[00:00:00] Speaker 03: Thank you. [00:00:01] Speaker 03: We'll call our next case, 24-7050, United States versus Nuranjo Aguilar. [00:00:15] Speaker 00: May it please the Court, Edie Cunningham of the Federal Defender's Office on behalf of Mr. Nuranjo. [00:00:21] Speaker 00: As the recent Berryhill opinion confirms, remand is required because the District Court committed legal errors [00:00:30] Speaker 00: in denying my client's request for a minor role adjustment. [00:00:36] Speaker 00: The 235-month sentence is also substantively unreasonable and rests on an inadequate explanation. [00:00:48] Speaker 03: Well, it was a guideline sentence, wasn't it? [00:00:50] Speaker 00: Your Honor, it was a low-end guideline sentence, 235 months. [00:00:59] Speaker 03: We don't require much of an explanation in that circumstance, do we? [00:01:03] Speaker 00: No, Your Honor, you do not. [00:01:05] Speaker 00: If the court is satisfied with it, I would prefer to address the legal errors first. [00:01:16] Speaker 03: Yeah, I think that's your better argument. [00:01:21] Speaker 00: The failure to compare my client's culpability to the relative culpability of others involved [00:01:27] Speaker 00: was clear legal error under Berryhill. [00:01:30] Speaker 00: And that recent opinion made clear that it does not matter whether the court questioned the credibility of my client's proffer. [00:01:41] Speaker 00: Although, as I'll explain in a moment, I don't believe the court made a credibility finding. [00:01:47] Speaker 00: Here, the district court simply said, absent any knowledge [00:01:52] Speaker 00: or evidence to the contrary, the defendant was acting alone when transporting drugs in the Eastern District of Oklahoma. [00:02:01] Speaker 03: Since he did say he was not acting alone, doesn't that statement that absent other evidence mean that the judge discredited him and did not consider his description of the offense and how he was working with others? [00:02:18] Speaker 00: Well, Barry Hill made clear that it doesn't matter [00:02:22] Speaker 00: whether the judge discredited the defendant, whether or not there's a credibility determination. [00:02:28] Speaker 03: But I thought you said it was unclear whether he made a credibility determination. [00:02:33] Speaker 03: Isn't that statement inconsistent with the judge having found the statement at all credible? [00:02:43] Speaker 00: Well, Your Honor, I'm not sure. [00:02:44] Speaker 00: I believe the court, the most rational explanation for that statement is the court believed it was confined to consider [00:02:52] Speaker 00: what happened in the Eastern District of Oklahoma. [00:02:56] Speaker 00: And interestingly enough, the Berryhill decision also arose from the Eastern District of Arizona, excuse me, Oklahoma. [00:03:03] Speaker 00: And in both situations, the PSR had said the defendant was acting alone when committing the offense in the Eastern District of Oklahoma of transporting a large quantity of drugs. [00:03:15] Speaker 00: So it appears that this legal error stemmed from the probation department's recommendation [00:03:21] Speaker 00: and consideration confining the analysis to what happened in the Eastern District of Oklahoma. [00:03:28] Speaker 01: Ms. [00:03:28] Speaker 01: Cunningham, can I ask you a question? [00:03:31] Speaker 00: Yes, sure. [00:03:31] Speaker 01: It seems to me that what you're lasering in on is actually two distinct arguments, albeit interrelated. [00:03:40] Speaker 01: One is that Judge White just made a complete factual misstatement, absent knowledge or evidence, [00:03:49] Speaker 01: the defendant was acting alone when transporting methamphetamine in the Eastern District of Oklahoma, that that was not true because he was not the one that rented the car, that there were other people. [00:04:01] Speaker 00: Yes, Your Honor. [00:04:01] Speaker 01: There's a contrary plausible interpretation, or at least is the contrary plausible interpretation that, well, he was the only person in the car, and it really is what the word transporting means. [00:04:17] Speaker 01: If I am, you know, transporting a box to my wife, well, maybe that just means I'm the only person in the car that has a box in my vehicle as I'm transporting it to my wife. [00:04:32] Speaker 01: Doesn't necessarily include other people that were involved pre-transportation, renting the car, or post-transportation, unloading the vehicle. [00:04:45] Speaker 01: Is that a plausible interpretation of what Judge White said? [00:04:48] Speaker 00: Yes, Your