[00:00:00] Speaker 04:
is 25-4004, United States versus Power Escobar.

[00:00:07] Speaker 04:
Counsel for the appellant, if you would make your appearance and proceed, please.

[00:00:13] Speaker 01:
Thank you, Your Honor.

[00:00:14] Speaker 01:
May it please the court, Aaron Clark for Miss Power Escobar this morning.

[00:00:19] Speaker 01:
As we've noted in our briefing, the district court made three errors here in calculating Miss Power Escobar's sentencing guidelines range, all of which require remand here.

[00:00:29] Speaker 01:
Two of those errors can be handled under the fact that the district court failed to make particularized findings.

[00:00:36] Speaker 01:
It miscalculated her base offense level under 2S1.1A2 by attributing to her the laundered funds of others in total over $190,000.

[00:00:46] Speaker 01:
And it also improperly applied a four level enhancement to her for being in the business of laundering funds.

[00:00:54] Speaker 01:
Again, predominantly by applying

[00:00:57] Speaker 01:
to her all of the transactions that are set forth in the pre-sentence report that were made by others without making the particularized findings necessary.

[00:01:08] Speaker 04:
Well, you anticipated one of my questions and that question relates to, you said that two of the allegations could be alluded, could be traced back to this failure to make the particularized findings.

[00:01:21] Speaker 04:
So I take it that you accept the premise that this, the one adjustment related to knowledge or belief that the laundered funds were tied to narcotics, that that offense, that adjustment stands alone.

[00:01:36] Speaker 04:
In other words, that we could conceivably be in a situation where that adjustment could be affirmed, the court's adjustment on that could be affirmed, even if we reversed on the other two issues, right?

[00:01:51] Speaker 04:
Yes, Your Honor.

[00:01:52] Speaker 01:
Yes, I have to acknowledge we're looking at different facts and applying those.

[00:01:58] Speaker 01:
We're looking at essentially clear error.

[00:02:01] Speaker 01:
in the district courts applying the sixth level enhancement for her knowledge of relief that the laundered funds were narcotics proceeds.

[00:02:10] Speaker 00:
Isn't there plenty of evidence of that?

[00:02:12] Speaker 00:
I mean, she admitted that she knew the funds were unlawfully obtained.

[00:02:18] Speaker 00:
And she also admitted that the government can likely prove they were proceeds of drug trafficking.

[00:02:26] Speaker 00:
And then there's evidence that she sat in a car while a drug dealer made multiple sales to various cars.

[00:02:39] Speaker 00:
I'm having a little trouble finding what the problem is with that enhancement.

[00:02:45] Speaker 00:
The problem with that enhancement, Your Honor, is that there is nothing directly tying her to narcotics trafficking or knowledge of narcotics trafficking, even what the court just... There's nothing tying her to trafficking herself, but I would take issue that there's no evidence of knowledge of narcotics trafficking.

[00:03:05] Speaker 00:
I mean, what did she think the guy was doing when he's sitting in the car with her and every car that comes by, he goes out and has a quick transaction and then comes back?

[00:03:15] Speaker 01:
Well, I would say, Your Honor, they did not.

[00:03:18] Speaker 01:
This is where I think the government's argument here is making some compositions here.

[00:03:23] Speaker 01:
What the evidence that was put before the court

[00:03:26] Speaker 01:
is that Mr. Ruiz Aguilar got out of his car and in his car repeatedly in movements that were consistent with drug trafficking.

[00:03:35] Speaker 01:
There isn't actually any drug trafficking that was tied to that.

[00:03:38] Speaker 01:
And there could be a host of other explanations for it.

[00:03:41] Speaker 01:
She does acknowledge in her plea agreement that yes, we acknowledged at the time that the court or that the government could prove that these were the proceeds of narcotics trafficking, but we have to be careful about hindsight bias and applying what she knew at the time she entered her plea.

[00:03:57] Speaker 01:
to what was happening at the time that she was engaged in this money laundering business with others.

[00:04:03] Speaker 01:
But I take the court's point.

[00:04:06] Speaker 01:
The government has put forward a number of pieces of evidence that don't directly tie her to knowledge of narcotics or to narcotics trafficking.

[00:04:17] Speaker 01:
It seems to impute knowledge by association with narcotics traffickers.

[00:04:23] Speaker 01:
But I think that's where

[00:04:25] Speaker 01:
That's where we have the real difficulty with the application of that enhancement is there's nothing directly that shows that she knew that this was drug trafficking and the government should have had to prove more there.

