Good morning, Your Honours. I'm Terry Rose from the Eastern District of North Carolina and my mother did that to me. I've turned out with the Mr. Rose a lot of times since high school. You know, we are here today. I represent Mr. Jose Panada. And I was in a, I want to take a minute to tell you that I was in a continuing education some years ago. In a district court judge, federal district court judge indicated, made the statement, he said, you know, most cases, attorneys come a lot of times, they send up a whole lot of issues. There's usually only one or two and if you'll resolve that one or two, kind of everything helps files in place. And I think that has a lot to do with this case. We're here because there were three enhancements on the Senate, Senate, Senate, and if you look at whether or not, what was deemed relevant conduct, and this court takes a look at that size, whether or not that's really relevant conduct, and it kind of deals with all those three enhancements. As you well aware, relevant conduct is a consideration of any conduct that will apply to the fence of conviction. In this case, Mr. Panada was convicted by jury. We had a jury trial of distribution of drugs on two counts and a possession of a firearm in the further of sort of drug trafficking. And he was also convicted of possessing sold off shotgun. He was found not guilty of one count of possession of a firearm or further of a crime, a drug trafficking crime. When you go to the sense in court, it's pretty well where can you use relevant conduct, can you use conduct that's not been charged or unconvicted conduct, to kind of look at how to form a sentence. And that's well been discussed in terms of the eighth amendment and the sixth amendment. But sometimes I think what gets forgotten is that that conduct that can be considered has to have a contextual basis to the offense of conviction. It has to kind of explain why the Senate's in judge uses what he does or does what he does. It would be like saying someone was convicted of a possession of a firearm and during having that firearm, they hit them with a firearm and it was an assault that was not ever charged or not ever convicted. A sentence in judge may very easily use that conduct related to that fence of conviction that they possessed the firearm to say, I want to increase the sentence because there was other activity that went on and that was more gracious. But that's how that conduct is used. A lot of things come into sentencing. I think the Court has been very clear to Supreme Court that if you start taking just anything that comes into sentencing as a sentencing factor and up someone's sentence based upon that, then that's a violation of the eighth amendment, it also undermines the jury, the sixth we had here in this situation is we had the indictment, Mr. Penevus and Dotted on conduct that occurred in January of 2012 and conduct that occurred in February of 2012. That's what it was tried on, that's what was presented at trial, that's what the government decided and died in. When we got to sentencing, all of a sudden we got a statement by an unindicted cooperating witness that says in November of 2011, about six weeks, not quite two months, before the conduct that he was indicted on in trial, we've got this conduct that we've got someone out here that makes a statement to an age never appeared at trial, never testified at trial, never testified at the sentence in hearing, has now said Mr. Penevus was involved in another cell of a gun and cell of a drug, and on top of that they said that the gun was so stolen and that's it, Mr. Penevus had never had a chance to cross-examine and the court found it, that was relevant in conduct and it's significant to him because... Well it seems to me you're boring a little bit of the standard of evidence which I didn't think you were challenging with the scope of the conduct, whether it has established in the presupponance report, whether it actually was relevant conduct, and there's two different questions there
. If we accept those facts, we still have to address whether it's relevant. Now if you're also saying that they can't use those facts, that's a different question. I think the Hill's a little steeper for you to... So I thought your argument was that that transaction in November was not related to the ones in January and February. That is my argument, Chari, and I'm probably merely to ward a little bit because I was thinking about also the question of sufficient evidence, but my argument really is that that November conduct... And you probably have to address the fact that the November transaction and the relationship of the various persons in that transaction and the extent to which those same persons were engaged in January and February. And it looks to me like at least there's a good claim that that conduct in November was really the beginning of everything and led up to the other two. It's sort of a one course of conduct, but I wanted to address it then. In other words, you're not addressing whether somebody who didn't get cross-examined and so forth was there, you're addressing whether the evidence that's in the pre-sentence report was sufficient to have it considered as part of the conduct conviction. That's great, Chari. But I do want to at least, and I think Judge Females hid this on right on point where we need to go with this, but if there's evidence, so there is something out there that's really on the line, is when somebody says something, the person doesn't seem sure being caught, there's no document anything verifying it. And you know, there's an amount of say you don't seem to be challenging the evidentiary basis for the