[00:00:00] Speaker 00:
Case number 17 is 3090.

[00:00:16] Speaker 04:
Good morning, Your Honor.

[00:00:18] Speaker 04:
May it please the Court?

[00:00:19] Speaker 04:
My name is Richard Gilbert, and I represented Mr. Carvajal-Flores both before the district court and obviously on appeal.

[00:00:28] Speaker 04:
Sometimes it's a futile gesture, but I would like to try to reserve three minutes for rebuttal if the Court's questioning permits that.

[00:00:36] Speaker 04:
With respect to the actual sentencing guideline calculation in this case, this seems to be a situation of alternative facts.

[00:00:45] Speaker 04:
I have argued in my brief and in my reply brief that the record is clear that the actual sentencing guideline calculation

[00:00:55] Speaker 04:
in the final pre-sentence report, the 2017 pre-sentence report, which was endorsed by the U.S.

[00:01:01] Speaker 04:
Attorney's Office and adopted by the district court as written, is legally flawed because it specifically treated what I've referred to as the Mexican murder as a separate racketeering offense.

[00:01:15] Speaker 04:
It calculated a separate

[00:01:18] Speaker 04:
guideline for that offense, and then it grouped it as a separate offense when it compared to the other three racketeering offenses.

[00:01:28] Speaker 04:
Therefore, since, as I've argued, a foreign murder of a foreign national in a foreign country is not a racketeering activity,

[00:01:39] Speaker 04:
I believe it was error to treat it as such, and therefore I believe the court needs to remand for resentencing.

[00:01:46] Speaker 02:
Can I just to get a sense of where you and the government agree and where you and the government disagree?

[00:01:56] Speaker 02:
Just try to walk through how you believe this analysis is supposed to work.

[00:02:02] Speaker 02:
So.

[00:02:04] Speaker 02:
Under guideline section 1B1.3.

[00:02:09] Speaker 02:
There's A1A and A1B.

[00:02:16] Speaker 02:
Are you saying that in order for that guideline to be used to calculate a base offense level, that the racketeering activity has to be listed as a predicate act in the indictment or information?

[00:02:38] Speaker 04:
Well, let me try and answer it this way.

[00:02:43] Speaker 04:
Relevant conduct, which is the citation you were referring to, is not some sort of abstract thing.

[00:02:50] Speaker 04:
It has to attach to a guideline calculation.

[00:02:54] Speaker 04:
In the case of racketeering offenses, it has to attach in some how to a guideline calculation for an individual racketeering activity.

[00:03:04] Speaker 04:
And in this case, until the appeal, nobody was arguing that the Mexican murder was relevant conduct.

[00:03:16] Speaker 04:
They argued it was indeed a separate racketeering offense.

[00:03:19] Speaker 01:
So... All right.

[00:03:20] Speaker 01:
Now, if it had been treated as a relevant conduct item rather than as a racketeering predicate item,

[00:03:30] Speaker 01:
Would this not be, and could the judge not have reached the same result here and done so without error?

[00:03:37] Speaker 04:
It could have been.

[00:03:40] Speaker 04:
Part of the problem is that I don't think it's clear cut that the Mexican murder was relevant conduct.

[00:03:48] Speaker 04:
It's something that we would argue about.

[00:03:50] Speaker 01:
So the most we could do

[00:03:54] Speaker 01:
it would be to vacate and remand for the judge to reconsider, rather than us saying the sentence is in error, it should have been a two-per-dub or a three-per-dub.

[00:04:05] Speaker 04:
Yes, I don't believe it's appropriate for this court to make what is essentially a factual finding.

[00:04:11] Speaker 04:
That's what relevant conduct is.

[00:04:12] Speaker 04:
It's a combination of law and facts.

[00:04:14] Speaker 01:
If you don't dispute that the judge in the district could have treated this as relevant conduct and come to the same

[00:04:20] Speaker 01:
entered the same sentence at the end of the category.

[00:04:23] Speaker 04:
I am certain that the government certainly could have argued that below.

[00:04:29] Speaker 04:
Instead, what the government did was it argued that the murder of Special Agent Zapata was relevant conduct, and I don't think that helped.

[00:04:36] Speaker 01:
That doesn't change, however, the result that we could reach here would be to strike

[00:04:42] Speaker 01:
the sentence remand and ask the judge below to reconsider, and he could come to the same sentence with a different calculation than one else.

[00:04:51] Speaker 01:
It's possible.

[00:04:53] Speaker 01:
But let me just... I'm sorry.

[00:04:54] Speaker 03:
I thought your entire argument was that

[00:05:00] Speaker 03:
the governing offense guideline in this case is 2E1.1 and that the relevant conduct guideline has nothing to do with the case because the specific RICO guideline talks about racketeering activity and this isn't racketeering activity.

[00:05:22] Speaker 04:
The Mexican murder is not a racketeering activity.

[00:05:25] Speaker 04:
I hope you will come to that conclusion.

[00:05:27] Speaker 04:
I believe that's not disputed by the government.

[00:05:29] Speaker 03:
Right.

[00:05:30] Speaker 03:
But I thought I heard you tell Judge Sintel that the relevant conduct issue should be open on remand.

[00:05:40] Speaker 03:
We should just say it's not racketeering activity and remand for the district court to consider whether it comes in through relevant conduct.

[00:05:49] Speaker 04:
On remand, I'm sure the government will argue that.

[00:05:54] Speaker 04:
And I will try to argue that the government should not.

[00:05:56] Speaker 04:
One, because they didn't raise it earlier.

[00:05:59] Speaker 04:
They're the one that brought judicial estoppel into their brief.

[00:06:04] Speaker 04:
But if that's denied, then we would certainly be in a situation where Judge Lambert could consider that.

[00:06:13] Speaker 04:
I do want to just say one thing.

[00:06:15] Speaker 03:
So all you're asking for is remand.

[00:06:20] Speaker 03:
We knock out the racketeering activity theory and we remand for the district court to consider the relevant conduct issue.

[00:06:31] Speaker 04:
That's all you're asking for.

[00:06:34] Speaker 04:
Yes, I don't believe, you know, I've thought about this judicial estoppel.

[00:06:39] Speaker 03:
No, no, put aside estoppel and put aside the question of what the court can do under 3553A in a discretionary guideline world.

[00:06:54] Speaker 03:
I'm just focused on racketeering activity versus relevant conduct.

[00:07:02] Speaker 03:
And you think relevant conduct is an open issue on remand?

[00:07:06] Speaker 03:
I do.

[00:07:07] Speaker 03:
OK.

