three thousand dollars mr hurd wanted to explain to the district court judge why his level of cooperation was so substantial and why it should have gotten a five k departure that hearing basically went off the rails on an issue related to whether or not an cross examination his baby was knocked out of his hands when the officers came in for a rest t factors that this court can look at in deciding not to grant what could be considered deferential treatment to the ruling of the district court judge if a factor is considered a  relevant factor that was not significant the court can look at that the other way you can look at it if it gives greater weight to a factor that was not part of the should not have been considered and that's what happened in this case the idea of the cross examination where the court prior to the time that mr bascomb herts had an opportunity to explain what he meant even though his native language was not english only became acquainted with the english language to the extent where he was in fact could speak it clearly when he was sixteen years old he misspoke during his cross examination when he misspoke doing his cross examination the question became whether or not his credibility was at issue and i know in the denton case this court has says we're going to give you great deference on credibility findings but credibility finding with was going to be granted counted if you agree though congress has told us we're doing that the sentencing judge should consider the characteristics of the defendant absolutely the characteristics should be considered and they were considered and the fact that he did brief that number of times was in fact significant but his characteristic as to whether or not when the officers came in to arrest him which later turned out to be somewhat accurate and i mean accurate in the sense there was a black eye shown on the photographs later that the judge on the first day she looked at it on the u s attorney's foam turned out not to be accurate he did ask for medication which later turned out to show because of his headache and he had complained about the fact it been h but this is a gentleman who briefed his first day he also gave an extensive dea briefing for almost an hour and a half he continued to debrief straight through he also debrief with us voyeurs present and his explanation at that point is whether or not he should be entitled to more of a relief from the government by a five k motion he never got the hearing to determine whether or not the government was operating in bad faith the cou enhanced his penalty by eighteen months of one thousand miles based upon the fact that she did not accept his credibility on the issue of whether or not he was here in the here when the officers came in to  arrest him when he was still holding his baby and the record later a stablish that he was hit in the hit by his own testimony but the judge made her decision the same day that the issue came up on cross examine think by her quotation she's referring to three things concerns of credibility lack of completeness and because of what he has done has not substantially assisted you think she's got three separate reasons but if she emphasizes one that's incorrect that's when this court can take a look at what her decision was based upon she can have two legitimate ones but you can't give her a free ride because she uses a third one that this court has a duty to look at if it finds out that it over emphasize a particular fact or the listener of course of beauty is out whole as john keats would say but i think the other hand you have to look at what this court has instructed the judge to do with regard to collateral issues this was a collateral issue it was yes but maybe not as the judge benton's pointed out well how can she look at that cross examination question with no opportunity for him to explain until later which he did explain and turn out better to have a lot more credibility than the judge  sentence who i was wasn't collateral if the if she found that he made a false statement about what happened if he arrested in order to discount the admission he made about the number of don't you just make sure you understand the fact what number d give aid his statement ok eighty and they challenge that eight in ask him why did he do that he says well the reason i gave eighty because i had been hit in the head and i my memory was not that clear at that point in time you mean like later did he later take the position that he was in correct never if you follow the sentencing it never came to be an issue that's what makes it a collateral leaching here i see my time is up and i don't want to take pla the district court here erred and two important respects first the district court or honestly applied a later organizer role based on facts from the pre sentence investigation report that were disputed and the government never disprove as to the undisputed facts they merely showed that mr hertz had different job responsibilities from his other co defendants in a conspiracy where decision making was equally shared and profits were equally split what about his statement off the bat that he told his son and his brother about this idea and they agreed to participate that sounds like the leader the one i'm dirt under the guidelines commentary it says that it is irrelevant to later organizer if someone merely suggested committing the offense that was also a included by the probation office when the government made the same argument that's in the p s r so that does not show m r which says that mr hertz directed and swear he disputed that the government never disprove that at the