[00:00:09] Speaker 04:
All right, our final case this morning is United States versus Crips 24-7014.

[00:00:15] Speaker 04:
You may proceed.

[00:00:38] Speaker 02:
May it please the Court, I'm John Grebelius on behalf of Matthew Cripps.

[00:00:43] Speaker 02:
Mr. Cripps' sentencing exposure under the guidelines was increased by more than a decade because the District Court relied on uncorroborated statements from an unidentified informant, S3, to attribute 54 kilograms of methamphetamine to Mr. Cripps.

[00:01:00] Speaker 02:
Yet all other evidence in this case, including Mr. Cripps' statements to police and corroborated statements from S1 and S2,

[00:01:06] Speaker 02:
suggests that he only did small scale one to two ounce transactions.

[00:01:11] Speaker 02:
And as the lead investigator in the case, Agent Tucker explained, S3 statements about these 54 kilograms were never verified by law enforcement and that he could only take her word for it that those transactions had occurred.

[00:01:26] Speaker 02:
Therefore attributing these additional 54 kilograms of transactions to Mr. Cripps was clear error and this court should reverse.

[00:01:34] Speaker 02:
Now starting with the law, the law is straightforward.

[00:01:36] Speaker 02:
As Ortiz demonstrates, statements from an unidentified informant that the government uses to establish dispute of drug amounts and drug transactions must be corroborated, and that corroborative evidence must specifically address the dispute of transactions and amounts.

[00:01:55] Speaker 02:
It cannot simply confirm the defendant's past drug dealing activities.

[00:02:01] Speaker 02:
And this requires, of course, more than the statements be reliable or credible.

[00:02:06] Speaker 02:
And here, we don't have that corroboration as to the 54 kilograms.

[00:02:10] Speaker 02:
And why is that?

[00:02:11] Speaker 02:
Well, consistent with Agent Tucker's testimony, there was no seizure tied to these alleged 54 kilograms, these large transactions.

[00:02:18] Speaker 02:
And every other source either stated or their evidence suggested that Mr. Cripps only dealt in one of those quantities.

[00:02:26] Speaker 02:
Further, S3 statements are a clear outlier here.

[00:02:30] Speaker 02:
She was talking about roughly 1,900 ounces of methamphetamine, while everyone else was talking about one to two ounces.

[00:02:37] Speaker 02:
Only S3 said anything about two kilogram loads, two to three times a week.

[00:02:42] Speaker 02:
Now compare that to S2, who also admitted to distributing on behalf of Mr. Cripps, and he said he did that for four weeks, but he said he only had two loads at one to two ounces during that whole time period.

[00:02:54] Speaker 02:
So that's two to four ounces in one month compared to 54 kilograms in little under three.

[00:03:01] Speaker 02:
That's a wide difference.

[00:03:02] Speaker 03:
So doesn't the fact that that was such an extreme amount give some credence to it, that S3 was willing to make a statement against interest as to such a large amount?

[00:03:15] Speaker 02:
Well, Your Honor, I think, to that government's point there, that yeah, I mean, the statement is facially incriminating.

[00:03:23] Speaker 02:
In terms of whether that counts as corroboration, absolutely not.

[00:03:26] Speaker 02:
Because the rule says it has to be corroborated by other means, or by means other than the statement itself.

[00:03:32] Speaker 03:
So would your position be that a statement against interest doesn't matter?

[00:03:35] Speaker 02:
I wouldn't say it doesn't matter for just as a general matter, Your Honor.

[00:03:42] Speaker 02:
What I'm saying is it can't be alone corroborative.

[00:03:45] Speaker 02:
And certainly no case that the government cites supports that, but moreover,

[00:03:49] Speaker 02:
Her statement, yeah, it's facially incriminating, but we don't have the full details of that statement that she made.

[00:03:55] Speaker 02:
She might have been offered immunity.

[00:03:58] Speaker 02:
We really don't know.

[00:03:59] Speaker 02:
She could have been upset at the UAB and wanted to just bring them down.

[00:04:03] Speaker 02:
I don't know the circumstances.

[00:04:05] Speaker 04:
Well, she had a large quantity of drugs, didn't she?

[00:04:07] Speaker 04:
S3.

[00:04:08] Speaker 02:
She had a little under eight ounces, I believe, Your Honor.