[00:07:10] Speaker 04:
I do want to say very briefly, though, that lest it be believed that I don't recognize the seriousness of the conduct, that even if the judge were precluded on a legal basis from concluding it was relevant conduct, and I believe there are arguments for that, that I

[00:07:27] Speaker 04:
allude to in my reply brief.

[00:07:31] Speaker 04:
The judge, of course, can still consider under 3553A the conduct of the defendant while acting as a Zeta, but that would be not an automatic mathematical calculation.

[00:07:43] Speaker 04:
It would be a matter of discretion, and we could, of course, bring in other evidence related to his assistance to the Mexican government

[00:07:51] Speaker 04:
which was not the basis for the reduction that the government asked for below.

[00:07:56] Speaker 04:
I see that my time is up.

[00:07:57] Speaker 04:
I wouldn't let me before he sits down.

[00:08:00] Speaker 02:
I just want to make sure that I understand what your argument is about how the sentencing guidelines calculation is properly done.

[00:08:13] Speaker 02:
You're saying that you believe that the government has now

[00:08:17] Speaker 02:
conceded or is not disputing that the Mexican murder cannot be a predicate act for guidelines purposes for the Rico conspiracy.

[00:08:30] Speaker 02:
Correct.

[00:08:32] Speaker 02:
And why is it that you think that the government has conceded that or is not disputing that?

[00:08:39] Speaker 04:
Because their entire argument in their reprimand belief was based on the assumption that what the judge had done was conclude that the Mexican murder was relevant conduct that had to be related back to some other racketeering activity.

[00:08:54] Speaker 04:
And that was not what happened below.

[00:08:59] Speaker 04:
And in response to Judge Centella and Judge Katz's, yes, it could have happened below, but that's not what did happen below.

[00:09:05] Speaker 04:
And the government actually never tries to argue in its brief that the Mexican murder was properly considered as a racketeering activity.

[00:09:15] Speaker 02:
So when you, just so that we're clear, when you're saying considered as relevant conduct, you mean under 1B, 1.3?

[00:09:25] Speaker 02:
Yeah.

[00:09:29] Speaker 04:
I don't think it really, well, I'm not conceding that.

[00:09:33] Speaker 02:
What relevant conduct provision are you talking about?

[00:09:36] Speaker 04:
Well, frankly, I would, with the government, try to argue which one it fits under.

[00:09:42] Speaker 04:
Arguably, I think it's probably, since they're talking about the Mexican murder, which Mr. Carvajal-Flores admitted committing, it would probably be under the section that talks about his own activity, which is 1A.

[00:09:56] Speaker 04:
1A.

[00:09:58] Speaker 02:
Yeah, but I guess my point is, you're saying that the government didn't argue that below.

[00:10:06] Speaker 02:
Correct, but didn't.

[00:10:08] Speaker 02:
Isn't that the argument that the government made in response to the objection that you filed to the pre sentence report?

[00:10:18] Speaker 04:
No, that's when the government starts arguing that the murder of Special Agent Zapata is relevant conduct.

[00:10:25] Speaker 04:
They put in there something that the Mexican murderer was in furtherance of the drug conspiracy, but I don't think that that alone gets it to relevant conduct.

[00:10:36] Speaker 04:
That's when we get into the Azeem case and the Dawn case and when can foreign conduct be relevant conduct and so forth.

[00:10:45] Speaker 04:
And in my view, it's too tenuous.

[00:10:47] Speaker 04:
But that's an argument, I agree, that would have to be made below.

[00:10:51] Speaker 02:
So I'm specifically talking about the language at appendix 129, the government's response to your objections to the pre-sentence report.

[00:11:07] Speaker 02:
Yes.

[00:11:08] Speaker 02:
So that paragraph that begins with moreover,

[00:11:12] Speaker 02:
where they say any person engaging in or working in furtherance of a continuing criminal enterprise, et cetera, et cetera, who intentionally kills or causes the intentional killing of an individual, and such killing results shall be since any term of imprisonment, et cetera, and then they cite the conspiracy and continuing criminal enterprise statutes.

[00:11:39] Speaker 02:
And then they say, hence this murder was in furtherance of the protection of the drug trafficking operation, et cetera.

[00:11:51] Speaker 02:
And then they say, as such, the defense level of 43 is set forth in paragraph 93 of the PSR is correct.

[00:11:59] Speaker 02:
Now, they don't cite any specific provision there.

[00:12:07] Speaker 02:
And in the final PSR, when the probation office kind of responds to these objections, they don't cite

[00:12:17] Speaker 02:
the specific guidelines provision when they say that the Mexican murder, um, can be can be considered, but isn't really the only one that they could be talking about.

[00:12:34] Speaker 02:
One point, um, 1.3 a one a

[00:12:44] Speaker 02:
I mean, what else could the government be talking about in this paragraph?

[00:12:47] Speaker 02:
And what else could the probation office have been talking about in the final PSR?

[00:12:54] Speaker 04:
Well, let me just point out that the probation office in the final report adopts much but not all of the language in the government's opposition.

[00:13:02] Speaker 04:
That whole sentence about 1841, you know, he wasn't charged with that.

[00:13:09] Speaker 04:
And the probation officer doesn't go there with respect to the language in the first sentence.

[00:13:14] Speaker 04:
Amen.

[00:13:15] Speaker 04:
They do talk about it.

[00:13:17] Speaker 04:
Right after they talk about it, the probation office says, well, you know, and if you agree with the defendant, then his guideline calculation is much lower.

[00:13:27] Speaker 04:
My point was that when the government below talks about relevant conduct, they're specifically talking about the relevant conduct of the murder of Agent Zapata.

[00:13:35] Speaker 04:
And that occurs on page 129.

[00:13:37] Speaker 04:
And that occurs at several other points.

[00:13:40] Speaker 04:
That occurs.

[00:13:41] Speaker 04:
That's what they talk about.

[00:13:43] Speaker 04:
I wrote those down.

[00:13:44] Speaker 04:
that in their sentencing allocation at appendix 161, that's what they talk about.

[00:13:52] Speaker 04:
They talk about it here at page 128.

[00:13:54] Speaker 01:
You refer to page 129, and that's discussing the Mexican version.

[00:13:59] Speaker 01:
It is.

[00:13:59] Speaker 04:
It is.

[00:14:00] Speaker 04:
And there's no reference to that being relevant conduct.

[00:14:05] Speaker 04:
Okay.

[00:14:07] Speaker 04:
And I'm sure that that's the language the government will try to shoehorn into relevant conduct agreement.

[00:14:14] Speaker 02:
So that's why I asked the question.