sentencing hearing and so this court cannot rely on that and affirming the later organizer role here what do you mean the government never disproved well when the government the government never proved that he directed adam or sarah and because there was an objection to the p s r it was their burden to prove that and therefore this court can't rely on him directing other which i was no objection that's correct are properly considered by the court yes and this court has always said control and having authority over underlings as necessary for a leader organizer if you take away paragraph one fifty one there was no evidence that he directed other co defendants or underlings this was a conspiracy and which all three participants equally shared decision making authority you know that because when mr hertz tried to exercise authority on his own the conspiracy dissolved because boss sam got angry about it as to the facts that were undisputed although show is that mr hurts had different job responsibilities but again decision making was shared amongst the three people i thought he directed adam and sarah as to which guns to buy that of the factual objection paragraph one fifty one i'm talking about there  he specifically objected in the objections to the p s r that he did not direct adam or sarah about which guns to buy it would be strange for him to have directed adam considering all the evidence in this case so that adam was an equal participant who shared decision making along with boss sam and they evenly split pot profits so you have a conspiracy here where all three people equally shared decision making authority you cannot rely on facts that he directed other people because that was disputed and the government never proved evidence at the sentencing hearing i thought it was undistributed that the duration never in frequency of his purchases greatly exceeded anybody else's and the others added to r that is true and he admitted to that in the objection that he had a different job responsibilities one of his responsibilities was the package of the guns and send them to lebanon but he also acknowledged that that was in agreement with his t coconspirators the government never disputed that and so yes he had one job responsibility but sam had other jobs or spank you in your case is that their partners right yes ok it was their managing partner no not any managing partner and us home all of the decisions made about how to sell the firearms what the price was to for the firearms and was decided by all three partners the profits were equally split between those partners the only time that profits were not evenly split was when mr hertz and boss sam provided more money for buying the guns than ad dad but this report also aired and taking away acceptance of responsibility based on a legal objection that the probation office partly sustained as to how many firearms were part of jointly undertaken criminal activity and found it cannot be taken punished for making a legal objection that was partially substation by the probation office if you agree with us on either of these points the court m and reverse even though the district court said it was a would impose the same sentence regardless of the guideline calculations and the reason for that is the government waived any right to harmless error of you by not raising it in their brief i see my time's up on the save the rest for a bottle very well coconspirators a number of times therefore defendants in this case in a state or was unquestionably a lesser participant in this case she opened the bank accounts she fed didn't said she was a u s citizen she manage the money she went along she got the  client he was obviously the one who was one of the ones who was originally in this scheme everything that was done in this case was done at his direction he was present when the bank accounts were opened he was present at every single one of the firearm purchases she never made any online purchase a firearm she never contacted and purchasers she purchased out of the two hundred fifty two guns that were shipped and they approximately two hundred some that were actually traced and purchased she purchased thirteen of those firearms and she went along with other guns were bought the right she was present when other guns were purchased she was present i think predominantly though i don't have the exact numbers in front of i think predominately those were purchase stores for lack of a better term you know shields and those types of stores and when we're looking at this when we're looking at substantially less culpable defendants one of the things that we're kind of looking at is obviously you know measuring the participants individual acts versus the relevant conduct and the elements which they are that they pled guilty to in this case again this is eight or personally purchased thirteen firearms she was in a our objection to that based on some of the basis or because frankly law in that situation just looking at the application notes on the minimal minor participant in terms of what the court is directed to consider misleader she did understand the scope of this because her husband was one of the leaders and organizers and she did by benefit financially there's there's no question about that but in terms of planning organizing the recent ciro participation on that end of things everything was done at her husband's direction the bank accounts the frankly the bank accounts were open in her name she did take some inventories again at the direction of her husband well why does that make her a minimal participant in as opposed to just a regular zero level participant in the mere