[00:00:00] Speaker 03:
Let me call 22-2138, United States versus Maxi Velasquez.

[00:00:05] Speaker 03:
And Ms.

[00:00:06] Speaker 03:
Gorman, you may proceed.

[00:00:12] Speaker 01:
May I please the court?

[00:00:14] Speaker 01:
My name is Sarah Gorman, and I represent the appellant, Nicholas Maxi Velasquez.

[00:00:18] Speaker 01:
I intend to reserve about a minute and a half for rebuttal, but we'll see how that goes.

[00:00:23] Speaker 01:
Mr. Maxi Velasquez's firearm did not have the necessary connection to another felony offense under United States Sentencing Guideline 2K2.1B6B, and the district court erred by granting this four-level enhancement.

[00:00:39] Speaker 01:
The district court further erred by not granting a departure for acceptance of responsibility under United States Sentencing Guideline Section 3E1.1.

[00:00:49] Speaker 01:
Now turning to the firearm enhancement with the connection to the felony offense.

[00:00:55] Speaker 01:
The key under 2K 2.1 B6B, according to the guideline commentary and this court in United States versus Marufo, is whether the firearm facilitated or had the potential to facilitate another felony offense.

[00:01:09] Speaker 02:
Council, can I ask you a question first off about the drug possession?

[00:01:12] Speaker 02:
Yes.

[00:01:13] Speaker 02:
Why doesn't justice, our case justice, control the resolution of that issue?

[00:01:19] Speaker 01:
Well, justice does, and both the district court and the government relied on justice, and justice says that the question is whether the possession of the firearm facilitated the offense because it emboldened Mr. Maxi Velasquez to commit the offenses.

[00:01:32] Speaker 01:
But justice also says that emboldenment is not always present when firearms are near drugs.

[00:01:38] Speaker 01:
Was there an emboldenment finding made in this case?

[00:01:42] Speaker 01:
did not cite specific facts as to how Mr. Maxey Velasquez may have been emboldened.

[00:01:47] Speaker 01:
The court, in its opinion, stated that there was the potential for emboldenment, but specific facts are necessary, and that's what I argued in my brief under United States versus Bishop, which was an 11th Circuit case, that that case specifically says that mere proximity between a gun and drugs possessed for personal use, and in this case,

[00:02:09] Speaker 01:
There's no question that the substances that were found were for personal use.

[00:02:13] Speaker 01:
There was no argument as to drug trafficking.

[00:02:15] Speaker 01:
But when all we had is mere proximity to support the enhancement without a specific finding that the gun facilitated or had the potential to facilitate the drug possession, now there was no specific finding made by the district court.

[00:02:28] Speaker 02:
Did you ask the court below to specifically make a finding on emboldenment?

[00:02:32] Speaker 01:
I did not, Your Honor.

[00:02:37] Speaker 03:
You know, as I interpreted what the district court was saying is that, you know, it may be true in some, maybe most circumstances that a gun in personal use quantities would not embolden or facilitate, but you can certainly imagine a situation where somebody in possession of legal drugs in his car may

[00:03:05] Speaker 03:
feel that he should have some protection against theft or robbery, et cetera.

[00:03:11] Speaker 03:
Maybe he's going to buy some more personal use.

[00:03:14] Speaker 03:
So it seems like in some circumstances, you could imagine that the gun helped facilitate it or emboldened the defendant from being public.

[00:03:26] Speaker 03:
It's not at home in a bedroom.

[00:03:28] Speaker 03:
It's in a car driving around Albuquerque.

[00:03:31] Speaker 01:
Well, and Your Honor, I think that certainly circumstances can be imagined, but I think in this case, when we're talking about this enhancement, it's a four-level enhancement.

[00:03:39] Speaker 01:
That's a significant enhancement, and it can't be left to speculation or imagination or guessing.

[00:03:45] Speaker 01:
There must be specific facts.

[00:03:47] Speaker 01:
And actually turning to the drug issue as an initial matter,

[00:03:51] Speaker 03:
We also have a stolen trailer.

[00:03:54] Speaker 01:
That's correct.

[00:03:55] Speaker 01:
And I will certainly address that.

