activity involving five participants or is otherwise it's known there's no dispute about the five or more numbers there there's going to say ok so that predicate is dealt with so we've got other considerations here that are very fact around correct and there are  the guideline itself does not define what constitutes an organizer a leader but the commentary to the guidelines provides a laundry list of factors that the court can certainly consider in determining whether or not an organizer or leader is appropriate let me stop you at that point because i think as we go through arguments here from both sides it might be one of the all or tension to concentrate  on what the commentary speaks to and it struck me as i looked at this case the nd or rd time that there may be and may have been here an over emphasis on the use if i may say it of of nouns of terminology that characterizes the defendant as b being a broker in some cases in the guidelines speak to this a kingpin throwing terms like that around are not are not dispositive and they may even be unhelpful and i'm interested in hearing from both sides on that but all of which is to say that is it may be verbs we need to be looking at more often that is expressions of the actual activity didn't by the person who is a leader organizer  absolutely agree that it's probably verbs that we should be talking about because you will see in the governments briefing and in the words finding facts they both preferred to mislead to air as a  helpful and the courts rely on that but this poor and helping and when i talked about the fact that the leader organizer enhancement can be applied only when a defendant exercises some degree of control over others in the commission of the offense and she didn't and it's my position that she did not hear she even used her mother she even deployed her mother didn't she well to a doctor so that's the question the court found for her because it's also a question that was answered by judge warneke was well for purposes of the drug quantity the judge stated that the evidence was insufficient to prove by opponents of the evidence that she sent her mother or her sister these twelve other participants unknown unnamed participants to dr herndon and did not shout that in the relevant conduct for purposes of the drug quantity enhancement but then the court turned around and relied on the fact that she extensively recruited twelve people for purposes applying applying leader organize not yet she'd in fact she you some rather colorful language in her description of her blank obviously people who were working who are her  well she she said a lot of things and we have to remember that mrs baer is a drug addict a drug user a drug seeker and she said a lot of things she could but there were credibility determinations made by the district court were going on there were plenty we have to defer to counsel you just spoke of recruiting now isn't that one of the very significant verbs that we are considering  evidence we have of recruitment in this case is her statement that she made on a recorded phone call when she was interviewed about that by the f b i or the agent in this case she walked back her statements a little bit  and the court found little you don't organize your hands meant that yes i think she recruited twelve people but again that finding was inconsistent with the fact that the work found that information not credible for purposes  pick up there you argue that she doesn't qualify as a leader organizer whether those two terms mean the same thing in essence other circuits in our circuit aren't always on the same page at least was what they say but do you at least think that she would qualify as a manager or supervisor or do you think that she wouldn't qualify for even that adjustment i don't think she would qualify for even an adjustment what we have here is a person who was seeking drugs from other people when she needed them sending drugs to other people when she needed money everybody that she s to or recruited from knew nothing about what she did with those pills all of the people that she saw it and it was one level though doesn't that count so for her having a greater role if she can ensure that others know less and less and less about a transaction or a scheme doesn't that indicate that she knows more and more and more and therefore has more and more and more control over that scheme but control your honor is i think what the operative it is is he e she didn't control anyone the women who stole pills to her so that they those women decided how many pills they were going to sell when they were going to sell them and how much they were going to sell them for one of the women  marion randolph who was selling pills to air eventually figured out that she could make or selling them directly to mr richardson and other well control is that term used in our county who is here doesn't require as i understand it that there is a complete eradication of free will the part of people who are acting as it i mean they may have a certain amount of decision making of their home but there can still be a measure of control over the troops which is what judge when the as i understand it sound occurred here so when we look at something like control it's telling people the price was that for the pills and how many til she was getting there was no money ever recover their reason there were any letters there was no cash there were no indication that until called to drug dealing conspiracy but but i mean just to tease this out though our case law sometimes creates blur maybe leader and organizer it least for one purpose to recognize that they have a common element the exercise of some degree of control now whether that's only common element and whether they're separate branches as other circuits upheld after that may be an open question maybe it's not an open question but one of the things that our case law kind of almost fills the gap in that space almost for the organizer category is it recognizes the significances judge roth picked up on i believe of recruitment and how recruitment which might be war in the organizer space is we think about this then in the leader space but recruitment as a means of satisfying control does seem to be really well grounded in our case law and because it is and because of the standard or f twelve people or recruitment but if it wasn't sufficient to rely on it for purposes of the drug quantity that that information the only evidence of that was missing here's own statement there was nothing else and recruitment if she sent twelve people to  sentence saying and other events there's going to be evidence it doesn't gel perfectly and once a district judge makes