[00:04:38] Speaker 00:
That's a probable cost standard, isn't it?

[00:04:42] Speaker 01:
Proponderance of the evidence.

[00:04:43] Speaker 00:
I'm sorry.

[00:04:43] Speaker 00:
I'm sorry.

[00:04:45] Speaker 00:
I'm on the wrong.

[00:04:47] Speaker 04:
Mr. Clark, on this particularized findings point,

[00:04:52] Speaker 04:
Uh, were you required to raise that before the district court?

[00:04:56] Speaker 01:
And if you did, if you were, did you, uh, well, first, yes, we did raise it before the district court, your honor, in, in the objections that we filed that no, no, no, no, no, no, no, the objections, they were objections to discrete attribution issues.

[00:05:16] Speaker 04:
That is very different.

[00:05:18] Speaker 04:
Then the question of whether one has a distinct obligation to make particularized findings on those three factors, you know, scope of joint jointly undertaken activity, whether it was reasonably foreseeable, all those things.

[00:05:32] Speaker 04:
Those are three discrete things that the guidelines speak of.

[00:05:36] Speaker 04:
And you can just take Ellis, for example, in pointing out that that is an entirely discrete species of error, apart from the objections that you raised.

[00:05:47] Speaker 04:
And I'm not saying you had to, I'm asking you whether you had to raise that below.

[00:05:52] Speaker 01:
Well, no, Your Honor, I did not have to raise it below, because I think in one of the other cases that actually Your Honor was a part of, it was before, Your Honor, on plain error review.

[00:06:07] Speaker 04:
They didn't... Well, Ellis was one, and there was Figueroa as well, and in Figueroa, exactly.

[00:06:14] Speaker 04:
They didn't have to raise it.

[00:06:15] Speaker 04:
And so I just wanted to get clear for the record purposes,

[00:06:18] Speaker 04:
whether that distinct issue was raised.

[00:06:21] Speaker 04:
But I don't think as a matter of law, you did have to raise.

[00:06:24] Speaker 04:
Proceed.

[00:06:25] Speaker 01:
I don't think I did, Your Honor, but also we specifically objected to that enhancement by also noting that there were no findings of reasonable foreseeability in making that enhancement.

[00:06:38] Speaker 01:
And in response to that, the district court just denied the objection and found the record complete enough.

[00:06:46] Speaker 00:
So we didn't think you raised it.

[00:06:49] Speaker 00:
We would be on plain error, right?

[00:06:53] Speaker 01:
Yes, your honor.

[00:06:54] Speaker 01:
If I, if the district, if we'd fail to preserve that to district court level, the court would be reviewing that for clean, plain error at this point.

[00:07:00] Speaker 01:
Yes.

[00:07:01] Speaker 00:
And I mean, can you meet that standard?

[00:07:06] Speaker 01:
I certainly think we could, your honor, especially with, with certainly with respect to the particularized findings issue, because

[00:07:13] Speaker 01:
there are no particularized findings here.

[00:07:18] Speaker 01:
Just coming back to what, when we made the specific objection before the district court, the probation PSR's response specifically cites 1B1.3A1B.

[00:07:30] Speaker 01:
But instead of even trying to make any of these particularized findings, what the PSR says is,

[00:07:37] Speaker 01:
Quote, because it is clear to the probation officer that Power Escobar, Ruiz Aguilar, and Arita Lozano were working in conjunction with one another in commission of the offense of conviction, the total $190,637 should be applied to the defendant's guideline calculation.

[00:07:55] Speaker 01:
That finding, Your Honors, if we can call it that, is that the three of these people were working in conjunction with one another.

[00:08:01] Speaker 01:
And that doesn't seem to be saying much more than

[00:08:05] Speaker 01:
what is required under the 10th Circuit to prove that there was a conspiracy, namely that there was interdependence among the members of the conspiracy, which is one of the necessary elements here.

[00:08:15] Speaker 01:
So the court neither in Ellis, as Judge Holmes pointed out,

[00:08:21] Speaker 01:
the court ends up looking to the PSR and the district court's adoption of the PSR's findings and saying, yes, there were particularized findings made by the district court, but here it's not made by the, none of the findings are made by the court, nor in the, in the pre-sentence report.

[00:08:39] Speaker 01:
So we're left without any finding on reasonable foreseeability.

[00:08:43] Speaker 01:
We're not even left with a finding on the scope.

