[00:00:00] Speaker 03:
Everybody's running to go, so we'll call it 23-1309 United States versus Johnny Good morning your honors and may it please the court.

[00:00:09] Speaker 01:
My name is Kathleen Shen and I represent the appellate Mr.. Dhruv Johnny this court is sorry This court has long held that in order to be a manager or supervisor under section 3b 1.1 of the guidelines a Defendant must exercise decision-making authority or control over a subordinate

[00:00:27] Speaker 01:
It's not enough that the defendant was important or essential to the criminal activity, and it's also not enough that the defendant is merely relaying information on behalf of others.

[00:00:37] Speaker 01:
Unless the defendant actually has the authority over subordinates that the guideline requires, he is not a manager or supervisor.

[00:00:45] Speaker 01:
The district court statements and findings show that he applied the enhancement without requiring that decision-making authority or control in this case.

[00:00:54] Speaker 01:
Recall that Mr. Johnny had argued that he was not a manager or supervisor because he, in fact, had no decision-making authority or control over Whitty and Henderson.

[00:01:03] Speaker 01:
Rather, Mr. Johnny contended that he had merely translated Mike's orders from Gujarati to English.

[00:01:10] Speaker 03:
Where was Johnny located?

[00:01:15] Speaker 03:
Mr. Johnny was located geographically.

[00:01:17] Speaker 01:
He was in Colorado with Whitty and Henderson.

[00:01:21] Speaker 01:
And his position at sentencing was that all three of he, Whitty, and Henderson were runners.

[00:01:28] Speaker 01:
And Mr. Johnny was just the one who received the instructions.

[00:01:31] Speaker 01:
And because he spoke Gujarati, he would translate those instructions to Whitty.

[00:01:36] Speaker 03:
And where was Mike?

[00:01:37] Speaker 01:
Mike was located presumably in India.

[00:01:41] Speaker 03:
In India, yeah.

[00:01:42] Speaker 01:
So the district court rejected the premise of that argument, concluding that even if Mr. Johnny was just relaying the instructions that he had received from Mike, that he was a manager or supervisor.

[00:01:57] Speaker 01:
He says, even if I believe all of that, and I don't care if he's following orders of the change, he is still a manager or supervisor.

[00:02:04] Speaker 01:
And I think these statements, particularly in combination with the findings that he did make, show that he

[00:02:10] Speaker 01:
had erroneously concluded that the manager's supervisor role did not require decision-making authority or control, but could be applied based on this translation or mouthpiece function alone.

[00:02:24] Speaker 04:
Council, let me ask you this, because this was a sentencing matter, isn't that correct?

[00:02:29] Speaker 04:
Yes.

[00:02:30] Speaker 04:
And what's the standard that the trial court applies?

[00:02:34] Speaker 04:
I thought it was a preponderance of the evidence in the sentencing matter, isn't that correct?

[00:02:39] Speaker 01:
Yes.

[00:02:40] Speaker 04:
And so your argument solely is that based upon the evidence that was presented at sentencing, your client was not a manager or supervisor.

[00:02:52] Speaker 04:
Is that where you're coming from?

[00:02:54] Speaker 01:
That's not exactly correct, Your Honor.

[00:02:55] Speaker 01:
Our position is that the district court applied the wrong legal standard.

[00:03:00] Speaker 01:
And you can see this by the way that he rejected our position.

[00:03:03] Speaker 01:
He says, even if I accept he's just a translator, he's still a manager or supervisor.

[00:03:08] Speaker 01:
And recall, our specific argument

[00:03:10] Speaker 01:
He's not a manager or supervisor.

[00:03:12] Speaker 01:
He doesn't exercise decision-making authority or control.

[00:03:15] Speaker 01:
He is just translating.

[00:03:17] Speaker 04:
Excuse me, counsel.

[00:03:18] Speaker 04:
I need you to slow down.

[00:03:19] Speaker 04:
I can't hear you.