fact that it's the relevancy of it. It's a slippery area. It almost makes you wonder what... I mean, I know the judge has discretion. I know he can consider non-hearsay evidence. He can hear evidence, I mean, he had testimony on it. But this is just something being said in a pre-sentencing report and boom, you know, now I got to say is relevant or not relevant without going to the basis of what's in it, is even true. But I think there's no amount of put it in the right perspective. That is, it seems like the question before us is the relevancy of it. That's true, you know. And to some part that kind of plays into a little bit about, you know, when you decide whether or not the burden of the proponders of the evidence. And I guess that was the point I was kind of alluding to. Mr. Panetta had no way. It just showed up. And of course, that happens pretty commonly in pre-sentencing reports. It just showed up and it came in a report and that was it
. But in any event, I think the government has argued, and the government will argue, that it was, what Judge Neymar said, one course of conduct, the November started this. But I would say to you, it wasn't. Tell me what happened in November. Well, what happened in November is Mr. Panetta was at his father's home. And his father had been involved in some drug activity also. And gentlemen by the name of Rowe Old Sanchez came and Mr. Panetta's father had the cocaine. And so he sends his son with the cocaine to go make a deal that Mr. Sanchez has set up. It was Mr. Sanchez's deal. He just wants to make sure he gets his money back. And while he's there, Mr. Sanchez also sells to the person they go to see a SKS assault rifle. Or was Funseko there? Funseko wasn't there. So Mr. Sanchez's deal, Mr. Panetta's kind of involved, because the cocaine came for his father, but it's not a deal he set up. And that's what happened in November the 11th. Well, then when we get sent at Cine, all of a sudden we got Mr. Sanchez's statement. And on top of that Mr. Sanchez's statement says, oh by the way, the SKS was stolen. And there's no another than his statement. We don't know where that was stolen or not. As a result of that, we get a two level enhancement for having three to seven farms. Well, in the trial. And that had an opportunity to put on evidence didn't he? I mean, does he dispute that it was stolen? He did in his objections, yes sir. We certainly did object to all of what Mr. Sanchez said. I know all of it in a general sense, but was any evidence proper of any kind? None was offered of any kind other than that statement. There was nothing from an ATF or anything other than the government's behalf other than the statement. His gun was being stored Sanchez's
. No, whose gun was being stored there and was painted there. This was that in the November transaction. There was also another sold off shotgun that was being stored. Yes, there was one painted and then the sold off shotgun was part of the second transaction in February, right? That was the part of the January transaction. Where he was convicted of possessing a sold off shotgun. And I believe that was the one that was painted. There was some question about it being hidden out in the woods. But he was convicted of that. But without the November conduct, you don't get the three firearms. Because the only convictions that he has involved a 38 caliber pistol and a sold off shotgun. There were only two. The evidence was pretty clear that the 38 caliber that was involved in January was the same one he took in February. Supposed to have been sold in January. So there's not three guns and they should bring in that November conduct. So you don't get that enhancement. There is not the stolen enhancement. And they should bring in because there was no evidence to trial that either the 38 caliber or the sold off shotgun were stolen. So you've got two enhancements to your base totally on something that happened in November. Which there was no conspiracy charge. No, and then died. You may need to get a course of conduct, same course of conduct. But it really wasn't the same course of conduct. In January and February, Mr. Panada made those contacts with the confidential informant. He set up the deals he met with him. In November, he just fathered just sends him to go with Mr. Sanchez, who's made his own deals. So, and again. Mr. Panada got the drugs from his father and handed them to Sanchez. That's true. And the gun. But he did not make, he did not contact the confidential informant. He didn't set up the deal
. All we've got really is three different drug transactions. There's no indication that there was any, they were all working together. Matter of fact, there is. Mr. Panada and Sanchez are coming to all of them. And as at one point Sanchez says, I'm going to deal, would like to deal directly with Panada, as opposed to going through, no, Fonseca. Fonseca. Fonseca, as opposed to Panada. Well, no. So, I mean, this was a... There was some testimony at Funcheska. And forgive me for my bad southern accent, pronouncing these names. But... You're probably right, probably Funcheska. Funcheska. Funcheska. There's not any indication that he was involved in November. There is some testimony that Panada at some point wanted to cut him out. But still, you don't have him at the house, you don't have him dealing with Sanchez. You just got three separate drug transactions. And that's all. And of course, three individual drug transactions does not make a common... Of course, a kind of, just because people selling drugs and goods. Same people. Well, in two cases, they were worried. They got convicted and tried on those two. And all of a sudden, we get.