[00:14:17] Speaker 02:
They don't specifically reference relevant conduct.

[00:14:20] Speaker 02:
They don't specifically reference any particular guideline provision.

[00:14:25] Speaker 02:
So my question to you is,

[00:14:28] Speaker 02:
What other guideline provision could they be trying to shoehorn this into, if not 1B1.3A1A?

[00:14:38] Speaker 04:
Well, I don't see them trying to shoehorn it into anything.

[00:14:41] Speaker 04:
That's the problem, is because they've already treated the Mexican murder as a separate racketeering offense.

[00:14:47] Speaker 04:
And so this language sort of seems irrelevant.

[00:14:51] Speaker 04:
If you're going to take the actual sentencing calculation from the final pre-sentence report and adopt it by the judge, you don't have to talk about the Mexican murder as relevant conduct because you're treating it as a racketeering activity.

[00:15:05] Speaker 04:
Ironically, but that's how you're treating it.

[00:15:07] Speaker 03:
Suppose we think that the relevant conduct issue was preserved by the government.

[00:15:16] Speaker 03:
How could this not be relevant conduct?

[00:15:20] Speaker 03:
The underlying offense is a RICO conspiracy.

[00:15:23] Speaker 03:
It's a C offense, which is to conduct the affairs of the enterprise through a pattern of racketeering.

[00:15:31] Speaker 03:
The defendant agrees to do that.

[00:15:34] Speaker 03:
It's a drug cartel.

[00:15:36] Speaker 03:
They exercise force and intimidation to protect their territory and their roots and such.

[00:15:44] Speaker 03:
And this is a murder of a rival gang member committed in furtherance of the conspiracy.

[00:15:50] Speaker 03:
And that's as relevant as relevant can get.

[00:15:53] Speaker 04:
Well, with all due respect, Judge, the problem is I believe that to establish the Mexican murder as relevant conduct, you have to link it more directly.

[00:16:04] Speaker 04:
to the drug trafficking, which is the relevant racketeering activity that could possibly be linked to.

[00:16:11] Speaker 04:
And I think it has to be more directly.

[00:16:13] Speaker 04:
I think that's why these cases that we cite back and forth about when foreign conduct can be considered needs to be taken into account.

[00:16:21] Speaker 04:
Because part of the problem is if the Zetas were only in the business of drug trafficking,

[00:16:27] Speaker 04:
That would be perhaps simple.

[00:16:29] Speaker 04:
But they're not.

[00:16:30] Speaker 04:
They're also in the business of carjacking and kidnapping and human trafficking and assassinations.

[00:16:35] Speaker 04:
Was this kidnapping and murder, was that they weren't engaged in any drug trafficking at the time?

[00:16:43] Speaker 04:
Were they engaged in a kidnapping that went wrong for money?

[00:16:45] Speaker 04:
I mean, I think that there's factual aspects about this as to whether or not it's directly enough related.

[00:16:52] Speaker 04:
And the Azeem case is an example where they found

[00:16:55] Speaker 04:
that conduct that probably indirectly enhanced the organization because they made the money from selling the drugs in Egypt But nonetheless the court didn't go there And I think the conclusion to be drawn from looking at the case decided by both the government and the defense is that there's got to be It can be too tenuous and in its connection to the specific offense that you want to link it to relevant conduct

[00:17:21] Speaker 04:
Now, you know, my only argument at this point is that I don't believe that the simple language alone that this particular act was generally in furtherance of the cartel's drug activities is enough to bring it into relevant conduct, given that it occurred in a foreign country.

[00:17:43] Speaker 04:
And that's why I'm suggesting.

[00:17:44] Speaker 01:
On the relevant conduct, does the fact that it occurred in a foreign country make any difference?

[00:17:49] Speaker 01:
I'm not talking about the recall.

[00:17:51] Speaker 01:
But talking about relevant conduct, you just referred to, given the fact that it happened in a foreign country, does that matter on relevant conduct?

[00:18:00] Speaker 04:
I believe that the answer that it matters, but that it is not itself a lone dispositive.

[00:18:07] Speaker 04:
I think when it occurs in a foreign country, then I think that what you have to look to is how directly does it affect the particular charges that you want to call it relevant conduct for.

[00:18:18] Speaker 04:
In the child pornography cases, I think it's a no-brainer.

[00:18:22] Speaker 04:
They produce the child pornography in Honduras, and they're still in possession of that.

[00:18:27] Speaker 04:
And I don't see anything logically irrelevant about in the child pornography cases, including the production in a foreign country as part of the relevant conduct.

[00:18:36] Speaker 04:
But in these other cases, I think it becomes more tenuous.

[00:18:40] Speaker 04:
And I think that's the factual issue that I certainly would argue on remand.

[00:18:44] Speaker 04:
And I certainly believe that it's not something you can reach.

[00:18:47] Speaker 02:
But you're not contending that there is an extraterritoriality bar to considering foreign acts as relevant conduct?

[00:19:00] Speaker 04:
No, I'm not, because of the child pornography cases that I think represent the most direct connection between foreign conduct and the activities that were charged in the United States.

[00:19:11] Speaker 01:
Isn't it a bit of a stretch to try to argue that there's not a connection here between

[00:19:16] Speaker 01:
the kidnapped murder and the conspiracy with which he's charged?

[00:19:24] Speaker 04:
Well, the problem is I certainly understand that the Zetas were involved in drug trafficking and something that generally, you know, helps the Zetas.

[00:19:32] Speaker 01:
Rather heavily involved.

[00:19:33] Speaker 01:
They were dominating a thing with the drug trade, right?

[00:19:37] Speaker 04:
Yes, but they were involved in so many other activities.

[00:19:40] Speaker 01:
We have to break it down to that final point that this is relevant conduct to a particular part of their criminal enterprise.

[00:19:50] Speaker 04:
Yes, because it's only their drug trafficking that makes it, and their murder of Special Agent Zapata and Avila, which are already being dealt with as other racketeering activities.

[00:20:02] Speaker 04:
It is only their drug trafficking that makes that a racketeering offense.

[00:20:06] Speaker 04:
they're human smuggling, they're kidnapping and so forth.

[00:20:14] Speaker 03:
Just one question on estoppel.

[00:20:16] Speaker 03:
I'm inclined to agree with you that judicial estoppel is not a very good fit, but wasn't there some sort of prejudice to the government here when they're trying to figure out how to treat this case in 2012, they get an agreement that the parties think this is a base offense level 43 case,

[00:20:42] Speaker 03:
And that's the baseline on which they proceed and they make their charging decisions and everything else on that assumption.

