[00:00:00] Speaker 04:
We'll hear the first case this morning, 24-7008, United States versus Berryhill.

[00:00:11] Speaker 03:
Good morning, and may it please the court.

[00:00:13] Speaker 03:
I'm John Drabelius on behalf of David Berryhill.

[00:00:16] Speaker 03:
Your Honor, this morning I planned to reserve three minutes of rebuttal time, if I may, and I'll certainly keep track of my own time.

[00:00:24] Speaker 03:
The district court erred by failing to apply the correct test to determine whether Mr. Berryhill was entitled to a mitigating role adjustment under guideline 3B1.2.

[00:00:33] Speaker 03:
That guideline obviously requires that the district court assess the defendant's relative culpability in that particular criminal activity and to use the five factor test that the guidelines provide.

[00:00:47] Speaker 03:
The government and I today agree that the district court did not apply that test in this case.

[00:00:53] Speaker 03:
Instead of applying the test that the guidelines set out and applying the five factors, the district court denied the adjustment, inferring that Mr. Berryhill was more than a courier because his conduct here was more than a one-time event.

[00:01:07] Speaker 03:
And this was obvious error.

[00:01:09] Speaker 00:
Well, can I probe you about that?

[00:01:12] Speaker 00:
Isn't the judge's real obligation under 3E1.1 to address the argument that you had put forward for mitigating rule adjustment?

[00:01:22] Speaker 00:
And so I assume that the judge was called upon only to discuss the relative culpability in connection with your objection number one of the pre-sentence report.

[00:01:33] Speaker 00:
Is that true?

[00:01:34] Speaker 03:
Well, I think under Delgado-Lopez, if we only make limited factual assertions and the court rejects them, then yes.

[00:01:41] Speaker 00:
Well, in other words, if in objection number one of the pre-sentence report, you didn't discuss any other participants in the conspiracy, you didn't discuss

[00:01:51] Speaker 00:
the defendants of Mr. Berryhill's relative culpability with regard to any other particular individual or any other particular role, how was the judge supposed to Sue Esponte address the relative culpability if he doesn't have the benefit of your argument?

[00:02:07] Speaker 03:
Well, Your Honor, I think this would go to harm, but I'm happy to discuss this.

[00:02:11] Speaker 03:
In the objection, it was more than Mr. Berryhill as a mere courier.

[00:02:17] Speaker 03:
What counsel said in the objection was that Mr. Berryhill had no proprietary interest in the sale of the drugs.

[00:02:23] Speaker 03:
He also was instructed where to go to pick them up and where to drop them off.

[00:02:27] Speaker 00:
And he was also- And all that's in objection number one?

[00:02:32] Speaker 03:
It's in his PSR objection.

[00:02:34] Speaker 00:
Yeah, I guess I'm not seeing that, but go ahead.

[00:02:39] Speaker 03:
So in his PSR objection, he also asserts it's in sort of the concluding area of the PSR objection that he did not procure the drugs himself.

[00:02:48] Speaker 04:
I don't think that that response really, at least as I understand Judge Backright goes to the point, which is really, was there an identification of other participants that would have led the court to believe that it needed to engage in a comparative analysis that the guidelines would otherwise contemplate?

[00:03:09] Speaker 04:
I mean, if the objection didn't just describe his role, but did not describe the role relative to others,

[00:03:17] Speaker 04:
then why would the court think there was any need to engage in a comparative process relative to others?

[00:03:23] Speaker 04:
In fact, I think the guidelines, I won't take the time to fish it out, but in the commentary, there's a section that specifically says, if there are no other participants, you don't have to do that.

[00:03:33] Speaker 04:
So, help me.

[00:03:35] Speaker 03:
Why not?

[00:03:36] Speaker 03:
To start your honors there were other participants that was undisputed but Importantly, that's why we have the five-factor test and it doesn't actually require you to identify a specific other Participants role and the reason for that is this in cases like this where we have a minimal or a minor participant It is very much unsurprising that the defendant will be unable to identify others roles specifically because in

[00:04:01] Speaker 02:
that he made with people, including people in Mexico, about getting the drugs and moving the drugs.

[00:04:09] Speaker 02:
What about his phone calls, the evidence from his phone calls about discussing, this goes to whether he was more than a mule, discussing getting drugs from Mexico and transporting them all over the place.