[00:03:20] Speaker 01:
Oh, I apologize.

[00:03:21] Speaker 04:
You're talking.

[00:03:21] Speaker 04:
But run that by me again.

[00:03:23] Speaker 04:
I think this, what you're arguing, is important.

[00:03:26] Speaker 04:
And I need to be sure and grasp.

[00:03:28] Speaker 01:
Of course.

[00:03:29] Speaker 01:
So our specific argument, and you can see this, I believe, in pages 96 to 97, volume 2.

[00:03:36] Speaker 01:
And this is our sentencing objection.

[00:03:38] Speaker 01:
Our objection was,

[00:03:39] Speaker 01:
that Mr. Johnny was not a manager or supervisor because he lacked decision-making authority and control, that he did not have that authority over Whitty and Henderson.

[00:03:50] Speaker 01:
And rather, he was just translating orders from Mike.

[00:03:54] Speaker 01:
And I think the district court just rejected the premise of that.

[00:03:59] Speaker 01:
He says, even if that's true, you are still a manager or supervisor because you recruited, because you gave them IDs, because you traveled with them,

[00:04:09] Speaker 01:
And because you gave them instructions.

[00:04:11] Speaker 01:
And I think this instructions is really the one part I want to focus on a little bit here.

[00:04:15] Speaker 03:
Because of course, sometimes- Is that a fact question that we need to defer to?

[00:04:21] Speaker 01:
In this case, I think that the district court is making a legal error.

[00:04:25] Speaker 01:
And just from the way he's explaining his findings, he's saying, even if you're just translating, I think that makes you a manager or supervisor.

[00:04:32] Speaker 01:
And so our view is that there's this legal error.

[00:04:34] Speaker 01:
And that because the district court's applying the wrong legal standard, his factual findings

[00:04:39] Speaker 01:
are insufficient.

[00:04:40] Speaker 01:
The analogy I thought of is if you have a beaker, and the legal standard is the line on the beaker, and then you've got to fill the beaker up to the line to show that the guideline applies.

[00:04:51] Speaker 01:
I think that just court drew the line in the wrong place.

[00:04:53] Speaker 01:
But we can also see from his factual findings that he wasn't using the right legal standard.

[00:04:58] Speaker 01:
And I really want to focus on instruction, because I think that's the part where

[00:05:02] Speaker 01:
on the first blush, you might think, oh, if you're giving instructions to someone, maybe you are their supervisor.

[00:05:06] Speaker 01:
And I think that can be true sometimes.

[00:05:08] Speaker 01:
But in this case, Mr. Johnny specifically said he wasn't giving them orders based on his own authority.

[00:05:14] Speaker 01:
He was just translating or relaying the orders from Mike.

[00:05:17] Speaker 01:
And the example I can think of is if my boss comes to me and he says, Katie, I've got two new appeals from the 10th Circuit.

[00:05:24] Speaker 01:
You take Mr. Johnny's case, and the other one is going to Josh.

[00:05:26] Speaker 01:
You let Josh know he's taking the other case.

[00:05:28] Speaker 01:
When I tell Josh,

[00:05:30] Speaker 01:
that he is taking the case, that's not an assignment coming from me.

[00:05:33] Speaker 01:
I am not Josh's supervisor merely because I am relaying this instruction.

[00:05:37] Speaker 01:
And I think because that was our position and the district court never found otherwise, his finding and his application of the guideline

[00:05:47] Speaker 01:
was clearly erroneous, whether you think it's clear error because it's based on the application of a wrong legal standard or if you just say this is a legal error, we review de novo.

[00:05:57] Speaker 01:
Whichever way you approach that, I think that the finding was erroneous and that's reversible and requires remand to the district court.

[00:06:05] Speaker 04:
I have one more question.

[00:06:06] Speaker 04:
Of course.

[00:06:07] Speaker 04:
But I noticed that there seems to be a difference of opinion between you and your opposing counsel as to our standard, whether we're here under plain error

[00:06:17] Speaker 04:
You're arguing, I believe, it's not plain error.