.. And all three in Sanchez is an all three involved, some extent, and all three in Fence. Well, I don't know that it was any evidence that Mr. Sanchez was involved in January and February. Well, he was there, wasn't he, in one of the transactions, and he was offered to be cut out. The first transaction. Panada says, I'll... Well... There was some testimony from the agent that Mr. Panada had started dealing with his confidential informant because he wanted Francesca. But no, there was not... Mr. Sanchez was not there. There were videos of both of those drug transactions. He was not there. There was only the confidential informant Francesca and Mr. Panada that were involved. All right. I think you have some rebuttal. Mr. Rubin. Good afternoon. May it please the court. My name is Phil Rubin and I represent the United States. We're here to ask the court to affirm the district court. The district court properly applied relevant conduct analysis and in doing so, applied sentencing enhancements that took account of defendant-specific conduct as the sentencing guidelines intend. And I'd like to jump straight into the relevant conduct that was the subject of the courts colloquy with Ms. Rose
. And specifically, as Judge Neemar you mentioned, the transaction in November involved a lot of the same elements, the same people. Why don't you go through that? It seems to be Mr. Panada's main argument here because he gets a lot of help if that transaction is not part of the same course of conduct. And so take us through the three starting with the November. I see his name is Phonesca. Phonesca, yes or honor. The involvement of Phonesca and Sanchez in each one of them would tell us what you think the record shows. Certainly, your honor. So on November 30th, Mr. Sanchez drove to the defendant's residence and the defendant's father gave cocaine to the defendant who then handed it to Mr. Sanchez. Mr. Sanchez also obtained the SKS assault rifle which the defendant was storing for him at his residence in the defendant painted. So he had Mr. Sanchez then acquired. The defendant, Panada did paint the gun. That's what I thought happened. That's what's shown in the record. And he picked up the gun and had been painted or whatever the painting means. That's right. Or whatever. I wasn't sure myself, your honor, it's not in the record but it was painted. And then Mr. Sanchez and the defendant drove together. And I think in the courts colloquy, there was some discussion about whether Mr. Finesco was there. He was the buyer. They drove to his house and they sold Mr. Sanchez. He gave him the one ounce of cocaine and the SKS assault rifle. And Esca was involved in the November transaction. He was, yes, your honor. He was the recipient. And
... Now tell me the rest of the patient who's evident you're giving here. This arises from the statement of Sanchez, is that right? It does impart your honor and that's... That's what the rest of it come from. There's a little more that comes in both from the testimony of Agent UBANKS at trial and the testimony of Mr. Finesco. Now, not all of these details were in their testimony, so some of that is coming from the statement. But the statement in the PSR is corroborated by the testimony. So the informant testified... You're regarding the gun used in the 2000, but in the earlier conviction. That came from both the agents and others? Or just from Sanchez? They mentioned it. And so the informant testified that prior to the acts charged, he met the defendant through Mr. Sanchez and that Sanchez had attempted to sell him in a assault rifle. And the prosecutor asked, did you eventually buy that rifle? And he said yes. The agent UBANKS said something similar during his testimony about how he came to be involved was after the sale of the stolen assault rifle. That was Sanchez's involvement with the agent and with this informant. And what is the tie of the gun? Tying the gun to Penelope comes only from Sanchez's testimony. Does it come from this testimony? Well, I would say the testimony of trial corroborates what is given in more detail in the testimony from the informant, Mr. Finesca and from agent UBANKS. Testified by that 2000 love anything? They mentioned they didn't give the specific date, but the testimony was the informant testified that prior to the acts charged, he met the defendant through Mr. Sanchez and that Mr. Sanchez had on one earlier occasion attempted to sell him in a assault rifle and that then he did eventually buy that assault rifle. And that was during the time when he met the defendant, which goes to how this is how the later... I hooked up, but I'm trying to get the specifics of the earlier transaction. You say the testimony of trial. I don't see how you get to November 11 transaction out of that testimony. They were talking, I think the judge can take from this below that they're talking about the November 30th transaction when the assault rifle was sold