[00:04:24] Speaker 03:
Yeah, so the court made a finding about the phone calls.

[00:04:27] Speaker 03:
And the court's inference from those phone calls was simply that he's been doing this more than one time.

[00:04:31] Speaker 03:
This has been going on for some period of time.

[00:04:34] Speaker 03:
And that's not inconsistent with what he argued that he's in the transportation role only.

[00:04:38] Speaker 03:
Certainly that he's communicating with people he's dropping off drugs with doesn't contradict or foreclose his argument that he's really only limited to transportation, that he receives no proprietary benefits from the sale of the drugs, and that he's being told where to go.

[00:04:54] Speaker 04:
What I'm struggling with is this.

[00:04:57] Speaker 04:
The guidelines make it fairly clear in the commentary that the fact that you are just a mule does not entitle you to the adjustment.

[00:05:04] Speaker 04:
You agree with that, right?

[00:05:05] Speaker 04:
I do agree.

[00:05:06] Speaker 04:
Okay.

[00:05:06] Speaker 04:
Well, if the defendant describes his role as a mere courier but then does not provide the basis for judging mere courier against others so that the court has some ability to

[00:05:22] Speaker 04:
I'm a mere courier.

[00:05:27] Speaker 04:
Will the guidelines say that doesn't do enough to get you the adjustment?

[00:05:32] Speaker 04:
Well, he's got to do something more than that, right?

[00:05:34] Speaker 04:
I mean, the guidelines specifically say you have to do more than that.

[00:05:39] Speaker 03:
So I have two responses, Your Honor.

[00:05:41] Speaker 03:
First of all, the guidelines also specifically say that we don't have a proprietary interest in the criminal activity that the adjustment could apply and the court has to apply the five factors.

[00:05:52] Speaker 04:
Do you disagree that there needs to be a comparative analysis of my role vis-a-vis other participants in the activity?

[00:06:01] Speaker 04:
I don't disagree with it.

[00:06:02] Speaker 04:
That's the five factor test.

[00:06:03] Speaker 04:
Well, how do you engage in the five factor test if there is not any sort of even rough delineation of who else I should be comparing my role as defendant to?

[00:06:16] Speaker 03:
Well, you can perform the five-factor test in this case, or the district court could, excuse me.

[00:06:20] Speaker 03:
We obviously wouldn't perform that test.

[00:06:24] Speaker 04:
Well, in the first instance, why wouldn't you?

[00:06:26] Speaker 04:
You would delineate it the way, consistent with what Judge Bacharach said, if you're going to do an objection and you're going to tell the court what you want it to do, in the first instance, why don't you tell the court what it should look like?

[00:06:39] Speaker 04:
Don't you agree that's part of the role of counsel?

[00:06:42] Speaker 03:
Yes, Your Honor, and in the objection,

[00:06:45] Speaker 03:
defense counsel did lay out the five factors and argue under each of those.

[00:06:49] Speaker 03:
And it's important to note that we don't have a specific identification of another person's role, but what we do know, at least if the court were to have believed my client's claims of being told where to go and not procuring drugs, is that we know somebody else is profiting from this scheme, it's not my client.

[00:07:07] Speaker 03:
We know somebody else is procuring the drugs, not my client.

[00:07:11] Speaker 03:
We know somebody else is telling him where to pick up and drop off the drugs, not my client.

[00:07:16] Speaker 03:
And under the five factors, I think that these facts are at least enough for the court to assess whether my client is entitled to the adjustment.

[00:07:24] Speaker 03:
I'm certainly not telling this court that the district court would have been compelled to grant the adjustment under these facts, but it certainly was not foreclosed either under these facts.

[00:07:32] Speaker 00:
Can I ask you, with regard to prong two of plain error, the obviousness of the error, and to follow up with the chief's question, in your objection to number one, to the pre-sentence report, you say, council contends that the defendant was transporting drugs, therefore,

[00:07:49] Speaker 00:
He is substantially less culpable than the average participant.

[00:07:54] Speaker 00:
And then you go on to make the argument or to say I think what the factual basis is for the argument that you just elucidated in your response.

[00:08:05] Speaker 00:
Why isn't it at least reasonable for the district judge to interpret all of the indicia of what Mr. Berryhill did not do in connection with the topic sentence that he is contending that he was just transporting drugs

[00:08:21] Speaker 00:
and therefore he is relatively less culpable than the average participant.