[00:08:46] Speaker 01:
of the jointly undertaken activity.

[00:08:48] Speaker 01:
And we're not left with any finding on whether all of these deposits were made in furtherance of the criminal activity.

[00:08:53] Speaker 02:
Mr. Clark, can I get a sense of how this proceeded in terms of the evidence that the district court considered?

[00:09:00] Speaker 02:
You mentioned the government had submitted some evidence, but as I read the transcript of the sentencing hearing, the sentencing judge said that he reviewed the pre-sentence report and the sentencing memorandum.

[00:09:11] Speaker 02:
Was there any other evidence that was presented to the court?

[00:09:17] Speaker 01:
Yes, Your Honor, in that, in our objections, we also submitted one of the reports that believe it was by a DEA agent that helped, we thought, support our objections.

[00:09:29] Speaker 01:
But otherwise, there was no testimony taken.

[00:09:32] Speaker 01:
It was all contained within the PSR and those documents.

[00:09:39] Speaker 02:
And then, as I read the PSR, the objections are made.

[00:09:42] Speaker 02:
There's an addendum where

[00:09:44] Speaker 02:
probation officer files responses, but I did not see maybe I missed the government's response that may include evidence to support their position.

[00:09:54] Speaker 01:
The court's right.

[00:09:55] Speaker 01:
The government did not submit any evidence in support of those positions.

[00:09:59] Speaker 01:
It just filed a sentencing memorandum that makes some allegations and connections, but it didn't submit any further evidence in support.

[00:10:09] Speaker 02:
All right.

[00:10:09] Speaker 02:
And then as I read your objections, you challenged the conclusions that the defendant was a leader in knowledge of drug trafficking organization.

[00:10:21] Speaker 02:
However, you did not challenge the individual transactions or observances in paragraph 15, that chart.

[00:10:29] Speaker 02:
So those facts are fair game for the court because they weren't challenged.

[00:10:33] Speaker 02:
Is that accurate?

[00:10:33] Speaker 02:
You agree with that?

[00:10:36] Speaker 01:
I would agree, Your Honor, that we did not challenge that those transactions happened.

[00:10:42] Speaker 01:
Now, and we didn't take issue with the fact she admitted to having been part of a conspiracy with at least one other person.

[00:10:50] Speaker 01:
Where I think we disagreed several times was that all of those transactions should be properly attributed to Ms.

[00:10:57] Speaker 01:
Power Escobar.

[00:10:58] Speaker 01:
Because the findings were not made.

[00:11:00] Speaker 01:
The connections were not made.

[00:11:01] Speaker 01:
The deposits were not made in her name.

[00:11:04] Speaker 01:
They were made in the leader's name, Arita Lozano.

[00:11:09] Speaker 02:
And the district court made a finding to say that Ms.

[00:11:12] Speaker 02:
Power Escobar was a co-leader, and I think it was an important part of this enterprise.

[00:11:19] Speaker 02:
If we were to accept those findings, do all of your arguments then do you lose in the rest of your arguments because being a leader implies the elements of jointly undertaken criminal activity?

[00:11:32] Speaker 01:
That's certainly what the government is arguing, Your Honor, but I don't think so.

[00:11:35] Speaker 01:
No.

[00:11:36] Speaker 01:
And especially in a situation here where we've got the government conceding in its brief that she was not the leader of the conspiracy.

[00:11:44] Speaker 01:
Arita Lozano was the leader of the conspiracy.

[00:11:46] Speaker 01:
The government just acknowledges that she had a degree of leadership.

[00:11:50] Speaker 01:
But I don't think that the court can properly say that that finding obviates the need to make the three particularized findings, particularly with foreseeability.

[00:12:02] Speaker 01:
There has been no finding, Your Honor, that she was aware of all of the other transactions that were happening when she's not around.

[00:12:11] Speaker 01:
So I don't think that it suffices to just say she's a co-leader of the operation, which itself is not defined by probation or by the court.

[00:12:22] Speaker 01:
And that covers everything.

[00:12:25] Speaker 01:
There's certainly no support for that that I've seen anywhere in the case law.

[00:12:32] Speaker 00:
What about that she was in the business of laundering funds?

[00:12:37] Speaker 00:
Did there have to be particularized findings for that?

[00:12:42] Speaker 01:
Well, Your Honor, there did in this case because it seems so important to both probation and to the government that they attribute all 27 transactions to Ms.

[00:12:55] Speaker 01:
Power Escobar in deciding that she was in the business of wandering funds.