[00:03:57] Speaker 01:
But regarding the drugs, the district court's finding that the substance is found in Mr. Maxi Velasquez's wallet and the backpack.

[00:04:04] Speaker 01:
And to remind the court, Mr. Maxi Velasquez was pulling out of his driveway.

[00:04:08] Speaker 01:
There was an officer that arrested him based on information that the officer received about possession of firearms.

[00:04:13] Speaker 01:
Not about drugs, not about the utility trailer.

[00:04:16] Speaker 01:
Those were found incidental to this arrest.

[00:04:20] Speaker 01:
The substances were found first in a wallet, in a small baggie.

[00:04:24] Speaker 01:
There was less than a gram, so less than a quarter teaspoon found of what was alleged to be methamphetamine in the wallet.

[00:04:30] Speaker 01:
And then on the floorboard, the passenger seat floorboard, there was a backpack with another baggie with alleged cocaine, again, less than a gram.

[00:04:40] Speaker 01:
The only testimony that the district court heard at the sentencing hearing was from Sergeant Holloway, who testified that all he did was a visual inspection of the drugs and that this does not meet the preponderance of the evidence standard to even determine that these substances were drugs.

[00:04:54] Speaker 02:
What case are you relying on for that proposition?

[00:04:58] Speaker 02:
Because it seems that we have recognized, at least in some circumstances, that lay testimony is enough.

[00:05:06] Speaker 01:
Well, in fact, this court and the government cite Sanchez de Fundora, which is a case that actually what that states is that

[00:05:13] Speaker 01:
When we're talking about an instance where there's no chemical testing, lay testimony and evidence needed to identify the substance, they actually list a combination of factors to be used.

[00:05:24] Speaker 01:
Physical appearance is one of those.

[00:05:26] Speaker 01:
But did the drug produce the expected effects that the substance would?

[00:05:30] Speaker 01:
Was it used in the same manner?

[00:05:31] Speaker 01:
Was a high price paid?

[00:05:33] Speaker 01:
Was it called by its name?

[00:05:34] Speaker 01:
All of these factors.

[00:05:35] Speaker 02:
And that wasn't sentencing, right?

[00:05:38] Speaker 02:
Was that in the sentencing context?

[00:05:40] Speaker 02:
No, this was in a trial context.

[00:05:42] Speaker 02:
But I don't have any case that says that you import that framework into the sentencing context, do we?

[00:05:47] Speaker 01:
There's no specific case that states that.

[00:05:49] Speaker 01:
But I would state to the court that the visual inspection on its own is not enough.

[00:05:54] Speaker 01:
And even the facts of Santos de Fundora that co-defended in that case actually sampled the substance.

[00:05:59] Speaker 01:
So you had more than just visual inspection.

[00:06:02] Speaker 01:
And there was actual chemical testing in that case.

[00:06:05] Speaker 01:
However, if the court were to find that there was the preponderance of the evidence standard met, then going back to the proximity of the gun, I would submit to the court that there was no specific finding that Mr. Maxey Velasquez was emboldened.

[00:06:21] Speaker 01:
And in fact, in the district court opinion, Judge Johnson

[00:06:25] Speaker 01:
references that guns are tools of the trade for drug distribution, but we didn't have drug distribution here.

[00:06:33] Speaker 01:
We had possession, and there was no dispute as to that amongst the parties.

[00:06:38] Speaker 01:
So again, I would submit to the court that the possession was incidental, just like what the court states in United States versus Marufo.

[00:06:44] Speaker 01:
It can't be the result of accident or coincidence.

[00:06:47] Speaker 01:
And this is very similar to United States versus West, which is a third circuit case that I cited where the court rejected the emboldenment theory when a revolver was found in a backpack in the drunk and then marijuana was found in the glove compartment.

[00:07:00] Speaker 02:
I wanted to ask you one more question.

[00:07:01] Speaker 02:
I know you want to move on to the trailer.

[00:07:05] Speaker 02:
Is it a problem for your argument that you didn't specifically object to the lack of an emboldenment finding in this case?