[00:06:20] Speaker 04:
Is that correct?

[00:06:21] Speaker 01:
Yes, Your Honor.

[00:06:22] Speaker 01:
My view of this is that we're raising exactly the same argument on appeal that we raised below.

[00:06:27] Speaker 01:
Below, we argue to the district court, Mr. Johnnie is not a manager or supervisor because he did not exercise decision-making authority or control.

[00:06:36] Speaker 01:
He was just the translator.

[00:06:37] Speaker 04:
So the same argument you're making to us is the same argument you made below.

[00:06:43] Speaker 01:
Yes, and that is sufficient to preserve the claim.

[00:06:46] Speaker 01:
There was no additional requirement after the district court overruled our objection to say, no, no, no, you should have followed the legal standard.

[00:06:54] Speaker 01:
I think this is sufficient both just from first principles.

[00:06:57] Speaker 01:
It's the same argument on appeal.

[00:06:59] Speaker 01:
And again, if you look at Lopez Avila or the court's recent unpublished decision in Morrell, once you put that standard in front of the judge, you don't have to raise it again afterwards.

[00:07:12] Speaker 01:
Unless this Court has further questions, I'd like to reserve the remainder of my time for rebuttal.

[00:07:17] Speaker 01:
Thank you.

[00:07:17] Speaker 01:
Thank you.

[00:07:40] Speaker 02:
May it please the Court, Jess McKeel for the United States.

[00:07:44] Speaker 02:
Your Honor, I want to start with the plain error point that was just brought up by Judge Baldock.

[00:07:50] Speaker 02:
This was not the same argument that was raised below.

[00:07:53] Speaker 02:
And I want to be very clear about that.

[00:07:54] Speaker 02:
Council pointed to page 96 of their objections and actually this whole notion that you have to be a decision maker.

[00:08:02] Speaker 02:
That wasn't raised.

[00:08:04] Speaker 02:
Page 96 said that Johnny had no control or authority over his subordinates, no actual control or authority.

[00:08:12] Speaker 02:
That is different than this whole notion that there has to be decision making.

[00:08:17] Speaker 02:
And furthermore, I think the Bush case that came out in 2022 is on all fours with this.

[00:08:22] Speaker 02:
It in fact deals with the same enhancement, 3B1.1B.

[00:08:27] Speaker 02:
There, I would point out that the opening brief said that the court skipped over making any finding of control over another participant.

[00:08:37] Speaker 02:
It's basically what we've got here, that the court set aside discretion, skipped over a necessary prong of the legal standard.

[00:08:45] Speaker 02:
But then when this whole forfeiture plain error was pointed out in the answer brief, the reply was, well, we did enough.

[00:08:51] Speaker 02:
We objected to the central finding that the court was required to make and that the record didn't support the enhancement.

[00:08:58] Speaker 02:
And this court said, no, that's not enough.

[00:09:01] Speaker 02:
The court said, you're saying that the district court didn't apply the correct legal standard, that it skipped over something.

[00:09:08] Speaker 02:
You needed to timely object.

[00:09:10] Speaker 02:
And I think there's a good reason for that here, because the parties are debating over what did the court mean when it said, I'm setting aside discretion.

[00:09:19] Speaker 02:
The defense is saying, well, I'm setting aside the whole legal standard.

[00:09:24] Speaker 02:
I don't think that's a fair reading of the transcript.

[00:09:26] Speaker 02:
What he said was whether Johnny was operating the call centers in India or whether he's handing things down that Mike told him,

[00:09:35] Speaker 02:
I don't need to get into that.

[00:09:36] Speaker 02:
You know, I'm going to set aside those things when he's talking about discretion.

[00:09:40] Speaker 02:
So if, if there was a concern about, wait, are you setting aside the whole legal standard?

[00:09:46] Speaker 02:
That's the moment to say something, let him clear it up.

