[00:00:00] Speaker 00:
Good morning, Your Honors.

[00:00:02] Speaker 00:
May I please the court, Melinda Yamaga, on behalf of Mr. William Grant.

[00:00:06] Speaker 00:
I'd like to try to reserve two minutes for rebuttal, and in the eight-minute balance, ambitiously, I will attempt to address last week's filing requesting miscellaneous relief.

[00:00:18] Speaker 00:
That's the contents and how the arguments relate to the drug offense guidelines, 2D1.1.

[00:00:25] Speaker 01:
Since you mentioned that, I guess I just want to get to that point first.

[00:00:31] Speaker 01:
Why haven't you waived that issue?

[00:00:33] Speaker 01:
I know there's this last minute filing, but there was nothing in either the opening brief or the reply brief.

[00:00:39] Speaker 01:
Why hasn't that waived?

[00:00:41] Speaker 01:
And if it's not waived, what exception does it fall under?

[00:00:45] Speaker 00:
Your Honor, I don't believe that was waived, because in my understanding of a waiver, it means we would have had to have affirmatively disavowed that.

[00:00:54] Speaker 00:
But forfeiture also applies.

[00:00:56] Speaker 04:
Yes, Your Honor.

[00:00:58] Speaker 04:
And when you discuss forfeiture, would you also tell us if, in your view, this issue was ever brought to the attention of the district court?

[00:01:08] Speaker 04:
Because it appeared to me that it was not.

[00:01:11] Speaker 00:
So I don't believe it was waived because we had not affirmatively disavowed this argument with respect to the forfeiture argument.

[00:01:18] Speaker 00:
Again, a forfeiture means we failed to recognize the problem, the legal argument.

[00:01:24] Speaker 00:
This is a factual discrepancy that was previously asserted, which I think is no longer in the record.

[00:01:32] Speaker 00:
We, without a doubt,

[00:01:34] Speaker 00:
have recognized the issue that this case should not have gone to sentencing on the entirety, the 23.8 grams, which we did not know exactly what the components of them were.

[00:01:47] Speaker 04:
But why didn't counsel at trial make this argument and develop those facts since it is a factual question?

[00:01:55] Speaker 04:
It seems to me that there's a forfeiture in that sense as well as not having raised it here.

[00:02:02] Speaker 00:
So the manner in which this proceeded was that there was a draft presentence investigation report.

[00:02:08] Speaker 00:
The draft presentence investigation report applied a totally different guideline than the drug offense guideline as the base offense.

[00:02:15] Speaker 00:
The initial draft included a firearm guideline as the base offense level.

[00:02:20] Speaker 00:
the defense objected to that guideline.

[00:02:25] Speaker 00:
In the final pre-sentence investigation report, then the drug offense guideline was applied in lieu of the firearm guideline.

[00:02:33] Speaker 04:
And the only argument that was made, as I understand it, at the district court was

[00:02:38] Speaker 04:
The only thing that you can look at is the dosage on the package, the dosage amount, and that was the argument start to finish.

[00:02:46] Speaker 04:
There was no effort, it seems to me, to determine what the 23.8 included because that wasn't relevant to the argument that was being made.

[00:02:57] Speaker 00:
The argument was that Mr. Grant is not aware of the method that the DEA used to separate the liquid from the patch itself, that Mr. Grant objected to using the net weight of the liquid inside the patch for the basis.

[00:03:13] Speaker 00:
All of that is referenced in the final pre-sentence investigation

[00:03:16] Speaker 00:
Summarizing Mr. Browns.

[00:03:17] Speaker 01:
The argument seemed to me was something different, that the drugs needed to be treated different than the alcohol content.

[00:03:25] Speaker 01:
That's what I understood the argument of counsel to be making at sentencing.

[00:03:29] Speaker 01:
But here, the argument that now with your latest filing seems to be that we're not even sure that the 23.8 is the actual drug that includes the alcohol and the actual fentanyl.

[00:03:43] Speaker 00:
I think that we are, based on the record and the information that I've got from the government, we are certain that the district court sentenced Mr. Grant based on at least the entire weight of the transdermal fentanyl patch.

[00:03:58] Speaker 04:
That doesn't actually track in terms of logic because even the tiniest patch added to the weight is going to end up with more than 23.8.