[00:07:13] Speaker 01:
I don't think so, Your Honor, because I did preserve that the government had not met its burden with the preponderance of the evidence for the enhancement as a whole.

[00:07:22] Speaker 01:
And I think that encompasses the emboldenment argument.

[00:07:25] Speaker 01:
That's a nuance of the argument, but I think I certainly preserved that below.

[00:07:29] Speaker 01:
Now turning to the utility trailer.

[00:07:32] Speaker 01:
The same question as to emboldement is something that the court is to consider.

[00:07:35] Speaker 01:
But just because we have a presence of a firearm with the receipt of stolen property, that does not mean that the firearm facilitated the receipt of the utility trailer.

[00:07:46] Speaker 01:
Now the district court said that the defendant was aware of the substantial risk that the lawful or rightful owner of the trailer might recognize it and confront him.

[00:07:55] Speaker 01:
But again, that's speculation.

[00:07:57] Speaker 02:
There was nothing to the naked or the public eye to indicate that this... Why is this that matter in this context that you seem to suggest in your argument that if there's no obvious indication that the trailer is stolen, then that that's not sufficient, but it was reported stolen that day or the day before or something, right?

[00:08:15] Speaker 02:
It was reported stolen that morning.

[00:08:16] Speaker 02:
Why doesn't that satisfy sort of what Sanchez is getting at?

[00:08:19] Speaker 01:
Well, I think what that just gets at is that there was an obvious indication with the popped out ignition and that if law enforcement approached, they would have immediately seen that this vehicle was that vehicle was stolen and that the defendant would need to defend himself.

[00:08:34] Speaker 01:
There was nothing indicating that in this case.

[00:08:36] Speaker 01:
And I think

[00:08:37] Speaker 01:
The other issue with this is we're talking about receipt of stolen property.

[00:08:41] Speaker 01:
We're not talking about burglary, we're not talking about robbery, where there would be an inference of force which would seem to go towards emboldenment.

[00:08:49] Speaker 01:
And it was the government's burden to produce that type of evidence.

[00:08:52] Speaker 01:
When was this stolen?

[00:08:53] Speaker 01:
We know that the receipt was, I mean the report was made that morning, we don't know when it was

[00:08:58] Speaker 01:
actually stolen, if Mr. Maxi Velasquez knew the owner, if the owner knew him.

[00:09:03] Speaker 01:
All of that, those were facts cited by the government in their case law, but we don't have those here and that was their burden to present.

[00:09:11] Speaker 01:
And I think that with both of these cases, I'm sorry, with Mr. Maxi Velasquez's case, it's very similar to United States versus

[00:09:20] Speaker 01:
Gallegos, which is a district court case from the district of New Mexico, where in that case a defendant possessed a shotgun when he committed an assault against a police officer.

[00:09:28] Speaker 01:
But that court found that was incidental to the assault.

[00:09:31] Speaker 01:
He rammed his car into a police officer's car.

[00:09:34] Speaker 01:
And that's a note, because that was an actual altercation.

[00:09:38] Speaker 01:
And the court found that that connection was not enough to satisfy the enhancement.

[00:09:42] Speaker 02:
So you're relying on Gallegos principally for facts, for analogous facts.

[00:09:46] Speaker 02:
It doesn't have

[00:09:47] Speaker 01:
real persuasive value otherwise, right?

[00:09:50] Speaker 01:
I mean, that's correct, Your Honor, but I would say that the court could still use that same analysis in analyzing Mr. Maxi Velasquez's case.

[00:09:56] Speaker 02:
Where I'm really stuck is how you get around Sanchez.

[00:10:00] Speaker 02:
You know, it seems that the way my understanding of your argument, and correct me if I misunderstand it, is that if there is no obvious indication that the vehicle is stolen, then that doesn't satisfy what Sanchez is getting at.

[00:10:12] Speaker 02:
And here I'm struggling with the fact of the

[00:10:16] Speaker 02:
the trailer having been reported stolen that day.

[00:10:19] Speaker 01:
Well, and I think that that's something that officers would not have automatically known had they not already had the information regarding the possession of the firearm that led them to Mr. Maxey Velasquez.

[00:10:27] Speaker 01:
So it wasn't something that immediately stuck out at them.