[00:20:51] Speaker 03:
And then five years later when the evidence is stale and so on, you come back and say, oh no, no, it's not a 43 case, it's a 30 case.

[00:21:02] Speaker 03:
Doesn't that prejudice the government?

[00:21:04] Speaker 04:
Well, first of all, let me just point out that by 2015, it's clear that the analysis that the parties agreed on in the... Fair enough.

[00:21:15] Speaker 03:
You had the first PSR, okay, that's three years later instead of five years later.

[00:21:19] Speaker 04:
But no, I think, first of all, it was the government that drafted the letter.

[00:21:25] Speaker 04:
And if you're going to talk about statutory contract law and so forth, then I think you have to hold it against them.

[00:21:32] Speaker 04:
But you're an independent branch of government.

[00:21:34] Speaker 04:
And I don't think you want to find yourself in a position where you're saying that the government, through a plea agreement, that's not binding on the court, the sentencing guidelines parts are not, it's not binding on the court, but nonetheless,

[00:21:48] Speaker 04:
because of the plea agreement, we're going to compel the defendant to argue or to not argue against something which is wrong.

[00:21:58] Speaker 04:
And the sentencing guideline in the plea agreement was wrong.

[00:22:01] Speaker 04:
They didn't go about it the right way.

[00:22:04] Speaker 04:
And I agree that I signed on to that, and I agree that I was wrong, too.

[00:22:07] Speaker 04:
But I don't think you want to be in a situation to say, well, when you realize that the calculation that you've tendered, which is not binding on the court, is wrong, that somehow you still have to argue a position that you now know is legally incorrect.

[00:22:22] Speaker 04:
Thank you.

[00:22:23] Speaker 04:
We'll hear from the government.

[00:22:35] Speaker 05:
May it please the court, Peter Smith on behalf of the United States.

[00:22:40] Speaker 05:
The district court properly determined the guideline range in this case on the basis of appellant's relevant conduct.

[00:22:47] Speaker 05:
That was conduct that was conducted in furtherance of the charged conspiracy.

[00:22:52] Speaker 05:
Appellant's counsel has made two general assertions this morning that are incorrect, and I wanted to take those in order.

[00:23:02] Speaker 05:
One is that the district court treated the murder of the Mexican kidnapped victim as

[00:23:10] Speaker 05:
racketeering activity instead of as relevant conduct and that's simply not correct.

[00:23:15] Speaker 03:
Do you agree that it's not racketeering activity?

[00:23:19] Speaker 03:
We do, yeah.

[00:23:21] Speaker 03:
Why isn't that the end of the case?

[00:23:24] Speaker 03:
Because the controlling offense guidelines says apply the greater of 19 or the offense level applicable to the underlying racketeering activity.

[00:23:36] Speaker 03:
The Mexican murder is not racketeering activity.

[00:23:39] Speaker 05:
Well, what we're conceding or saying right now is that the murder of the Mexican kidnapped victim wasn't racketeering activity.

[00:23:49] Speaker 03:
And then you have the other predicates, you have the drug predicates and the accessory after the fact to murder predicates, and those don't get you above 30.

[00:23:59] Speaker 05:
Well, I want to separate the two points because I think they're different.

[00:24:04] Speaker 05:
One is how can we bring the RICO conspiracy charge and the predicates for that are the murder and attempted murder of the ICE agents and the drug conspiracy.

[00:24:15] Speaker 05:
So in the information, those are the factual predicates that get you the RICO conspiracy.

[00:24:22] Speaker 05:
Right.

[00:24:22] Speaker 05:
So then the question at sentencing is what's relevant conduct.

[00:24:28] Speaker 03:
No, the question at sentencing is what's the base offense level?

[00:24:33] Speaker 03:
And the guideline tells you you look to the racketeering activity, which is a term of art that means the RICO predicates.

[00:24:40] Speaker 05:
Right, so you get an offense level of 30, but you also include relevant conduct, and that gets you to 43.

[00:24:48] Speaker 05:
The final PSR, final percentage of 43.

[00:24:51] Speaker 03:
What is the textual hook in 2E 1.1 for going beyond the predicate acts, the racketeering activity?

[00:25:03] Speaker 05:
I think it's a separate, because we're talking now about the calculation of the sentence under the guidelines.

[00:25:09] Speaker 03:
Right.

[00:25:09] Speaker 03:
And the guidelines direct us for a RICO conspiracy, the guidelines tell us, use 2E1.1.

[00:25:20] Speaker 03:
which is the guideline for RICO conspiracy.

[00:25:24] Speaker 03:
And that tells us not to focus on crime writ large or extraterritorial acts or anything like that.

[00:25:33] Speaker 03:
It tells us to focus on racketeering activity, which is a term of art that means RICO predicates.

[00:25:39] Speaker 05:
Right.

[00:25:40] Speaker 05:
So you get the offense level, and this is explained in the final pre-sentence report.

[00:25:46] Speaker 05:
I think it's at page 108, 109, something like that in the appendix.

[00:25:53] Speaker 05:
So maybe I'm misunderstanding the question.

[00:25:55] Speaker 05:
So under Chapter 2, the offense level would be 30.

[00:25:59] Speaker 05:
But as the final pre-sentence report explains, you also have to take into account relevant conduct.

[00:26:06] Speaker 05:
The relevant conduct includes a first-degree murder.

[00:26:10] Speaker 05:
The offense level for first-degree murder is 43, so that gets you to 43.

[00:26:15] Speaker 01:
What's your best citation to the PSR for the theory that you just advanced?

[00:26:21] Speaker 05:
Yeah, so this answers a number of the court's questions and also appellant's points all in one spot.

[00:26:28] Speaker 01:
So in the appendix... What's the spot?

[00:26:30] Speaker 01:
What's the page in the JA that will show us the PSR reasons what you just read?

[00:26:35] Speaker 05:
Right, it's appendix page 118, and there the probation office explains how they arrived at the adjusted defense level is 40 because he gets a reduction of three for acceptance of responsibility.

[00:26:52] Speaker 05:
But they're explaining there how you get to 43, and they specifically cite

[00:26:57] Speaker 05:
the relevant conduct guideline.

[00:26:59] Speaker 05:
This is also cited in the government's brief, but it's in the appendix of page 118.

[00:27:04] Speaker 05:
And the probation office says the murder of the kidnapped victim in January of 2011 was also in furtherance of the... In furtherance.

[00:27:12] Speaker 01:
That sounds like recollect.

[00:27:15] Speaker 01:
rather than relevant conduct language, didn't it?