[00:08:26] Speaker 00:
It seems to be that the judge was simply addressing your overarching argument that he was simply transporting the drugs and therefore he is relatively less culpable.

[00:08:39] Speaker 00:
Why isn't that at least a reasonable interpretation of your argument in your objection?

[00:08:45] Speaker 03:
Well, OK, so the district court's reasoning is simply that my client isn't a transporter of drugs because he's doing it more than one time.

[00:08:53] Speaker 03:
And the district court is comparing that to what it thinks is the average courier, which it cannot do under the guidelines.

[00:08:59] Speaker 03:
That's clearly wrong.

[00:09:00] Speaker 03:
And so if you read the district court's order,

[00:09:03] Speaker 03:
with respect to the phone calls and everything else, it keeps referring to the number of times this is happening, how long this is going on.

[00:09:09] Speaker 03:
And my client never claimed that he was a one-time drug purer.

[00:09:13] Speaker 03:
He did claim that he was transporting drugs.

[00:09:15] Speaker 03:
I'm not disputing that.

[00:09:17] Speaker 03:
But there's nothing in the district court's order that contradicts what he's actually saying, which is that, yeah, I might be going more than once, but I'm certainly not collecting the profits.

[00:09:25] Speaker 03:
I'm not being told where to go and what to do.

[00:09:27] Speaker 00:
Well, you do say that he did not participate in the planning of the criminal activity and there was evidence that the judge relied on to say that he actually did negotiate the $25,000 charge for at least one delivery.

[00:09:43] Speaker 03:
Well, I don't agree that even the PSR says that he negotiated anything.

[00:09:48] Speaker 03:
The PSR simply refers to many phone calls where they're discussing drug trafficking, and then the probation sort of hedges, saying discussing prices presumably for the distribution of methamphetamine up to 25, 500.

[00:10:01] Speaker 03:
There's nothing in there that says he's actually negotiating anything.

[00:10:05] Speaker 03:
For all we know, based on the PSR, he's simply being told by whoever it is, giving him the drugs to transport, that this is what you need to collect and return to us.

[00:10:14] Speaker 00:
Was the judge obviously incorrect in interpreting the PSR to suggest that he did negotiate the $25,000 charge for that one delivery?

[00:10:25] Speaker 03:
Your Honor, I don't read the court is actually even saying that my client negotiated anything at all.

[00:10:31] Speaker 03:
The order simply says that

[00:10:34] Speaker 03:
contained multiple conversations, defendant speaking about drug transactions, certainly transacting drugs, just a swap, but nothing about negotiation, talking to different people, numbers of conversations, and it indicates to me that he's a lot more than Mule.

[00:10:49] Speaker 03:
And the very next sentence, it was not a one-time event.

[00:10:52] Speaker 03:
So clearly, I think the judge is saying, you've done this more than once.

[00:10:57] Speaker 03:
That's more than a one-time mule, because a one-time mule just simply goes to Chicago, does one load, gets $1,000.

[00:11:02] Speaker 03:
That's it.

[00:11:03] Speaker 03:
And so that's the district court's order.

[00:11:05] Speaker 04:
Let me understand one thing.

[00:11:07] Speaker 04:
It seemed to me that the essence of your argument is really not sort of

[00:11:15] Speaker 04:
particularized analysis of the courts well a particularized view of the court's analysis as much as a claim of legal error like sort of a top-line claim of legal error because the court engaged in this hypothetical comparison

[00:11:32] Speaker 04:
of your client to this person who moves drugs to Chicago or something.

[00:11:38] Speaker 04:
I mean, in other words, it seemed to me that you're not at this point engaging with the merits of whether the court had enough, as a matter of fact, to make a determination or not, but rather a legal claim of error related to the things the court did.

[00:11:56] Speaker 04:
In other words, it's hypothetical comparison of your client to someone else.

[00:12:03] Speaker 03:
Yes, if I understand your honor's question, I agree with you.

[00:12:05] Speaker 03:
This is a legal error claim where I'm arguing sort of twofold legal error.

[00:12:10] Speaker 03:
One, the court didn't apply the correct test.

[00:12:12] Speaker 03:
And two, that it applied the test that the guidelines clearly prohibit, which is the hypothetical or average defendant.

[00:12:18] Speaker 03:
I'm certainly not quibbling with the court's findings, but I am saying for purposes of harm that there would have been enough for the court to at least perform the analysis.