[00:10:30] Speaker 01:
But I'm not saying that an obvious nature of the vehicle is the only way that that connection can be made to apply the enhancement.

[00:10:37] Speaker 01:
I think you have to look at the totality of the circumstances.

[00:10:40] Speaker 01:
And I think in this case, we have just the presence of a firearm, nothing to indicate that it actually did embolden him or that there were actions taken to that effect.

[00:10:48] Speaker 01:
So with that, Your Honor, I would submit that the District Court erred in enhancing Mr. Maxi Velasquez's sentence, both regarding the drug possession and the utility trailer.

[00:10:56] Speaker 01:
I would turn now to the issue of acceptance of responsibility.

[00:10:59] Speaker 01:
Mr. Maxi Velasquez should have been granted a departure for acceptance of responsibility.

[00:11:04] Speaker 01:
Now, the guideline commentary and the application note for Section 3E1.1 are the most direct evidence of the Sentencing Commission's intent regarding acceptance of responsibility.

[00:11:14] Speaker 01:
And the application note gives a list of factors that I cited in my brief.

[00:11:18] Speaker 01:
But the majority of the commentary focuses on whether the defendant truthfully admitted conduct associated with the offense and making sure that the defendant hasn't put the government to the burden of trial.

[00:11:29] Speaker 01:
In fact, there's an entire paragraph in the commentary talking about the importance of entering a plea of guilty and doing so in a timely way.

[00:11:36] Speaker 01:
And that particular factor is characterized by the commission as being significant evidence of acceptance of responsibility.

[00:11:44] Speaker 01:
And the Sentencing Commission doesn't put language in haphazardly.

[00:11:47] Speaker 01:
I think that that's important because it's the only factor where they characterize it as significant evidence and devote an entire paragraph to it.

[00:11:54] Speaker 01:
So I would submit that that is evidence that the court must weigh more heavily.

[00:11:58] Speaker 01:
Now the government and the court stated that Mr. Maxi Velasquez's alleged possession of Suboxone and drug paraphernalia was inconsistent with acceptance of responsibility.

[00:12:07] Speaker 01:
But the court only cites to United States versus Patron Montano, which is a completely dissimilar case.

[00:12:13] Speaker 01:
Because in that case, that defendant lied about involvement of a co-conspirator with the charged conduct, with what that defendant played guilty to.

[00:12:26] Speaker 03:
I'm sorry, that what?

[00:12:28] Speaker 03:
Finney and Price don't suggest we can look at unrelated conduct.

[00:12:32] Speaker 01:
That is correct.

[00:12:33] Speaker 01:
This circuit has determined that unrelated conduct can be looked at.

[00:12:37] Speaker 01:
And I would submit though that this case is similar again to a district court case, United States versus Venezuela, where in that case, that defendant fought with another inmate and provided drugs to another inmate.

[00:12:49] Speaker 01:
In between plea and sentencing, and the court stated that

[00:12:53] Speaker 01:
It's still granted acceptance of responsibility and emphasized that accepting responsibility for the criminal conduct in the charged offense and doing so timely outweighed any potential unrelated conduct.

[00:13:03] Speaker 02:
So my question to you is, I thought you were making a legal argument on the interpretation of 3E1.1, sort of de novo, but it seems to me now that you're arguing more of a, we're reviewing the weight the district court should or should not have placed on various components of acceptance.

[00:13:22] Speaker 02:
Is that your argument?

[00:13:24] Speaker 02:
That is correct.

[00:13:25] Speaker 02:
It's the latter.

[00:13:26] Speaker 01:
Yes.

[00:13:28] Speaker 01:
And Your Honor, I did cite a Sixth Circuit case, which takes a different approach than this circuit as far as not considering unrelated conduct.

[00:13:36] Speaker 01:
But I think that this court can certainly take into account this conduct, but it's not the factor that is determinative of acceptance of responsibility.

[00:13:44] Speaker 02:
The government suggests that the conduct is actually related.

[00:13:49] Speaker 02:
It's the same.

[00:13:50] Speaker 02:
I think they make that point in their answer brief.