a decision then then they get a benefit of a standard or view what we're looking at that and then we said well look they had a reason that they explained for that recruitment finding and then when it multi factor approach we also give them some discretion in the weight that they give each factor and at least our case l hard to say that we can nd guess the amount of weight that the district court gave that fact by our case law and that puts your client in a bit of a box as far as the plus four that she received on appeal hing and buying without any sort of hierarchy or organization or providing any sort of control well if that's what the record in fact showed i would agree with  which is why i begin my inquiry by listing a couple terms which are essentially conclusory but instead focusing on the need for demonstrating what a person has actually done this  drug transaction and and as far as what the confidential source said in the relevant conduct aspect of that rather than the common confidential source had his own problems and that he was also an addict objection was properly preserved federal criminal procedure fifty one dollars says that you preserve a claim by informing the when and when the ruling is made or sought of your attention in the grounds for your to the one point the way yes in the pre sentence report in paragraph fifty in fifty one the probation office calculated a three level reduction for acceptance of responsibility that everyone was on notice that the probation officers position was that she followed by for all three points in the briefing prior to the sentencing hearing and i'm sorry a sentencing hearing the defense counsel argue and me his position known that judge the government had gone through here that the things that are at issue and defense counsel pushed back and said no your honor what's at issue is she should not be denied three points for acceptance of responsibility simply because she challenged him sentencing enhanced minutes and again three points have been awarded in the pre sentence report so everyone was on notice that he had three points and if  not the two level reduction is not an issue that to but but i'm still straining to see where specifically the the one point the sub b has been preserved so at the sentencing hearing when the defense counsel objected again in post hearing briefing in when the party submitted their tentative finding of findings of fact and the conclusion of law defense counsel really needed to request for a and there's a council ad advocates often advocate not every form of advocacy is issue preservation not every form of advocacy is making an argument there are things that can be said that are really good advocacy but they don't constitute a legal argument at least for purposes of preservation and so what i see in these records sites is is advocacy but i don't see that advocacy rising to the level of being argument preservation it's not clear to me if this patently absurd is based on a reading of the commentary the text of the guideline itself the due process clause i'm not sure many many many other things i'm not sure what the so patent about the problem other than it's disagreed with and at one level that's fine from an advocacy perspective but when we double back around and say what top preserved not all advocacy gets preserved is either an issue or an argument so just explain to me just walk me through what you think the argument is is it that the commentary was misread that the guy guideline itself was misread as our constitutional problem here what is the argument that was preserved because i'm missing argument preservation i see advocacy but i don't see argument preservation absolutely your honor and i would lean to how the district court responded to these arguments to show how the district court seemed to understand exactly what defense counsel was saying is that you can't deny acceptance of responsibility where someone contests sentencing you can't cements and the district  said gave the two points in its tentative finding of facts and conclusion of law but said i can't give the rd point because the government hasn't moved for it and if that had been all that had been sad i read that there might have been an issue about what the court understanding was but then at the sentencing hearing the poor said is that if a dare had that mr dare plead guilty without equivocation and hesitation if she had elected to remain silent on in the face of the enhancement arguments the work the court and the government would have to had would had to do in all likelihood still would have to have been done and that goes exactly to the language of th  part as a result the protect act here and the answer is from defense counsel at that time no your honor i mean i'm i'm seeing virtually nothing done i've wondered about  the availability which would seem to exist here for the defense always to to itself file a motion drawing the attention of the court to the fact that there is a need to address this rd point especially when the government has not made per the guidelines a motion i mean seems to me the record is devoid of just about anything suggesting preservation at this point by the defense the district court had already said three times in the sentencing hearing that all the issues you raised are preserved so i'm not sure that no making another objection at the end of the hearing was something that was ok so we're going to district court do wrong here because there's no question there was no motion in the prosecution absolutely plain language three v one point  one point one b specifies that the only time the government can withhold the rd point is when there is a purpose related to trial when the defendant has not timely pleaded guilty in a way that helped the government of way people are preaching for trial the plain language refers only to the prosecution resources say when a defendant is too and the guilty plea permits the government to avoid preparing for trial application and six was amended in two thousand and thirteen in light of the protect act and the sentencing commission specifically looked at congressional intent in acting in the protect act and said  constrict a government's discretion when the purpose for withholding is not related to trial and the conservation of resources but contra well let me just say that because the last is we get into the very long subsection b the references to things and i guess we get to this really interesting question the how should we reference these two things i totally see where you say there by permitting the government to avoid preparing for trial was no trial here but the flip side is it also says and permitting the government the court