[00:04:13] Speaker 02:
And certainly, I mean, by standards, that's a lot.

[00:04:16] Speaker 02:
But that's nowhere near 54 kilograms.

[00:04:20] Speaker 02:
And certainly not even near two kilograms, which is she's alleging that she's picking up on a... Yeah, she's going back and forth a couple times a week, right?

[00:04:30] Speaker 04:
I mean, it's going to add up if she's being truthful.

[00:04:34] Speaker 02:
Well, if she's being truthful, you would expect her to be caught with a lot more.

[00:04:37] Speaker 02:
That's certainly correct.

[00:04:38] Speaker 02:
What she had, less than eight ounces, if my math is correct.

[00:04:43] Speaker 04:
But she is implicating herself in a very large conspiracy.

[00:04:49] Speaker 04:
I mean, she's responsible for the 54 kilograms also, isn't she, if charged?

[00:04:56] Speaker 02:
Well, again, Your Honor, yeah, I agree.

[00:04:58] Speaker 02:
It's facially incriminating.

[00:04:59] Speaker 02:
And that might be relevant to the question of whether her statements are reliable.

[00:05:04] Speaker 02:
But reliability isn't the standard here.

[00:05:06] Speaker 02:
They have to be corroborated.

[00:05:08] Speaker 02:
And certainly, her own statements can't self corroborate.

[00:05:10] Speaker 02:
And again, we don't know the circumstances of when she made these statements or whether she's offered immunity or what have you.

[00:05:18] Speaker 02:
So really, all we have is her word.

[00:05:21] Speaker 02:
And we have nothing in the record to dispute that Agent Tucker's testimony was that all we have is her word.

[00:05:28] Speaker 03:
What if we only had one CI?

[00:05:31] Speaker 03:
And on a prior occasion, the CI had

[00:05:34] Speaker 03:
ratted out somebody and their information had been perfect as far as to amounts and conduct.

[00:05:41] Speaker 03:
And then they did it again, and it was spot on with respect to amounts and conduct.

[00:05:49] Speaker 03:
And then on a third time, that's all you have.

[00:05:53] Speaker 03:
Is that sufficient?

[00:05:54] Speaker 03:
If that person had been sufficiently reliable over time, would that be enough corroboration?

[00:06:01] Speaker 02:
No, Your Honor, and I think that really kind of summarizes the Ortiz case, except with one additional favor in terms of the CI's reliability.

[00:06:11] Speaker 02:
But again, reliability isn't the standard.

[00:06:13] Speaker 02:
It's whether the actual evidence or the transactions we're disputing have any sort of corroboration.

[00:06:19] Speaker 02:
And so, yeah, we can have a reliable informant.

[00:06:22] Speaker 02:
Ortiz specifically addresses that, and I don't think anyone in Ortiz disputed that that confidential informant was reliable.

[00:06:29] Speaker 02:
The question was whether

[00:06:31] Speaker 02:
that informant, their statements about the dispute of transactions were independently corroborated, and they weren't.

[00:06:38] Speaker 01:
And what was Agent Tucker's testimony regarding S3's reliability or any corroboration?

[00:06:44] Speaker 02:
I don't recall him specifically saying anything about her specific reliability.

[00:06:53] Speaker 02:
Yeah, again, I just recall him saying that we could take her out of her word and, yeah,

[00:06:59] Speaker 01:
I don't recall anything specific.

[00:07:01] Speaker 01:
Can I also ask you, when we're thinking about cooperation between S1, S2, and S3, it seems like the drugs that were taken from their persons were part of the evidence against, but there were some photographs of text messages, I believe, with S1.

[00:07:17] Speaker 01:
But what about S2?

[00:07:19] Speaker 01:
S2 seemed to be comparable to S3, but you're only challenging the weight that was afforded to the guidelines from S3's statements.

[00:07:28] Speaker 01:
Where does S2 fall into this at all?

[00:07:30] Speaker 02:
Well, certainly, Your Honor, I'm only challenging S3, but I'm not conceding necessarily that S2 was corroborated.

[00:07:35] Speaker 02:
But I'll point out the difference between S2 and S3 is that certainly S2 was caught with methamphetamine that weighed about 1.3 ounces, I believe.

[00:07:45] Speaker 02:
But S2 also referred to these 1 to 2 ounce transactions that at least arguably separates him from S3 in that Mr. Cripps himself said he only dealt in 1 to 2 ounce quantity.