[00:12:27] Speaker 03:
If I may reserve the balance of my time here.

[00:12:34] Speaker 01:
May it please the court?

[00:12:36] Speaker 01:
My name is Linda Epperly.

[00:12:38] Speaker 01:
I represent the United States of America in this appeal.

[00:12:43] Speaker 01:
The standard of review, Your Honors, here is plain error.

[00:12:46] Speaker 01:
The issue is whether or not the court applied a wrong test, and that is a legal issue.

[00:12:53] Speaker 01:
The questions posed by the court to my opposing counsel highlight the fact

[00:13:03] Speaker 01:
that the burden of proof here was on the defendant.

[00:13:06] Speaker 01:
The argument here, he did not object as Judge Bacharach, as you noted.

[00:13:11] Speaker 01:
In that objection, he did not state, these are the relative participants you can compare me to.

[00:13:19] Speaker 01:
This is the source.

[00:13:21] Speaker 01:
This is the person who assists in the transportation.

[00:13:24] Speaker 01:
None of that.

[00:13:26] Speaker 01:
There was not an objection, a factual objection, to paragraph 18 of the PSR, which is where all of the

[00:13:32] Speaker 01:
Conversations with people in Mexico is discussed, where he talked about transporting and trafficking methamphetamine through Texas and New Mexico and Phoenix and Tulsa.

[00:13:47] Speaker 01:
and communicated regarding obtaining meth and regarding pricing for meth up to $25,000.

[00:13:53] Speaker 04:
Well, Ms.

[00:13:53] Speaker 04:
Eppley, even if the denial of the mitigating rule adjustment would otherwise be appropriate, it seems to me that the argument that is being made here is that the court engage in an improper

[00:14:14] Speaker 04:
legal analysis.

[00:14:15] Speaker 04:
In other words, beyond the question of whether this otherwise would have been the right result, the question is the court applied the wrong legal lens.

[00:14:24] Speaker 04:
Specifically, I think part of the focus here is on this comparative analysis to the hypothetical mule.

[00:14:33] Speaker 04:
Would you please address what your response is to that?

[00:14:37] Speaker 04:
And more specifically, at least it's my understanding, that as to the third and fourth prong, you said that in your brief you concede that if we disagree with your understanding of Delgado Lopez, that the third and fourth prong would be satisfied.

[00:14:52] Speaker 04:
Do I understand that correctly?

[00:14:54] Speaker 01:
If I could clarify, Your Honor, because there's

[00:14:57] Speaker 01:
There's two ways in which this court could affirm, and our plain error analysis differs a little depending upon how the court couches this question.

[00:15:07] Speaker 01:
If the only issue is failure to cite the right test, and this argument is the one that hangs on that single sentence in the sentencing where the court said, a lot of meals are accessed, take it to Chicago and come back, I'll give you $1,000 or something, but this went on over a period of time.

[00:15:25] Speaker 01:
That is the one sentence upon which their argument hinges.

[00:15:29] Speaker 01:
If that is the argument that carries the day, the court, we have a couple of responses.

[00:15:37] Speaker 01:
First of all, the court found that the defendant's story was not credible.

[00:15:42] Speaker 01:
If there's not credible evidence and the defendant has the burden of proof,

[00:15:45] Speaker 01:
There is nothing provided for the court to weigh against some other relative participant.

[00:15:55] Speaker 00:
Why would that be?

[00:15:56] Speaker 00:
Under 3B1.2, the court has the obligation under U.S.

[00:16:02] Speaker 00:
v. URIC.

[00:16:03] Speaker 00:
to compare the relative culpability of Mr. Berryhill to the other participants in the conspiracy, and whether he was a mule, whether he was the planner, whether he was a liaison, why would that legally matter, his particular role, because the responsibility of the judge is the same in any event.

[00:16:22] Speaker 01:
Because before we get to the point, this court's case law is clear, before we get to the point where there has to be that relative culpability analysis, we have to have some understanding of what the defendant's role is to compare.

[00:16:39] Speaker 01:
Here, the only thing the court had were the statements from the defendant, which the court did not find credible based upon the information in paragraph 18 of the PSR.

[00:16:52] Speaker 01:
And what the government is saying is that there is no requirement under this court's case law to cite the test that's being applied.

[00:16:59] Speaker 00:
Well, you do have the right.