to allocate their resources efficiently and so to the extent that there some i guess concern on the government's behalf that its resources in lieu of a sentencing hearing what have to be allocated less efficiently and otherwise and for that reason they didn't want to move for this last point does does this rule say they can't do that does this does this i mean so the plain language of thirty one point one b does not specifically say that and so because of the ambiguous we look to the commentary and the commentary tells us that this is what congress intended this is what the sentencing commission intended was that it be limited to trial considerations so when language requires a motion from a government yes or be i don't think congress could have been much clearer he needs directive that there needed to be a motion we don't always see congress say is it did with the protect act in so many words and sentencing commission don't you dare try to change this there's a really strong form of what you're advocating and i think what the strong for me is is that any time there's a guilty plea that avoids trial the rd point must be get met if if we go your way there is now private line rule and reading of this provision to say upon a guilty plea three points for examples for sponsibility must be done regardless and this is  condition it on a government it why did it condition it on the government's motion it seems that the and i guess what i'm saying is it seems that the reading you're advocating may make sense from the doesn't have to move for the rd point but the district corps can't believe or right the government's failure to move when that when the governments move nishan for not moving is based on an improper consideration which in this so then the question is the government is upon motion and the reason that congress made it the government's motion is because congress said that the government is in the best position to determine whether or how and that is i mean that that last point is one that i did want to follow up on frankly with with both of counsel here and that is there was no and another conspicuous  omission if you will is the fact that there was no motion to compel him which would be one procedural way of seeking the remedy of the rd point if the defense  wanted it in the absence of any motion from the government right as far as i can tell that would be the only way because we have to make a motion so either we do it voluntarily or somebody makes my point is but said well i want to follow up in just a bit should we consider and i'm not you know i haven't thought this out but the fact it was largely a consequence of my insomnia last night i was thinking about this and that if she should we consider this court a supervisory rule in this context where if the rd point is in question that the defense we require to come forward with a motion is that do is you begin with dread because that's the court's last word on this particular issue so we can withhold the point for reasons that are unconstitutional or not relent rationally related to a legitimate government years post two thousand and thirteen amendment i think that  nd category is because the commission has said a legitimate government interest is confined to three you want point one as a whole so the th circuit case i cited johnson is beautiful about this because essentially says well post two thousand and thirty amendment we don't know for sure what a legitimate government interest is we know for sure it's not coercing hello my position is that we know for that what is within that interest because it's in common number one is making sure that the government the defendant genuinely has accepted responsibility and we can make that determination everything else in the middle  up for grabs but but let me just follow up with with with everything else in the middle being up for grabs because don't we get to a point in time where the government can it really changes some of their leverage at sentencing when they can so if you dispute anything at sentencing anything right there costing us our resources and and for that reason  we actually are going withhold the rd point it's so it strikes me that that i mean are you going to say that no that's that's clear to one side or another ok that's a false fact i think we're fine in withholding the rd point if one of those two things were good but but but but again that that that goes more to what you in your office would exercise their discretion towards not what the rule and dread in other things would permit and so let's just say that your you in your office had a change of heart and you said we've got it we've got a new  plan and we want to go to the outer bounds of what's permitted and this is what we're going to do no rd point we are not moving if you raise any motions raise any objections or contest any fact if you do that we don't think you've accepted responsibility is that because it one level you know that the nice thing about the text the commentary is is you can have to own all of it for purposes of legal argument for policy you don't have to own argument and so what your answer focused on kind of what it but again once you start down that road you've given a lot of weight for your opponent who says well it has been a minute and let's look at that phrase about trial and here trial was not in play and is avoiding trial and that's what happened here then maybe there's a problem might not be plain and may i mean assuming that it's plain there are view but there might be an error here you know you're well but but the the result of that fortunate who are unfortunate is it leaves all the discretion to you know i did so the act and now we can answer the question you originally asked which is i think the defendant should have to make a substantial showing st as he or she would get a five k context ok and only then that's the way the defense can i will say circumvent but can this was just one of the numerous occasions that judge roth and i have witnessed over a lot of years of congress demonstrating that they don't trust federal judges to make decisions but they trust prosecutors better to better make certain decisions so they take a discretionary you area away from the district judge and allow it to be exercised instead by a prosecutor ok i don't like it when it happened i'd be very candid about that but it happened and we have to read the language for what it is but as i understand your position on this who your response to me is you agree that one way of actually getting this into the hands of the district judge so the judge can consider appropriate factors is for the defense to tee it up the i think the defense has to buy asked by