[00:04:15] Speaker 04:
If you add the weight of the patch, as well as the weight of the alcohol and the fentanyl, it appears to me that it would come out to weigh more than 23.8 grams.

[00:04:27] Speaker 00:
I think that it does track logically.

[00:04:31] Speaker 00:
I mean, when we look at the actual ingredients that are contained on the patch, the total weight of fentanyl across all 10 patches is 0.1 grams.

[00:04:40] Speaker 04:
That's been your argument.

[00:04:42] Speaker 04:
That's all that can be considered.

[00:04:45] Speaker 00:
That's correct, and I would note when you add in the alcohol that was part of the admixture that was mixed with the fentanyl in this case, it does not affect the guidelines from the one, it remains offense level 12.

[00:05:02] Speaker 00:
So whether the district court utilized the pure fentanyl, 0.1 grams, or included the alcohol that we now know it was mixed with, and that total was the 3.3 grams,

[00:05:15] Speaker 00:
The base offense level remains 12 and is not the base offense level that the district court relied on.

[00:05:22] Speaker 00:
I believe it was 18.

[00:05:24] Speaker 00:
So it means whether it's just the fentanyl or the fentanyl plus the alcohol, the base offense level is substantially lower than the one that the district court relied on.

[00:05:35] Speaker 00:
Again, I just want to make sure I get to the last point on the question of forfeiture.

[00:05:40] Speaker 00:
I think that the defense properly objected that this was inappropriate.

[00:05:47] Speaker 00:
I agree.

[00:05:48] Speaker 00:
We didn't have this factual discrepancy under wraps at an earlier stage, but we properly objected to this application of the guidelines in this way at every stage we could possibly.

[00:06:00] Speaker 01:
And even if this court finds... The district court didn't have the benefit of that argument to consider that, did they?

[00:06:07] Speaker 01:
I mean, they didn't really have the benefit of the argument that you're making now and making a determination of whether or not that's an accurate calculation.

[00:06:16] Speaker 00:
I agree.

[00:06:17] Speaker 00:
I think that the final pre-sentence investigation report and the information included therein from the probation actually suggest the opposite, that the district court believed what it was making its finding on was the weight of the alcohol plus the fentanyl and not considering this

[00:06:36] Speaker 00:
the weight of the actual transdermal patch.

[00:06:38] Speaker 03:
Because it wasn't raised.

[00:06:41] Speaker 03:
I mean, that specific argument was not made.

[00:06:44] Speaker 03:
Down below, I don't know, were you counseled down below?

[00:06:47] Speaker 03:
I was not, Your Honor.

[00:06:48] Speaker 03:
Was the dosage, we should be looking at the dosage amount.

[00:06:52] Speaker 03:
That was the primary argument from my review.

[00:06:55] Speaker 03:
So I'm just not sure that this argument was made, and it doesn't seem to be made in the opening brief either.

[00:07:05] Speaker 03:
And here, just a couple of weeks or so goes when the first time that it's being made.

[00:07:09] Speaker 03:
And so I think it's very difficult to see whether, you know, to argue that it wasn't waived or forfeited.

[00:07:17] Speaker 00:
So even on that point, even if the court reviews this under plain error, deciding that it was forfeited, we still win.

[00:07:25] Speaker 00:
I mean, there was clearly an error.

[00:07:27] Speaker 00:
I cannot imagine a scenario in which the... You're telling me the government is going to agree that there was clear error?

[00:07:35] Speaker 01:
That it was obvious?

[00:07:36] Speaker 00:
There is absolutely no guideline that would allow the district court to ever utilize a drug delivery system as part of the weight of the total drugs.

[00:07:48] Speaker 00:
And to make the analogy, there's never a scenario where a syringe used to inject an intravenous drug or a pipe or pen used to inhale a vaporized drug would ever be counted against any individual in calculating the entire drug weight.

[00:08:03] Speaker 00:
So to hold that Mr. Grant should be responsible for the drug delivery system is clear error.

[00:08:10] Speaker 03:
So are you arguing now that, yes, we can look to whether it was a mixture or substance amount for sentencing.

[00:08:19] Speaker 03:
But that part of the patch or the alcohol amount should not have been included in the substance amount.