[00:12:59] Speaker 01:
No one but Ms.

[00:13:00] Speaker 01:
Power Escobar tried to address that factor head on, only considering her six transactions.

[00:13:07] Speaker 01:
But if you want to apply the conduct of others to her under 1B1.3, you need to make those particularized findings to do so.

[00:13:15] Speaker 00:
We don't have any, at least I couldn't find any case law from this circuit interpreting that in the business of laundering funds and what specifically is required.

[00:13:28] Speaker 00:
Did you find something I didn't find?

[00:13:31] Speaker 01:
If we had found something, Your Honor, that certainly would have been in both of our briefings, I'm sure.

[00:13:37] Speaker 01:
It's a relatively novel area, but I think that issue almost gets short-circuited here, at least for now, because of the particularized findings issue and trying to attribute to her everybody's conduct.

[00:13:50] Speaker 04:
No, I get that, but let me just ask this.

[00:13:55] Speaker 04:
Let's assume that we were to accept the notion that

[00:14:00] Speaker 04:
that it was in error to attribute all of these transactions to her.

[00:14:04] Speaker 04:
You still have the six transactions that basically she accepts that she did.

[00:14:10] Speaker 04:
Could we find on that particular adjustment harmless error by saying that even if the court erred in attributing all 27 to her, we think as a matter of law, it was sufficient that there were six

[00:14:29] Speaker 01:
I think the court could, Your Honor.

[00:14:32] Speaker 01:
It's a fuzzy standard.

[00:14:33] Speaker 01:
It's totality of the circumstances.

[00:14:36] Speaker 01:
I'm not saying that the court should make that finding.

[00:14:39] Speaker 01:
I don't think that that's warranted here.

[00:14:41] Speaker 01:
But I can't say that it would be outside the court's purview to do that.

[00:14:46] Speaker 01:
What I would say is there was no evidence that these deposits came from multiple sources.

[00:14:52] Speaker 01:
There was no evidence that she generated a substantial amount of revenue.

[00:14:56] Speaker 01:
And that's what that factor looks at as to whether she generated revenue.

[00:15:00] Speaker 01:
She doesn't have any prior money laundering convictions.

[00:15:03] Speaker 01:
And this was six transactions over the course of a nine week period amounting to $26,000.

[00:15:09] Speaker 01:
In the survey of the case law that both parties put together, I don't see anyone saying that is in the business of laundering funds.

[00:15:17] Speaker 04:
I appreciate your candor on the point and your elaboration on it.

[00:15:20] Speaker 04:
Very helpful.

[00:15:21] Speaker 04:
Anything else?

[00:15:25] Speaker 04:
All right.

[00:15:25] Speaker 04:
Thank you.

[00:15:27] Speaker 04:
Councilor of the government, we'll hear from you.

[00:15:30] Speaker 03:
May it please the court, Nathan Jack for United States.

[00:15:34] Speaker 03:
I would like to begin with the argument about particularized findings, and I have three responses to that.

[00:15:39] Speaker 03:
First, the court here did make particular, particularized findings.

[00:15:44] Speaker 03:
Where?

[00:15:45] Speaker 03:
A finding repeatedly that Paraskevar was a co-leader in a three-person conspiracy is a particularized finding as courts have found.

[00:15:53] Speaker 04:
And what court are you talking about?

[00:15:55] Speaker 04:
You look at Ellis.

[00:15:57] Speaker 04:
And Ellis, that's not what that is.

[00:16:00] Speaker 04:
I mean, in this particular case, the court said one sentence at the beginning that she is a co-leader in this conspiracy.

[00:16:08] Speaker 04:
It did not speak about scope of jointly engaged in activity.

[00:16:15] Speaker 04:
It did not speak of reasonable foreseeability.

[00:16:18] Speaker 04:
It did not speak of furtherance.

[00:16:19] Speaker 04:
Where in the record of that sentencing transcript did the court do those things?

[00:16:25] Speaker 03:
A few responses, Your Honor.

[00:16:27] Speaker 03:
First, the case law does not require courts to go line by line and specifically articulate using magic words all the factors for relevant conduct.

[00:16:36] Speaker 03:
What matters is the court makes particular findings to that defendant, tying that defendant to the conduct.

[00:16:41] Speaker 03:
And so we see in all the cases where the court may not use the word scope or may not use the word foreseeability, but its findings show that it is tied to that relevant conduct.