graham motion to compel gerard i did not mean to speak freely as i expounded upon my grievance with congress in some matters but i just made a reference that we've over a long over long ten years witnessed certain examples of that yes but don't do it for a reason alcide the interests of the guy like such as the probably everything beyond that it's up for grabs except his mike and it's not a for grabs we can still we hold it if we can point to something and say than why what's the difference between he i think could be comes with not only trial preparation but at the jordan case i cited said the government and the court must be satisfied the defendant has generally  surely you see a substantial distinction between language that is so broad is to talk about a demonstration of acceptance of responsibility which clearly can occur in in many ways through various forms of language and expression and the more particular and narrower circumstances of subsection b where it's avoidance of preparing for trial  and then the more interesting use of the conjunctive and permitting the government not over and permitting the government in the court to allocate the resources efficiently agreed and yeah i think that so i've seen circu so then isn't that the difference between a in be a keeps it opened and then b says we need a guilty plea and everything centers around that guilty plea and here there's a guilty plea right but guideline which is you know the defendant's cooperation results in a reduced sentence and it's as determined by the core that that's why these to me so so i mean it that interesting because if it qualifies under a at one level you could say if it qualifies under way to the sentencing court satisfaction or you could say if it qualifies under eight to the government's satisfaction and at one level if it's the former then it seems to reduce to just a guilty plea sort of analysis if it's the latter then then everything you say kind of falls into place but but but you need that initial is the government and the court have to be satisfied about this and the reason is we're the ones making the motion so imagine we don't agree let's say we don't agree like here we don't agree with the a right to but the court appointed so now we have to make a motion we're making a motion we broken now was to allow the government to reward a defendant who's who operated more or give it is more acceptance responsibility than just two points but less than the pocket so it's supposed to be like a middle ground and that's to me consistent with the you know that that's the whole issue with the twelve people recruited to go see him and you know they're told which drugs to get when to go and they bring that back to a deer with a haze them sun itself that to me seems all by itself court so this is where the court says the defendant's role was primarily that of a broker each time the court says it it's qualified it says as a group or during the time frame of the intercept or during the period of the of the conspiracy person she uses throughout but she appears to have learned a valuable lesson which is that you can't put all the rigs in one doctor so what she begins doing after there's been see this through the statements by vernon and by  i think saunders bottom line is she eats people out socially who are older who have good insurance through medicare or whatever and she's able to persuade them to either give them some of her bills or bills to sell to her and so we don't know how many and that's not hard twelve we don't know how many were involved in that we know that you know this report listed four or five but the bottom line here is that's a different set of conduct and yes you to answer your question right or box the word brokering isn't very helpful i was just a bit to ask you if you if you agree the read might be worthy of a sentence or two on an opinion from this court we ask district judges to not engage in the use of characterisations nouns if you will broker does not is not one of the ones that appears in the guidelines but kingpin is not helpful well  this is a clock full flaw parts human beings and often this is human beings who are addicted to opioids and so she that's where her hustle skills come in so she has to call them on a monthly basis and say time to get your prescription and since they're elderly she's often driving there or desire it is driving them bowls and so she's the one making these these transactions happen that's more than a broker to you because  happy broker to me is you're sitting back and you're going ok you need this you need that instead she's actually making this happen and the reason that's good for her the reason this nd phase of this this project she has is good for her is these if you look carefully at the interview that it's these other women during this latter phase of it have all had different doctors which is beautiful because now you're exert not only to dr herman if one of those goes down all right you've got other doctors and by the way because these other women have other doctors you can kind of file in the back of your mind who they are if you need another doctor of your own goes down dr peter in this case so that's why i think this is you know yes it's true during the timeframe of the conspiracy you do see some brokering but if you look at page ninety one i want to say this record there's a list of like forty two different transactions over the last couple of years only two of them involve probing for a total of matters here because the court was so content well that's that yeah that's that's the point because other activities were the the basis of fact based determinations by the court the but think my concern has been that we dissuade courts and advocates as you suggested from leaning too much on characterizations of conclusory characters  just think we need to keep in mind that the standard at sentencing is conner's of the evidence and that's a low standard and that that doesn't mean a defendant just has to sit back and take every enhancement that they plead guilty to present a report comes out and they have to accept everything that said by the government as far as enhancements they can get to bring in good faith challenges to the evidence both factual and legal and that's what defense counsel did in this case when he was contesting the confidential sources credibility when he was contesting whether or not miss adair was actually saying these things or whether she was boasting and she's a female drug dealer in this context and so i think those are legitimate challenges and then as far as the her i would just go back to the idea of where was the control in this case they're just there just wasn't any and she was