honour's my name is david zuckerman i represent ramon delgado and may it please the court your honors in some ways this is a small case it's a single false statement case with a sentence of two years which is well within the statutory maximum and i'm not bringing a sufficiency claim about false statement so why does this case have me so nervous and it's because this particular case has a gotcha aspect to it that i find very troubling that the government had decided some time in two thousand and eleven to two thousand and thirteen that they were done with mr delgado and that they were going to remove him from his position as a border patrol agent and fo years the government looked for things to charge mr delgado with until finally it came to this foreign contacts question now my two challenges to mr delgado conviction and sentence are actually on there is actually a synergy there's a relationship between them because it would be one thing if i was coming before your honor's and mr delgado had had his day before a jersey jury where he was allowed to contest the drug trafficking allegations that cost his prosecution and which cost is sentence but that is not what happened instead we had a hearing before judge berms where judge burns made findings about what happened in twenty million one hundred and twelve thousand and twelve in two thousand and thirteen and that was the reason the judge burns imposed a two year sentence now i don't disagree that judge byrnes had his concerns and reasons for what he did but it is the case that judge burns flatly ran over the argument when the government argued that his sentence ought to be just fired by means of a variance rather than being within the guidelines and that's a very troubling thing to have someone convicted for one set up for one type of conduct and then sentence for the other especially considering what the conduct this now i know i'm probably trying to ski uphill on the vagueness question because as the government points out no other quarters ever said that these questions are too big to be answered that there are there have been convictions that have been up held but i would note to your honor's that there is nothing in these statements that should give this court any comfort undoubtedly your honour's of all answered those questions before authors of all undergone background checks and had to list out these people and your client answered those questions before as well and answered it in this case and listed two sisters in law and then there were follow up questions after the initial question that ask for more detail so should you have any confusion the follow up questions and ask about the nature of the relationship or the people are all the sorts of things that were delay any concern that you don't know what you're answering how would you have the government rephrase that question what reading that question it just appears straightforward to me so i don't understand how it's ambiguous how should it have been phrased so the terms close and continuing i don't is unclear how those could be clear like what does it mean for relation to be relationship to be close  oh of course one person's definition of close might be different from another such as makes it subjective it doesn't make it in this walt it is correct to say that we could agree what the word closes and you and i might have the same definition of that word but it several times a year but it wouldn't be like several times a week sure they lived in mexico he lived in the united states risked and mr de he did have photographs of him with them in his home correct the photographs in the home were from the  category just as well as what the government charged he had any number of foreign contacts that he not only just maintain relations with then he maintains relationships with now but then the question international drug traffickers that it is correct your honor it is also correct to say that as your honor noted mr delgado when he twice enlisted the united states military to go fight for our country overseas filled out the same background check and he listed the same people so he didn't change anything and the government had approached mr delgado in two thousand and eleven about these particular people so your honor is correct i mean it's how could i bring a sufficiency our argument about what constitutes close and continuing how would that argument even be possible in as much as we're all just going to be able to say it's our own personal definition and there's a double problem here which is the the particular statement is close continuing and bonded by affection obligation isn't is it it's and or isn't it correct so and this went to the jury whether this question was  whether it was sufficiently clear that he could answer the jury decide correct but it would also allow the government to charge list your fifty closest people in your life and you have to list out all those fifty people and if the jury disagrees about which fifty should have been in you can be held in custody so it is this kind of question poses a lot of danger not just for someone like delgado but it poses danger for everyone because when it is this subjective and i did point to the fact that the not everyone is answering these questions mr delgado is answering these questions because he was in the united states border patrol officer king on the southwest border to mexico where border patrol agents were apprehending drug dealers so the significance of his contacts with foreign nationals was pretty high it was a significant question for him and other border patrol agents not just randomly any person on the street correct and i suppose that there would be ways to word that question in such ways that it would be not subjective so your argument is subjective means ambiguous well in such that a reasonable person could not come up with an answer couldn't possibly be expected to answer that question i agree that we are heading towards a tautology in that anything that is subjective is necessarily ambiguous as i do not have direct access to anyone else's brain other than my own so so  clear you look at the context when you look at the context here and i think your client has a tough argument well with that then i should probably turn to the blessing in your years to for you unless you're arguing that it's just fundamentally just i think it just says are you bonded by affection loyalty obligation and it doesn't tell him what are the metrics used to decide such things so why should he exclude his sixty cousins or couple one hundred i have a number of cousins that i could probably be in the same room with the not recognize them but that's different from