culpability but missing from the district court's discussion of the minor will request is a comparison of miss commies culpability and roll to the culpability of the other participants in the offense could could i just ask on that point where in the record did you alert the district court that it failed to make that comparison with the other participants so we alerted the district court to his obligation to make a comparison every time we requested a minor role reduction defendant and the other participants in the conspiracy citing the th circuit case of merino which was about that that kind of internal comparison and then we actually also go further to say that failure to perform that comparison can be reversible error bit now in the u s versus europe case there was no issue either briefed or in the decision about whether or not each of the criteria in the was that a mitigating role just that could not be applied appropriately decline in that case because the judge specifically said that that she  role in that case was essential with the specific error in that case i think your occulting is much broader than x which it says multiple times that the court is obligated to just records obviated to do a relative culpability analysis but i do ok sorry i just must do a under your right i want to follow up on judge matheson's preservation point though it seems to me that what you're alleging fundamentally is an error of articulation the court did not do in internal  and despite the fact that you alerted the court to what the law was and its obligation to do an internal comparison since it's ultimately of billiard articulation why were you obliged to tell the court that it didn't do what it was obliged to do i think rule fif one answers that question is well what do you want to civically says that a party is not required to take an exception again to a ruling of the court once we put the court on notice of our position that it had an obligation to do that comparative analysis then the an exception out there in the court makes a mistake want you obliged to tell the court well you know you didn't do what the law was at that point because the error didn't occur in til the court opened its mouth but we had already very extensively and very specifically alerted the court to the correct standard that that's not the question the question is you going to learn the courts of the standard but if this rule if the rule of preservation strictly in the sense in contests where you are there are two key elation errors if that's going to have any meaning enough to learn the court you have to tell you have to learn the court that it failed to honor its obligation and don't you i think to me that sounds like requiring us to take an exception to the ruling of the court we may be argument to the court there's no reason to bid you take to make an exception how could you make an exception to something when the court didn't fail to do it until it opened it we st of all i would also point out since the government didn't take any issue with the standard review that that doesn't stop there that doesn't stop i understand that but i do think there are this court does have cases which i did not cite in my brief since the government didn't did not recess but in particular i'm thinking of the lopez of the l a case where i believe there was a very similar kind of error and the court said there's no reason to require the defendant to take an additional exception once the argument is set forth to the district court and the district court considers it and makes a ruling it would there's no purpose to require an additional exception depends on what the kind of errors let me give you an example sentencing memorandum the question is whether there's sufficient evidence to support this particular enhanced brief that you may explain to the court there was insufficient evidence shouldn't happen goes in the court says boom there is i'm going to uphold the enhancement well you've said all you need to say you told the court there was insufficient evidence the error and the court and they no additional evidence came and so boom there's an error but this is an error of articulation saying the court didn't utter the words that would allow this to matter right i don't see it that way the way it is i think with difference between this case and your act is that what i understand and your act with the full standard with not laid out to the district court that its obligation to conduct the kind of comparative analysis or the factors were not provided to the district court here we did that we multiple points in the p s r objections and then when we started our argument sentencing hearing we necessarily relied on those here to say that that's how it was preserved but we did object to the sentence because we had made objections at the court over gold so to not you know way the of those objections we objected to the reasonableness of the sentence as well but here we had alerted the previously very specifically to the arguments so to the extent that initial objection was necessary i think objecting to the procedural reasonableness is something because previously we had given a lot of content to the objection by setting forth this comparative analysis and the district court obligation to conduct it which your best case it says that the mode of analysis that the district court actually undertook year was wrong i think you're a keurig says very clearly that dealt with a whole different not exactly what the court did do that it did not do an internal comparison i think what are you are arguing is not necessarily specifically that the district court has some sort of checklist that have to go down to make this comparison i think that just court just has to say enough to satisfy this court that it did conduct a this kind of comparison and on this record i think there just is not enough to satisfy this court that the district court did so well you're going to have to fellows weimann if we're going to reverse then the question is what is it in the court i think would purport to believe that it had done that i mean if if it situated this defendant as i understood what the court did reading the record the court said look when you when you get down to it they're the top international guys in there is everybody else and there is no really difference and you know significant difference in culpability between everybody else some people had higher skills they have by more specialized skill but essentially i can't say anybody was than anybody else well by doing that what i'm saying is if that is not sufficient for an internal comparison then where is the case that says that is not sufficient so that but we've cited i think the hill case from the nd circuit is helpful in that they says even and when there is a conclusion like that we still need to be satisfied that that conclusion was guided by the appropriate factors so here we would i would want to see i would argue the court would need to see something in the discussion  that the district judge when he or she applies those criteria in the commentary in each individual factor doesn't necessarily need to compare  to other individuals in this alleged conspiracy but but but it's some point if for example let's say hypothetically the judge does with one of the five factors and the other ones simply to since we know about that is much more minor but it's a patient the codefendant