fact that she was directed by an organizer doesn't mean that she's a minimal know but i wouldn't consider this to be the typical direction of an organizer as as you know or potentially for instance a drug conspiracy or an unrelated circle of people who are purchasing firearms such as this this was a situation where she was married that this was a she was new to the country she was the most recent immigrant of out of any of the folks in this case she had a very young child she had specific pressures on her bed due to her family situation and due to her relationship with bo that creates a different role than then maybe if you know joe is taking orders from just that there's a there's a different relationship there there's a different amount of pressure that influences again her ability to be the decision making which is also one of the application notes one of the district courts say about this point disposal relationship mitigating you if i recall not a whole lot we did we did raise it and frankly i think that that's part of the reason why there's this difficulty in these types of cases from from our standpoint when the arguments you is that obviously the court is going to be deferential to the district court but at some point if the uphill climb that we have here is impossible then there's just no reason to have to climb and so did so did anyone else have a permit to buy the guns and renew a permit she did have a permit she did redo it as far as i can recall your honor i believe everyone had it at a permit government mr murphy first mr parrish complains about his client the court considering the fact that his client lied at sentencing we've cited the  guns that he'd given the first time or why yes first of all mr parrish in calling his client said he was calling him on issues of role and downward variance the question of role his the number of guns that he purchased the number of guns that he was involved in the number of transactions that he was involved in in our estimation was relevant i mean where did he say that then i told him eighty but it was really less than that what he said he was question about so didn't you actually first of all in the present report he was held accountable for a total of fifty six guns i said isn't it a fact that it you know the first first day that you were interviewed and again this really gets into the weeds but he was arrested on may twelfth he was not interviewed with counsel to may nineteenth in his he was interviewed miranda interview on the first day he lied about a number of things i cross examine him about a number of those there were ten matters that i have briefed that to the district court that i thought that he lied about it  but in any event so the sequence is he talks to the police on may twelfth is not completely truthful by any means on that day may nineteenth he then talks with a lawyer and that's when he says that he personally bought about eighty guns i then question him and say he didn't chew it eighty guns and you're only held accountable for fifty six here and he says that was just a random number just came out of my mind because they beat me up and they threw my baby on the floor so i was under pressure that's a transcript page ninety eight and i point out to him we're not talking the day of the arrest we're talking a week after the day of the arrest so he's trying to minimize the number of guns and it goes from there he goes off from there the court then is very concerned about him saying the police beat him up police threw the baby on the floor we don't have another hearing we present evidence that he wasn't beat up he claims that a door hit him in the head he presents a photo that shows some discoloration he calls his initial attorney to say there was some discoloration he didn't know what the discoloration was from  police say no when they went entered the house the baby was on the floor the wife was holding the baby in distance from the door there were a number of other things the bottom line was the court ended up the court was i would say  ry exercised or concerned about this it wanted evidence on this issue he was not it not an issue until the second hearing there were four hearings it took four hearings to get this defendant sense in the court in the fourth volume repeatedly repeatedly finds the defendant lied she was upset that he had lied she says he flat out lied in the transcript in volume four she makes numerous references of pages to forty six we call it a flat out lie two forty seven the defendant lied to forty nine the defendant lied there was no question about it and she says she even called it obstruction of justice that was clear that he obstruct justice she ended up not imposing an obstruction and hansen but clearly if a defendant takes the oath to tell the truth at a sentencing about a fact the number of guns which is very important and a number of other matters again that i've pointed out in my brief in the court finds that he lied that he flat out lied i respectfully submit that's a relevant factor aside an improper factor the moral of the court said this was one factor in explaining that sentence it was one of many many factors that the court cited this was not the overriding factor in the court's imposition of sentence the sentence the court imposed was random number you're saying he just lied about what happened with the pl i wouldn't say our position was was fifty six i would say the we we took the conservative numbers all with you in their testimony about this in the various hearings we accepted the conservative numbers for purposes of calculation and so we accepted fifty six and went from there and we could