[00:09:50] Speaker 02:
But there was no objection.

[00:09:51] Speaker 02:
And I think Bush controls on that point.

[00:09:54] Speaker 02:
Morrell is also very different.

[00:09:56] Speaker 02:
You know, Morrell talks about, it's kind of the, the Pulsifer scenario of that safety valve does and mean or.

[00:10:04] Speaker 02:
And the government made the exact same argument in the district court that it made on appeal.

[00:10:09] Speaker 02:
You have to show all three factors under that safety valve to qualify.

[00:10:13] Speaker 02:
And in the interim between the district court's decision and the appeal, Pulsifer came down and cleared that up.

[00:10:21] Speaker 02:
So yeah, it's the exact same argument, so there'd be no need to re-raise it.

[00:10:25] Speaker 02:
This is different.

[00:10:27] Speaker 02:
This was far more of an evidentiary concern as to the

[00:10:32] Speaker 02:
as to the standard rather than what is the standard.

[00:10:34] Speaker 02:
And I think jumping now to what is the standard, again bearing in mind I believe that this is under plan error review.

[00:10:41] Speaker 02:
Judge Baldoch, your opinion in Hunsicker set out three different prongs.

[00:10:47] Speaker 02:
It said decision making authority, control, or organizational authority.

[00:10:53] Speaker 02:
And Hansiker didn't come up with that out of thin air.

[00:10:56] Speaker 02:
That's been the law for 34 years.

[00:10:59] Speaker 02:
Roberts actually used even more on-point language in 1990.

[00:11:03] Speaker 02:
It said, if you have control over a subordinate or in thinking about in terms of Johnny, you're responsible for organizing others for the purpose of committing an offense.

[00:11:13] Speaker 02:
What is Johnny?

[00:11:15] Speaker 02:
Johnny is the one that's responsible for organizing Whitty and Henderson.

[00:11:20] Speaker 02:
As Judge Simpfish, you pointed out,

[00:11:21] Speaker 02:
Mike is 8,000 miles away.

[00:11:25] Speaker 02:
He might be saying, here's when you need to pick up the package.

[00:11:28] Speaker 02:
Here's what the package contains.

[00:11:30] Speaker 02:
Please go buy these money orders.

[00:11:33] Speaker 02:
Deposit them into these accounts.

[00:11:37] Speaker 02:
There's a lot that then needs to be done to execute those orders, to implement those orders.

[00:11:42] Speaker 02:
And I think that's why the district court's military analogy seems spot on.

[00:11:47] Speaker 02:
And this would not be the first time, actually,

[00:11:50] Speaker 02:
A military analogy has been used in this context.

[00:11:52] Speaker 02:
I would note that it has come up in subsection A concerning leaders and organizers.

[00:12:00] Speaker 02:
An analogy was made to a general overseeing his troops.

[00:12:03] Speaker 02:
OK, well, what about one step below?

[00:12:06] Speaker 02:
Now we're talking about middle managers.

[00:12:08] Speaker 02:
And so that's where the district court said, the lieutenant tells the sergeant, OK, I need you to go take that hill.

[00:12:15] Speaker 02:
The sergeant gathers up the privates and said, men, we're going to go take that hill.

[00:12:20] Speaker 02:
So is the sergeant not a manager?

[00:12:23] Speaker 02:
Of course he is.

[00:12:25] Speaker 02:
This is exactly what 3B1.1 was designed to capture.

[00:12:29] Speaker 02:
It's relative responsibility.

[00:12:32] Speaker 02:
That's the whole arc of this enhancement.

[00:12:36] Speaker 03:
Did he really have, if we focus on decision, a decision maker, did he have any decision making capacity?

[00:12:46] Speaker 02:
Your Honor, he had to have some decision making.

[00:12:48] Speaker 03:
He might be the foot soldier.

[00:12:51] Speaker 02:
He's one step above the foot soldier and the district court made findings to that effect.

[00:12:56] Speaker 02:
The district court made findings that were unobjected to both below and on appeal about hierarchy.