[00:07:59] Speaker 02:
So there's at least a little bit more overlap there with S2's statements about these unrecovered drugs.

[00:08:06] Speaker 01:
So the corroboration is the defendant's statements.

[00:08:09] Speaker 02:
In that sense, that would be the argument.

[00:08:11] Speaker 02:
At least that's certainly he is closer to the standard.

[00:08:14] Speaker 02:
Yes, Your Honor.

[00:08:16] Speaker 02:
But again, I'm not necessarily conceding that, but I understand we're not challenging that.

[00:08:24] Speaker 02:
Well, so in that case, we have named witnesses.

[00:08:28] Speaker 02:
There were six co-defendants in that case, all named.

[00:08:32] Speaker 02:
When they made their statements to police, a lot of their statements overlapped.

[00:08:38] Speaker 02:
There was cohesion among them.

[00:08:40] Speaker 02:
They referred to each other's activities.

[00:08:42] Speaker 02:
They actually sort of had this intertwining quality to them.

[00:08:47] Speaker 02:
Also, in Pacheco, there was wiretap evidence, independent wiretap evidence that corroborated the sale of these drugs.

[00:08:54] Speaker 02:
And here, we just don't have either one of those.

[00:08:57] Speaker 02:
None of these sources

[00:08:59] Speaker 02:
say anything that really intertwines or overlaps, and we didn't have any wiretap evidence or any sort of independent evidence that supports what S3 was saying.

[00:09:07] Speaker 04:
Wasn't that independent evidence as to the distribution, but not as to the quantity?

[00:09:14] Speaker 04:
Which is the argument you're making here.

[00:09:16] Speaker 02:
Well, there's evidence of distribution as to S3.

[00:09:22] Speaker 02:
She was caught with drugs.

[00:09:25] Speaker 02:
I'm not disputing that.

[00:09:26] Speaker 02:
But there's no independent evidence of these additional transactions that she's talking about where she's traipsing about the state bringing back up to six kilograms a week.

[00:09:35] Speaker 02:
There's no evidence supporting those transactions.

[00:09:41] Speaker 02:
And so, Your Honors, I'd like to reserve the balance of my time, unless you have any other questions.

[00:09:46] Speaker 01:
Can I ask you about your requested relief here in Montano?

[00:09:49] Speaker 01:
And your position, as I understand it, is that we should vacate the sentence and remand, but that should be limited, and that the government should not get another bite at the apple.

[00:09:59] Speaker 01:
So how do you apply Montano to this case to get to that result?

[00:10:04] Speaker 01:
Certainly, Your Honor.

[00:10:04] Speaker 02:
So first of all, the government bears the burden here.

[00:10:07] Speaker 02:
There's no question about that.

[00:10:09] Speaker 02:
And defense counsel for Mr. Cripps made it clear that we were contesting this informants information being used.

[00:10:17] Speaker 02:
We put the government on notice.

[00:10:19] Speaker 02:
And it should be no surprise, really, because if you recall from the change of plea hearing, everybody was under the impression that the guidelines range would top out below 10 years.

[00:10:28] Speaker 02:
And now, all of a sudden, the PSR comes out.

[00:10:30] Speaker 02:
We're looking at 30 to 40 years.

[00:10:32] Speaker 02:
So there's no surprise that defense counsel is going to contest this.

[00:10:36] Speaker 02:
And knowing all this and having contested that, the government just showed up with what it had and it didn't try to meet its burden in any other way.

[00:10:43] Speaker 02:
And under Montano and certainly Forsythe, upon which it relies, they shouldn't get a second bite at the apple.

[00:10:52] Speaker 02:
If there's nothing further, I'll reserve the balance of my time.

[00:10:55] Speaker 02:
Thank you, counsel.

[00:11:18] Speaker 00:
May it please the court.

[00:11:19] Speaker 00:
My name is Linda Epperly.

[00:11:20] Speaker 00:
I'm an assistant in the United States from Muskogee and I'm here to represent the government in this appeal.

[00:11:29] Speaker 00:
Your Honor, we have three basic things that we think need to be discussed today.

[00:11:34] Speaker 00:
First of all, there is evidence in the supplemental record that was produced to the court just recently where testimony from or statement from suspect two

[00:11:48] Speaker 00:
does lend some corroboration on the kilo amounts.