Honor. [00:04:49] Speaker 00: And I actually think it's the most plausible interpretation. [00:04:52] Speaker 00: And it is the interpretation, actually, that the government adopted in its brief. [00:04:57] Speaker 01: So under US versus Natio, because it's a plausible interpretation, it wasn't necessarily factually incorrect. [00:05:07] Speaker 01: Your second argument that the implication is legally incorrect because it confined [00:05:14] Speaker 01: the universe of other participants to the Eastern District of Oklahoma, correct? [00:05:20] Speaker 00: Yes, Your Honor, and if I may elaborate for a moment. [00:05:23] Speaker 00: Sure. [00:05:24] Speaker 00: I really, I highly doubt the district court just found that he was the only one involved in this at all. [00:05:33] Speaker 00: That would have been nonsensical given the district court's comment that he must have been a cog in the machine or a pretty important cog in the machine, and also, as you stated, [00:05:43] Speaker 00: the finding undisputed in the PSR that somebody else had rented the car in Arkansas. [00:05:50] Speaker 00: So I think really the only reasonable interpretation is that the district court was using the wrong legal standard here, following the lead of the probation department, just as happened in Berry Hill, and confining the analysis to the bare minimum of the offense of transporting the drugs within the Eastern District of Oklahoma. [00:06:11] Speaker 00: And that is clear legal error. [00:06:13] Speaker 02: Counsel, I guess I'm just not following. [00:06:15] Speaker 02: I'm looking at the sentencing transcript. [00:06:18] Speaker 02: And the judge said, absent any knowledge or evidence to the contrary, the defendant was acting alone when transporting a large quantity of drugs in the Eastern District of Oklahoma. [00:06:33] Speaker 02: Your Honor, that actually... I haven't asked the question yet. [00:06:37] Speaker 00: Sorry, Your Honor. [00:06:40] Speaker 02: That seems like a factual finding to me. [00:06:43] Speaker 00: Well, Your Honor. [00:06:44] Speaker 02: I still haven't asked my question. [00:06:48] Speaker 02: If it is, why is it clearly erroneous? [00:06:52] Speaker 00: Well, Your Honor, first of all, it flies in the face of the undisputed evidence and of what the court itself said about my client must have been a cog in machinery. [00:07:04] Speaker 00: But if you look at the four corners. [00:07:05] Speaker 02: How does that tell us anything? [00:07:07] Speaker 02: Cogging the machinery that doesn't tell us anything does it yes? [00:07:11] Speaker 02: There is a machinery that he is a part of so what where's where the other participants, okay? [00:07:18] Speaker 02: Look, let's let's focus in on this finding. [00:07:21] Speaker 02: Well the science he was transporting drugs He was transporting them in the district I mean that's where the that's where the case was filed doesn't say anything about whether there were there was no one else and [00:07:35] Speaker 02: anywhere or there were other people anywhere. [00:07:38] Speaker 02: It says he acted alone. [00:07:40] Speaker 00: Well, that's exactly my point, Your Honor, because when ruling on a minor role adjustment, the court has to compare relative culpability of everyone involved. [00:07:50] Speaker 02: But the court found that he was the only one involved. [00:07:54] Speaker 02: So where's the legal error? [00:07:56] Speaker 02: If he's supposed to compare his conduct with others and he finds that he acted alone, [00:08:05] Speaker 02: How can there be any legal error? [00:08:06] Speaker 02: There's no one to compare him with. [00:08:09] Speaker 00: Well, Your Honor, I believe the legal error is confining the analysis, as Judge Baccarat said, to what happened within the confines of the Eastern District of Oklahoma. [00:08:21] Speaker 02: But that isn't what the judge said. [00:08:24] Speaker 00: I would just repeat. [00:08:26] Speaker 02: Counsel, let me finish. [00:08:28] Speaker 02: Yes, Your Honor. [00:08:28] Speaker 02: All right? [00:08:29] Speaker 02: It says transporting a large quantity of drugs in the Eastern District of Oklahoma. [00:08:35] Speaker 02: That's what gives the court venue and jurisdiction. [00:08:38] Speaker 02: It doesn't really say anything about there is someone else or there isn't. [00:08:46] Speaker 02: I mean, that's where he was transporting the drugs, but it also says he was acting alone. [00:08:52] Speaker 02: Now, is that clearly erroneous or isn't it? [00:08:55] Speaker 00: Well, it is clearly erroneous, but