[00:13:02] Speaker 02:
The district court said these guys were mopes.

[00:13:06] Speaker 02:
Johnny was not.

[00:13:07] Speaker 02:
And in fact, the defense responded fair.

[00:13:11] Speaker 02:
That's on page 138 of the, uh,

[00:13:14] Speaker 02:
Record three, record volume three.

[00:13:16] Speaker 02:
Now there may be different levels between those two foot soldiers.

[00:13:21] Speaker 02:
He said Henderson was probably more mopey than Whitty.

[00:13:25] Speaker 02:
But the fact is, is India is not going to trust some mope with tens of thousands of dollars, ultimately amounting to a million plus that, that elderly folks were scammed out of.

[00:13:36] Speaker 02:
And, you know, taking it even one step further, the district court said Whitty and Henderson are not on the same level as Johnny.

[00:13:44] Speaker 02:
And the defense said, I accept that Johnny is not witty.

[00:13:48] Speaker 02:
They were money runners, according to the district court.

[00:13:51] Speaker 02:
He was a domestic manager.

[00:13:53] Speaker 02:
And it clarified why he's not just a regular old money runner.

[00:13:58] Speaker 02:
He's got the contacts in India.

[00:14:00] Speaker 02:
He communicated with Mike regularly.

[00:14:03] Speaker 02:
He's the one going to California on these more significant runs.

[00:14:08] Speaker 02:
And also, you know, I want to take a step back and, you know, when we're talking about the standard, too, about whether organizing, you know, let's look at actually what the district court said.

[00:14:18] Speaker 02:
District court said, he recruits them.

[00:14:21] Speaker 02:
Well, for starters, seven circuits would say, full stop there.

[00:14:24] Speaker 02:
That's enough.

[00:14:26] Speaker 02:
And that makes sense.

[00:14:27] Speaker 02:
You think about the way the First Circuit characterized it.

[00:14:31] Speaker 02:
Demonstration of individual authority necessary to bring someone into the fold.

[00:14:37] Speaker 02:
You are now one step above that low run.

[00:14:41] Speaker 02:
You are under subsection B. You are a manager.

[00:14:43] Speaker 02:
You are a supervisor.

[00:14:45] Speaker 02:
And those terms are meant to be liberally construed in the first place.

[00:14:49] Speaker 02:
That's what Hurd said in the Eighth Circuit.

[00:14:51] Speaker 02:
But I would strongly encourage this court to look at the Castillo-Lugo's case cited in the government's brief.

[00:14:58] Speaker 02:
Footnote 8 outlines seven different circuits that said, recruitment's enough.

[00:15:04] Speaker 02:
But let's look past that.

[00:15:06] Speaker 02:
He recruits.

[00:15:08] Speaker 02:
But was it just recruiting?

[00:15:10] Speaker 02:
Did he just solicit them and say, Hey, you guys really come on board?

[00:15:14] Speaker 02:
Is this really an analogous to the defense's version in their brief of, Oh, this is just a friend saying, come join me at the warehouse?

[00:15:23] Speaker 02:
No, this is actually more akin to hiring.

[00:15:26] Speaker 02:
This is not just soliciting or recruiting.

[00:15:28] Speaker 02:
This is hiring.

[00:15:30] Speaker 02:
He's the one that brings them into the fold.

[00:15:32] Speaker 02:
He's the one that doles out the payments.

[00:15:34] Speaker 02:
He's the one that does the cut.

[00:15:36] Speaker 02:
And in fact, one piece of evidence that I would really like this court to look at is record volume two, page 63.

[00:15:44] Speaker 02:
This is a text exchange that Mr. Whitty had.

[00:15:48] Speaker 02:
And here, this is very clear about the importance of money.

[00:15:52] Speaker 02:
And I think this fundamentally shows control.

[00:15:55] Speaker 02:
He's talking with a friend and said, bear in mind, this is about six months into this conspiracy, and he's less mopey than Henderson.