[00:11:51] Speaker 00:
Second, we did not change the burden of proof here and the trial court acted appropriately.

[00:11:57] Speaker 00:
And third, if the court does find error and remand, we do not believe that this is a situation where the government should be limited if you look at what was really contested below.

[00:12:08] Speaker 00:
Let me turn first of all to that supplementary evidence that was recently supplemented to the record here.

[00:12:17] Speaker 00:
There is a statement that Suspect 2 gave to the agents there.

[00:12:21] Speaker 00:
And toward the end of that statement, on page 14 of that supplemental record, the statement says, Cripps had mentioned going to Oklahoma City to pick up kilos.

[00:12:34] Speaker 00:
A kilo is also known as 2.2 pounds.

[00:12:38] Speaker 00:
Redacted, I'm assuming that's Suspect 2, said that he communicates via cell phone with Cripps to facilitate narcotics transactions.

[00:12:46] Speaker 00:
Now, I grant you that's not a lot of detail.

[00:12:50] Speaker 00:
I grant you he's not just discussing relations.

[00:12:54] Speaker 00:
He had with Suspect 3, but that is a mention of Suspect 2 having knowledge that the defendant had been dealing with kilos out of Oklahoma City.

[00:13:06] Speaker 00:
And if you recall the timing, Suspect 2 was arrested and shortly thereafter interviewed, I believe, in November.

[00:13:15] Speaker 00:
Suspect 3, and at that point, 1 and 2, I'm sorry, Suspect 2 was interviewed in December.

[00:13:21] Speaker 00:
Suspect 1 was arrested in November.

[00:13:26] Speaker 00:
Suspect 3 doesn't come along until January.

[00:13:28] Speaker 00:
And she says in mid-January that she'd been making these deliveries for a couple of months, six to eight weeks, something like that.

[00:13:37] Speaker 00:
It's a reasonable interpretation of this evidence that the defendant may have been taking a more active role himself

[00:13:44] Speaker 00:
in November and December.

[00:13:48] Speaker 00:
And at some point he enlisted suspect three to go running these errands for him.

[00:13:54] Speaker 03:
So is it fair to say that what you've just said is that the corroboration of what suspect three said is an uncorroborated statement by suspect two?

[00:14:09] Speaker 03:
Yes.

[00:14:10] Speaker 03:
OK.

[00:14:10] Speaker 03:
That's fair.

[00:14:10] Speaker 03:
Do you have some authority that would say that one uncorroborated statement can support another?

[00:14:20] Speaker 00:
Well, I believe that the cases that are cited in the briefs, many of them do rely on suspects, whether they be actually named as co-conspirators or not, corroborating one another.

[00:14:36] Speaker 00:
Here, all three of them,

[00:14:38] Speaker 00:
talk about the distribution of methamphetamine.

[00:14:40] Speaker 00:
All three of them talk about, I believe, about doing this on behalf of the United Aryan Brotherhood.

[00:14:47] Speaker 00:
All three place the defendant involved in distribution.

[00:14:52] Speaker 00:
And we understand that they have an argument that that's not the issue.

[00:14:55] Speaker 00:
It's as to the quantity.

[00:14:57] Speaker 00:
But one of the objections that was raised in the reply brief, certainly, was that we have addressed our brief toward

[00:15:06] Speaker 00:
did the defendant distribute meth, not did he distribute these quantities.

[00:15:10] Speaker 00:
And I believe there was some objection that Suspect 1 and 2 were only mentioned in these little ounces.

[00:15:17] Speaker 00:
And Suspect 3 is the one who says kilos, the only one.

[00:15:22] Speaker 00:
And I believe that that supplementary exhibit at page 14 indicates that Suspect 2 also mentioned the defendant

[00:15:34] Speaker 00:
At that point personally, I guess, making trips to Oklahoma City to pick up kilos.

[00:15:38] Speaker 00:
So there's at least a mention there.

[00:15:40] Speaker 04:
Was that supplementary test?

[00:15:41] Speaker 04:
Was that in the PSR?

[00:15:43] Speaker 04:
Was it presented at the hearing?

[00:15:46] Speaker 04:
Your Honor, those were just a Tucker's interview.

[00:15:51] Speaker 00:
It's an interview.