I do think it stems... Why is it clearly erroneous? [00:09:00] Speaker 00: I do think it stems from a legal error of not... Why is it clearly erroneous? [00:09:05] Speaker 00: Because the judge himself recognized that there were other people involved, that there was a cognitive machine... Okay, who are the others involved? [00:09:12] Speaker 00: Well, for one, the PSR was undisputed in saying that somebody else rented the car in Arkansas. [00:09:19] Speaker 02: And what does that tell us? [00:09:21] Speaker 02: That doesn't really tell us much of anything. [00:09:23] Speaker 02: It might have been that the next door neighbor had rented a car and this defendant borrowed it. [00:09:31] Speaker 02: We don't have any information about that. [00:09:33] Speaker 00: Well, Your Honor, I maintain that this is really on all fours with Berry Hill, but my second... [00:09:40] Speaker 02: Let me just jump in here, because in Berry Hill, at the end of the day, was it ever disputed that others were involved? [00:09:48] Speaker 02: There were other participants in the criminal activity. [00:09:51] Speaker 02: Doesn't that distinguish Berry Hill from this case? [00:09:55] Speaker 00: You're right about that, Your Honor. [00:09:57] Speaker 02: Well, if I'm right about that, does it distinguish Berry Hill from this case? [00:10:04] Speaker 00: I don't think meaningfully, because I think everyone, including the government, accepted [00:10:09] Speaker 00: that there were other people involved. [00:10:11] Speaker 00: The government's whole argument was that the defendant had not met his burden of proving that he was substantially less culpable than the others. [00:10:19] Speaker 00: So I could move on to my second legal argument is that the district court did not consider my client's proffer, did not make a credibility finding at all. [00:10:32] Speaker 00: My client's proffer explained that there were other people involved. [00:10:36] Speaker 00: And it was entirely consistent with the known practices of drug trafficking organizations. [00:10:42] Speaker 00: My client said he was paid to transport drugs from Arizona, and he didn't even know where he was going. [00:10:50] Speaker 00: He was told to go to Arizona, go into a restaurant. [00:10:55] Speaker 00: The drugs would be loaded while he was in the restaurant. [00:10:57] Speaker 00: He didn't know who loaded them. [00:10:59] Speaker 00: And he was told to get on I-40 and drive, and he would get directions along the way. [00:11:04] Speaker 03: Let me ask a few questions about that. [00:11:06] Speaker 00: Yes, Your Honor. [00:11:08] Speaker 03: I don't think that the judge was saying that there was a machine in which he was a large cog. [00:11:16] Speaker 03: He was saying he'd have to be a very large cog to be given responsibility over this much in this large quantity of drugs, which I think [00:11:27] Speaker 03: would be inconsistent with the judge believing the account of the defendant that he knew nothing about what was going on. [00:11:35] Speaker 03: The judge was saying, this guy's got to be a core member of this conspiracy to be entrusted with this much. [00:11:43] Speaker 03: That's number one. [00:11:48] Speaker 03: Number two is kind of a legal question. [00:11:51] Speaker 03: He obviously got the drugs from someone. [00:11:53] Speaker 03: Exactly, Your Honor. [00:11:54] Speaker 03: But who's to say whether, [00:11:58] Speaker 03: He bought them from some distributor, and he said, I'm going to take these and I'm going to sell them in this other state. [00:12:04] Speaker 03: And he was responsible. [00:12:07] Speaker 03: In that circumstance, do we say that someone is just a minor participant in that circumstance? [00:12:15] Speaker 03: Because at some point, the drugs are going to be traced back to a huge cartel of people making these drugs and producing these drugs. [00:12:26] Speaker 03: Don't you have to confine the offense in some way? [00:12:30] Speaker 03: And if the people who gave him the drugs or sold them the drugs or whatever, that was the end of their involvement. [00:12:38] Speaker 03: And then he was responsible. [00:12:39] Speaker 03: He took it on himself. [00:12:41] Speaker 03: I'm going to take these drugs, and I think I can sell them. [00:12:43] Speaker 03: I've got some people in the Eastern District. [00:12:47] Speaker 03: Can we ever confine it to some part of the chain of distribution? [00:12:52] Speaker 00: Well, you're right. [00:12:55] Speaker 00: by engaging in rape speculation like that, because that in and of itself