[00:08:29] Speaker 00:
I wanted to reserve some time, but I want to be able to answer your question clearly.

[00:08:33] Speaker 00:
So if I could just have an extra few minutes to answer that.

[00:08:37] Speaker 03:
Just go ahead and answer.

[00:08:38] Speaker 00:
Thank you.

[00:08:39] Speaker 00:
So I want to be clear.

[00:08:41] Speaker 00:
There's fentanyl.

[00:08:42] Speaker 00:
That's the pure drug, which was what we were arguing earlier.

[00:08:45] Speaker 00:
There's alcohol that it is mixed with chemically.

[00:08:49] Speaker 00:
It's all combined together.

[00:08:51] Speaker 00:
There's a transdermal patch that's used as a drug delivery system.

[00:08:56] Speaker 00:
In this case, whether we use the pure fentanyl of 0.1 grams or the weight of the alcohol plus the pure fentanyl of 3.4 grams, it makes no difference in the guidelines.

[00:09:08] Speaker 00:
So this court does not need to decide whether or not it turns out the pure fentanyl is controlling or the admixture, which is the alcohol plus the fentanyl.

[00:09:18] Speaker 00:
What we are asking at this stage, given what we understand, is that the delivery system, the pipe, the pen, the syringe, not be used against Mr. Grant, Mr. Grant not be held accountable for that.

[00:09:32] Speaker 00:
And I think that we did properly object, but I also think under plain error that this court can send it down.

[00:09:38] Speaker 01:
The record is clear that that amount was included, the patch was included in the weight.

[00:09:46] Speaker 00:
I have no doubt.

[00:09:47] Speaker 00:
I have a little bit of a science background, which is why I was able to go from the volume of alcohol to mass.

[00:09:52] Speaker 00:
I think that's a straightforward calculation.

[00:09:54] Speaker 00:
But nonetheless, the record is clear because the government, I believe, will confirm that.

[00:09:59] Speaker 00:
They confirmed that, at the very least to me.

[00:10:01] Speaker 01:
Well, guess what?

[00:10:01] Speaker 01:
We're going to be asking them in just one second.

[00:10:05] Speaker 03:
So thank you.

[00:10:06] Speaker 00:
Thank you.

[00:10:16] Speaker 02:
Yeah, please, the court.

[00:10:17] Speaker 02:
Good morning.

[00:10:18] Speaker 02:
Tom Mueller for the United States.

[00:10:20] Speaker 02:
As our brief indicated, the government believes that the district court properly calculated the amount of fentanyl for which Grant was responsible by including the weight of the transdermal patches.

[00:10:31] Speaker 02:
That's under, using note A of the drug quantity table that the district court understood.

[00:10:38] Speaker 01:
So let me ask you this.

[00:10:39] Speaker 01:
So you agree then that the quantity, the amount of the 23.8 grams

[00:10:46] Speaker 01:
that that amount includes the patches, correct?

[00:10:49] Speaker 02:
Absolutely, we do, we confirm that.

[00:10:51] Speaker 01:
And you think that's proper?

[00:10:52] Speaker 01:
Yes.

[00:10:52] Speaker 01:
Under our guidelines?

[00:10:53] Speaker 02:
The government does.

[00:10:55] Speaker 02:
Okay.

[00:10:55] Speaker 02:
And the court found that reasoning in the pre-sentence report persuasive.

[00:11:00] Speaker 01:
And you think that the district court judge understood it to be including the patches, is that what you're saying?

[00:11:06] Speaker 02:
Yes, but I have to step outside the record to answer specifically.

[00:11:09] Speaker ?:
Okay.

[00:11:10] Speaker 02:
Well, don't.

[00:11:11] Speaker 02:
Then I won't.

[00:11:12] Speaker 02:
Okay.

[00:11:12] Speaker 02:
But we do.

[00:11:13] Speaker 02:
Yes, the district court specifically understood that.

[00:11:16] Speaker 02:
And the court found that that was appropriate.

[00:11:21] Speaker 02:
Well, is that clear error though?

[00:11:26] Speaker 01:
For the district, I'm sorry?

