[00:00:05] Speaker 00: I'd like to reserve five minutes for a bottle. [00:00:07] Speaker 01: Counsel, please be reminded that the time shown is your total time remaining. [00:00:11] Speaker 00: Yes, your honor. [00:00:11] Speaker 00: All right. [00:00:15] Speaker 00: Your honors have before you a legal issue. [00:00:20] Speaker 00: But you also have before you a human being, a person who had no criminal record. [00:00:26] Speaker 00: a widower with four children, someone who turned himself in when he could have stayed in Mexico, somebody who admitted to what he had done. [00:00:38] Speaker 00: And the most important element of this, when considering all the briefing papers, is what actually happened in this offense. [00:00:46] Speaker 00: What was his role in the case of which he was convicted? [00:00:51] Speaker 00: When we look at the case law, we see that in determining whether a person is an organizer, a leader, a manager, or a supervisor, you have to look at that specific offense. [00:01:03] Speaker 00: And opposing counsel and the government has presented a kaleidoscope of facts that are completely unrelated to this offense and are using those facts to try to establish that he was an organizer. [00:01:15] Speaker 00: When you look at the facts of this particular offense, when the government approached my client and asked if he would be able to sell and provide to them certain [00:01:24] Speaker 00: illegal substances, and he complied with that. [00:01:27] Speaker 00: He was not acting as an organizer, a manager, et cetera. [00:01:31] Speaker 00: Counsel, what is our standard of review? [00:01:34] Speaker 00: The standard of review, there are two different standards, Your Honor. [00:01:37] Speaker 00: In terms of applying the legal standard to the facts, it's abuse of discretion. [00:01:42] Speaker 01: What is our standard of review in looking at the district court's determination of whether your client was an organizer? [00:01:49] Speaker 01: What's our standard of review on that? [00:01:51] Speaker 00: Well, factual findings, the standard is clear error. [00:01:53] Speaker 01: So for that finding, we would have to conclude that there was clear error, correct? [00:01:59] Speaker 01: Yes, Your Honor. [00:02:00] Speaker 00: Okay. [00:02:00] Speaker 00: And in the Wilson case, which is cited, excuse me, the Whitney case, United States versus Whitney, cited in the briefs, 673, federal third, 965. [00:02:11] Speaker 00: On page 976, it makes very clear [00:02:16] Speaker 00: that this has to relate to, the facts have to relate to this particular crime. [00:02:21] Speaker 00: And there are not facts in this particular crime that show that he was an organizer or manager. [00:02:28] Speaker 03: Let's put aside what you said, the kaleidoscope of other evidence. [00:02:34] Speaker 03: But in this particular crime, when they delivered, when your client was making the delivery of 50 pounds of methamphetamine, which is a lot of drugs, [00:02:45] Speaker 03: He went to somebody else's house who was storing the drugs, directed that person then to deliver the drugs to the undercover agent. [00:02:54] Speaker 03: So why isn't that alone enough to show that he was at least supervising, managing, directing that second person who made the delivery? [00:03:03] Speaker 00: Your Honor, he was trying to facilitate a drug deal, and he was having the other person ask him to hurry up. [00:03:10] Speaker 00: That is what he said. [00:03:11] Speaker 00: In terms of the other person coming out and providing those drugs, there's not evidence that he was directing him and the person controlling him in terms of doing that. [00:03:19] Speaker 00: There are many instances when people are interacting with other people as equals, not as managers and supervisors, where they will trigger a responsive action by somebody else. [00:03:28] Speaker 00: And an example might be in the Whitney case, where the defendant in that case [00:03:34] Speaker 00: gave documents to another individual that needed to be filled out. [00:03:38] Speaker 00: And in him extending his hand and therefore soliciting the other person and putting out his hand to take the documents, that could be arguably causing a reaction from somebody else. [00:03:49] Speaker 01: Counsel, you're asking us to say that the district court clearly erred in interpreting those actions. [00:03:57] Speaker 01: And so how can we say that the district court, if there are several ways that the actions can be interpreted, [00:04:04] Speaker 01: How can we say the one that the district court selected was clearly erroneous? [00:04:10] Speaker 00: Two reasons, Your Honor. [00:04:11] Speaker 00: One is that this is analogous to the Whitney case, where there was an action that triggered a response in another individual, and that was found to be not sufficient. [00:04:19] Speaker 00: Another reason, though, that's a very important reason, is when we look at the law itself, Section 841A1, which is the crime of which my client was convicted, it says to manufacture, distribute, or dispense [00:04:31] Speaker 00: or possessed with intent to manufacture or dispense a controlled substance. [00:04:36] Speaker 00: And so according to the government's theory of the case and the government's argument and even the finding of the district court, almost no one could be convicted of that