[00:16:52] Speaker 04:
I don't know what case are you talking about because I note, and it is very significant to me, that when I look at your brief and when you responded specifically to that point, you did not cite one 10-circuit case, not one.

[00:17:07] Speaker 04:
You cited cases from other circuits, not from our circuit, and that's the only one for this purpose that matters.

[00:17:14] Speaker 04:
So what case are you relying on from our circuit that would say that the court, just by saying that she was a co-leader, would be sufficient to cover the basis on the particularized findings that were required?

[00:17:28] Speaker 03:
I do think Ellis is a close case.

[00:17:31] Speaker 03:
That leads to my second point here, that we have more than just the district court's finding about being a co-leader.

[00:17:36] Speaker 03:
We also have a very thorough PSR that specifically outlines all the evidence showing how Power Escobar was connected to the relevant conduct here.

[00:17:46] Speaker 04:
And I'll hit the pause button again.

[00:17:48] Speaker 04:
So you're saying that Ellis is your case.

[00:17:50] Speaker 04:
Is that what you're saying?

[00:17:51] Speaker 04:
That's the case that you would rely on from our circuit?

[00:17:54] Speaker 03:
Yes, and I would like to point out that my friend has not identified any case showing the other way, where someone was found to be a leader and it was sent back to the district court for failing to make particularized findings.

[00:18:08] Speaker 04:
Well, I'm saying that Ellis gives you a problem, and so if that's your case, then okay, you can have that case.

[00:18:15] Speaker 04:
But when you go beyond that and you look at the PSR and note, in the Figueroa-Lombrada case,

[00:18:22] Speaker 04:
The court said, okay, fine.

[00:18:23] Speaker 04:
Well, we'll look at the PSR as we did in Ellis.

[00:18:26] Speaker 04:
You can look at the PSR to see if the PSR will provide those particularized findings.

[00:18:30] Speaker 04:
What passage of the PSR do they speak about scope of jointly undertaken activity?

[00:18:36] Speaker 04:
Do they speak about in further itself beyond that one little recitation where the court did not go?

[00:18:43] Speaker 04:
I mean, the PSR probation officer did not go forward and attach them.

[00:18:47] Speaker 04:
I may have missed it.

[00:18:48] Speaker 04:
Tell me where that is.

[00:18:49] Speaker 03:
I would point your honor to response number one, where it talks about instructing Ruiz Aguilar.

[00:18:54] Speaker 03:
And again, it doesn't use magic words of, we find that this is within the scope.

[00:18:59] Speaker 03:
But when you instruct someone to do something, then obviously and necessarily that conduct is within the scope of what you agreed to do.

[00:19:08] Speaker 03:
That conduct is foreseeable to what you do.

[00:19:10] Speaker 03:
I would point your honor to response number two.

[00:19:13] Speaker 03:
Again, the language is

[00:19:14] Speaker 03:
It is clear to the probation officer that Paris Gabbard, Ruiz Aguilar, and Arita Lozano were working in conjunction with one another in the commission of defense of conviction.

[00:19:25] Speaker 03:
So again, that covers the scope.

[00:19:27] Speaker 03:
If you are working together, that means you are agreeing to that conduct.

[00:19:31] Speaker 03:
If you are working together, that means that conduct is foreseeable to you.

[00:19:41] Speaker 00:
Again, it depends on what the conduct is.

[00:19:44] Speaker 00:
All right.

[00:19:44] Speaker 00:
I mean, they're working together for purposes of a conspiracy.

[00:19:49] Speaker 00:
But then when you get down to how much of the transactions you get to attribute or the amount of money that's laundered, you get to attribute to this person we have held.

[00:20:03] Speaker 00:
It's not good enough to just have the general conspiracy.

[00:20:08] Speaker 00:
You need something more than that in the form of particularized findings.

[00:20:14] Speaker 00:
And I don't see them here.

[00:20:17] Speaker 03:
That is exactly what we have here, though.

[00:20:20] Speaker 03:
Again, the finding that Paola Escobar directed other co-conspirators means that she agreed to that activity.

[00:20:28] Speaker 03:
We don't have the magic words saying scope or saying foreseeability, but we have your particularized findings connecting Power Escobar to that conduct.

[00:20:38] Speaker 03:
She directed Ruiz Aguilar in this activity.

[00:20:40] Speaker 03:
Therefore, she agreed to it.

[00:20:41] Speaker 03:
It was within the scope of what she agreed to.