[00:27:19] Speaker 05:
Well, the relevant conduct would be, it's in furtherance of the underlying racketeering activity.

[00:27:25] Speaker 05:
It would be relevant conduct.

[00:27:26] Speaker 01:
And they've cited... They don't say it would be relevant conduct.

[00:27:30] Speaker 01:
Well, immediately... Aren't they discussing here those acts as within the term of art that Judge Katz has referred to, rather than as relevant conduct?

[00:27:40] Speaker 05:
No, Your Honor, because immediately before the sentence I just read, they've cited the relevant conduct provision

[00:27:45] Speaker 01:
But when they were citing the relevant conduct revision, they were referring to the Commission of the Act of the United States, not to this murder, but to the Zapata murder.

[00:27:56] Speaker 05:
I think they're saying both are relevant conduct.

[00:28:01] Speaker 02:
They would have to mention A1A to be the appropriate relevant conduct provision, right?

[00:28:09] Speaker 02:
It's not A1B, which is what's cited in the preceding sentence.

[00:28:15] Speaker 05:
Because you think that he committed the murder himself, so it would be A1A.

[00:28:19] Speaker 02:
Yeah, that's what the guideline says, right?

[00:28:23] Speaker 02:
A1A, relevant conduct with respect to acts committed by the defendant, him or herself,

[00:28:30] Speaker 02:
whereas A1B are acts committed by others that are considered jointly committed.

[00:28:38] Speaker 02:
Isn't that the way that the guideline distinguishes?

[00:28:42] Speaker 05:
It would, and I think the guideline writer would have, it would have been better had the probation office at the end of that whole paragraph that I'm referencing cited

[00:28:55] Speaker 05:
1B1.3A, A, they're citing A1B there, A1A, which is your point.

[00:29:04] Speaker 05:
It would have been better, but the result is still correct.

[00:29:12] Speaker 01:
There's nothing for... Shouldn't we send it back to find out if that's what the gauge is reasoning here?

[00:29:19] Speaker 01:
Granted, that reasoning, as we discussed with your friend at the other table, is possible.

[00:29:24] Speaker 01:
but we're not the court that usually does things as fact-intense as that.

[00:29:30] Speaker 01:
The sentencing court would normally be where we'd look, and when you say it would have been better, it certainly would have been better for your position.

[00:29:39] Speaker 05:
Wouldn't it be still better if we sent it back and let the judge... There are a number of other places, I would say, in the record, which we can talk about, where... I asked you for the best one, and this is the one you gave.

[00:29:55] Speaker 05:
There are other places where the government argues specifically that the murder of the Mexican kidnapped victim was relevant conduct.

[00:30:03] Speaker 02:
Incited A1A.

[00:30:07] Speaker 05:
I don't, that I don't know.

[00:30:09] Speaker 05:
I mean, they're talking about it.

[00:30:10] Speaker 05:
Sometimes, for example, during the government's allocution at sentencing, at page 161, the prosecutor says, and the other murders, including the murder of the Mexican kidnap victim, he's saying his relevant conduct, but he doesn't cite A1A.

[00:30:27] Speaker 05:
So in answer to Judge Santel's question, the court could remand it for Judge Lamberth to simply say, yeah, the correct provision is A1A.

[00:30:36] Speaker 05:
but the court doesn't need to do that because it's clear from the record and I can give you a bunch of instances where the government said that what was going on was that the theory was that for coming to this guideline calculation was that the murder of the Mexican kidnapped victim was relevant conduct.

[00:31:00] Speaker 02:
So we're supposed to

[00:31:04] Speaker 02:
You know, under Rita and all of the precedent that we have where our first obligation is to ensure that the guidelines calculation was correct.

[00:31:15] Speaker 02:
We are supposed to presume that the district judge relied on A1A even though A1A isn't cited anywhere in the pre-sentence report and wasn't cited once during the sentencing allocution or the court's pronouncement of sentence.

[00:31:34] Speaker 05:
Yeah, I have two responses, Your Honor.

[00:31:35] Speaker 05:
One is that it's conclusively shown through the record

[00:31:40] Speaker 05:
even without that specific citation, that what the government and the district court are doing is to treat that murder, the murder of the Mexican kidnapped victim, under the relevant conduct guidelines.

[00:31:54] Speaker 05:
And if the correct fit is 1A, then that is what the record is showing.

[00:32:00] Speaker 05:
But my second response is this court

[00:32:02] Speaker 05:
I suppose, could remand, but it shouldn't do that, because there's a principle that this court doesn't remand for sort of ministerial tasks.

[00:32:11] Speaker 05:
And when you read the paragraph on page 180... It's not ministerial.

[00:32:15] Speaker 01:
Isn't it case law that a miscalculated sentence under the Edelman is inherently prejudicial?

[00:32:24] Speaker 05:
But it's not miscalculated, Your Honor.

[00:32:27] Speaker 01:
The quote, I guess... Do we know that?

[00:32:29] Speaker 01:
Yes.

[00:32:29] Speaker 01:
You tell us you can give us a number of instances, but you've had your chance to give instances, and the best one you give is not really what you say it is.

[00:32:38] Speaker 05:
Well, I guess what the court is saying is that in the record, there isn't a specific citation to A1A, which I would probably agree with.

[00:32:50] Speaker 05:
But the parties repeatedly said, or the court and the government repeatedly said,

[00:32:56] Speaker 05:
that it was relevant conduct, and that is the only provision it could be.

[00:33:02] Speaker 05:
So that is what the record means.

[00:33:05] Speaker 05:
And so what I'm saying is that the guidelines were correctly calculated, so there is no reason to remand if the court knows that that is what was happening.

[00:33:20] Speaker 05:
Which it was.

[00:33:21] Speaker 02:
So at pages 128 and 129, where the government filed its kind of response to the objections, I'm not seeing where the government uses the word relevant conduct anywhere in that pleading.

[00:33:41] Speaker 02:
Do they use that word in that pleading?

[00:33:44] Speaker 05:
Not that I'm aware of.

[00:33:45] Speaker 05:
And I think that the gist of that.

[00:33:47] Speaker 02:
So why isn't that important?

[00:33:50] Speaker 02:
They don't cite the guidelines provision that you want us to rely on, and they don't use the word relevant conduct that would tell us what guidelines provision.

[00:34:00] Speaker 02:
So we're just supposed to assume

[00:34:03] Speaker 02:
that the only thing they could have meant and the only thing that the district court could have meant was relevant conduct as opposed to predicate act.

[00:34:15] Speaker 02:
When predicate act was the theory that was most prominently advanced because the Mexican murder was listed as a predicate act in the information.