[00:16:05] Speaker 02:
So India's starting to trust him a little bit more.

[00:16:08] Speaker 02:
You read this text exchange, it's clear that Johnny's now starting to push back against India a little bit.

[00:16:14] Speaker 02:
He doesn't want to go to California as much.

[00:16:17] Speaker 02:
And so what Mr. Witte says is, Cal, who is Johnny, if you look at

[00:16:24] Speaker 02:
page, or paragraph 19 of the PSR, Cal and Johnny are one and the same person.

[00:16:28] Speaker 02:
He said Cal wouldn't let them send the packages to California so I could pick them up.

[00:16:35] Speaker 02:
They also wanted me to take money from Colorado that we had collected, and he wouldn't let that happen without him going along.

[00:16:44] Speaker 02:
So Cal leaves me with no money and no work.

[00:16:48] Speaker 02:
Cal really screwed me, is what this text exchange says.

[00:16:52] Speaker 02:
So who's got control?

[00:16:54] Speaker 02:
So sure, Mike, 8,000 miles away, absolutely has control.

[00:16:57] Speaker 02:
But you know what else?

[00:16:59] Speaker 02:
Johnny's got control.

[00:17:00] Speaker 02:
Johnny has decision making and control over Whitty and Henderson.

[00:17:04] Speaker 00:
Can I just stop you there?

[00:17:06] Speaker 00:
Because you just used the term decision making.

[00:17:10] Speaker 00:
But I'm wondering, can you help me understand the distinction between decision making and organizational authority?

[00:17:18] Speaker 00:
Do you think there is a difference?

[00:17:19] Speaker 00:
I mean, you started out by saying there's three separate things.

[00:17:23] Speaker 00:
So can you help me understand that distinction?

[00:17:26] Speaker 02:
Yeah, I think for starters there's kind of different formulations of the tests that have been floated around, whether it's BACA said any direction will suffice and then eventually we start to get the notion of decision-making and that shows up in Roberts.

[00:17:40] Speaker 02:
Roberts also does clarify that it's decision-making authority or control.

[00:17:45] Speaker 02:
It first looks at, you know, was there any evidence that this person had decision-making authority over subordinates?

[00:17:51] Speaker 02:
It says, well, we don't see it.

[00:17:53] Speaker 02:
But then it says, we also don't see any form of control.

[00:17:56] Speaker 02:
And I think this goes back to Huntsaker, which shows that these are different buckets.

[00:18:01] Speaker 02:
Now, there has to be some measure of decision-making if you are the one saying, I'm going to organize these people.

[00:18:08] Speaker 02:
If you're the sergeant saying, all right, men, line up.

[00:18:11] Speaker 02:
There's some decision-making inherent in that.

[00:18:13] Speaker 02:
Control, organization, authority, these terms all kind of interplay with one another.

[00:18:18] Speaker 02:
And frankly, the same evidence.

[00:18:20] Speaker 02:
can check a lot of these different boxes.

[00:18:22] Speaker 02:
And here it did.

[00:18:23] Speaker 02:
What we've got is he's the gatekeeper, first of all, to the money.

[00:18:28] Speaker 02:
He's the one doling out the funds.

[00:18:31] Speaker 02:
He's the one apparently preventing Whitty from making any money to survive when he chooses.

[00:18:36] Speaker 02:
That's a decision.

[00:18:37] Speaker 02:
He's also the one that's dictating the flow of information.

[00:18:42] Speaker 02:
Now, counsel says, well, maybe those were instructions coming from Mike.

[00:18:47] Speaker 02:
That specific allegation is not ever made, aside from this omnibus objection of, oh, every single thing that I did was just because Mike told me to.

[00:18:58] Speaker 02:
Well, Johnny's not a robot.

[00:19:00] Speaker 02:
Johnny has agency.

[00:19:01] Speaker 02:
He's the one implementing and executing Mike's instructions.