[00:20:43] Speaker 03:
It was foreseeable to her.

[00:20:46] Speaker 03:
That is enough of a particularized finding.

[00:20:48] Speaker 03:
And again, it is out of circuit, but it is very persuasive to the DC Circuit's opinion in Clark, where all they had there was that Clark was a leader.

[00:20:56] Speaker 03:
And we have a similar situation here, a three-person conspiracy, where Clark instructed two people to make a drug transaction.

[00:21:03] Speaker 03:
Those people were arrested, and the court attributed all of the drugs recovered to Mr. Clark.

[00:21:08] Speaker 03:
And he argued on appeal, there were no proper findings here.

[00:21:11] Speaker 03:
There weren't particularized findings.

[00:21:12] Speaker 03:
And the court said,

[00:21:13] Speaker 03:
The district court found you to be a leader.

[00:21:16] Speaker 03:
That is enough because.

[00:21:20] Speaker 04:
With all due respect to the D.C.

[00:21:22] Speaker 04:
Circuit, we're not in the D.C.

[00:21:23] Speaker 04:
Circuit.

[00:21:24] Speaker 04:
And if you can tell me what in Ellis, what language in Ellis would support you saying that at least calling someone a leader is enough to create particularized findings.

[00:21:37] Speaker 04:
I didn't see it.

[00:21:38] Speaker 03:
I'm not relying on Ellis for that point, Your Honor.

[00:21:40] Speaker 03:
I point that there is no ten circuit case in which the district court found that there was a leader, and this court reversed her amendment because there was lack of particularized findings.

[00:21:49] Speaker 03:
I point to Ellis to show that not only do we have the district court finding, but we also have a very thorough PSR that outlines exactly how Paola Escobar directed Ruiz Aguilar, how she worked with Arita Lozano, and how that therefore means that the scope of that activity is attributable to her.

[00:22:08] Speaker 02:
Let me go ahead.

[00:22:11] Speaker 02:
I'm sorry.

[00:22:12] Speaker 02:
Go ahead.

[00:22:13] Speaker 02:
So you keep talking about the specific findings and I just want to make sure I understand this point because as I read the record, the defendant makes objections, many objections to the original PSR.

[00:22:27] Speaker 02:
And then we have this addendum where the probation officer who works for the court goes through and gives a response and even references some discovery.

[00:22:36] Speaker 02:
We have nothing from the government, and my understanding is the government has submitted no evidence at all.

[00:22:42] Speaker 02:
And so when you're saying the findings, are you talking about the probation officer's findings?

[00:22:49] Speaker 02:
Because at that point, I guess I'm thinking of the Rule 32 that says, you know, once the defendant objects and puts these facts at issue, the government has a burden.

[00:22:59] Speaker 02:
It doesn't say the probation officer has a burden.

[00:23:02] Speaker 02:
The government has the burden, so I'm trying to figure out when you keep talking about the findings, if you're talking about what the probation officer said, what the evidence the government submitted, which I think is none, or what the district court made in terms of findings.

[00:23:18] Speaker 03:
We did submit a sentencing memorandum, Your Honor, that outlined several pieces of evidence.

[00:23:23] Speaker 03:
But yes, the findings in the PSR are fair game, and the district court heavily relied on the PSR and adopted the offense level.

[00:23:30] Speaker 03:
And as we learn in Ellis,

[00:23:32] Speaker 03:
That implies that it adopted those findings as well.

[00:23:35] Speaker 03:
So while it appeared in the addendum in the response, that still suffices as part of the district court's findings.

[00:23:41] Speaker 03:
And that's what we have here.

[00:23:43] Speaker 04:
Mr Jack, could I just follow up on that for a second?

[00:23:47] Speaker 04:
Um, Judge Federico's point, it seems to me is is well taken.

[00:23:51] Speaker 04:
I mean, isn't it in fact the case that when there are objections that are made and these were fact based objections, the government, the district court, we have cases that say and I hope you would confirm that this is your understanding.

[00:24:06] Speaker 04:
We have cases that say when such specific objections are made,

[00:24:11] Speaker 04:
that the court can't, it cannot accept the PSR as its findings.

[00:24:17] Speaker 04:
The government has an obligation to put on proof to support the PSR's findings.

[00:24:24] Speaker 04:
Is that not right?

[00:24:26] Speaker 03:
It says it can't accept those findings without resolving those objections, and the court here clearly overruled those objections.

[00:24:33] Speaker 04:
Based upon what?