is legal error. [00:13:00] Speaker 03: No, no, no, no. [00:13:01] Speaker 03: Who's got to speculate? [00:13:02] Speaker 03: He's got to describe. [00:13:03] Speaker 03: On its face, he's the only one. [00:13:06] Speaker 03: So he's got to explain. [00:13:07] Speaker 03: He's not going to confess and say, look, I was going to do this on my own. [00:13:13] Speaker 03: You'll have a chance to respond. [00:13:14] Speaker 03: I'll make sure of that. [00:13:16] Speaker 03: But I think this might be close to the core of what you're getting at. [00:13:21] Speaker 03: There's an explanation of what he was doing that in which he could only be considered a minor participant if you considered the entire chain of distribution of the drugs. [00:13:34] Speaker 00: Well, Your Honor, I really don't think that's true as far when you look at the known practices of drug trafficking organizations. [00:13:41] Speaker 00: What he said happened is very consistent. [00:13:44] Speaker 00: these drugs were being trafficked from Arizona. [00:13:46] Speaker 00: It was a very large amount. [00:13:48] Speaker 00: It would be the actual drug trafficking organization in Mexico or someone very close to it who would be able to traffic that large of an amount. [00:13:58] Speaker 00: So actually what he said was very credible. [00:14:02] Speaker 00: It is often, most often, mere couriers who don't know what they're carrying who have the largest amounts. [00:14:11] Speaker 00: And if you look at the 2024 [00:14:13] Speaker 00: Sentencing Commission report that came out last year, it describes this. [00:14:20] Speaker 00: So really, it would be rank. [00:14:23] Speaker 00: There is no basis to infer that my client was some big person who was going to distribute all this himself. [00:14:30] Speaker 00: He drove from California. [00:14:31] Speaker 00: He had no connection to the Midwest. [00:14:33] Speaker 00: So therefore, it would require rank speculation, which would be legal error to assume [00:14:42] Speaker 00: that he was a big-time distributor. [00:14:44] Speaker 02: Who had the burden on this participant issue? [00:14:49] Speaker 00: The defendant has the burden by a preponderance of evidence, which is very low. [00:14:54] Speaker 00: And he more than met that burden by providing that proffer, which was uncontradicted and which was consistent, I would say, most importantly, with the known practices [00:15:06] Speaker 02: of drug trafficking organizations buttressed by... Are we just supposed to take judicial notice of these known practices or shouldn't that have been made part of the record? [00:15:16] Speaker 00: Well, Your Honor, defense counsel did explain that because she's very experienced with that in Arizona. [00:15:21] Speaker 02: But defense counsel isn't a witness. [00:15:24] Speaker 02: But Your Honor... Are we supposed to... You still haven't addressed my question. [00:15:28] Speaker 02: Are we supposed to take judicial notice? [00:15:31] Speaker 00: Your Honor, I believe that... Yes or no? [00:15:33] Speaker 02: Are we supposed... What are we relying on for known practices? [00:15:39] Speaker 02: Just that we intuit this? [00:15:41] Speaker 00: The June 2024 United States... Was that presented to the district court? [00:15:47] Speaker 00: It was not because it had not been created yet, but error was plain at the time of appeal. [00:15:52] Speaker 02: Counsel, why are we supposed to rely on that? [00:15:55] Speaker 02: Why didn't a counsel put on a witness? [00:15:58] Speaker 02: There are all kinds of experts on drug trafficking organizations. [00:16:02] Speaker 02: We have nothing in the record. [00:16:04] Speaker 00: She proffered it based on her extensive experience, and now it is corroborated by the June 2024 United States Sentencing Commission report. [00:16:14] Speaker 00: Thank you. [00:16:15] Speaker 04: I'll stop there. [00:16:16] Speaker 00: Thank you. [00:16:17] Speaker 04: Thank you, Council. [00:16:21] Speaker 04: May it please the Court, I'm Luke Rizzo, an AUSA from the Eastern District of Oklahoma. [00:16:25] Speaker 04: The main challenge here is procedural. [00:16:30] Speaker 04: It concerns a district court. [00:16:32] Speaker 03: What did you say your name is? [00:16:33] Speaker 03: Luke Rizzo. [00:16:36] Speaker 03: I have your name as Luke, C-A-S-C-I-S. [00:16:40] Speaker 04: Luke Cascio. [00:16:41] Speaker 04: Your Honor, I actually have two last names. [00:16:43] Speaker 03: OK. [00:16:43] Speaker 04: I go by Rizzo. [00:16:45] Speaker 04: That's your alias. [00:16:47] Speaker 