[00:19:06] Speaker 02:
So they ask him, where are these funds coming from?

[00:19:11] Speaker 02:
What are we doing?

[00:19:12] Speaker 02:
Why do we need fake IDs?

[00:19:14] Speaker 02:
Well, you don't need to know.

[00:19:15] Speaker 02:
He tells one of them.

[00:19:16] Speaker 02:
The other one, he gives a slightly different story.

[00:19:19] Speaker 02:
Certainly no evidence that Mike was dictating that.

[00:19:22] Speaker 02:
So there is some decision making happening here.

[00:19:27] Speaker 02:
Johnny is also the one driving Henderson.

[00:19:29] Speaker 02:
Mike's not in that car.

[00:19:31] Speaker 02:
So I think, you know, I'd like to think that some measure of decision making happens when you're driving a vehicle.

[00:19:37] Speaker 02:
So it doesn't have to be a lot.

[00:19:40] Speaker 02:
And that's, I think, going back to what Bacchus said, not much is required.

[00:19:44] Speaker 02:
Any form of direction will suffice.

[00:19:50] Speaker 02:
You know, in addition to this whole legal standard thing, which again I submit is under plain error, we've also got this question of what did the district court mean when it said discretion?

[00:20:00] Speaker 02:
And I think that's a very clear reason that we can't say that any error was obvious, which is necessary under PROM 2.

[00:20:07] Speaker 02:
Certainly the word discretion does not appear in 3B1.1B.

[00:20:12] Speaker 02:
It does not appear anywhere in this court's case law interpreting that provision.

[00:20:17] Speaker 02:
It does not appear in the application note.

[00:20:19] Speaker 02:
And the application note is significant.

[00:20:21] Speaker 02:
There are seven factors listed in that note to determine whether somebody is or is not a manager or supervisor.

[00:20:28] Speaker 02:
The apt case said those seven apply.

[00:20:31] Speaker 02:
Well, if you distill the defense's argument down, only two of them really matter.

[00:20:36] Speaker 02:
Decision making, control.

[00:20:39] Speaker 02:
Well, what is recruitment?

[00:20:41] Speaker 02:
Recruitment is evidence of decision-making and control.

[00:20:44] Speaker 02:
All seven factors matter.

[00:20:46] Speaker 02:
They have to.

[00:20:48] Speaker 02:
So unless, you know, we're prepared to sort of set aside apt and change what those seven factors mean on the application note, unless we're prepared to take the pen and strike through organizational authority and Hansiker, and unless we're prepared to put words in the district court's mouth when it said discretion,

[00:21:05] Speaker 02:
I don't see how we get to plain error.

[00:21:07] Speaker 02:
So unless this court has any further questions, I would ask for the judgment to be affirmed.

[00:21:12] Speaker 03:
Thank you, counsel.

[00:21:13] Speaker 02:
Thank you, Your Honors.

[00:21:28] Speaker 01:
Your Honors, I'd like to start with the government's argument regarding

[00:21:33] Speaker 01:
substantive legal standard, and specifically his suggestion that you can have organizational authority without decision-making authority or control.

[00:21:40] Speaker 01:
That's squarely contrary to this court's precedence, which plainly and clearly state that you cannot be a manager or supervisor unless you have decision-making authority or control.

[00:21:52] Speaker 01:
Robert says, evidence of decision-making authority or control over subordinate is necessary.

[00:21:58] Speaker 01:
To conclude, the defendant was a supervisor or manager, Pena Hermosillo says the enhancement applies only when the defendant had decision-making authority or control.

[00:22:06] Speaker 01:
Albers again repeats the Roberts holding, Pellier, and in Hunsaker, this court reversed application of the manager supervisor enhancement because the record lacked evidence of decision-making authority or control over a subordinate necessary to a holding that the defendant was a manager or supervisor, so there's simply no

[00:22:27] Speaker 01:
authority for the government's argument that you can have something, you can be an organized or have organizational authority without decision-making authority or control.