crime without also having the aggravating role of being an organizer or supervisor unless they themselves have the manufacturing facility [00:04:53] Speaker 00: and they themselves are doing every single role in the drug manufacture and sale and distribution process, which as we know from common sense is not what happens in the real world. [00:05:04] Speaker 00: So to use the district court's decision in this case to say that he was an organizer and to adopt the government's position on this would be essential to say that 841A1 [00:05:14] Speaker 00: almost always must involve someone who's organizing and managing someone else because someone needs to interact with another person to get the drugs, the person who manufactures them, the person who would transport them across the borders, etc. [00:05:30] Speaker 00: And obviously those interactions involve some type of communication that need not be supervisor communication. [00:05:36] Speaker 02: But doesn't a statement like [00:05:38] Speaker 02: hurry up constitute something more than just an interaction? [00:05:43] Speaker 02: Isn't that more like a direction? [00:05:47] Speaker 00: Hurry up, I think, is most consistent with the statement of someone who might be a little rude, but not necessarily somebody who is a supervisor, someone who's directing somebody else as to what to do. [00:05:57] Speaker 00: Again, it's [00:05:58] Speaker 00: In the case of Whitney, there was an agreement among multiple people who were equals to carry out an act, and there are many instances where one act would trigger a responsive act from somebody else. [00:06:10] Speaker 00: And so in this case, where [00:06:13] Speaker 00: my client had a role, this other individual had a role, and he wanted to trigger a responsive act, that's not the same as supervising or managing. [00:06:21] Speaker 00: That's not evidence of supervising or managing. [00:06:23] Speaker 00: That's essentially analogous to the Whitney case. [00:06:26] Speaker 00: So in that case, I'm sure Your Honor can imagine many circumstances where you might interact with equals, with peers, friends, other individuals, and perhaps request that they hurry up without actually being their manager or supervisor. [00:06:39] Speaker 00: That's a common manner of interaction between [00:06:42] Speaker 00: equals, and one might even say that to a subordinate even. [00:06:47] Speaker 00: So that would not establish that. [00:06:50] Speaker 00: In terms of the Whitney case, [00:06:52] Speaker 00: there's also a reference to how a pre-sentence report, in that case, is used to, in a conclusory fashion, say that a person is a manager, is an organizer, and that is also very analogous to this case, where there's statements that there have been ongoing investigations, there are many statements in the passive voice, there's many other information that's not actually facts related to this case. [00:07:21] Speaker 00: Some of the most important cases that are cited by opposing counsel, when you look at what is being discussed in those cases, People v. Doe, 778 Federal Third 814, when you look at the Verve case that was cited in the supplemental briefing, when you look at the Beltran case, [00:07:38] Speaker 00: on page 13 of opposing counsel's filing and the Salcedo Corrales case, it's all instances where someone is clearly directing somebody else in a supervisor fashion on the facts of this case, not cell phone images that are from potentially years ago that are nothing directly related to the case, in the case of Doe. [00:08:00] Speaker 00: There was the organization of at least three other individuals telling them what to do. [00:08:06] Speaker 00: There was a discussion and a negotiation about the division of profits. [00:08:09] Speaker 00: There was introducing essential parties that played a meaningful role in the case of Beltran. [00:08:16] Speaker 00: There was telling two people specifically where to go to return to residence, what to do when they were there to pick up specific drugs. [00:08:23] Speaker 00: In the Salcedo Corrales case, there was directing another person to deliver the drugs, not saying, please do what you are already planning on doing in a faster fashion, because I'm impatient, I'm perhaps rude, but this is what you're supposed to do. [00:08:37] Speaker 00: So that is actually laid out in those cases. [00:08:40] Speaker 00: And in the Vinge case, [00:08:42] Speaker 00: as well, there is a statement about what he was doing in that specific case. [00:08:47] Speaker 00: He would reach out to his source, the Mayland, pool money from friends. [00:08:52] Speaker 00: on the island, place the order, set the price, distribute the drugs once they arrive. [00:08:57] Speaker 00: Those are all related to supervisory and management activities on that particular case, not just a bunch of prior things that are found and have no connection to the actual case, like putting a package in a mailbox on video without any connection to this case. [00:09:13] Speaker 01: Counsel, did you want to save some time for rebuttal? [00:09:16] Speaker 01: Yes, Your Honor. [00:09:16] Speaker 01: All right. [00:09:17] Speaker 01: Thank you. [00:09:17] Speaker 01: Thank you. [00:09:33] Speaker 04: It pleads the court, Daniel Zip, on behalf of the United States. [00:09:36] Speaker 04: Your Honor, the district court was