03: Well, in my line of work, it helps out. [00:16:49] Speaker 03: You'll have a few seconds at the end if you do that. [00:16:51] Speaker 03: And I apologize for that. [00:16:53] Speaker 03: No, no, no, no. [00:16:54] Speaker 03: I just thought we've got an imposter here. [00:17:00] Speaker 04: So as I was saying, the main challenge here is procedural in nature. [00:17:04] Speaker 04: It concerns the district court not crediting the defendant with a mitigating role reduction in its guideline range. [00:17:10] Speaker 04: So to receive that reduction, the defendant had to establish by a preponderance of the evidence that his part in the criminal activity made him significantly less culpable than the average participant. [00:17:22] Speaker 04: And the district court's determination should be based on the totality of the circumstances and the evidence that's sentenced [00:17:29] Speaker 04: Here, defendant accuses a district court of committing two legal errors. [00:17:35] Speaker 04: The first, he claims the district court failed to consider his proffer. [00:17:39] Speaker 04: But the district court referenced it, questioned it, and ultimately found it not convincing or dispositive. [00:17:46] Speaker 04: This can be gleaned from the record. [00:17:48] Speaker 04: Frankly, this seems more like a factual challenge dressed up as a legal one, likely because it's easier to accuse the court of a district error than acknowledge that the defendant failed to meet [00:18:00] Speaker 04: its factual burden. [00:18:02] Speaker 01: In terms of the comparison of the defendant's participation to other participants, should we confine that universe to the participants who conducted activities in the Eastern District of Oklahoma? [00:18:17] Speaker 04: Well, Your Honor, in this particular case, there's effectively no one on the record that is a participant in the Eastern District of Oklahoma. [00:18:26] Speaker 04: The only individual who's conducting activity in this [00:18:30] Speaker 04: criminal organization. [00:18:31] Speaker 01: And again, a lot of that... But that's exactly why I asked you the question. [00:18:35] Speaker 01: Yes, Your Honor. [00:18:36] Speaker 01: Obviously, the proffer was, even if you exclude defense counsel's statement at the sentencing, the proffer certainly includes an individual who rented the vehicle, and that person was not in the Eastern District of Oklahoma, and that person in Arkansas, and that person, should we include that person in the universe of participants in the crime? [00:19:00] Speaker 01: Well, Your Honor, the district court likely did not. [00:19:05] Speaker 01: Now... Well, yeah, and I'm not asking what the district court... Okay, so you agree with defense counsel that the district court did exclude that individual. [00:19:19] Speaker 04: Well, the government's position is simply that no one thinks the defendant manufactured 50 pounds of methamphetamine on his own. [00:19:28] Speaker 01: We certainly know all of your arguments. [00:19:31] Speaker 01: You wrote a very good brief. [00:19:33] Speaker 01: My question is very straightforward. [00:19:35] Speaker 01: It sounds like we all have an agreement between counsel that Judge White did not consider the [00:19:47] Speaker 01: person in Arkansas that loaded the vehicle, or that rented the vehicle? [00:19:52] Speaker 04: Well, it's a fact in the PSR, so surely the judge was aware of it. [00:19:57] Speaker 04: Whether the judge considered him an average participant, I think as the court pointed out, the district court does make that statement that the defendant alone is in the Eastern District of Oklahoma operating. [00:20:11] Speaker 04: The individual who rented the car, and again, as... [00:20:16] Speaker 03: Does the PSR, I should know this, but I don't, say specifically someone else rented it or it was rented in another name? [00:20:24] Speaker 04: The PSR says another individual rented it in Arkansas. [00:20:28] Speaker 04: Now, a lot of this goes back to, you know, as counsel was alluding to, to the defendant's proffer, which again, it's an important part to get into the... If the government didn't challenge that in the PSR, we've got to accept that, don't we? [00:20:41] Speaker 04: There's no question the defendant, you know, the defendant [00:20:45] Speaker 04: In the government's eye, well, I guess on the facts, based on the PSR itself, the defendant didn't rent the vehicle in Arkansas and other individual data. [00:20:54] Speaker 01: So now the $64,000 question, did Judge White legally err by excluding