[00:24:36] Speaker 04:
The government did not present a sentencing memorandum.

[00:24:40] Speaker 04:
There was no hearing.

[00:24:42] Speaker 04:
There wasn't even evidence presented in addition to support the PSR's findings, right?

[00:24:51] Speaker 03:
There was, Your Honor.

[00:24:53] Speaker 03:
The DEA analysis that my friend talked about was included in the PSR's analysis.

[00:25:00] Speaker 03:
The PSR looked at the evidence and made those responses.

[00:25:06] Speaker 03:
The District Court looked at all the evidence and overruled those objections.

[00:25:11] Speaker 04:
The point is based upon what?

[00:25:13] Speaker 04:
I understand your point about the DEA presenting

[00:25:15] Speaker 04:
you know, it's whatever DEA6 or whatever it did in that context, but the reality is then we are, you know, if you look on the time continuum, that stuff happens, then the PSR is produced, then there are objections to the PSR, and at that juncture, that's when the rule would require something to happen.

[00:25:35] Speaker 04:
I mean, then, because that's where we are at that juncture, the court can't then just say, oh, well, you know, I looked at the PSR findings and I like them and I'm adopting them as my findings.

[00:25:47] Speaker 04:
At that juncture, something else has to happen, right?

[00:25:52] Speaker 03:
The PSR filed responses, the probation officer filed responses to those objections.

[00:25:57] Speaker 03:
That was based on evidence.

[00:25:58] Speaker 03:
The district report then overruled those objections to the extent there's any qualms about whether the evidence actually supported that findings, those findings that goes to clear error.

[00:26:08] Speaker 03:
That does not go to point of view.

[00:26:10] Speaker 04:
You said based upon evidence.

[00:26:11] Speaker 04:
Are you talking about new evidence or talking about the evidence that it already had?

[00:26:15] Speaker 03:
Essentially the evidence that it already had, as well as the additional evidence of the DEA analysis of PowerScore Ball's specific communications with Ruiz Aguilar.

[00:26:27] Speaker 03:
So from that, it found that Power Escobar directed Ruiz Aguilar in both drug activity and money laundering activity.

[00:26:36] Speaker 03:
In conjunction with the other evidence it had outlining the hundreds of phone calls and voice messages and text messages between the two, between Power Escobar loaning cars for Ruiz Aguilar to then make deposits.

[00:26:51] Speaker 00:
Let me ask you this.

[00:26:53] Speaker 00:
If we disagree with you,

[00:26:55] Speaker 00:
And we think there were not particularized findings here.

[00:27:00] Speaker 00:
Would you agree we have to remand for re-sentencing?

[00:27:04] Speaker 03:
I would not, Your Honor, and I would say that it's harmless errors.

[00:27:08] Speaker 03:
I believe my friend acknowledged and maybe I misheard.

[00:27:13] Speaker 03:
but the evidence here is extensive.

[00:27:16] Speaker 03:
And if all the court finds that there was a lack of specialized findings here, we would essentially go back to the dish court to say, okay, yes, I docked all these specific things and then we're in the same position as we are today.

[00:27:28] Speaker 00:
I understood the concession to be that we could find harmless error on the laundering with six transactions.

[00:27:37] Speaker 00:
I did not, maybe I'm wrong,

[00:27:39] Speaker 00:
but I did not interpret that as a blanket.

[00:27:43] Speaker 00:
Everything's harmless there.

[00:27:44] Speaker 03:
That is fair.

[00:27:45] Speaker 03:
I understand.

[00:27:45] Speaker 03:
I would argue that we do have harmless error here where the, the evidence is so extensive and shows, uh, power screw bars involvement in this conduct.

[00:27:53] Speaker 03:
And I, and my third point that on the specialized findings that I would like to get to.

[00:27:57] Speaker 00:
So you're essentially saying we can just go ahead and make the findings ourselves.

[00:28:03] Speaker 03:
Uh, no,

[00:28:05] Speaker 03:
Ideally, I would say that the PSR has all the findings, so you wouldn't need to make the findings yourselves.

[00:28:12] Speaker 03:
If the court finds that the district court failed to... Go ahead, I'm sorry.

[00:28:19] Speaker 03:
If it finds that the district court failed to make those findings, then I would say this court can look to the findings that are located in the PSR.

[00:28:28] Speaker 03:
If it finds that the findings in the PSR aren't inadequate, yes, I can see that we would need to remand.