[00:13:52] Speaker 01:
Well, and I think that that's, again, a speculation.

[00:13:54] Speaker 01:
We have, the charged offense was possession of a firearm by a felon, happened years before this offense.

[00:14:00] Speaker 01:
Here we have a traffic stop for a revoked, or a driver's license that was revoked, and then we have the alleged possession of Suboxone.

[00:14:07] Speaker 01:
Again, there was no charges brought on those case, on those.

[00:14:10] Speaker 01:
So I would submit to the court that together, both when looking at the fact that this is unrelated conduct, that Mr. Maxey Velasquez truthfully admitted, and timely so, his conduct,

[00:14:21] Speaker 01:
and did so without pretrial litigation, that all of that is the most significant factors to be considered by this court, together with his post-offense rehabilitation, which is another factor this court may consider, and that was significant.

[00:14:34] Speaker 01:
Mr. Maxi-Valasquez was able to progress from halfway house to sober living to living on his own, and even released again to a halfway house, given his significant rehabilitation.

[00:14:44] Speaker 03:
I believe- In these circumstances, should we defer the district court in this determination?

[00:14:48] Speaker 03:
Maybe he's not compelled to,

[00:14:50] Speaker 03:
have denied acceptance of responsibility, but he did find that here.

[00:14:56] Speaker 03:
Should we give deference to that sentencing choice?

[00:14:59] Speaker 01:
I think that under clear error, the court must assume certain things with the district court, but I think that the court clearly erred in not accurately interpreting this guideline by giving the weight, the significant evidence of acceptance of responsibility to the truthful admission, to the timely admission of the charged conduct.

[00:15:17] Speaker 01:
And with that, Your Honor, I think my time is up.

[00:15:20] Speaker 01:
Thank you.

[00:15:30] Speaker 03:
Judge Balbach, are you able to hear adequately?

[00:15:34] Speaker 03:
I can.

[00:15:35] Speaker 03:
Thank you.

[00:15:39] Speaker 00:
May it please the court, Timothy Tremblay on behalf of the United States.

[00:15:44] Speaker 00:
My request here for the court is simple, and that's that you affirm the district court's ruling in each of the contested aspects.

[00:15:50] Speaker 00:
There are primarily three as to the application of the B6B enhancement, which the defense just talked about.

[00:15:59] Speaker 04:
To the extent I... I'd like to ask counsel, let me ask you a question.

[00:16:07] Speaker 04:
Because I understand the burden was on you through Congress, which is not a heavy burden.

[00:16:12] Speaker 04:
But she's arguing that you didn't produce enough evidence to show up upon this, as I understand there are enough.

[00:16:20] Speaker 04:
And that's how you get away from the destruction of the court.

[00:16:24] Speaker 04:
So if you would please indicate to me, what do you believe the evidence showed that justifies the court in this ruling, I believe, on page

[00:16:40] Speaker 04:
Page 5, he says, the court also finds by pondering the evidence that the defendant Byron had the potential to facilitate receipt of the stolen and stolen trailer in our college possession.

[00:16:54] Speaker 04:
So, she says, that may be one of the comments, but you didn't show the evidence of that.

[00:16:59] Speaker 04:
So, you explain that to me.

[00:17:01] Speaker 00:
Well, Your Honor, what I think explains that is the testimony of an experienced law enforcement officer who came in front of the district court.

[00:17:09] Speaker 00:
He testified about where he found each of the substances.

[00:17:15] Speaker 00:
He testified to his training and experience.

[00:17:19] Speaker 00:
He testified that he had done hundreds of drug investigations.

[00:17:23] Speaker 00:
and that he believed those substances to be consistent with methamphetamine and cocaine.

[00:17:29] Speaker 00:
I think that the district court considered that and put so in its order that the substances were authentic and that they had at least the potential to facilitate the possession of the firearm.

[00:17:42] Speaker 00:
And the things that he testified to were the fact that it was a handgun, which this court can and has considered as a relevant factor.

[00:17:50] Speaker 00:
The fact that it was loaded, the fact that it was accessible to the defendant, and its proximity to the drugs which were pretty close within the same seat, both on the passenger seat.