participants in the same crime outside the Eastern District of Oklahoma? [00:21:06] Speaker 01: You know, this happens obviously a lot. [00:21:10] Speaker 01: You know, someone commonly called a mule transports drugs from a cartel into somewhere in the United States or from Arizona to the Eastern District of Oklahoma. [00:21:28] Speaker 01: So should we, was Judge White legally correct [00:21:35] Speaker 01: in excluding the comparison of participants who had involvement outside the Eastern District of Oklahoma, even if they had far greater involvement than the defendant in this case? [00:21:52] Speaker 04: Well, it's not an error, Your Honor, by the district court. [00:21:55] Speaker 04: And that's because the district court laid out its reasoning effectively throughout the sentencing hearing. [00:22:02] Speaker 04: And part of that has to do with, as [00:22:05] Speaker 04: the court mentioned before, the large amount of drugs, the court knows that, the court believes that it's fair to infer he's a higher level individual than average participants. [00:22:16] Speaker 04: Whether that reasoning is agreed upon by everyone, the point is the district court didn't really believe the defendant's proffer that he was nothing more than a mere... Well, let me play devil's advocate. [00:22:28] Speaker 01: Number one, the judge never said, I don't believe the defendant's proffer. [00:22:32] Speaker 01: The judge did acknowledge three sentences before the problematic statement of the proffer, but the judge did say, I'm not quoting it, absent knowledge or evidence that the defendant was acting alone when transporting drugs in the Eastern District of Oklahoma. [00:22:49] Speaker 01: And I thought your position was, maybe I'm wrong, but I thought your legal position was that that was legally correct, that he was the only participant, because he was the only person [00:23:00] Speaker 01: that was transporting these drugs in the Eastern District of Oklahoma, even if the people in Arkansas that rented the vehicle might have had greater involvement, even if they were part of a cartel, even if he was transporting drugs to a major redistributor. [00:23:17] Speaker 01: So my question is just a legal question about the geographic scope of the universal participants in the crime. [00:23:25] Speaker 01: We know what the judge did. [00:23:28] Speaker 01: I think, I don't want to put words in your mouth, but I think you're agreeing that he did combine the universe of participants in the crime to the Eastern District of Oklahoma. [00:23:38] Speaker 01: My only question is, why would that be right if the crime was a multi-district crime? [00:23:45] Speaker 04: Well, the reason that would be appropriate is because there's really, you know, there's no other evidence [00:23:52] Speaker 04: at sentencing, other than the defendant's proffer. [00:23:55] Speaker 01: Well, that's something. [00:23:56] Speaker 01: You know, a proffer is evidence, unless the judge says for some reason that I'm not going to reject the proffer is not credible, or for some other reason, and Judge White didn't say that. [00:24:05] Speaker 04: Well, Your Honor, the government's position, and it's in the brief as well, it's effectively that the court didn't believe the defendant's proffer. [00:24:14] Speaker 01: Now, why he didn't... How do I know that? [00:24:16] Speaker 04: What can I look at when the judge said that I do not believe the defendant's proffer? [00:24:21] Speaker 04: Because a defendant's proffer is, I'm a drug courier. [00:24:24] Speaker 04: I know nothing. [00:24:25] Speaker 04: I have no real involvement. [00:24:27] Speaker 04: I'm essentially a patsy in this much larger scheme. [00:24:31] Speaker 04: The court throughout, when it's giving its reasoning for the sentence, it goes to the large amount of drugs. [00:24:38] Speaker 04: It goes to the, he's a recidivist. [00:24:41] Speaker 04: He has a prior conviction for possession with intent to distribute. [00:24:45] Speaker 04: He flees police when he's arrested, when he's apprehended for this crime. [00:24:51] Speaker 04: He goes on a high-speed chase. [00:24:53] Speaker 01: And what is that inconsistent with in the proffer? [00:24:57] Speaker 01: The proffer says nothing about that. [00:25:00] Speaker 04: Yes, Your Honor. [00:25:01] Speaker 01: We know there's lots of bad stuff. [00:25:03] Speaker 01: He did flee. [00:25:04] Speaker 01: He was a recidivist. [00:25:06] Speaker 01: But what does that have to do with the point that you're trying to make, I think, which is, will