be healed with proof proving that this money will for drugs and for not so mobile criminal activity i understand your honor this case does not present that concern because we have evidence in this particular case that mr mandela was directly involved in drug distribution now if the gang was involved in drug distribution and in collecting revenue now if the gang was involved in some other non drug related activity i agree with you that there would be some concern about holding mr mandela to account for that non drug related activity but that is not an issue in this case because the evidence is clear that their conduct that mr avila's engaged in related to drugs directly to the distribution of drugs in the collection of drug revenue and drug taxes now and that's where i think the torah the standard that was discussed in torres really comes into play here and the standard there th however as the government noted in its answering brief mr medical didn't really advance the argument in his opening brief that the that the conjunctive formulation of the test should apply that it must have both fall within this government and be reasonably forseeable to defendant i checked the opening briefs during opening argument and the opening brief didn't even cite mr cite the tourist case of the government would argue that their argument that the conjunctive formulation of the test should i should control here is waived but in any event for the reasons that judge a khuda cited in her special concurrence in torres the destructive formulation of the test controls here and this court is bound by panellist which held that if the if the drug type in quantity fell within the scope of the defendant's agreement or was recently forseeable to him then he can be held to account for it under section eight forty one now the government's argument the government would submit that in fact the evidence was sufficient to find even if the conduct of formulation of the test were to apply that the evidence was sufficient to find both that the type and quantity of methamphetamine fell within the scope scope of mr mandeville's agreement and was reasonably forseeable to him again there is absolutely no evidence that mr mandeville's agreement with mr brock is made a distinction between methamphetamine or heroin and there's gang was involved in the distribution of methamphetamine and heroin on a daily basis there was evidence of that in the record and again given mr mihos close relationship with mr brock yes mr brock has this tendency to discuss with mr mandeville the particulars of his business model it's reasonable for a jury to infer that a rational juror couldn't for that mr brock is also shared with mr mandeville the nature of the information regarding the type and quantity of drugs that he was supplying to the low level dealers and for which mr mandeville was collecting past drug debt and drug revenue taxes and less there are questions on any of the other  i think i have the question the distinction between go for a right hand man i think it's more of a linguistic distinction rather than one that relates to what role mr men developed played in the conspiracy whether he was a gopher sort of acting behest or a right hand man it's the evidence is sufficient to conclude that he in fact knew and understood that that what he was doing related to both methamphetamine and heroin and that he occupied a high role in the conspiracy given his close relationship with m but again i believe that the evidence is sufficient for a jury to conclude and i think personally that the evidence shows that mr men deville did occupy a high level role in the conspiracy again given his close relationship with mr brock mr brock is clearly had respect for mr mandeville and the other thing is that other members of the gang clearly also respected mr mandeville and feared him it's apparent or at least mr mental was under the impression that other members of the gang respected and feared him there's evidence that when mr baucus for example was complaining about two other individual lower level slightly lower level dealers decker and nacho when they were attempting to intrude on mr brock ases authority in the gang  that had been handed over to him by the mexican mafia and his authority to collect there was evidence that mr mendel offered to go out and tell nacho and decker that they weren't doing it right and there's the only reason to make that offer is if you believe that not to indict her will will cede  your authority and that they will take take your word that in fact they shouldn't be running around and try tempting to collect taxes when they were at the mexican mafia anointed individuals designated to do so and the same goes for mr mandeville's offer to go and check that he went to so and he said i'm going to be checking on you and i hope to god you're not doing any more than you are you haven't got anything else now the only reason that mr mandeville would have done that is if he thought that his threat to mr solo would be heeded  and i would submit that that shows that mr mandeville occupied a higher level and of a higher role in the conspiracy than the term gopher would suggest it's thank you very much and if there are no further question three one circuit case where two brothers were involved in a two kilogram sale of cocaine and then one brother broke off later and tried to negotiate a twenty five kilogram amount of cocaine they both pled guilty to conspiracy to distribute cocaine in the district court gave both of the defendants the twenty five kilograms as the amount of drugs under the guidelines and the mandatory minimum and then one circuit reversed and they said well the evidence didn't support brother number one sin fall meant in brother number  negotiation of the higher amount and therefore there was no factual support for either the mandatory minimum or the die line for the brother and i think that's the type of argument i'm making that even if the court assumes that  mr mendable was properly convicted of conspiracy deserted both heroin and meth and fed amine as by joining the conspiracy the question remains is he responsible for all those sales that he had nothing to do with that brought this negotiate sales for the delivery of methamphetamine to four other co defendants and we put the government presented the evidence of those seizures and that's where that's where the methamphetamine was but mr mende avila had no involvement in  more more than fifty grams of meth and that methamphetamine as within the scope of his conspiratorial agreement and there has to be a factual basis to support that and my my argument is simply it's not there there may be enough to convict him of the old all conspiracy but but it's another question altogether it what his guidelines are and whether or not there's a support for the for the mandatory minimum and the only way you can have the that support is to say that part of his conspiratorial agreement meant that he was involved in those other transactions those other sales for which he had no involvement whatsoever and and i think looking at that the court should reverse methamphetamine finding reverse the mandatory minimum reverse the guideline range and remanded for resentencing if there's no further questions i conclude thank you very much counsel for the matter submitted for decision by the court