still meet our burden if the various levels so we we could we didn't know exactly the number of guns again there's testimony about this from the agent a t f agent we didn't know the exact number of guns the a t f doesn't keep a directory of numbers of guns we had to do manual searches that type of thing so we know we were able to document so many guns two hundred fifty two guns but we cotton you noted but that paragraph fifty one i said you cited fifty one and sixty nine you clicked it was an objection sixty nine fifty one says ali hers directed at him hers as to which guns to two agents we presented evidence of testimony to agents we put fifteen sentencing exhibits the court accepted the pre sentence report that transcript one ten the stipulations were largely incorporated in the present report this defendant's actions significantly differed from the other defendants here he had a significantly larger number of guns he had eighty six guns out of the ones that we were able to document the next highest was best sam hers who had fifty six guns lebanon talk to them in two thousand and fourteen and then talk to adam and bassam about this idea there was other evidence that maybe bassem was the one who started the notion the bottom line is that bassam and and ali were the highest took direction from the father the wife took direction from the spouse the activity started in two thousand and fourteen i'm sorry two thousand and thirteen december two thousand and thirteen with the opening a bank accounts other first shipment goes over to lebanon in march of two thousand and fourteen after that shipment everybody left the country they left the country intentionally to be out of the country in case the guns were interdicted this included included bassam included a the pre sentence report the paragraphs are i'm sorry in the plea agreement a paragraph seventeen double last he stipulates he was the person primarily responsible for making the final decision as to whom the firearms would be sold to and levanon they all discussed general prices they want to for guns but he was responsible for arranging first to ship and so he transferred to his home in lebanon and for negotiating with providers on these guns he received significantly more money so there was another shipment in september or august august september two thousand and fourteen then there was a split in january were but sam and sara split off they send their own shipment to sam organizes that shipment with his wife sarah sarah in tripoli involved they're b and that shipment goes in march we interdict that shipment in norfolk virginia they don't know it they make plans to travel overseas at the same time ali and adam are setting up their own additional shipment that's in may of two thousand and fifteen and we interdict that shipment and we seize ninety nine guns out of that shipment and take the whole thing down at that time so as far as ali's role he was involved in the first second and the fourth shipments however he gave us some information for a customs broker in lebanon who they used who was at the port who would facilitate the transfer of the container from the port to ali's house in lebanon so it could be unloaded at his house the contact information for the customs broker in lebanon so he can use it on his shipment that he's lining up with his wife in march of two thousand and fifteen and now he have the sizes that profits were split equally to what extent do you believe that's true that's not true that's not true the profits were not split equally in fact best sam got a greater share of profits on the first i'm sorry on the on the first shipment if you will he receive twenty thousand dollars for that shipment ali and adam received fifteen thousand for that and in fact when they came back so this was after march they came back from lebanon in about june when they came back in june they brought twenty thousand in cash to sam and sarah did and at the border they split up they each take ten thousand so as that they wouldn't have to report the cash coming back in the country that sarah who wasn't involved but who had a gun permit who was aware of things who was traveling already at that point she didn't begin to buy guns actually to buy guns until after she returned but she did buy thirteen guns usually bought one gun and usually accompanied by sam and usually with the child with an infant child so going into the gun store all it's just this woman with the child buying one gun isn't that you know an innocent nice little so in any event and there was evidence presented what about the other the other fact that they stress that whenever at the very end of this video when bassem did not like a decision allie made then ended the partnership and that shows they were equal partners well you know what ended it was the fact that ali after the september august shipment had developed a relationship with  below you've seen and with ali thought he was his cousin there gun dealers in lebanon and they provided over one hundred thousand dollars in cash to ali one hundred thousand dollars to be used to buy more weapons ali didn't tell that's when the partnership and it was in it and it's in stipulated that's agreed not disputed fact to the present report in january two thousand and fifteen is when that ended so it was really the fact that ali was cut in a side deal get money that he wasn't disclosing that was a big part of it there was also evidence the best sam believed that he should be receiving a greater share not a not a one third share and he was actually receiving more money on the first two shipments because he put it he paid for the expenses he and ali