[00:11:27] Speaker 01:
Is it clear error for the district court judge to have indicated that the weight should include the patch itself, the delivery system of the drug

[00:11:38] Speaker 02:
The pre-sentence report said that, of course, Your Honor, and it was adopted by the court at the sentencing.

[00:11:46] Speaker 02:
The court found it very persuasive, very helpful.

[00:11:49] Speaker 02:
The probation officer's remarks and explanation in the addendum to the pre-sentence report did not find the argument made by Grants Council persuasive.

[00:12:00] Speaker 01:
How much foam was around that patch?

[00:12:03] Speaker 01:
when they weighed it.

[00:12:04] Speaker 01:
How much foam?

[00:12:05] Speaker 01:
How much packaging material was around that?

[00:12:07] Speaker 02:
There was no packaging material around the patch.

[00:12:09] Speaker 02:
The packaging material was removed.

[00:12:12] Speaker 02:
Paragraph 12 of the pre-sentence report explains that it is very clear that the packaging, the pre-sentence report talks about the

[00:12:22] Speaker 02:
patches were sold or distributed in the original packing material, which is like a plastic or a folio, and they were removed when they were weighed.

[00:12:36] Speaker 02:
The patches were removed from that and the patches were weighed, and that gave us the 28.3 grams that was charged and used in the pre-sentence report, Your Honor.

[00:12:48] Speaker 03:
Should we give to Chapman versus the United States?

[00:12:51] Speaker 02:
I'm sorry, Your Honor.

[00:12:52] Speaker 03:
How much should we look to Chapman versus the United States?

[00:12:56] Speaker 02:
Well, Chapman, of course, was the pre-sentence report, the probation officer found that to be persuasive to go along with Chapman as Chapman used the blotter paper as the medium, the carrier medium.

[00:13:13] Speaker 02:
Here the patch is the carrier medium.

[00:13:17] Speaker 02:
It should be persuasive.

[00:13:19] Speaker 03:
Well, but two years later, after Chapman, as you know, the Sentencing Commission rejected Chapman's approach in amendment, I think it was 488.

[00:13:29] Speaker 03:
Yes.

[00:13:31] Speaker 03:
And the commission clarified that in the case of LSD in a carrier medium, a sheet of blotter paper, the weight of the carrier medium was not to be used for purposes of the drug quantity table.

[00:13:43] Speaker 02:
Does that not guide us here?

[00:13:50] Speaker 02:
The sentencing guidelines found that there was unwanted disparity by using the blotter paper.

[00:13:57] Speaker 02:
There's been no such finding in the sentencing guidelines anywhere about using the medium for fentanyl.

[00:14:05] Speaker 02:
There's been nothings there.

[00:14:08] Speaker 02:
We've had 30 years since Chapman and Chapman

[00:14:14] Speaker 02:
The amendment to the guidelines talking about Chapman 488 was, I think, just two years after Chapman.

[00:14:22] Speaker 02:
In 93, Chapman was a 91 case.

[00:14:24] Speaker 02:
We've had 30 years for the Sentencing Commission to act on that as far as fentanyl, and there's been no action.

[00:14:32] Speaker 03:
So that's sort of- But is the patch here analogous to the carrier medium, the barter paper in Chapman?

[00:14:39] Speaker 02:
Well, it is analogous in the sense that yes, it is a carrier medium, but in that case, we still have Chapman talking about mandatory minimum sentencing, but the pre-sentence report, the probation officer for purposes of uniformity said that we should continue to use or we should use or she has used and recommended to the court in the pre-sentence report that the carrier medium in this case, the patch be used.

[00:15:08] Speaker 02:
So is bladder paper similar to the patch?

[00:15:13] Speaker 02:
Yes, it is to that extent, but there is also the argument that was made, was accepted by the court and mentioned in the pre-sentence report, that the patch itself facilitates the administration and the distribution of this strong potent drug, fentanyl.

[00:15:35] Speaker 02:
There's just simply been no findings in the sentencing guidelines.

[00:15:39] Speaker 02:
There's nothing in the sentencing guidelines that talks about fentanyl.

[00:15:42] Speaker 02:
We still go back to Note A, which talks about unless specified otherwise, you use the mixture or substance containing the detectable, the weight of the mixture or substance containing the detectable amount of the controlled substance.

[00:15:55] Speaker 02:
In this case, it was the fentanyl patch.