[00:17:00] Speaker 00:
I mean, I'm sorry.

[00:17:01] Speaker 00:
You go ahead.

[00:17:02] Speaker 00:
Under URIC, the court absolutely has an obligation, does it not, to compare the relative culpability of the defendant to the other participants of the conspiracy?

[00:17:11] Speaker 00:
That's why we reversed into URIC's case.

[00:17:13] Speaker 01:
We don't argue.

[00:17:14] Speaker 01:
The government is not arguing with the requirement to do

[00:17:19] Speaker 01:
comparison if the defendant has met the burden of proof to even provide any evidence whatsoever that's credible

[00:17:27] Speaker 04:
And that's the if that's interesting here.

[00:17:31] Speaker 04:
As I understand it, at least I read your argument as essentially establishing a threshold test before one engages in the comparative analysis.

[00:17:41] Speaker 04:
In other words, it's only if the defendant passes through the gate of credibility in terms of their assertions as it relates to their role that the court will actually engage in a comparative analysis.

[00:17:55] Speaker 04:
Do I understand that correctly?

[00:17:56] Speaker 04:
Okay, so that's based upon your Delgado Lopez decision, right?

[00:18:01] Speaker 04:
Do you have any others?

[00:18:03] Speaker 04:
Okay, Delgado Lopez.

[00:18:04] Speaker 04:
Well, going back to the question I asked before, if we don't read Delgado Lopez the way you do, then do you lose?

[00:18:13] Speaker 04:
Because, I mean, as I understood it, you conceded three and four, and apparently didn't make an argument on two.

[00:18:20] Speaker 01:
So... If the argument

[00:18:24] Speaker 01:
If this court ultimately decides that the only failure here was a failure to cite the right test.

[00:18:33] Speaker 04:
I understand that that's one way to phrase it, Ms.

[00:18:38] Speaker 04:
Eberle, but let's say apply the right test.

[00:18:40] Speaker 01:
Apply the right test.

[00:18:41] Speaker 01:
We do not concede that the proof that was presented here could not have applied and supported the right test.

[00:18:49] Speaker 01:
What we're saying, if this is purely a legal error where the court did not

[00:18:54] Speaker 01:
say the name of the test that was being applied or somehow reference that, we're saying that that would not affect the defendant's substantive rights because here the court did look at those things.

[00:19:07] Speaker 01:
Now let me address what I'm sure will be

[00:19:11] Speaker 01:
I'm ready.

[00:19:15] Speaker 00:
You know the chief.

[00:19:16] Speaker 01:
It is difficult in this case and I've never seen a simple drug mule case become so complex when we try to figure out an analytical framework to deal with it because the court's discussion of the factors it discussed could be used in order to say

[00:19:36] Speaker 01:
There's no proof here that's adequate for me to even have to reason.

[00:19:41] Speaker 01:
That same discussion, however, also supports those five factors, which this court has held.

[00:19:47] Speaker 01:
The court doesn't have to tick them off mathematically.

[00:19:50] Speaker 01:
The court doesn't have to refer to the five tests.

[00:19:55] Speaker 01:
This court grants great discretion to the sentencing court, including that if there are two permissible views of the evidence,

[00:20:02] Speaker 01:
this court will not reweigh that evidence in Anderson.

[00:20:06] Speaker 01:
So what we're saying is those same facts could also be supportive of the court having actually engaged in that test.

[00:20:17] Speaker 01:
And if that is the point, the only issue here is whether or not that one straight reference to some courier from Chicago

[00:20:25] Speaker 01:
is enough to derail what is obviously otherwise meets those five tests.

[00:20:31] Speaker 01:
And we argue that if the argument here is that the wrong test was actually used, if the court actually used the wrong test, then we would agree that that would be error, that it would be error that affects a defendant's fundamental rights, substantive rights, and affects the impartiality of the judiciary.

[00:20:52] Speaker 04:
And it would be clear or obvious error.

[00:20:54] Speaker 01:
It would be clear.

[00:20:55] Speaker 01:
It would be clear.

[00:20:56] Speaker 01:
Okay.

[00:20:56] Speaker 04:
All right.

[00:20:56] Speaker 04:
All right.

[00:20:57] Speaker 04:
So we got there.

[00:20:59] Speaker 04:
We got there.

[00:21:01] Speaker 04:
And so I understand, and this is what I understand you to be saying, that in substance the court did apply the right legal test, right?