[00:34:29] Speaker 05:
It's listed in information as an overt act, but it's not one of the predicates.

[00:34:37] Speaker 02:
But I guess my response to your question is... It's listed in the plea agreement as a predicate act.

[00:34:45] Speaker 05:
Not in the plea agreement, no.

[00:34:48] Speaker 05:
I would disagree with that.

[00:34:48] Speaker 02:
The plea agreement describes, you know, RICO conspiracy and then in Pez and Perrin's four different

[00:34:57] Speaker 02:
acts in the Mexican murder is one of them, right?

[00:35:02] Speaker 02:
The language that, in the plea agreement that you cite to us, that you say that they should be bound by, describes the Mexican murder as if it's a predicate act.

[00:35:19] Speaker 03:
I need to... On 39, I think, it's...

[00:35:25] Speaker 03:
describes the underlying racketeering activity, which includes murder above and beyond accessory after the fact to the murder of the federal agent.

[00:35:36] Speaker 05:
Right.

[00:35:37] Speaker 05:
And Appellant's point about the plea agreement here is that it doesn't identify which murder it's talking about.

[00:35:43] Speaker 05:
At the end of that, on the bottom of page 39,

[00:35:46] Speaker 05:
The plea agreement cites the relevant conduct provision, but it doesn't say A or B, it just says 1B1.3.

[00:35:53] Speaker 05:
There's another spot in the record where the government specifically references the relevant conduct provision.

[00:36:00] Speaker 05:
I think correctly it's document 35, it's not in the joint appendix, but

[00:36:05] Speaker 05:
The government filed an opposition to or objections to the first pre-sentence report where it raised this issue of the murder of the Mexican kidnapped victim and it specifically said that that murder was relevant conduct.

[00:36:22] Speaker 05:
Again, that's document 35 in the district court's docket.

[00:36:27] Speaker 02:
The prosecutor... Do you cite that in your brief?

[00:36:30] Speaker 05:
No.

[00:36:32] Speaker 05:
The prosecutor at allocution also said that the murder of the Mexican kidnapped victim was relevant conduct.

[00:36:41] Speaker 05:
Again, it begs the court's question about which provision, but... But nowhere does the judge

[00:36:48] Speaker 01:
On the record, adopt that.

[00:36:50] Speaker 01:
And nowhere in the pre-senate report does it say what you just said the prosecutor said.

[00:36:55] Speaker 01:
The pre-senate doesn't.

[00:36:56] Speaker 05:
Well, the prosecutor keeps talking about the murder of the Mexican kidnapped victim as being relevant conduct.

[00:37:03] Speaker 05:
So you have that in document 35.

[00:37:06] Speaker 05:
You have it on page 129.

[00:37:07] Speaker 05:
You have it on page 161.

[00:37:09] Speaker 05:
So Appellant is wrong today when he says the government never raised this.

[00:37:14] Speaker 05:
He's also wrong when he says that the district court treated this

[00:37:18] Speaker 05:
as racketeering activity, this being the murder of the kidnapped victim.

[00:37:23] Speaker 05:
It wasn't racketeering activity.

[00:37:25] Speaker 05:
It was relevant conduct.

[00:37:27] Speaker 05:
So the only question I think that we're debating now is whether the government of the district court ever correctly referenced 1A.

[00:37:36] Speaker 05:
And I would suggest to the court that that doesn't really matter, because that's the only thing that could be referenced in the course of all these pleadings, that it's conclusive

[00:37:47] Speaker 05:
and that the court doesn't need to remand for that purpose because at that point the court and even appellant would be, I mean if you set aside appellant's issues about whether foreign relevant conduct counts and whether it was really treated as racketeering activity,

[00:38:08] Speaker 05:
this court and appellant hasn't said that it couldn't be that guideline.

[00:38:16] Speaker 02:
But aren't there isn't that a discretionary call for the district court to make?

[00:38:22] Speaker 02:
That's applying the guideline to the facts.

[00:38:27] Speaker 02:
Is it the kind of thing where there could be only one conclusion that the district court judge could reach after hearing the government's argument?

[00:38:40] Speaker 05:
I think so.

[00:38:41] Speaker 05:
I'm suggesting that it is conclusive that when you're talking about relevant conduct, either the murder of the Mexican kidnapped victim is relevant conduct or it's not.

[00:38:50] Speaker 02:
And if it is... Of course it's one or the other.

[00:38:54] Speaker 02:
That's the ultimate decision.

[00:38:56] Speaker 02:
But in reaching that decision, the district court judge has to consider, well, is it really closely connected to the drug trafficking

[00:39:07] Speaker 02:
Rico conspiracy or is it just part of the rest of the criminal activity that is

[00:39:15] Speaker 02:
not part of the charged conspiracy here.

[00:39:18] Speaker 05:
And the court did consider that.

[00:39:20] Speaker 05:
The parties made that argument at pages 160 to 162 in the sentencing transcript.

[00:39:26] Speaker 05:
On page 118, the pre-sentence report author from the probation office referenced that.

[00:39:33] Speaker 05:
That was clearly on the table.

[00:39:36] Speaker 02:
There's no finding

[00:39:40] Speaker 02:
Well, there's no finding made in the PSR that this murder was tied to drug trafficking as opposed to other activities.

[00:39:52] Speaker 05:
But Appellant, in entering his plea, admitted that the murder of the Mexican kidnapped victim was committed in furtherance of the drug trafficking conspiracy.

[00:40:06] Speaker 05:
I think it's pages 15 to 17 of the government's court brief.

[00:40:08] Speaker 05:
Factual stipulation.

[00:40:09] Speaker 05:
Right.

[00:40:10] Speaker 05:
He stipulated that some of the things the court discussed earlier this morning, that the point of the cartel was to protect, or part of the point was to protect its territory from rival cartels to engage in lucrative drug trafficking.

[00:40:28] Speaker 05:
And the way that it did that was by committing murders, carjackings, kidnappings, and assassinations.

[00:40:36] Speaker 05:
And appellants specifically stated, and again I think this is at pages 14 to 15 to 17 in the government's brief, but appellants said that the murder of the kidnapped victim was in furtherance of that cartel activity.

[00:40:51] Speaker 05:
That is a finding.

[00:40:52] Speaker 05:
That's part of the record.

[00:40:53] Speaker 05:
That's part of appellants' rule.

[00:40:56] Speaker 02:
Do you agree that it was part of the cartel activity or part of this specific conspiracy?

[00:41:01] Speaker 05:
Part of the underlying conspiracy.