[00:18:03] Speaker 00:
And so as to the potential to facilitate, I think each of those facts supports at least a reponderance that the firearm had the potential to facilitate the drug offense.

[00:18:13] Speaker 00:
He also testified as to the trailer, which he identified as stolen, which was reported stolen, and which the defendant admitted to stealing that very morning.

[00:18:25] Speaker 00:
And so each of those facts, I think, implicate this enhanced dangerousness that's talked about in Sanchez, that either law enforcement will identify him, which they did, or the true owner may identify him hauling around his stolen trailer in broad daylight, and that would be the potential facilitation for that firearm.

[00:18:46] Speaker 00:
So as to each of those, I think there are facts that are plainly sufficient, and to the extent that

[00:18:52] Speaker 00:
The defendant argues that the evidence doesn't show that it did indeed facilitate

[00:18:58] Speaker 00:
That's not what the court is required to find here.

[00:19:00] Speaker 00:
It's only required to find that it had the potential to facilitate.

[00:19:04] Speaker 02:
So what is the bridge then?

[00:19:06] Speaker 02:
I mean, potential to facilitate seems like it needs to have some limiting principle, right?

[00:19:10] Speaker 02:
So here, for the drugs, you have our case justice, which says that a firearm can embolden, but emboldenment, we're not assuming that emboldenment is present just because a gun is near the drugs.

[00:19:24] Speaker 02:
So what is the evidence on emboldenment here?

[00:19:29] Speaker 00:
I think the evidence for potential for emboldenment has to do whenever somebody brings drugs out into public with a loaded handgun on their person.

[00:19:38] Speaker 00:
I think that that evidence does show the potential to embolden him.

[00:19:42] Speaker 00:
And the case law that the court references in terms of

[00:19:45] Speaker 00:
10 circuit case law that talks about when is there a firearm and drugs present where there may not be emboldened and typically we're not talking about scenarios where somebody is out in public, where they're out and about with these things obviously on their person.

[00:20:00] Speaker 00:
We're talking about scenarios where they're maybe inside of their house and there's a gun and drugs found somewhere in a house.

[00:20:07] Speaker 00:
That's really where we get into more of the analysis of is this drug trafficking where that might play into it or is this

[00:20:14] Speaker 00:
simple possession and maybe they're totally unrelated.

[00:20:17] Speaker 00:
Or I think there was another scenario that I cited in my briefing where the firearm was obtained, we can verifiably say the firearm was obtained after the drugs were possessed and didn't have anything to do with that.

[00:20:31] Speaker 00:
And the court found, well, that's not sufficient.

[00:20:34] Speaker 03:
Under that logic though, every time a defendant's in a car in public with personal use drugs and a gun,

[00:20:44] Speaker 03:
that that has the potential to facilitate?

[00:20:47] Speaker 00:
I would say that the court could say at least there is not clear error any time a district court finds that a person out in public in a car with guns and drugs accessible, loaded, ready to go, I think that this court would have a difficult time saying that there's clear error.

[00:21:07] Speaker 00:
And in fact, the court references that injustice.

[00:21:10] Speaker 00:
where the 10th Circuit says, it will rarely be clear error if the district court finds that possession of a firearm facilitated or had the potential to facilitate the drug possession.

[00:21:23] Speaker 00:
And then I think unless the court has additional questions on that, that basically addresses my argument as to the B6B.

[00:21:32] Speaker 00:
I would also note that as to the authenticity of the substances,

[00:21:36] Speaker 00:
The court did also reference the other paraphernalia that was located in the vehicle.

[00:21:41] Speaker 00:
So not only was it two distinct substances that the officer, an experienced officer with over a decade of experience in several hundred drug investigations, identified the substances, but he also coordinated that with the other items that were located in the vehicle which were consistent with drug use.

[00:22:04] Speaker 00:
And then

[00:22:06] Speaker 00:
To address the acceptance of responsibility issue, I think, again, there's quite a bit of difference, and in this scenario, the 3E1.1A reduction is

[00:22:22] Speaker 00:
entitled to great deference.

[00:22:25] Speaker 02:
You're not contesting that Mr. Maxi Velasquez did not take the case to trial, that he pled.