[00:21:10] Speaker 04:
Yes.

[00:21:11] Speaker 04:
Okay.

[00:21:13] Speaker 04:
But the one concern would be if that one sentence really

[00:21:19] Speaker 04:
can be construed as and I guess that's what you're getting at.

[00:21:22] Speaker 04:
I mean, the question really is, is that one sentence enough to suggest that the court applied the wrong legal lens?

[00:21:28] Speaker 04:
Yes.

[00:21:29] Speaker 01:
Okay.

[00:21:31] Speaker 01:
And that is that is our position.

[00:21:32] Speaker 01:
That's what this all comes down to is that one sentence.

[00:21:36] Speaker 01:
And the government's argument is that that sentence is not enough.

[00:21:40] Speaker 01:
This is not like the prior case of this court where

[00:21:47] Speaker 01:
The court made a similar finding that there was discussion of strife factors that were inappropriate where the court

[00:21:56] Speaker 01:
went off on a tangent analyzing, conducting a massive financial analysis of how much the defendant spent on expenses, whether or not he would have made as much money as a mule just by sitting at home and having a day job versus what he probably made here.

[00:22:11] Speaker 01:
All of that was extraneous, improper, and based upon that and the fact that that financial

[00:22:19] Speaker 01:
discussion at sentencing clearly drove the judge's sentencing there.

[00:22:24] Speaker 01:
That's not this case.

[00:22:25] Speaker 01:
In this case, the judge went through the fact that the defendant used his own car, that the defendant planned his own routes, that he talked with people in Mexico about pricing and distribution.

[00:22:38] Speaker 01:
that he was paid for trips and he argues he was only paid $1,000.

[00:22:43] Speaker 01:
But according to the defendant's brief at page two, we know he was found with $2,500.

[00:22:48] Speaker 01:
So even that did not lend credibility to the defendant's statement.

[00:22:55] Speaker 01:
And given all that, we would argue that there's no doubt that this defendant is similar to the drug mules and defendants that were discussed by the General Counsel for the US Sentencing Commission.

[00:23:08] Speaker 01:
When in late 2024, they put out a primer on mitigating roles and

[00:23:15] Speaker 01:
role adjustments.

[00:23:17] Speaker 01:
And the primer states that courts tend to deny reductions for couriers upon a finding that the defendant was more than a courier because, and there's some examples given, all of which apply here, the defendant had transported a significant quantity of drugs, acted as a courier on multiple occasions, had a relationship with the organization's leadership,

[00:23:40] Speaker 01:
And for that, we just rely on these phone calls to someone with a Mexican phone number and was well compensated for providing drugs.

[00:23:49] Speaker 01:
Bottom line, Your Honor, we do not believe the court applied the wrong test.

[00:23:55] Speaker 01:
The government does not believe that there was even enough proof put on by the defendant to get to where you'd need to supply a test.

[00:24:06] Speaker 01:
We do not know exactly what the defendant's role in any organization was because his testimony was not credible.

[00:24:15] Speaker 01:
The defendant provided nothing as to who

[00:24:19] Speaker 01:
The other roles were, in many of the other cases where the court has looked at the drug mule situation, the drug mule themselves have provided some detail about how they were recruited, who gave them instructions, who they delivered to, way more detail than this defendant provided.

[00:24:40] Speaker 01:
In short, the fact that we're left with kind of an ambiguous possibly

[00:24:47] Speaker 01:
comments from the judge here that have caused this appeal.

[00:24:53] Speaker 01:
The burden for that falls on the defendant.

[00:24:56] Speaker 01:
Based upon the proof the defendant offered, we don't even know if there was a larger overarching organization.

[00:25:03] Speaker 00:
Well, isn't it indisputable that somebody planned the conspiracy, somebody organized the conspiracy, and he's saying in objection number one,

[00:25:13] Speaker 00:
that he didn't do it.

[00:25:15] Speaker 00:
Right?

[00:25:16] Speaker 01:
Well, this is not, Your Honor, a case where we have a large OCDEF investigation with a conspiracy and a graph on the wall where we know who everyone is.

[00:25:25] Speaker 01:
Given the things that he's talking about with people in Mexico, there's no reason to discount the fact that he may have been contacting people in Mexico to get

[00:25:39] Speaker 01:
methamphetamine, driving it across the country himself, selling it himself.