[00:16:01] Speaker 02:
And, you know, our bottom line with this, Your Honor, is this was a reasonable sentence.

[00:16:08] Speaker 02:
We don't believe clear air or plain air review should control, it should be in this case.

[00:16:18] Speaker 02:
We agree with the

[00:16:21] Speaker 02:
I want to make sure I understand.

[00:16:36] Speaker 03:
So you don't think it was waived or forfeited, this argument?

[00:16:40] Speaker 03:
You said plain error should not apply here?

[00:16:45] Speaker 02:
No, plain error should not apply as far as the sentence imposed and the reasonableness of the departure because two things.

[00:16:54] Speaker 03:
And the reasonableness of the calculation?

[00:16:56] Speaker 03:
I want to make sure because there was an upward variance that was... That's right.

[00:17:00] Speaker 02:
We believe the reasonableness of use of discretion applies.

[00:17:03] Speaker 03:
So what are you talking about when you're talking about

[00:17:07] Speaker 02:
Well, we argued in our brief, until the reply brief came down, that the defendant, Grant, had not objected to the court's

[00:17:22] Speaker 02:
calculation and use of what they claim were false and misleading and erroneous statements.

[00:17:28] Speaker 02:
We said there was no objection to that, plein air review should apply.

[00:17:32] Speaker 02:
They have come back and cited in their reply brief the Hogan Hernandez case, I believe that's the case, and we agree, we can see that plein air does not apply to that.

[00:17:42] Speaker 02:
It should be abuse of discretion.

[00:17:45] Speaker 02:
Bottom line is, Your Honor, that the sentence imposed, including the variance upward, was not an abuse of discretion.

[00:17:51] Speaker 02:
This is fentanyl.

[00:17:53] Speaker 02:
And the court made, in its 3553A factor analysis, found many aggravating factors in this case.

[00:18:02] Speaker 03:
It also found that- So I'm just, you're going into the upward part, but you're saying on the calculation, it also should be an abuse of discretion standard that we're reviewing.

[00:18:14] Speaker 02:
If the court includes the calculation, meaning the interpretation of what sentencing guidelines applies, that's clearly de novo review.

[00:18:24] Speaker 02:
If we're talking about the court's application of the note A to the calculation of the total weight and doing the math that way and using the total weight of the mixture of substance, that's de novo review.

[00:18:40] Speaker 02:
And we also submit to the court.

[00:18:43] Speaker 02:
that the sentencing post, both the variance upward and the determination of Note A was an abuse of discretion standard.

[00:18:55] Speaker 02:
The court found numerous aggravating factors in this.

[00:18:59] Speaker 02:
and mentioned them specifically in doing his 3553A analysis of the seriousness of the offense, making sure that the offense sentence reflected the seriousness of the offense.

[00:19:12] Speaker 02:
It talked about the facts and the circumstances and the nature of the offense.

[00:19:17] Speaker 02:
It talked about it being fentanyl.

[00:19:19] Speaker 02:
It talked about this defendant selling a dangerous operable shotgun at the same time that the court had

[00:19:25] Speaker 01:
noted that he had a substantial criminal history that went back to age 13.

[00:19:39] Speaker 01:
That's what it says, that's what the PSR, that's what the judge based its decision on.

[00:19:45] Speaker 01:
So from that, you're saying that it is clear that the packaging, where it says it was in its original packaging,

[00:19:58] Speaker 01:
just included the patch itself.

[00:20:02] Speaker 02:
The packaging material included the patch and how that was put together.

[00:20:16] Speaker 04:
I don't understand your answer.

[00:20:18] Speaker 04:
Sorry, Your Honor.

[00:20:19] Speaker 04:
I don't understand your answer.

[00:20:20] Speaker 04:
How do we know from the record that the weight excludes the outer packaging versus the patch?

[00:20:28] Speaker 02:
If you look at their exhibit B, I believe, in their miscellaneous filing, it says it includes the laboratory reports and the laboratory reports

[00:20:47] Speaker 02:
B is the actual exhibits of the fentanyl, Exhibits 1 and Exhibit 2.

[00:20:53] Speaker 02:
I guess this is Exhibit C, yes.