mr crocker we had participated since two thousand and twelve was responsible for eight hundred thousand dollars worth of lost had you know dozens of contacts in cameroon which are which mr comey does not have so i think had the corps been conducting any kind of internal comparison there needed to be some discussion that would indicate to this court that the court was actually doing that well as to your to your answer the judge bacharach it seems to me is problematic for you because in the  factor did to the court do you do a comparison between mr comey and her codefendant i don't think it did what the court did there was said i'm going to use the fact that you're connected with this code and it to infer that you understood the scope of this case exactly and what i'm asking is you're saying that that is insufficient to qualify as an internal comparison situating people judging them relative to other participants is not sufficient to qualify as an internal comparison in a physics not i'm saying why not was was used and then secondly whether the judge made a correct determination you know in applying that standard if if the court is drawing the comparison between your client and the codefendant it's still a comparison you may not like the comparison may disagree with what the court was doing but doesn't that go to your nd issue not not whether there's there's a comparison being  i don't think so and the reason is because they even though the court referenced the codefendant to define miss commies role it did not then discuss the co defendant's own culpability and own role and the fact that he was the the point of contact mag representing the united states judge holmes i want to i think addressing your st issue and i the same issue that was raised by judge mathis and that there was not a affirmative remark by counsel for the defendant below that would have alerted the district judge that this comparative analysis was not used in and during the during the sentencing proceeding so to the degree that i think there's some merit to the issue of while they may have raised it in the p s r objections when the judge ultimately made his decision they simply said well we're going to preserve this for appeal on procedural and substantive grounds but never said but we would like you to do some comparative analysis because we think you failed in that regard that was never set at no point they just simply went it seemingly accepted the judge's decision without alerting judge crabtree to this comparative an i don't know about this simply excepting they did say at the end that they objected on procedural and substantive reasonable means ground so they aren't saying we accept your your analysis and and conclusions here and if i'm understanding the argument there there was repetitive attempts to at least make the argument about comparing the client to other participants and so there is there at least an implicit objection to the standard applied here by the district court i think it's a close question i think but i think that the that there was some merit to the issue of whether or not that they gave judge crabtree an opportunity to clarify what he was doing and i think that goes to the larger issue of whether or not there is some and i think to some degree this is a cautionary note if the court is requiring a district judge to use certain language to the degree saying while i've done the three b one dollar factor analysis i'm now going to the comparative analysis they seem to suggest that the comparative analysis must be done in a vacuum as if just judge sutton must make some sort of advance notice to the parties that i'm doing this analysis under three b one dollar but now i'm going to comparative analysis and i need to do that they seem to suggest that that is a requirement and i think there's some cautionary preservation right we exist you can you absolutely can under the circumstances we certainly didn't object to the issue of them going taking a further step on the issue of objecting before judge crabtree beyond the procedural and substantive analysis we didn't say that because quite frankly i well i wasn't the prosecutor below but i think every in there at least in the from what we can tell the prosecutors opinion was that the three b one two factors were met but this gets i think to the larger meritorious question which is the issue of judge crabtree's analysis is largely informed by his comparison of missing kill me to all the other members in the conspiracy why does not i just ask there was there was the codefendant  in this case and i understand that this is a large scheme there are multiple participants but there was a codefendant here and it isn't the that the weakness in the analysis in the chain of of where each individual person stood he appeared to be somewhat of the middle man and where the individuals in cameroon and the people who were sort of leading the conspiracy in the sense of a stab criminal fraudulent acts he would then set people afoot to do the actual grabbing of the money and using of the of the false identifications where she fell with respect to whether or not that made her less culpable than the average participant judge crabtree i think did did exactly what he was supposed to do in going through the factors in determining whether or not her role was equally or less or less culpable than the average participant and he said no largely because she her role was was in trouble in getting the money her role was entered goal in how many times she went to get the money and her relation you know he does talk about her relationship with the codefendant and the fact that which i think what to the broader issue of his explanation of her understanding of the actual complexity of the conspiracy and where her role was in the conspiracy plausible reading of the record what i understood him to say was essentially that even though these people had different roles on with greater skill sets than others that all i cannot determine that she was less culpable than the average participant in other words there's this two year and then there's everybody else and maybe that's a vet isn't the best reading of the record maybe that's not the one we would reach but the question would be whether that would be clearly erroneous to do that right in our position clearly is that he did a very good job of lining out exactly which of those five factors she was had really satisfied by her culpability in those that she had not and of course it really came down as he reflected as a three to two but one of those was a very close call now and he made it very clear no court would necessarily hold that it's a mathematical equation that if you're three dollars to two dollars you automatically do not get the minor role adjustment but he looked at this and then when you look at pages one hundred and twenty six and one  seven where he begins to wrap up what his position is on this he says that she the defendant whether or not she was substantially less culpable than the average participant he could not find that based upon her role in the conspiracy now whether or not he was comparing her against just the money mules whether or not he was comparing her against the codefendant but it's very clear he was comparing her against other individuals in the conspiracy based on where she darryl your it's one individual as opposed to the hypothetical well average which is which it