[00:25:43] Speaker 00:
He may be the head of the cartel, but nobody suggested it.

[00:25:48] Speaker 00:
The government didn't suggest it.

[00:25:50] Speaker 00:
The judge certainly didn't suggest it.

[00:25:52] Speaker 00:
Is that fair?

[00:25:54] Speaker 01:
It's fair to argue that we're not saying he's the criminal mastermind.

[00:25:58] Speaker 01:
But according to, I believe it's the Nikomi decision, and I'm sure I'm mispronouncing that,

[00:26:03] Speaker 01:
This is not a situation where the criminal mastermind is the only person who does not get a mitigating role.

[00:26:10] Speaker 01:
The Sentencing Commission has set up a hierarchy that includes a factor I think we often forget, which is the average participant.

[00:26:19] Speaker 01:
We've got minimal roles.

[00:26:21] Speaker 01:
We've got aggravating roles.

[00:26:24] Speaker 01:
But there are a lot of people who have to fit within that average category.

[00:26:28] Speaker 01:
And that is where this defendant fits.

[00:26:31] Speaker 00:
Do you remember the Wendy Urick case?

[00:26:35] Speaker 00:
Do you remember the U.S.

[00:26:36] Speaker 00:
versus Wendy Urick?

[00:26:37] Speaker 01:
Yes.

[00:26:38] Speaker 00:
Well, why isn't this just like Wendy Urick?

[00:26:41] Speaker 00:
You know, the judge here, you know, specifically says, well, he did a lot of things, as Judge Seymour mentioned, and as you mentioned, and the district court denied the mitigating rule adjustment, saying that Wendy Urick had an indispensable central role

[00:27:04] Speaker 00:
And we unanimously reversed and said, well, that's not the issue under 3B1.2.

[00:27:08] Speaker 00:
It's not whether or not she did a, it was really important, to use your example, whether or not she played an integral role in this conspiracy.

[00:27:19] Speaker 00:
It was not whether or not she had a big role.

[00:27:24] Speaker 00:
It's whether or not she had a big role vis-a-vis the other people in this particular conspiracy.

[00:27:30] Speaker 00:
And why isn't what the judge did here

[00:27:35] Speaker 00:
similar to what the judge did in the Urich case.

[00:27:38] Speaker 01:
Your Honor, I notice I'm out of time.

[00:27:40] Speaker 01:
May I answer you?

[00:27:41] Speaker 00:
Yes.

[00:27:44] Speaker 01:
The Urich case was different in a number of respects.

[00:27:47] Speaker 01:
First of all, there was a lot of proof as to the scope of that broad financial advance fee scheme run from Cameron.

[00:27:55] Speaker 01:
There was discussion, great discussion about even contrasting just the roles of Ms.

[00:28:00] Speaker 01:
Urick and her husband.

[00:28:02] Speaker 01:
But the bottom line with the Urick case is that the court applied the wrong test there by deciding that what they needed to look at was whether or not this was a central role or an indispensable role, et cetera.

[00:28:15] Speaker 01:
And there are cases that have decided that is not the correct test.

[00:28:19] Speaker 01:
You're supposed to apply those five factors.

[00:28:22] Speaker 01:
I'm assuming the defendant's given you enough to do so and look at their relative culpability within the scheme in which they participate.

[00:28:30] Speaker 04:
Well, is the question really then how clearly, I mean in your

[00:28:36] Speaker 04:
the court clearly aired, and I don't mean in a standard review sense, I meant obviously communicated the wrong standard.

[00:28:44] Speaker 04:
Is the point here in part that there's ambiguity as to whether the court actually engaged in legal error in terms of the one sentence?

[00:28:54] Speaker 04:
I mean, is that a point of distinction?

[00:28:59] Speaker 01:
I think there is one sentence here.

[00:29:01] Speaker 01:
I think that in Europe, there was a lot of analysis by the court.

[00:29:05] Speaker 04:
That was wrong.

[00:29:06] Speaker 01:
And it was wrong.

[00:29:07] Speaker 01:
Here, the court was making a point.

[00:29:11] Speaker 01:
And if you look at what went directly before and directly after that sentence on relatively, it all relates to the fact that this was not a one-time occurrence.

[00:29:21] Speaker 01:
This defendant made multiple trips.

[00:29:24] Speaker 01:
That is not looking at an average participant.