[00:41:03] Speaker 05:
And it's cited in the government's brief.

[00:41:06] Speaker 05:
I think that the transcript page, and I'm going from memory now, is something like 48 or 59.

[00:41:16] Speaker 05:
But it is cited in the government's brief.

[00:41:17] Speaker 05:
The government lists a bunch of factual

[00:41:22] Speaker 05:
facts to which Appellant agreed in entering his plea, which included that the murder of the kidnapping victim was in furtherance of the charged conspiracy, which meant that.

[00:41:42] Speaker 05:
So that's been resolved.

[00:41:44] Speaker 05:
So the only question would be whether the district court actually cited the provision.

[00:41:50] Speaker 05:
And again, my response to that is that's what the record means, and the court doesn't need to remand to do that anyway, because you know that that's what was happening.

[00:41:59] Speaker 02:
Just so that we understand, or at least I understand your estoppel argument, are you saying that if a defense lawyer

[00:42:12] Speaker 02:
Agrees at the time of the plea.

[00:42:16] Speaker 02:
To a guidelines calculation.

[00:42:20] Speaker 02:
In the defense lawyer.

[00:42:24] Speaker 02:
Realizes later.

[00:42:26] Speaker 02:
That that guidelines calculation is incorrect.

[00:42:32] Speaker 02:
That the defense lawyer has to sit on his or her hands and can't bring that to the attention of the court because

[00:42:43] Speaker 02:
the agreement.

[00:42:51] Speaker 05:
defense capsule could bring that to the attention of the court.

[00:42:54] Speaker 05:
But the argument is that by virtue of entry into the plea agreement and by the district court's acceptance of that plea agreement, um, that complaint on appeal would be stopped.

[00:43:06] Speaker 05:
But, um, he did raise it with the district court and the district court rejected that argument.

[00:43:11] Speaker 02:
I'm trying to understand.

[00:43:13] Speaker 02:
So so you're saying that that

[00:43:18] Speaker 02:
that the attorney can raise it in the district court, but the attorney's not allowed to raise it in the court of appeals.

[00:43:26] Speaker 05:
Well, I mean, our argument is that it fulfills the criteria for judicial estoppel, but I think that our argument on the merits is so strong that the court doesn't necessarily need to find estoppel, but it

[00:43:41] Speaker 05:
does fulfill.

[00:43:42] Speaker 01:
Are you abandoning a stopple rule?

[00:43:44] Speaker 05:
No, not at all.

[00:43:45] Speaker 05:
I'm saying that it does meet the criteria for a stopple because appellant took a position in the district court by entering into the plea agreement.

[00:43:53] Speaker 05:
The plea agreement was accepted by the district court well in advance of sentencing.

[00:43:59] Speaker 05:
Appellant benefited from that acceptance by the district court.

[00:44:04] Speaker 02:
So the lawyer is supposed to

[00:44:08] Speaker 02:
commit ineffective assistance of counsel on appeal by not making the argument.

[00:44:15] Speaker 02:
If there's a meritorious argument that the guidelines were incorrectly calculated and that the trial lawyer is the appellate lawyer, he or she is supposed to not make a meritorious argument because they're bound

[00:44:37] Speaker 02:
Is that the way this works?

[00:44:39] Speaker 05:
Well, he did make that argument, and he could make that argument.

[00:44:42] Speaker 05:
We're just suggesting that it's a stop.

[00:44:45] Speaker 05:
Like any other argument, if a defense counsel may be under some sort of professional obligation to raise an unpreserved claim, and the government would in turn argue that review would be for 10 years.

[00:44:56] Speaker 02:
So if the plea agreement said that the parties agreed that the offense level was 30,

[00:45:02] Speaker 02:
And the probation office looks at it and the final PSR says no, it's 43.

[00:45:10] Speaker 02:
And then the defense appeals the sentence.

[00:45:16] Speaker 02:
And the government on appeal is stopped from arguing that it's really 43.

[00:45:22] Speaker 02:
The government has to argue that it's really 30 or the government has to like not file a brief.

[00:45:29] Speaker 02:
What does the government do then?

[00:45:32] Speaker 05:
I mean, if I understand your hypothetical correctly, the government has agreed that the correct guideline range in the plea agreement is 30, right?

[00:45:40] Speaker 02:
Yeah.

[00:45:40] Speaker 02:
The PSR says it's 43.

[00:45:42] Speaker 02:
The district court adopts the PSR.

[00:45:44] Speaker 02:
The defendant appeals, you're standing here.

[00:45:46] Speaker 02:
We're having this argument.

[00:45:48] Speaker 02:
What do you do?

[00:45:49] Speaker 05:
It would seem to be the extension of our argument that we would be, under our view, that we would be stopped from arguing for the higher guideline range.

[00:45:59] Speaker 05:
At least as to the allocution, it would be a breach of the plea agreement for the government to allocate for more than the 30.

[00:46:05] Speaker 05:
But I guess there's another principle at play in the court's hypothetical, which is the government's ultimately defending what the district court did.

[00:46:14] Speaker 05:
So in that sense,

[00:46:15] Speaker 05:
we may say, yes, we are stopped, but the district court's decision is still out there and we still have to defend it.

[00:46:25] Speaker 05:
So I guess I'm saying those two principles... So you're trying to have your cake and eat it too.

[00:46:29] Speaker 05:
Yeah, yes, we are, just as appellant is.

[00:46:32] Speaker 02:
But this court could find that appellant's argument... Well, if you get to have your cake and eat it too, then why can't appellant get to have his cake and eat it too?

[00:46:39] Speaker 05:
Well, this court could find estoppel is all I'm saying.

[00:46:42] Speaker 05:
That it does meet, in our view, meets the criteria for estoppel, which the task for estoppel.

[00:46:49] Speaker 03:
Which include obtaining a favorable judicial decision.

[00:46:54] Speaker 03:
Right.

[00:46:54] Speaker 03:
And here the only thing that could be was the acceptance of the plea in 2012, right?

[00:46:59] Speaker 03:
Correct.

[00:47:00] Speaker 03:
But isn't acceptance of a plea really focused on the facts of the underlying agreement?

[00:47:14] Speaker 03:
And doesn't the court normally reserve the right to impose sentence after it gets the pre-sentence report without prejudice?

[00:47:24] Speaker 03:
So why is it a favorable judicial decision?

[00:47:27] Speaker 05:
because his appellant got the benefit of his bargain.

[00:47:31] Speaker 03:
He made a bargain with the government, and he... But what he got from the district court in 2012 was a reservation of determining the appropriate sentence until sentencing.

