my name is brian norcross and i'm from montana private practice attorney c j panel member and i'm here today representing mr the appeal for mr willie allen the central argument that i'm making on behalf of mr  they did that sensing entrapment in this case the agents had made several purchases of methamphetamine and cocaine from mr allen they were relatively small amounts initially there was under two grams subsequent purchases were a little over two grams there was one further down the road and i believe in january where agents purchased i believe about fourteen  the i believe it's whether the defendant would be inclined to create or to commit either a more serious crime or a lesser are a more serious crime in this situation mr allen was certainly predisposed to deal drugs but he was not predisposed to to sell larger amounts and though the government had claimed that mr allen one of the reasons they were continuing in their investigation  because that they they believe that he was going to the state of washington to get drugs well i don't know that this court or any other court has seen situations where a defendant is going to travel all the way from billings montana duvall kandor seattle washington for a gram or two or three of drugs the fact of the matter is that mr allen sources are always and in billings montana the agents terror testified that he had stated that mr allen had stated and that his accomplice if wallace had stated that they were going to to the state of washington to purchase drugs there were no phone records there were or transfers there was none of the typical types of evidence that presented and backed up that claim in fact nothing but at the agent's testimony even indicated that there was that the investigation of mr allen extended beyond purchases of small drugs locally and it was the agent testified at the hearing that government there was never any evidence in the discovery that any of the individuals that mr allen was receiving drugs from or that ever wallace including the fact that she was also setting up her own trying to set up her  own distribution with agent charge here was getting the drugs anywhere but locally these are self serving statements these were statements that the government had made at the at the last minute or two to show that it had a legitimate  purpose in furthering its investigation of mr allen when in fact the very first drug purchase that the agents made had set up the supplier for mr allen showed up in a van mr on goes on just the drugs brings him back into the house the cooperating witness goes into the house comes back with the drugs and we're talking a little less than two grams so mr allen certainly wasn't engaged in out of state drug dealing though the guidelines have have set out instances of what sensing entrapment is the set the guidelines do not provide an exhaustive list of what's what types of entrapment that the government can engage the conduct that the government can engage in when and tracking an individual mr allen again did at net that he was predisposed to deal drugs but this case is simply a case of where all of his when they really are that happens quite often in this particular situation mr allen was or was approached by the agency to see that it is to see if you could get larger quantities of drugs and he was unable to do that and the most again that he was able to get was of the was approximately fourteen grams agents requested and try to get him to supply a larger quantities he was simply unable to do that and  had told them so he would not do that so this is again a situation where the agents kept coming back over and over and over again that the district court found there are held that that the multiple transactions were i think  that there be some evidence in support of just a if a person is going to make testimony about the kind of the situation where there's a statement such as this mr sharp years that there would be some other evidence to support that otherwise it's you it is evidence but it has i do i don't believe it has a whole lot of weight in this situation there was absolutely there is the possibly of of evidence frankly that would even indicate that that mr allen was engaged in anything but local drug dealing and there was no evidence either of like a set of phone records wire transfers the kinds of things that this court in every suppliers there is a several instances where people have traveled with large sums of money to bring back larger quantities of drugs but as i say said earlier it is just incredulous that someone would travel all the way from billings montana to the state of washington to buy small amounts of drugs and again there's just no evidence to support agent chargers statement other than then the fact that he had claimed that april wallace had told him that as well as mr allen had told him that when in fact that none of the none of the wires that the people were wearing none of the telephone conversations that were taped had any of that information in it at all so what i'm saying is that there was simply agent charger statement standing alone that this was a legitimate purpose for his continued purchases of small amounts of drugs all right  will be have here is an individual who is held responsible for the amounts of drugs that were put into the indictment and i guess the government has benefits from the the rule of apprentice now that we're putting drug amounts into the indictment then we have situations like this a defendant cannot come in and say oh i only was responsible for much less than than what the p s r is saying here the drug amounts were in the indictment he pled guilty to those amounts mr norcross concedes he was predisposed to traffic in those amounts and once we have those two stipulations then there is no case out there that supports their theory there is not the only one that he came up with was hostile for which which is a very interesting case and it is as we discussed in our brief pre dates very important revisions to the guidelines to spell out the various situations where you can make a claim of sentencing manipulation so one would be where the government is trying to get you to engage in a transaction and they're like would you buy a thousand grams and you say i can't afford a thousand grams and say i'll give it you have price and then they're stuck with a thousand grams well that's unfair in the guidelines took that into account then there's a situation where progress and the government is insisting it is the give us a thousand grams go out get it go out and get it and you say ok but you really can't get a thousand grams you don't have that kind of access and they try to hold you responsible for a thousand grams but that you never had that connection to a thousand grand you you misrepresented your connection those are the types of situations where you get relief under the guidelines and this is not one of them and style for gentlemen went to trial and they they found him guilty of distributing l s d but there was no quantity determination later in sentencing they came in and said ten thousand doses and he said wait a minute that i am not responsible for ten thousand doses and you definitely didn't establish that a trial that is nothing like this case here he pleads guilty to the events just to correct some things on the record and  this is just one site that there were several excerpts a record forty one the the evidence of an out of state drug dealing were from statements by allen to the undercover officer that's why they thought he got drugs from out of state then there are the statements of april wallace who sold drugs for the defense i mean they were this was not a lark they say they believe this and they looked into it and typically when you engage in these transactions and you finally decide that you're going to pull the plug on somebody you've been dealing with what you're hoping as an investigator is that they'll cooperate and they'll tell you where they're getting their drugs and then they get a five k v and they won't get the high guidelines for because they'll get relief that's how drug cases are made that's not what happened here i would ask that the circumstantial evidence of this far from being incredulous has  defense counsel said this guy is selling high quality methamphetamine this wasn't made in our barn out in the lilburn is this is really really good stuff that sells for a lot of money and in billings montana that those type of drugs come from the state of washington i mean that's just fact they've come up the coast and they come over and a lot of these drug cases involve people driving in from spokane and that's where defend it was previously from and that would make lots of the fact that there is a a lot of high quality drugs coming into montana in fact there used to be a lot of drug labs in montana that were pumping out some very high quality as well i think the quality is is always been an issue  no matter where it comes from but the fact of the matter is is that there was no evidence that my client went to the state of washington to bring drugs back