[00:22:36] Speaker 03:
The application notes, though, for the provision, they have these seven factors.

[00:22:46] Speaker 03:
It doesn't say decision-making alone.

[00:22:51] Speaker 03:
It says the factor should include and boom, boom, boom, boom.

[00:22:55] Speaker 01:
You know he falls under some of those factors I Think this court's precedents are clear that the decision-making authority and control factors are dispositive and the other factors may be considered But you have to have those two absolutely I think the best reading is that organizational authority is a kind of synonym or just another way of describing decision-making authority or control and I kind of think

[00:23:17] Speaker 01:
That's sort of what the government was suggesting.

[00:23:18] Speaker 01:
It's hard to imagine how you could organize someone or have the authority to do so without exercising decision-making authority or control.

[00:23:25] Speaker 01:
Second, the government appears to be inviting the court to look to various aspects of the PSR and the pleadings and inviting the court to make the finding that actually Mr. Johnny Wise, a manager or supervisor based on these various allegations that appear in the record.

[00:23:41] Speaker 01:
But of course, it's not this court's role to find the facts in the first instance.

[00:23:46] Speaker 01:
Mr. Johnny specifically objected that he was just the translator, that he didn't have decision-making authority or control.

[00:23:53] Speaker 01:
And the district court never found otherwise.

[00:23:55] Speaker 01:
And so it wouldn't be appropriate for this court to do what the government suggests and conduct a sort of free-floating factual inquiry as to whether the standard is met under these circumstances.

[00:24:07] Speaker 01:
And again, the government suggests or argues that we made a different

[00:24:14] Speaker 01:
that our objection wasn't raising the same argument.

[00:24:17] Speaker 01:
And I just think that's not true.

[00:24:20] Speaker 01:
Again, I would draw this Court's attention to pages 96 and 97 of the volume 2 of the record.

[00:24:28] Speaker 01:
And I'm just going to read from there.

[00:24:30] Speaker 01:
Mr. Johnny, this is our argument for why he is not a manager supervisor.

[00:24:38] Speaker 01:
He did not earn more than his co-conspirators.

[00:24:40] Speaker 01:
He did not have decision-making authority control or the ability to organize the money laundering activities as he saw fit.

[00:24:46] Speaker 01:
And then the final sentence, our conclusion, Mr. Johnnie only relayed information and followed orders with the other two runners, but had no actual control in making the substance of those decisions.

[00:24:57] Speaker 01:
And he should not receive a role adjustment for those reasons.

[00:25:00] Speaker 01:
So the idea that we didn't raise this argument before, I think, is simply false and not supported by the record.

[00:25:07] Speaker 01:
And even if this claim was on plain error, I think the error is plain.

[00:25:12] Speaker 01:
Of course, the law is plain.

[00:25:14] Speaker 01:
As I've just walked through, this court has repeatedly said decision-making authority and control are required in order to qualify for this enhancement.

[00:25:23] Speaker 01:
And with respect to the record, I think if you were looking just at this one statement about discretion itself, maybe the government would have a point.

[00:25:31] Speaker 01:
But the district court is responding directly to our objection in which we argue

[00:25:36] Speaker 01:
that Mr. Johnnie was not a manager or supervisor because he lacked decision-making authority or control and was just a translator.

[00:25:44] Speaker 01:
And so when the district court says, even if I believed all that, you're still a manager or supervisor, I think it's clear that the district court is saying he rejects the notion that decision-making authority or control is required and that he believes that the enhancement can be applied even in the absence of those things.

[00:26:03] Speaker 01:
And that is plain error under this court's

[00:26:07] Speaker 01:
Precedents and so for all those reasons whether this Whether you consider the claim to be preserved or not the application of the enhancement was erroneous And this court should vacate the sentence and remain for resentencing.

[00:26:20] Speaker 01:
Thank you.

[00:26:21] Speaker 03:
Thank you counsel appreciate your arguments You are excused and the case is submitted