[00:47:48] Speaker 05:
Right, and our response is that he's bound by his pledge in the agreement.

[00:47:53] Speaker 05:
I understand the court's point,

[00:47:55] Speaker 05:
But that the district court, that's appellant's argument, the district court wasn't bound by that at sentencing.

[00:48:01] Speaker 05:
But we are saying that an estoppel principle is what appellant pledged to do in his plea agreement, which was accepted.

[00:48:11] Speaker 03:
I understand that.

[00:48:11] Speaker 03:
But you also have to show a favorable judicial decision.

[00:48:15] Speaker 03:
And it seems a stretch to say when the court accepts the plea agreement subject to

[00:48:21] Speaker 03:
determining the sentence at sentencing that counts as a favorable.

[00:48:26] Speaker 05:
He has sort of prevailed.

[00:48:28] Speaker 05:
Right.

[00:48:28] Speaker 05:
Right.

[00:48:29] Speaker 01:
I mean, that's our that is remind me, do you have any case that's parallel to this where you've had a position in a plea agreement and then the government has successfully argued the defendant is stopped from making an argument of law with respect to that plea agreement?

[00:48:49] Speaker 05:
I take the court to be asking whether the government's ever had this sort of estoppel situation before.

[00:48:54] Speaker 01:
Have any court adopted the government's theory with respect to second estoppel?

[00:49:01] Speaker 05:
in this context, not that I'm aware of.

[00:49:04] Speaker 01:
That takes it to be a no.

[00:49:06] Speaker 01:
Not that I'm aware of.

[00:49:07] Speaker 01:
We'll be making new ground, breaking new ground.

[00:49:09] Speaker 01:
Possibly.

[00:49:10] Speaker 01:
On this theory.

[00:49:12] Speaker 03:
The estoppel argument would be somewhat fact-intensive, right?

[00:49:17] Speaker 03:
The district court would assess the factors, and it's somewhat equitable and such.

[00:49:22] Speaker 03:
Right.

[00:49:23] Speaker 03:
Did the government raise judicial estoppel below?

[00:49:26] Speaker 05:
It didn't because of that.

[00:49:30] Speaker 03:
So why shouldn't we find it forfeited on appeal?

[00:49:33] Speaker 05:
Yeah, I think because of the posture.

[00:49:35] Speaker 05:
Because appellant is arguing now that the government never said anything about relevant conduct in the district court.

[00:49:41] Speaker 03:
Right, but appellant, the defendant was clearly trying to undo his agreement to 43, defense level 43.

[00:49:53] Speaker 03:
And he goes to the district court and says, look, I made this mistake.

[00:49:56] Speaker 03:
We need to redo the calculation.

[00:49:58] Speaker 03:
At that point, you have everything you need to support an estoppel argument and you didn't make it.

[00:50:06] Speaker 05:
Well, I would suggest that we did make it.

[00:50:09] Speaker 05:
In our brief in the very beginning in the factual section, we say that in response to when this, when appellant, this is our brief says, when appellant first made this argument, the government's, one of the government's responses was, hey, he agreed that 43 was the offense.

[00:50:28] Speaker 05:
That's in your sentencing memorandum?

[00:50:34] Speaker 05:
I'm not sure.

[00:50:35] Speaker 05:
I think it's orally.

[00:50:37] Speaker 05:
I think it's at sentencing, that the prosecutor, it's in the government's brief.

[00:50:42] Speaker 03:
Did you mention judicial estoppel and identify the three factors?

[00:50:47] Speaker 05:
No, no.

[00:50:48] Speaker 05:
No, we did not do that.

[00:50:50] Speaker 05:
But we said that he's bound by his representation in the plea agreement, or his agreement, which I think is the same.

[00:50:56] Speaker 05:
I mean, your point is the court didn't engage in that kind of weighing of those factors.

[00:51:02] Speaker 05:
which is which is correct.

[00:51:05] Speaker 05:
We didn't raise it in that way.

[00:51:08] Speaker 05:
Um, the court has no further questions.

[00:51:11] Speaker 05:
I would urge the court to affirm the judgment of the district court.

[00:51:14] Speaker 05:
Thank you.

[00:51:15] Speaker 02:
Thank you.

[00:51:17] Speaker 02:
Mr Gilbert will give you two minutes.

[00:51:21] Speaker 04:
Thank you, Your Honor.

[00:51:21] Speaker 04:
I appreciate that kindness.

[00:51:23] Speaker 04:
Um, I just want to take issue with the fact that

[00:51:29] Speaker 04:
The government was repeatedly referring specifically to the Mexican murder specifically as relevant conduct.

[00:51:38] Speaker 04:
I don't see where that appears anywhere.

[00:51:41] Speaker 04:
I understand there are places where the government talks about it being in furtherance of the conspiracy, and I imagine that that will be an issue to be discussed below where the judge can make the specific factual findings.

[00:51:54] Speaker 04:
But if you look at the government's sentencing and allocution, which was extraordinarily brief,

[00:51:59] Speaker 04:
because they had the pre-sentence report to rely on.

[00:52:02] Speaker 04:
This is at 161.

[00:52:04] Speaker 04:
They're talking about relevant conduct being the murder of Agent Zapata and an act in furtherance of the RICO conspiracy.

[00:52:16] Speaker 04:
They are not mentioning the Mexican murder.

[00:52:18] Speaker 04:
Down at the bottom,

[00:52:20] Speaker 04:
They say, we think not only the murder in Zapata, I guess of Zapata, but the other murders that are referenced here were all certainly foreseeable as part of the activity.

[00:52:31] Speaker 04:
And that's, you know, that's a factor, but it's necessary but not sufficient to find.

[00:52:39] Speaker 04:
the defendant was never acknowledging what was relevant conduct and what was not.

[00:52:46] Speaker 04:
It's not in the statement of facts.

[00:52:48] Speaker 04:
It's not in the plea agreement.

[00:52:49] Speaker 04:
The defendant was never acknowledging what was relevant conduct and what was not.

[00:52:55] Speaker 04:
It's not in the statement of facts.

[00:52:59] Speaker 04:
It just wasn't something that was before the court until I raised the issue of the incongruity between the 2015 and the 2017 pre-senate report, the difference being specifically treating the Mexican murder as a separate racketeering activity.

[00:53:17] Speaker 04:
Thank you.

[00:53:17] Speaker 02:
Thank you, Mr Gilbert.

[00:53:19] Speaker 02:
We will take this matter under advisement.

[00:53:23] Speaker 02:
And Mr Gilbert, you were appointed by the court to represent the appellant in this case, and we thank you for your very able assistance.