the people who are godparents to my children and who i visit multiple times a year and they keep photographs of me in their home i mean that's a pretty obvious distinction to draw because there's overlap between the two families so that's the other issue is that it's not just that they had met somewhere on the street and struck up a friendship there's overlapping familial relations there so the fact that there's overlapping photographs and visits well that's kind of a consequence of the larger family dynamic  i did want to turn briefly to the sentencing issue since the main case i cited was the kelly case out of the th circuit and judge kelly from the th circuit it seems to me that the court if the guidelines are supposed to mean anything it's supposed to be that they're supposed to guide discretion and judge burns can simply disregard them because he wants to impose a harsh sentence what stops another judge from disregarding them to impose a lenient sentence judge barnes gave zero weight to the guidelines you're not supposed to do that but that i about thirty seconds left so i'd like to reserve that for a bottle ok limitation on the conduct that a court can consider in its three thousand five hundred and fifty three a analysis in fact the watch case from the supreme court applies that provision those provisions to say that a court can in fact even consider acquitted conduct so long as it finds by a preponderance of the evidence that the conduct did occur here the disappointed applied even a heightened standard out of an abundance of caution it applied a clear and convincing evidence standard this is a page eighty seven  record and then it found that this drug trafficking related activity by delgado didn't fact occur by that standard that's a page ninety four dollars through ninety six dollars of the record so the court was on clear footing in considering that conduct there was no issue as to substituting a different set of guidelines or applying enhancements based on the drugs this was purely an analysis of whether to apply a variance in fact the court says it page seventy dollars seventy one that it is applying the guidelines for the false statement and that's it and then turning to vagueness as every court's to address this issue has held there is no vagueness in the foreign nationals equip question that's particularly true here because it's simply not credible that gado a border patrol agent would not have known that he needed to disclose his intimate ties to dru traffickers on a forum designed to assess his susceptibility to foreign exploitation and influence and that is the correct inquiry here this court's culliton case of that you have to ask where or the defendant a an answer that was false as he understood based on the context of the question the context of the answer and the evidence in the case and here the evidence clearly shows that he did he listed two sisters in law even though he said he was only in contact with those sisters quarterly and yet he's omitting relationships that are much closer and that pose a much greater risk of exploitation as the court has already noted he visits byrne all and martinez frequently he's the godfather to their daughter they go to restaurants and failures and birthdays and baptisms together they go to queens in euro's together  pictures of delgado in their house and then of course they have this shared interest in drug trafficking the testimony from bernald herself and the housekeeper showed that delgado was there when they were discussing drug trafficking when they were paying low drivers and in fact he was even coaching low drivers on how to get across the border the housekeeper also testified that on one occasion delgado accompanied martinez to the mechanic shop and then took load cars loaded cars with drugs back to britain on martinez's house so he has a shared interest in drug trafficking and the final piece of evidence which i think it's telling here is that he's taking active measures to cover up his ties to burn all and martinez the housekeeper testified that he took off his border patrol uniform before entering the house so that the cameras in the house wouldn't pick up that he was a border patrol agent and after martinez was arrested in two thousand and fourteen he calls burn all and says you need to take the pictures of me out of your house because he didn't want mexican authorities to discover the ties between them if they showed up at the house so given those intimate ties those ties to drug trafficking it's clear that as applied to him he would have known that he needed to disclose this relationship but he didn't and therefore there is no fundamental ambiguity so if there are no questions section governs what conduct can be considered for purposes of calculating the guidelines and for purposes of applying enhancements so in those cases you had instances where for example the conviction was for drug trafficking but the courts said i'm not going to use those guidelines i'm going to use the guidelines for aggravated sexual assault which was about three times as high and then it imposed sentence based on those guidelines that undisputedly did not happen here the parties the p s r and the court all agreed that the guidelines were the guidelines for the false statement conviction it was a zero to six months guidelines range and then it simply considered the drug trafficking activities as aggravating conduct when deciding whether to vary the same way it considered mitigating conduct when deciding to very even though that conduct didn't relate to the offense in fact if you look at page one hundred of the record the court says that i would have given a year more on the sentence but for delgado's military service so just as the court can consider that sort of unrelated mitigating conduct it can also consider unrelated and here there were relations but we call it the remainder of my time thank you you your honour's two points the st being that the government interviewed twenty seven lo drivers they asked all of them about mr delgado not a single one again a fight him that's because they're cooperating sources were making stuff up that's why the government wouldn't take the case to a jury the nd point is the relatedness principle all of the cases that talk about sentencing the relatedness principle is saying that you punish a person for the crime they have committed the government conceded that the drug trafficking was not relevant conduct by definition if it's not relevant conduct it's not relevant it violates the relatedness principle and i hope you reverse the sentence thank you offers thank you thank you council we appreciate your arguments this morning