[00:28:33] Speaker 03:
But four, my third point, which is the preservation issue, and Power Escrow Bar did not raise this issue of particularized findings below.

[00:28:41] Speaker 03:
Below the objection was about sufficiency, and I quote from the sentencing transcript.

[00:28:49] Speaker 03:
Sorry, the objection is that the court considers her a co-leader of this drug trafficking cell and is perplexing to us with the evidence that we have in this case.

[00:28:58] Speaker 03:
Again,

[00:28:59] Speaker 03:
The argument was that the evidence was insufficient to show that Paolo Escobar was a leader.

[00:29:04] Speaker 04:
And under Ellis and under Figueroa-Lebrada, did the defendant have to raise this issue?

[00:29:11] Speaker 03:
Yes, I think in Figueroa, the court reviewed for plain error.

[00:29:16] Speaker 03:
I think that shows an obligation to preserve this specific because it is an independent challenge to this evidence.

[00:29:25] Speaker 03:
So this is something that needs to be preserved.

[00:29:27] Speaker 03:
This is something that was not preserved.

[00:29:30] Speaker 03:
I recognize that the United States failed to outline this in the response brief and that an appellee can waive waiver.

[00:29:37] Speaker 03:
However, a party cannot waive the standard review.

[00:29:40] Speaker 03:
Rule 54B outlines what the standard review is.

[00:29:44] Speaker 03:
And that is true no matter what the parties concede to.

[00:29:47] Speaker 03:
And so this would then be reviewed for plain error.

[00:29:49] Speaker 03:
And given the dearth of 10th Circuit case law saying that a finding that someone was a leader

[00:29:56] Speaker 03:
is a lack of particularized findings.

[00:29:59] Speaker 03:
There is not binding case law in this circuit or settled case law.

[00:30:03] Speaker 03:
I think to the extent there is case law, it goes the other way.

[00:30:06] Speaker 03:
All the cases that court find where district court found that a defendant was a leader in a conspiracy, all of those have been upheld as having particularized findings.

[00:30:16] Speaker 03:
Ellis is a different story because there was nothing like that finding there.

[00:30:20] Speaker 00:
Let me take it back to the fact that that finding was specifically objected to and there wasn't a Rule 32 procedure after that objection.

[00:30:35] Speaker 03:
Correct, Your Honor.

[00:30:36] Speaker 03:
There wasn't.

[00:30:37] Speaker 03:
Well, so the finding, the Discord did make a specific finding on that.

[00:30:46] Speaker 03:
And again, the point is that

[00:30:50] Speaker 03:
There is no case law saying that that finding is inadequate.

[00:30:54] Speaker 03:
All the case law in the United States has gone the other way.

[00:30:57] Speaker 03:
And for that reason, there is no plain error here.

[00:30:59] Speaker 03:
I see my time is up and ask this court to affirm.

[00:31:02] Speaker 02:
Actually, Chief, can I ask one more question?

[00:31:04] Speaker 02:
Of course.

[00:31:05] Speaker 02:
Mr. Jack, the government's role in this procedure, as I understand it, was the sentencing memo.

[00:31:13] Speaker 02:
That's all that was submitted.

[00:31:14] Speaker 02:
As I look at the date of that document, it's submitted on the same day as the defendant's sentencing memorandum.

[00:31:20] Speaker 02:
It includes a list of transactions or proffered facts.

[00:31:25] Speaker 02:
Two questions about that.

[00:31:26] Speaker 02:
Was there any evidence that supported those facts that was submitted to the court with the sentencing memorandum, or was it just counsel's recitation?

[00:31:35] Speaker 03:
I do not recall off the top of my head what was submitted, but I would note here that as my friend has recognized the trial, the underlying facts are not in dispute.

[00:31:46] Speaker 02:
Okay, and so you may have answered my second question, which is, it lists all those transactions.

[00:31:51] Speaker 02:
Are those essentially mirrored transactions to the chart that's in paragraph 15 of the pre-sense report?

[00:31:56] Speaker 03:
I believe so, yes.

[00:31:57] Speaker 03:
Okay.

[00:31:58] Speaker 03:
And again, none of those underlying facts are in dispute.

[00:32:00] Speaker 03:
The only dispute is whether that shows that Power Deskbar was a co-leader in this three-person conspiracy.

[00:32:06] Speaker 03:
Thank you.

[00:32:08] Speaker 04:
All right, case is submitted.

[00:32:10] Speaker 04:
Thank you, counsel.