[00:22:34] Speaker 02:
All of those things are obviously true, right?

[00:22:37] Speaker 00:
Yes.

[00:22:38] Speaker 02:
In your brief, you seem to question the sincerity of his allocution.

[00:22:44] Speaker 02:
I thought that was really inappropriate and maybe I don't understand what that goes to in the analysis.

[00:22:49] Speaker 02:
I think nothing.

[00:22:50] Speaker 02:
Is that fair to say?

[00:22:51] Speaker 00:
I think it has very little to do.

[00:22:54] Speaker 00:
I think his allocution was brief, and I think it may go to the extent of his truthful discussion of the facts.

[00:23:04] Speaker 00:
I mean, we do have a lot of contested factors here.

[00:23:08] Speaker 02:
But the district court never found that there was any issue with the sincerity of the allocution.

[00:23:14] Speaker 02:
And so really, the only issue here is whether this additional unlawful conduct

[00:23:19] Speaker 02:
takes him out of acceptance.

[00:23:21] Speaker 02:
Is that fair to say?

[00:23:22] Speaker 00:
Yes, Your Honor.

[00:23:23] Speaker 00:
I think that is the main issue here.

[00:23:25] Speaker 00:
And I think that the court's determination will not be disturbed unless it is without the foundation.

[00:23:32] Speaker 00:
And the facts here certainly seem to indicate a lack of responsibility.

[00:23:38] Speaker 00:
And although

[00:23:40] Speaker 00:
It is a factor that's weighed against his timely acceptance of responsibility, which I can see here.

[00:23:48] Speaker 00:
I think it appears he did timely plead guilty and there weren't any other factors that played into it.

[00:23:55] Speaker 00:
I think the primary factor that the court considered was this new criminal conduct.

[00:24:00] Speaker 00:
And the testimony that was provided by the pretrial services officer about this new criminal conduct and how problematic it really was, it wasn't simply a prescription for suboxone, it was the way that it was packaged with the inference that it was to be taken into potentially a facility.

[00:24:19] Speaker 00:
because there were syringes wrapped in a balloon.

[00:24:22] Speaker 02:
So I'm having a little bit of trouble understanding the factual basis for that component of the district court's reasoning.

[00:24:29] Speaker 02:
That seems really speculative, that even if you have quantities that are not just personal use, that the court says, certainly if the defendant is going to be entering custody, that quantity can be very valuable.

[00:24:45] Speaker 02:
Do you agree that that's just speculation?

[00:24:49] Speaker 00:
I think that there is some speculation there your honor, but I think that it's unusual to see

[00:24:54] Speaker 00:
Anything packaged so tightly, so wrapped in a balloon, I mean that's typically the way that we see contraband packaged when it is taken from a person as they're entering or after they've entered custody.

[00:25:06] Speaker 02:
Was that testimony presented to the district court?

[00:25:09] Speaker 00:
I believe it was that there was some testimony from the pre-trial services officer that that was the implication he understood from it and that might have been what was relayed to him from the officer who was actually on scene.

[00:25:19] Speaker 00:
And the exhibits are there.

[00:25:20] Speaker 00:
I think I attached them with my briefing so that the court could see them as well.

[00:25:23] Speaker 00:
But it is tightly wrapped.

[00:25:26] Speaker 00:
It is a large amount of suboxone.

[00:25:28] Speaker 00:
It's also accompanied by several syringes.

[00:25:31] Speaker 00:
So I think that those factors all factored into the court's assessment.

[00:25:35] Speaker 00:
And really what we're here to talk about is, did the court do the right assessment?

[00:25:39] Speaker 00:
And did his evaluation of the factors, even if Your Honor might disagree with how he weighed the factors,

[00:25:47] Speaker 00:
That's not what the court is here to do and it's just to determine whether or not there was clear error and I'd submit to you that there was not.

[00:25:56] Speaker 00:
Thank you.

[00:25:59] Speaker 03:
Thank you, counsel.

[00:26:00] Speaker 03:
I think the time's expired.

[00:26:02] Speaker 03:
Counselors excused and the case is submitted.