is yeah and so judge back i think to directly answer question i think it's to the larger conspiracy and i think you can draw a little bit on some of the issues that we see in the more standard drug mule cases and where they fell in the conspiracy what they knew in the conspiracy i think that's a good analogy to use here because of what the role they played clearly was on the lower end but it's interpol nature of it really i judge crabtree found that she was you know not less culpable than the average defendant because she played such a significant role in how this conspiracy was able to move because without her the money doesn't move back up the chain now so the issue of whether or not she is compared compared to just a codefendant the answer is no i think she's compared largely to the rest of the individuals in the conspiracy but where her role is directly related to those individuals now if we disagree with that should we reverse big based on the idea that judge crip may have done exactly what you said but if we hypothetically say no you actually are supposed to are being included within embedded within that comparison is to compare mr crawley's participation to that particular vote at the end it should we say that there was an abuse of discretion in appealing to considerable realty with regard to this one felt no i don't think that he did i think he seemed to be fairly clear and were her association was with the codefendant because of their relationship and that because it because they did have a child in common that she wasn't disassociated with the codefendant in such a way that she didn't understand the nature of the conspiracy certainly it was well understood that he directed her actions was able to procure the false identifications and give them to her and the director to use those i think that was well known so i guess i would put it in the reverse what would judge crabtree do if if it was sent back what else could he say in our position is nothing there really isn't anything that he hasn't already said up to this point that would reflect what her association was was with the codefendant in these circumstances now i don't know if it gets to the broader question about whether or not he would have to compare her against other money newell's i don't i'm not sure that was the court's question but i want to know response if that was ok because our position i think at the end of the day is is that he is compared against the larger conspiracy but i think again the bigger issue i think that this court has to address and i think this gets sort of to the europe issue that you're on a rope in that matter is whether or not there has to be some sort of demonstrative language on the part of the district judge to say i am now divorcing myself from the three b one point two factors and getting to the comparative analysis factors if that's true i think that could be problematic because as this court is aware conspiracy cases are case by case they're very different if this court were to somehow require a district judge to have some descriptive language that differentiates itself between three b one dollar and comparative analysis i think the court would find itself in a much more difficult position on how to analyze these cases because i think at least our position is that judge crabtree's language here broadly analyzing the conspiracy informed his decision on the issue of comparative analysis again i would get back to the issue if this court were to send it back what else would judge crabtree have to say already said counsel how how are district court supposed to determine who are the average participants through a kit well through a case by case analysis and i think in this case w the i mean what does average participant mean what the are there any standards that were three b one point two gives at least some basic description of what those what that role is and gives examples of where you should or should not apply those circumstances so the average participant and i think to i think to get to the heart of your question the average participant in this case may be problematic in the sense that that the court put three very distinct hierarchies of the people in cameroon the middlemen generally in maryland and then the money mules that were spread out well and the document forgers right and well i guess we sort of use them as the middle men and they they had a whole ok and so to the degree that are they are they average participants in this case no because the i don't think anybody is necessarily considered well least judge crabtree didn't seem to think that one person had a more definitive role than another because everybody played such an integral part in their role in the conspiracy that the conspiracy would largely fall apart if they didn't complete the roles that they were assigned that you keep talking about in trickle that i thought the guidelines pacifically rejected the notion that that becomes the driving force of how into go your role is i mean you can still get this  adjustment if you're not even if you were in trickle to the to the conspiracy right that's true and i'm sorry and i thought judge i thought as crabtree actually did say that middle tier were average but it's been so essentially said at the end that she's culpable than they are i agree i'm sorry if it in just describing how he looked at the hierarchy you are correct his alterman analysis was that everybody played a similar role in the sense of average participation in what they did that she was no less culpable than say tier two under the circumstances and i think that went to the broader question about whether or not the conspiracy would fall apart if one of those individuals either refused to do the whole accident from the conspiracy itself and he seemed to suggest yeah it would fall apart under the circumstances so each plays an a role but he sort of went further in his analysis by saying yes some may be more sophisticated than others but that doesn't make them necessarily more significant or her less culpable than the average participant under the circumstances so i have ten seconds unless i was not  responsive to the court's question i would stand for other questions otherwise we would ask that the court affirmed the lower court's decision two points really quick so here i think what is missing from the dish of course analysis is any comparison of miss komi to the other participants who all had more responsibility more authority more discretion more and more involved in planning and organizing and i think if you look at what the court said about mr correctly illustrates that the court either applied the wrong standard because it did do a comparison or is clearly erroneous because the court lumps and mis komei with mr crock we as like these little people who are below the international organizers in camer defensible finding when you compare his role to her role and then just briefly on the preservation point think to the extent the court still has a concern i would ask the court to apply the you know waiting the waiver doctrine or whatever you call it because for one thing how the government brief this you know i would have responded in my reply brief would have been able to determine if i needed to brief this on plane air or quite possibly would have done so out of an abundance of caution so for that reason i you know i orders to court to the extent it's not not convinced