front of the expenses for those first two shipments which shows their greater role also but he thought he should be getting a four share because his wife was involved so  that's what caused the problem but along with the fact that ali had made this deal and gotten a significantly greater amount of money that he didn't disclose these people all live in cedar rapids i'm sorry that these people all live in cedar rapids yes yes there are and the other thing i would keep in mind is people say there's references here there's three there's four people involved no there was more than that we had  directing those people and making decisions with regard to them in lebanon as well so so this is a much broader issue and with regards although the the role wasn't addressed by the but you know he he sought a two level role for the court impose a three level adjusts and for of all there was never any issue about whether or not the offense involved five or more people or was otherwise extensive never any issue raised on that point and the only difference between two and three levels is whether or not there were five or more people involved or the offense with otherwise extensive he claims he should be two he would have to be a manager or supervisor to be two so he's a manager and supervisor by his agreement and he doesn't challenge the other element the court clearly didn't care and finding a court the court submit can't find on that record that the court erred in assessing role on him but finally sarah's atr have really touched on it as i've gone here on the on the issue of role but argues that she took direction from from her husband no doubt she did but he got an increase in the role for his conduct in directing her it does not  mean she's entitled to a reduction for a role and as i've cited in my brief this court has held that if a defendant is deeply involved in the offense and had knowledge of the scope of conspiracy in the structure of the conspiracy and observed others activities in the conspiracy that that she can hardly be considered for a lower role and that accurately describes this defendant i believe mr johnson actually admitted she certainly was aware of the activities of others she was not also you have to look at relevant conduct she wasn't held accountable for the first shipment for the guns in that first shipment because she didn't start to buy guns until they came back from lebanon ship these guys well they have a colling over the motor compartment eyes that has a fairly large void in there and design or stand they believe they can put the guns in that void and then if there an x ray at the port or something there's enough of a metal mass with the engine and with the colling that the x ray would not detect the the weapons plus the bobcat's had a resale value that that this was because the spouse relationship in a cultural norms of muslims and as judge read noted at sentencing she cheated find it sensing that there was no evidence of that there is simply no evidence before her on that point view that your defense was a complete fabrication without the slightest merit that's a different issue than what happened here judge college and third woman on a collateral issue you said well yeah you could find out that perhaps it was relevant because behold it but the eye of the holder has to be something that impacts the sentencing and if you look at the order of the brief we're confident that you're going to find out in your ruling that this was not a proper consideration of the court this collateral issue regarding the child being injured thank you very well refer to united states v laws which as a one nine fed thirty three eighty eight i also misspoke about what paragraphs defense counsel was objecting to one fifty one is the district court docket at page t paragraph fifty one i don't know your fellow your honor the final report goes through and lists objections throughout when there's an objection made but i'm fifty one there's no objection list i don't know why that was i wasn't counsel below but i can tell you the objection was made because i'm reading from the actual document what does a document say that says paragraph fifty one defendant did not direct adam hertz nor serve as the leader as to which guns to buy what document is that that they objections to sentence investigation report that's at the district court docket one fifty one at page two and again you will not find any evidence disputing this from the government at sentencing and therefore you can't rely on the p s r the judge couldn't and you can post about the f b i agent's testimony about what he said the first day that addressed the gunns know it said told his son and his brother about the idea how to sell them and they agreed to participate in again for later organizer merely suggesting that the other two commit the offense of strictly prohibited by the guidelines themselves which say that you that does not show leader organizer escorts case of say a leader organizer requires direction you your honors just addressed mr murphy's comments briefly regarding no evidence to consider regarding the cultural norms frankly that's that's something difficult to prove because even if the cultural norms were shown to be scholarly articles and things like that there's not necessarily any evidence that mrs misstate or and mr kurtz felt on that issue i think frankly that just the just the knowledge and the general knowledge of  a marital relation relationship is more compelling there versus versus anything directly related to the culture that you're dealing with and then regarding the  the case was submitted we will take it under consideration