[00:15:53] Speaker 00:
But those were introduced at the sentencing hearing as Exhibits 1, 2, and 3.

[00:15:58] Speaker 00:
That is what the probation officer would have looked at in drafting the PSR.

[00:16:03] Speaker 00:
Those were introduced at the sentencing hearing so the trial court could consider them.

[00:16:09] Speaker 00:
And they were discussed at the sentencing hearing.

[00:16:13] Speaker 00:
The second thing that I'd like to touch on, just because I think there was a question about it a moment ago, was exactly what was discussed at the sentencing hearing when the agent answered the question that he was just taking them at their word.

[00:16:34] Speaker 00:
It's important to realize below the objection made by defense counsel was not as nuanced as it is here on appeal.

[00:16:43] Speaker 00:
Below, whether it's in objections to the PSR or at the sentencing hearing at pages, well, at page 14 to 15, certainly.

[00:17:02] Speaker 00:
Defense counsel only questioned the fact that these statements were unsworn, unverified, and not necessarily that they weren't specific as to quantity.

[00:17:15] Speaker 01:
They were... Well, I'm not sure that's fair.

[00:17:18] Speaker 01:
So the pre-sentence report calculates the guideline levels based upon quantity.

[00:17:23] Speaker 01:
Correct.

[00:17:23] Speaker 01:
So it gives a converted drug weight.

[00:17:25] Speaker 01:
that they objected to.

[00:17:26] Speaker 01:
And then the government, in response to the precincts report objection, said the United States can prove by a preponderance of the evidence that the narcotics cited above, which went to weight, were part of the same course of conduct as the conduct underlying the plea.

[00:17:44] Speaker 01:
And what that says to me is the government knows that it has the burden to prove the weight

[00:17:49] Speaker 01:
And you're telling the court, we're going to come to court and prove it.

[00:17:53] Speaker 01:
So why does it say, well, it wasn't as nuanced because, you know, they didn't develop the arguments as they did in a full appellate brief.

[00:18:00] Speaker 01:
Why does that matter?

[00:18:01] Speaker 01:
When again, the government, it was articulating at that time, it was on notice that it had the burden of proof as to the weight.

[00:18:08] Speaker 00:
The difference, your honor, respectfully is that below the objections were, I want to say more procedural.

[00:18:18] Speaker 00:
as far as defense counsel's objections in the objections to the PSR and at the hearing had to do with statements.

[00:18:28] Speaker 00:
And in fact, there were only three or four questions.

[00:18:30] Speaker 00:
And the defense counsel questioned, now you mean this was unsworn?

[00:18:35] Speaker 00:
You mean that it was unverified?

[00:18:38] Speaker 00:
In fact, none of the information was verified.

[00:18:41] Speaker 01:
But they objected to the guideline calculation, right?

[00:18:45] Speaker 00:
Yes.

[00:18:45] Speaker 01:
And so that's a procedural mechanism the court must go through to calculate the guidelines.

[00:18:51] Speaker 01:
So I hear your point about it wasn't as sort of for the pursuit or develop, but I don't understand why that matters in our review because they made the objection, government has the burden of proof.

[00:19:03] Speaker 01:
And so what we're looking at is did the district court make factual findings regarding the weight that were, you know, clear error or not, right?

[00:19:13] Speaker 01:
Because I mean, I guess what I'm trying to understand is are you saying that there's some waiver or a forfeiture issue here of

[00:19:23] Speaker 01:
the argument that's presented to us, because I didn't read that in your response.

[00:19:26] Speaker 00:
Correct, Your Honor.

[00:19:27] Speaker 00:
And I did not argue it in the briefs.

[00:19:29] Speaker 00:
OK, so then why does this matter?

[00:19:30] Speaker 00:
This matters only, to me, this matters only if it goes back to the district court.

[00:19:36] Speaker 00:
Because based upon the arguments made below, what we would need to do at the district court level is get sworn statements from these people.

[00:19:45] Speaker 00:
And that would have been sufficient, because that was really the only objection below, the substance of it.

[00:19:51] Speaker 00:
But now we know that we need

[00:19:53] Speaker 00:
More information about the exact quantity, et cetera.

[00:19:57] Speaker 00:
We didn't address that because it was never raised as an issue.

[00:20:00] Speaker 00:
We knew we had the burden of proof, but we didn't concentrate on that.