the judge explain things that were inconsistent with the proffer? [00:25:14] Speaker 01: And nothing that you've identified thus far has anything to do with what he said in the proffer. [00:25:19] Speaker 04: Well, the government points to the fact [00:25:22] Speaker 04: You know, the sentence is what it is. [00:25:24] Speaker 04: The judge never says, yes, you're a drug mule, or you're a low-level drug courier. [00:25:32] Speaker 04: The district court doesn't say that either. [00:25:35] Speaker 04: It points to all these aggregating factors, the large amount of drugs fleeing from law enforcement. [00:25:42] Speaker 04: And effectively, though, the government [00:25:46] Speaker 04: offering to the court that it could glean from the record. [00:25:49] Speaker 04: The proffer is now believed. [00:25:51] Speaker 04: Does a low-level drug courier have... [00:25:54] Speaker 04: You know, 50 pounds of methamphetamine, maybe. [00:25:57] Speaker 04: Does he flee from police? [00:25:58] Speaker 04: I don't know. [00:25:59] Speaker 04: Do they usually have prior convictions for, you know, a narcotic trafficking offense? [00:26:05] Speaker 04: These were questions that aren't, you know, these are all factors that judges clearly considering as opposed to the proffer of, I'm poor old me. [00:26:14] Speaker 04: You know, I know nothing. [00:26:16] Speaker 04: I'm just being used. [00:26:17] Speaker 03: In his proffer, did he say he didn't know [00:26:21] Speaker 03: What drugs were in the car? [00:26:24] Speaker 04: I believe he said he knew that they were illegal narcotics, but he wasn't quite sure. [00:26:30] Speaker 04: Again, I do not have his proffer in front of me, but it is on the record, I believe. [00:26:36] Speaker 03: The central issue to me is given that we know the chain of distribution in drugs in general, where do we draw the line and who do we look at? [00:26:49] Speaker 03: So if, I had a hypothetical to opposing counsel about well maybe he bought these from a wholesaler and he was going to take them himself and sell them. [00:27:01] Speaker 03: Maybe he had his own outfit in Oklahoma and they were going to distribute it. [00:27:07] Speaker 03: That's one possibility. [00:27:09] Speaker 03: Another possibility is that [00:27:12] Speaker 03: The whole chain was controlled by one group. [00:27:16] Speaker 03: They had the drugs. [00:27:18] Speaker 03: They got it out of Mexico. [00:27:19] Speaker 03: They gave it to him to distribute to some of their people in Oklahoma and so on. [00:27:24] Speaker 03: If it's the latter situation, who do we compare him to? [00:27:28] Speaker 03: Could the judge say, when he said he's a large cog, could he say, well, there are lots of people involved here. [00:27:36] Speaker 03: There's this innocent person who has no record. [00:27:40] Speaker 03: We use that person to rent the car. [00:27:43] Speaker 03: That won't get back to us. [00:27:45] Speaker 03: That doesn't look suspicious. [00:27:47] Speaker 03: That person probably wouldn't be considered as high level as the person actually transporting them. [00:27:54] Speaker 03: There's someone who loads the drugs into the trunk of the car or hides them in a panel or something like that. [00:27:59] Speaker 03: There's someone who wraps the drug with plastic and so on. [00:28:02] Speaker 03: There are lots of people. [00:28:05] Speaker 03: involved. [00:28:06] Speaker 03: It's not just the kingpin head of the cartel. [00:28:11] Speaker 03: So how do we decide whether he's minor or not in that circumstance? [00:28:17] Speaker 03: Well, I think that seems to be the situation that defense counsel is describing. [00:28:21] Speaker 03: This is a big operation. [00:28:23] Speaker 03: But we don't just compare him to the top of the heap. [00:28:27] Speaker 03: There are lots of other people involved. [00:28:29] Speaker 03: How do we decide whether he's [00:28:32] Speaker 03: entitled to a reduction because he's a minor participant. [00:28:38] Speaker 04: Well, Your Honor, the way the government views that question, clearly it's a complicated one. [00:28:42] Speaker 04: Clearly it would be probably a case-by-case analysis of what is known. [00:28:48] Speaker 04: Here, very little is known. [00:28:49] Speaker 04: And a lot of this has to do with the fact that the defendant [00:28:56] Speaker 04: has the burden here, the defendant has the burden to show he should receive a mitigating role. [00:29:02] Speaker 04: He has to present evidence of that, not the government. [00:29:05] Speaker 04: The government, the