[00:29:26] Speaker 01:
That's just looking at how many trips he made, which is a factor that is encouraged and allowed by the Sentencing Commission.

[00:29:34] Speaker 01:
If there are no further questions, we'd ask the court to affirm it.

[00:29:39] Speaker 03:
about Delgado-Lopez establishing some sort of threshold test.

[00:29:43] Speaker 03:
And I agree, it doesn't.

[00:29:44] Speaker 03:
But I want to talk about the government's argument there wasn't enough proof.

[00:29:49] Speaker 03:
So counsel or the defendant's statements alone here regarding not being part of the profit shared or getting profits or being told where to go and where to drop it off, these were uncontested.

[00:30:04] Speaker 03:
And certainly counsel's written statements, sentencing can constitute evidence.

[00:30:09] Speaker 03:
That's guideline 6A, 1.3 in the commentary.

[00:30:12] Speaker 03:
And this was uncontested.

[00:30:14] Speaker 03:
So I think we can actually use that and look to see that whether there was actually some sort of finding that was required.

[00:30:22] Speaker 03:
And that brings me to the next point, is that we really have the wrong test being applied here for two reasons.

[00:30:27] Speaker 03:
Certainly, the court does say why it thinks that being

[00:30:31] Speaker 03:
more than a one-time mule has any sort of legal effect, and that's because it's more than the average mule.

[00:30:38] Speaker 03:
I mean, it's not just a throw away one sentence.

[00:30:40] Speaker 03:
That is actually the very hinge that the court relies on when it's ruling and denying an adjustment.

[00:30:47] Speaker 03:
But moreover,

[00:30:48] Speaker 03:
even if you were to say, well, that's just kind of a minor thing, then the court is still hinging it on multiple times, multiple trips.

[00:30:56] Speaker 03:
And that is not the basis.

[00:30:57] Speaker 04:
Multiple trips is not a permissible consideration in determining whether somebody gets the adjustment?

[00:31:02] Speaker 03:
I'm not saying it's not permissible, Your Honor.

[00:31:04] Speaker 03:
I'm saying that that does not resolve the argument here.

[00:31:07] Speaker 03:
That does not allow the court to misuse the test.

[00:31:12] Speaker 04:
Well, what I understood to be

[00:31:14] Speaker 04:
And two things I took, and there are more, I'm sure, but two things I took from Ms.

[00:31:18] Speaker 04:
Everly's argument.

[00:31:19] Speaker 04:
One, that in substance, as it relates to the five factors, the court applied those five factors.

[00:31:25] Speaker 04:
In substance it did it.

[00:31:26] Speaker 04:
It didn't, you know, expressly enumerate, but it did it.

[00:31:30] Speaker 04:
Second thing is that the one sentence where it talks about Chicago or something, some thousand dollar mule, well, that that was not, that's ambiguous.

[00:31:41] Speaker 04:
And let's focus on the second one, that it's ambiguous as to whether the court actually applied the wrong test.

[00:31:47] Speaker 04:
And given that we're on plain error review, that if you can't make it crystalline to us, that that's a legal error, then you lose.

[00:31:55] Speaker 04:
So let's focus on that one.

[00:31:57] Speaker 04:
Why should we reverse, send it back, and have a re-sentencing over something that is just one line?

[00:32:05] Speaker 03:
Well, it's one line in an order that is within one page of transcript.

[00:32:10] Speaker 03:
So to say it's one line, we gotta take that in context.

[00:32:14] Speaker 03:
But moreover, Your Honor,

[00:32:15] Speaker 03:
The court's order doesn't make sense without that legal, well, without that premise there.

[00:32:22] Speaker 03:
Because if the court's just saying this is more than one time and denies it, that's not any sort of standard.

[00:32:28] Speaker 03:
That's not any sort of legal hook or anything that ties it to the test in any way, shape, or form.

[00:32:36] Speaker 03:
What the court's saying is it's significant

[00:32:38] Speaker 03:
because the average courier only does this one time.

[00:32:41] Speaker 03:
That's why the court is saying that.

[00:32:44] Speaker 03:
That's what's giving it significance.

[00:32:45] Speaker 03:
And I'm out of time, Your Honors.

[00:32:47] Speaker 03:
Thank you, Counselor.

[00:32:49] Speaker 03:
Thank you for your fine argument.

[00:32:50] Speaker 03:
The case is submitted.