[00:20:04] Speaker 00:
The district court did not have the opportunity to concentrate on that, to look at the various cases that we've briefed before this court.

[00:20:14] Speaker 00:
And the district court has a right to weigh in on that, I believe, or it would be beneficial.

[00:20:19] Speaker 00:
to this court and certainly to the case.

[00:20:22] Speaker 00:
So we believe that this is not a clear-cut situation where we were put on notice, we failed to meet the burden, we should be limited below.

[00:20:29] Speaker 00:
That's the only place it matters.

[00:20:32] Speaker 00:
We would argue that the burden of proof was not shifted.

[00:20:40] Speaker 00:
The court simply stated that

[00:20:50] Speaker 00:
Certain evidence had been submitted that the court found it reliable and basically said there not being any evidence to the contrary.

[00:21:00] Speaker 00:
Making that aside does not mean that the court was confused as to who had the burden of proof here.

[00:21:06] Speaker 00:
It simply means that the district court had looked at the proof presented, had made the determination at least initially that by preponderance of the evidence it was sufficient, and the court simply saying there's no need for me to weigh any evidence because

[00:21:20] Speaker 00:
There is nothing that indicates it's not credible to be weighed.

[00:21:26] Speaker 00:
We would urge the court to look at this case, look at Pacheco and recognize that in that case there were a number of details.

[00:21:37] Speaker 00:
There was some electronic evidence and there's some here granted not specifically on this issue.

[00:21:42] Speaker 00:
There was physical evidence recovered and each suspect implicated themselves in criminal activity.

[00:21:50] Speaker 00:
And the court in Pachica was citing Garcia, which makes the same point that the court was making earlier that this suspect 3 certainly implicated herself in serious criminal activity.

[00:22:05] Speaker 00:
But as to all of the overall corroboration for the statement by suspect 3, we have, again, the information from suspect 2 that also mentioned kilograms.

[00:22:17] Speaker 00:
We have details in suspect 3's

[00:22:21] Speaker 00:
descriptions to the agent that are included in that supplemental evidence at pages, I think, about 17 to 20.

[00:22:31] Speaker 00:
She describes several trips.

[00:22:33] Speaker 00:
She describes them in detail.

[00:22:34] Speaker 00:
She explains what packaging was on the material, and on the occasion when she says she picked up 10 grams and took it to Tulsa,

[00:22:42] Speaker 00:
leaving it to come back later and pick it up, it had been repackaged when she came back to get it.

[00:22:46] Speaker 01:
Can I ask you about those details?

[00:22:48] Speaker 01:
In your brief, you mentioned that when S3 was arrested, there were a bunch of items that were located in the vehicle, and I believe there were two cell phones.

[00:22:56] Speaker 01:
And then in the supplemental, it described, or S3 made statements that described the defendant sending addresses to her to make deliveries in Oklahoma City.

[00:23:07] Speaker 01:
I read that to mean by send, that was sent by cell phone.

[00:23:10] Speaker 01:
Was any of the information from S3's cell phone that seemed to be readily available to corroborate her statements, was any of that presented to the district court?

[00:23:21] Speaker 01:
Not that I'm aware of.

[00:23:22] Speaker 00:
I do not know whether there was an analysis that took place or not, but it was not submitted to the court.

[00:23:27] Speaker 00:
The only thing that we can say as to her arrest was she was arrested with

[00:23:35] Speaker 00:
quantity of product, both meth and fentanyl.

[00:23:38] Speaker 00:
She was arrested with green dot cards, which is important because she explained that that is how she would be paid and that's how the defendant paid his people oftentimes, was a green dot if he did not pay them in product.

[00:23:54] Speaker 00:
She had also tablets.

[00:23:57] Speaker 00:
She had a notebook.

[00:23:58] Speaker 00:
She had several cell phones.

[00:24:01] Speaker 00:
two sets of digital scales.

[00:24:03] Speaker 00:
I mean, she clearly is not someone who's just doing a small distribution.

[00:24:10] Speaker 00:
She's involved in something more complex than what was discovered with Suspect 1 and 2.

[00:24:17] Speaker 00:
But at any rate, we'd urge the court to look at all of the detail that was included in her statement.