only person they could indict in this case, to the defendant's point, to the court's point, this is a larger scale operation. [00:29:14] Speaker 04: The only individual the government was able to indict is the defendant. [00:29:19] Speaker 04: That's based on the evidence and the facts. [00:29:22] Speaker 04: He's found guilty. [00:29:23] Speaker 04: He's being sentenced. [00:29:25] Speaker 04: If he wants a role reduction, it's incumbent upon him to provide the information to show that he deserves a mitigating role. [00:29:32] Speaker 04: It's not the government's obligation to do that. [00:29:35] Speaker 04: What does he offer? [00:29:36] Speaker 04: A proffer that the district court [00:29:38] Speaker 04: Clearly, and again, the government's position is that the district court doesn't buy it. [00:29:44] Speaker 04: That's why he doesn't give him a role. [00:29:46] Speaker 04: And the district court has the discretion to do that. [00:29:49] Speaker 04: That's credibility of evidence, effectively, evidence coming from the defendant that is very self-serving. [00:29:55] Speaker 02: Counsel, could I just come back to this geographical issue? [00:30:00] Speaker 02: I'm trying to understand that a little better. [00:30:03] Speaker 02: Are you conceding this morning [00:30:08] Speaker 02: that the district court confined its role analysis to the Eastern District of Oklahoma. [00:30:17] Speaker 02: In other words, the only thing that matters is whether this defendant was acting alone or with others in the Eastern District of Oklahoma. [00:30:29] Speaker 02: Are you conceding that that's what the district court did? [00:30:34] Speaker 02: No, Your Honor. [00:30:35] Speaker 04: Now, the district court does make [00:30:38] Speaker 04: that statement you're describing and the government is positing that based on the entirety, the totality of what occurs at the hearing, what is said, mentions of he's a larger cog in a machine, things like that, the government's offering that it's reasonable and fair to infer. [00:30:55] Speaker 02: Okay. [00:30:58] Speaker 02: Let me just, I understand your point, but if the district court, if that is what the district court did, would that be legal error? [00:31:10] Speaker 02: Your Honor, it wouldn't be a legal error. [00:31:12] Speaker 02: Okay. [00:31:12] Speaker 02: Let me just ask you this. [00:31:14] Speaker 02: Okay. [00:31:15] Speaker 02: There's like 93 or 94 federal districts in the United States. [00:31:22] Speaker 02: And let's say that the defendant here drove through every one of them. [00:31:29] Speaker 02: All right. [00:31:30] Speaker 02: Would he have been acting alone in some of them because there weren't any other participants in them? [00:31:38] Speaker 02: and then acted with others because there were participants in those. [00:31:44] Speaker 02: Does it matter where he is stopped and the drugs are found and his role is going to differ simply by the accident of where he happened to be stopped? [00:31:56] Speaker 04: Your Honor, the government will offer that. [00:31:59] Speaker 04: It depends on the facts that are there at sentencing. [00:32:04] Speaker 04: the information that the district court has. [00:32:05] Speaker 02: Well, I realize I asked you a hypothetical, but that's why we ask hypotheticals. [00:32:10] Speaker 02: Could you try to answer that? [00:32:12] Speaker 04: Your Honor, effectively, to answer your question, the government is not sure what would occur in another district, what role he would get. [00:32:22] Speaker 04: That's effectively an individual district court's decision. [00:32:28] Speaker 04: Would he get a different role in Arizona or New Mexico or Texas? [00:32:34] Speaker 04: I cannot tell you that. [00:32:35] Speaker 02: And holding everything constant and all he's done is crossed from one district to the other. [00:32:40] Speaker 02: And is it possible for him to have a major role in one and a minor role in another just because he's crossed the district line? [00:32:50] Speaker 04: That's one changed fact, Your Honor. [00:32:52] Speaker 04: And again, I think [00:32:54] Speaker 03: I have to say... If he's got aiders and abetters or co-conspirators to this crime and they're in another state, you have to consider them, don't you? [00:33:04] Speaker 03: Bottom line? [00:33:05] Speaker 03: Yes, Your Honor. [00:33:07] Speaker 03: Thank you, Your Honor. [00:33:09] Speaker 04: That's my time. [00:33:12] Speaker 03: Thank you, Counsel. [00:33:13] Speaker 03: Case is submitted. [00:33:14] Speaker 03: Counselor excused.