[00:20:57] Speaker 02:
Exhibit C are the DEA laboratory reports for Exhibit 1, which is five.

[00:21:03] Speaker 02:
transdermal fentanyl patches, and exhibit two, excuse me, the DEA's exhibit two, which is the second page of the defense's, excuse me, grants exhibit C in their miscellaneous relief, talks about the roast weight is 82.7, that's for

[00:21:25] Speaker 02:
exhibit one of the patches, which is I think their first page.

[00:21:30] Speaker 02:
No, it's their second.

[00:21:32] Speaker 02:
Yeah, it's their first page of their exhibit B in their miscellaneous filing.

[00:21:37] Speaker 02:
So you've got five patches as exhibit one, five patches as exhibit two.

[00:21:42] Speaker 02:
The pictures there, the photos.

[00:21:43] Speaker 02:
And then we have the two lab reports.

[00:21:45] Speaker 01:
Can I come back to what the district court judge is reviewing?

[00:21:49] Speaker 01:
The district court judge is reviewing the PSR, and the PSR says

[00:21:53] Speaker 01:
The fentanyl patches were distributed in their original packaging and then calculates the weight.

[00:21:59] Speaker 01:
And then that's the net weight.

[00:22:02] Speaker 01:
Isn't that a problem?

[00:22:07] Speaker 02:
The government doesn't believe so, Your Honor, because exhibit paragraph 12 talks about it's able to determine that the patches were distributed in the original packaging.

[00:22:18] Speaker 02:
So the packaging and the patches, according to PSR, the probation officer wrote that, that's fairly clear.

[00:22:26] Speaker 02:
And then the exhibits, the laboratory reports,

[00:22:35] Speaker 02:
Let's talk about the inner packaging consisted of foil exhibits.

[00:22:41] Speaker 02:
Exhibit one is that foil.

[00:22:44] Speaker 04:
It also uses the phrase net weight which suggests.

[00:22:49] Speaker 02:
Net weight is just the patches.

[00:22:52] Speaker 02:
That's just the patches.

[00:22:56] Speaker 02:
And the patches for exhibit one was 11, the net weight was 11.6, and the net weight for exhibit two, the other five patches, was 12.2 grams, for a total of 23.8, I believe.

[00:23:11] Speaker 02:
Yes?

[00:23:13] Speaker 03:
Any final statement?

[00:23:15] Speaker 03:
Any final statements?

[00:23:18] Speaker 02:
Yes, Your Honor, if I may.

[00:23:21] Speaker 03:
Just briefly, you're out of town.

[00:23:23] Speaker 02:
Thank you.

[00:23:25] Speaker 02:
The district court found fentanyl to be a lethal drug.

[00:23:30] Speaker 02:
If one looks at the photograph, the defense exhibit A on their miscellaneous filing, that fentanyl patch,

[00:23:41] Speaker 02:
Pharmaceutical prepared manufacturer says because it can cause trouble breathing, which can be fatal, do not use under certain circumstances.

[00:23:50] Speaker 02:
The court's determination that it was lethal and that Grant had all these aggravating factors justified the sentence.

[00:23:59] Speaker 02:
It made the sentence reasonable.

[00:24:00] Speaker 02:
There's no control over this fentanyl.

[00:24:03] Speaker 02:
Pharmaceutical fentanyl, patches like this, once it gets out of Grant's hands.

[00:24:07] Speaker 02:
Once it's distributed, it can be used by different people that have different medical problems.

[00:24:13] Speaker 02:
If it can cause breathing for someone, and it can go to someone that's got emphysema or COPD, or if it can go to a child.

[00:24:19] Speaker 03:
Thank you.

[00:24:20] Speaker 02:
Thank you, Your Honor.

[00:24:25] Speaker 03:
So you're out of time, but it went over, so I'll give you three minutes.

[00:24:33] Speaker 00:
Thank you, Nurse.

[00:24:33] Speaker 00:
I'd like to encourage a close read of the final pre-sentence investigation report, which I do not agree with the government's assessment.

[00:24:42] Speaker 00:
The probation officer's response to the defense's argument is that the defense was arguing that the liquid mixture, which included the fentanyl and the alcohol, is not appropriate.

[00:24:56] Speaker 00:
It is very clear that that's what was thought to have been

[00:24:59] Speaker 00:
being advocated for.