[00:24:24] Speaker 00:
I think that that lends it more credibility in the court was

[00:24:29] Speaker 00:
entirely reasonable in relying on that to show that there was a sufficient indicia of responsibility to uphold the guideline calculation regarding drug quantity.

[00:24:42] Speaker 00:
We'd also note that for what it's worth, the district court did grant a variance in this case and take about 10 years off of his ultimate sentence and we don't know

[00:24:55] Speaker 00:
You know, obviously that was not based on this, but I think it's important to realize that he was not sentenced at the level of that guideline.

[00:25:06] Speaker 00:
If there aren't any further questions, we'd ask the court to affirm.

[00:25:09] Speaker 04:
Thank you, counsel.

[00:25:11] Speaker 04:
Mr. Gravelli, I should add some rebuttal time.

[00:25:21] Speaker 02:
Thank you, Your Honors.

[00:25:23] Speaker 02:
With respect to the supplemental record, S2 statements don't corroborate S3.

[00:25:27] Speaker 02:
As Judge Carson, you pointed out, they're uncorroborated statements themselves.

[00:25:33] Speaker 02:
There's also quite a lot of difference there.

[00:25:36] Speaker 02:
We don't know when this statement was made.

[00:25:40] Speaker 02:
We don't know when these runs happened.

[00:25:45] Speaker 02:
We do see that S2 is talking about cell phones, but kind of

[00:25:50] Speaker 02:
To shift back to Judge Federico's point, S3 was caught with multiple cell phones, but she didn't even have Mr. Cripps' number.

[00:26:00] Speaker 02:
So I don't think there's any sort of overlap or corroboration there.

[00:26:04] Speaker 04:
Now in terms of... The cases suggest, though, that consistency is one of the elements that we look at for corroboration in S2 and S3's testimony about kilos.

[00:26:17] Speaker 04:
There is a consistency there.

[00:26:19] Speaker 04:
Why doesn't that

[00:26:20] Speaker 04:
Why doesn't that help the district court here?

[00:26:23] Speaker 02:
Oh, I'm sorry.

[00:26:24] Speaker 02:
There is a difference between corroboration and consistency, right?

[00:26:27] Speaker 02:
Consistency would be it's not inconsistent.

[00:26:31] Speaker 02:
There's no rub or friction there.

[00:26:35] Speaker 02:
In Pacheco, I noticed that this court had actually referred to consistent and corroboration as a disjunctive, meaning there's a difference.

[00:26:42] Speaker 02:
Consistency would be relevant to reliability, sure.

[00:26:45] Speaker 02:
But kilos only means more than one kilo.

[00:26:49] Speaker 02:
It can mean one and a half kilos.

[00:26:51] Speaker 02:
It can mean two.

[00:26:52] Speaker 02:
That's not the same thing as 54.

[00:26:54] Speaker 02:
That's a far cry from 54.

[00:26:57] Speaker 02:
Now, in terms of S3 providing details, we can't use that to self corroborate.

[00:27:04] Speaker 02:
Her statements are not self corroborating.

[00:27:05] Speaker 02:
Sure, she provided details.

[00:27:07] Speaker 02:
But I'm not saying those details were even true.

[00:27:12] Speaker 02:
Finally, I think in terms of this claim of nuance and for a remand, I would point out that defense counsel objected to all the attribution from all of these sources.

[00:27:23] Speaker 02:
It's not just the 54 kilograms and the amount, it was to all of these transactions.

[00:27:28] Speaker 02:
The government was certainly on notice that we would be contesting all of this additional evidence.

[00:27:33] Speaker 02:
There was no question that what we were contesting was the transactions and the amount.

[00:27:38] Speaker 02:
So they were definitely on notice as to what we were trying to

[00:27:41] Speaker 02:
contest and they had fair chance and they didn't do that.

[00:27:44] Speaker 02:
So in conclusion, Your Honors, if the government had more than S3's word, the person in charge of investigating Mr. Cripps would have come up with more than just S3's word.

[00:27:57] Speaker 02:
And of course, more is needed for such a dramatic increase in a sentencing exposure.

[00:28:01] Speaker 02:
I think due process certainly would expect no less.

[00:28:05] Speaker 02:
And with that, Your Honors, I ask that you reverse.

[00:28:08] Speaker 04:
Thank you, Counsel.

[00:28:09] Speaker 04:
Council or excuse the case is submitted and with that I think we're in recess until tomorrow morning at