well within its discretion in this case in applying a two-level enhancement under 3B1.1. [00:09:42] Speaker 04: In United States versus Doe, this court made clear that there are two independent ways that a defendant can qualify for the enhancement. [00:09:49] Speaker 04: He can either act as a supervisor and directly control the activities of others, or he can act as an organizer. [00:09:56] Speaker 04: And as long as he has the ability and influence necessary to coordinate the activities of others involved in the offense, [00:10:03] Speaker 04: He can still qualify for the enhancement even without any direct control over the other participants. [00:10:09] Speaker 04: The defendant in this case qualifies under either prong. [00:10:13] Speaker 04: Most clearly under the second, under the organizer prong. [00:10:16] Speaker 04: In Doe, this court held that merely coordinating drug transactions is sufficient to qualify for the enhancement, and this defendant was clearly coordinating drug transactions. [00:10:27] Speaker 04: In the first meeting with the undercover officer, [00:10:30] Speaker 04: The defendant told him that he had a reliable network for bringing drugs across the border and that he was distributing drugs as far as New York and Florida. [00:10:40] Speaker 04: In his post-arrest statement, he admitted that he was a coordinator and that when he received an order for 50 pounds of methamphetamine, he went around to different sources, collected the drugs, brought them across the border, and sold them to the undercover officer. [00:10:52] Speaker 04: Under this court's clear case law in Doe and Valero, those type of facts make this defendant an organizer. [00:10:59] Speaker 03: and it certainly wasn't illogical or implausible for the district court to apply enhancement here uh... and because the court made that finding and also necessarily precluded uh... safety valve under five c one point two you make the argument of harmless air uh... can you tell me would that would we not have to allow the district court to make that determination as to whether they would have buried even further downward if the district court were to [00:11:29] Speaker 03: Now if we were to say the district court is wrong in the enhancement and the safety valve We don't believe so your honor. [00:11:36] Speaker 04: There's certainly a case a lot of case law that says that that errors in the guidelines Necessarily require remand in Munoz Camarena. [00:11:43] Speaker 04: However, there's a footnote that lists a list of examples of when an error could be harmless One of those examples is when the correct guidelines and incorrect guidelines are [00:11:53] Speaker 04: overlapped. [00:11:55] Speaker 04: The case says overlapped substantially. [00:11:57] Speaker 04: In this case, they sort of touch at the margins at 210 at the top and 210 at the bottom. [00:12:04] Speaker 04: with. [00:12:07] Speaker 04: But Munoz-Camarena makes clear in that footnote that these are just illustrative examples of what can be harmless. [00:12:13] Speaker 04: In this case, when the district court makes the calculations, has full awareness of what the dispute is, and then lops off 100 months off of the sentence, well below the guideline range that would apply to either one of those, [00:12:26] Speaker 04: We believe that that's a situation where this court can look at the court's overall 3553 analysis, which included all the facts that underlie the dispute over the role enhancement in the first place and determined that when the court said 151 months is the fair and just sentence, that that would be the case regardless of how it ultimately came out on the role enhancement. [00:12:47] Speaker 04: But obviously, I think the case law is very clear in this case that this court doesn't even have to reach that issue as the district court was well within its discretion in applying the enhancement. [00:12:58] Speaker 04: The court has any other questions? [00:13:00] Speaker 01: It appears not. [00:13:01] Speaker 01: Thank you, counsel. [00:13:01] Speaker 01: Thank you. [00:13:02] Speaker 01: Rebuttal. [00:13:14] Speaker 00: Your Honor, the facts in this case are wholly consistent with someone acting as a runner, acting as one part. [00:13:22] Speaker 00: Runner? [00:13:23] Speaker 00: one part, excuse me, yeah, a runner, essentially a person who's providing drugs, and not an organizer, someone who is a field worker. [00:13:32] Speaker 00: It's consistent with that, and any other finding would essentially say that 841A1 must always include someone who is an organizer and a manager. [00:13:42] Speaker 00: mentioned the issue of harmless error, which your honor brought up. [00:13:46] Speaker 00: There was a statutory minimum in this case that was affecting the judge's determination. [00:13:51] Speaker 00: The minimum with safety valve would have been zero, which would have very drastically changed the universe in which the district court was operating. [00:14:00] Speaker 00: This is a case where we have a man with no criminal record. [00:14:05] Speaker 00: And I ask your honors to analyze the law and have compassion to do justice in this case. [00:14:11] Speaker 00: Thank you. [00:14:12] Speaker 01: Thank you. [00:14:13] Speaker 01: Thank you, both counsel. [00:14:14] Speaker 01: The case just argued is submitted for decision by the court.