[00:25:00] Speaker 00:
This is on page 30 of the pre-sentence investigation report.

[00:25:04] Speaker 04:
But isn't the gravamen of the problem whether it's the dosage weight or something more?

[00:25:10] Speaker 04:
Because the argument throughout, at least at the district court, was that the 0.1 was all that could be considered.

[00:25:18] Speaker 04:
And the rest didn't even matter in a sense because that was the argument.

[00:25:23] Speaker 04:
But I also, I wanted, if I may, to ask you about amendment 488.

[00:25:28] Speaker 04:
And it seems to me that in a way, the existence of that amendment cuts against your argument.

[00:25:38] Speaker 04:
That is when the Sentencing Commission looked at LSD and said, because of the way it's distributed, the weight of the carrier is wildly different in every instance.

[00:25:52] Speaker 04:
and they made a determination, but they've not made a similar determination for fentanyl.

[00:25:58] Speaker 04:
And aren't we supposed to give effect to the fact that they chose one substance and one substance only to say, don't consider the carrier?

[00:26:08] Speaker 04:
But they've never said that about anything else.

[00:26:12] Speaker 00:
With respect to Amendment 488 and the actual transdermal patch, I think they are no longer analogous now that we understand the universe of facts that we are dealing with.

[00:26:22] Speaker 00:
I believe that the carrier media in LSD is actually consumed, whereas the patch is not.

[00:26:27] Speaker 00:
It's in no way is it consumed.

[00:26:30] Speaker 04:
That actually isn't really answering my question, and I know your time is limited.

[00:26:36] Speaker 04:
What I'm getting at is that the sentencing guidelines specify one and only one substance as to which you were to ignore the carrier medium.

[00:26:46] Speaker 04:
And don't we have to give effect to the fact that they have not made a similar determination about fentanyl patches even though they've been around a really long time?

[00:26:56] Speaker 00:
I understand your question and I disagree that the sentencing guidelines have made one distinction where they ask you to disregard the carrier medium.

[00:27:04] Speaker 00:
I believe in all situations you disregard the carrier medium or I'm sorry you disregard the drug

[00:27:12] Speaker 00:
the manner in which the drug is introduced into the body.

[00:27:17] Speaker 00:
The parts where it's not consumed, the fentanyl patch, in this case, Mr. Grant, according to the PSR, allowed the fentanyl to absorb into his body.

[00:27:27] Speaker 00:
And also, but in other instances, a drug user sometimes extracts the liquid from the fentanyl patch.

[00:27:35] Speaker 00:
So I think in all instances, the guidelines tell us

[00:27:39] Speaker 00:
We do not count the delivery system.

[00:27:42] Speaker 00:
And we know this is a delivery system as opposed to, I'm sorry, a drug medium.

[00:27:47] Speaker 00:
It is not mixed with in an inextractable way.

[00:27:50] Speaker 00:
And that is what the pre-sentence investigation report relied on.

[00:27:54] Speaker 00:
The parts of this drug and patch that are not separatable.

[00:27:59] Speaker 00:
These parts that we now know we're dealing with are able to be separated.

[00:28:03] Speaker 00:
I do want to make one other point with respect to what I think we still don't know, and because the government was talking about the exhibits in the request for miscellaneous filing.

[00:28:13] Speaker 00:
I'll just note, it says in the DEL lab report that the inner packaging includes some foil wrapping.

[00:28:19] Speaker 00:
We don't know, based on that, whether what they claim to be the net weight includes that foil wrapping.

[00:28:28] Speaker 03:
which why the district court would have benefited from hearing this oral argument.

[00:28:32] Speaker 03:
I mean that made that specific point and that was not made before the district court, correct?

[00:28:37] Speaker 00:
I don't disagree with that, Your Honor.

[00:28:39] Speaker 03:
Thank you very much.

[00:28:40] Speaker 03:
Appreciate your oral argument presentation here today.

[00:28:44] Speaker 03:
The case of United States of America versus Grant is now submitted.

[00:28:48] Speaker 03:
Mr. Mulek, Ms.

[00:28:50] Speaker 03:
Yamaga, thank you so much.

[00:28:52] Speaker 03:
The next case on our docket is United States of America