. Now, to be sure, the main source of the details on this is the police statement, but as the court discussed with this rose, by Mr. Sanchez's reference in described in the PSR, as the court discussed with this rose, he did not, but he didn't have to. Under Section 3661, there's no limit placed on what the court can consider. And we talked about public with somewhere and listening to something you would think that someone was going to give that level of enhancement, you to at least bring the person in the court and say, okay, this happened, rather than just putting on a piece of paper investigating officer saying it, which seems the law is gone in that direction. It really doesn't, I can't follow it. On one hand, we just had cases in which you got to go all behind to prove something on one hand and the printer could be offended. And then we got this instance where relevant conduct, it is basically anything. Look like to me. I mean, you can just see it. And now, the defendant has to get up and says, no, no, it didn't happen. I mean, it's, I don't know. This is an area that I'm not sure is settled for where it's going. In this case to me, really pushes it right to that outer limit as to what is acceptable before we get to the relevance of it in terms of what the judge can consider as a proponent, as it evidence. Respectfully, Your Honor, I think this case is actually somewhat similar to the main cases that establish this. If we go all the way back when we look at Terry, for example, when Terry said that it's the defendant who bears the burden to contest the facts in the PSR. And of course, the PSR isn't a party. The PSR is not a litigant. The PSR is the PSR, the probation office. I agree with you. I think the law has pretty much set this up. I'm just wondering where has it gone with it. Well, because this is where we are. We're basically just put it in the report. It says, say somebody said it. And then that's good enough. And now you get up and see it didn't happen. He could have said, well, he shot somebody and killed him in that report. So, exactly me, you could have done what they did in one of the briefs case. It says murder. And use that as an enhancement. I would disagree on one point, Your Honor, which this case may be somewhat easier for the court in that regard than some of the ones you're talking about. Because the defendant did not actually object to those facts having happened. The defendant didn't. If you look at the PSR objections, the defendant are used that they're not relevant, that his role wasn't enough in the November transaction
. What he does not do is say that it didn't happen. Now that that parts occasionally it seems to come out here on appeal. One point is contestant here is the gun. He's not seeing a drug transaction that happened. You've got three drug transactions. It's the gun deal that makes this. And that's the part that sort of slides in. And if you're clever enough in getting information on this, you make sure you put that in there because you've got to be a, you've got to be in this area to understand the significance of the gun. You know, when you add that gun in there, that's what this is all about. I agree that the gun is important, Your Honor, but where I disagree. That is correct, Your Honor. I'm saying both Finesca and Sanchez testified about the gun at that November. Sanchez did not testify. It was Agent U Banks and Mr. Finesca. I understand through the statement, but so Sanchez says his gun was being stored with Panetta and was painted by Panetta and returned to him. And Sanchez then sold to Finesca, which Finesca confirms. That's right, Your Honor. And what we don't have, and I think this is really important. Is right that the agent says that that happened or? Oh, no, I'm sorry. I was a limited testimony as to what that other testimony was about. It was about a gun, but it didn't connect up with the defendant. You got to have Sanchez's statement to connect that. I'm sorry if I, if I'm to spoke. I didn't mean to say that that was the testimony of trial. I'm not trying to suggest that there was testimony at trial on this. What I'm trying to suggest is that Finesca's testimony at trial corroborated what was imputed to Sanchez. In other words, this isn't just something made up by the probation officer. That's exactly right. And that's exactly the reason your Honor that I was bringing up. It was not the fact that the defendant was involved in corroborated that Sanchez had a gun. And there was some dealing with a gun. It corroborated something, but it wasn't corroborating what's relevant to this case. And that is the connection of the defendant to that gun
. Respectfully, Your Honor, the defendant did not object to that fact from the PSR. Defended not object to the facts described in the police report what defendant objected to was whether those facts. Sanchez's statement. Sanchez's statement. That's right. I said not that fact. I'm trying to figure out what was there to object to if it didn't corroborate him. I'll try to be more precise. Defended subjection wasn't that didn't happen or that's not an accurate statement. What the defendant basically said was, well, that if you take those facts, it's not relevant conduct that applies to me. What did the objection have done? I mean, even if he does object, that doesn't keep the trial judge from saying, hey, well, objection overruled. So what? That's correct, Your Honor, although. I do more than object, doesn't it? He has to do more than object, but he... It doesn't make a difference if you object. The objection... You mean he didn't present any evidence to the contrary? That's the next step. He has to present evidence, but he also has to object. He didn't do either. And yes, I agree an objection alone would not. The objection is worthless because other than the trial judge can say, okay, I choose not to take it. But it doesn't matter. I mean, that won't keep the judge under this standard from considering it as relevant conduct. It's correct, Your Honor. And if I can take a step back just to clarify... The defendant really has... It's kind of a shifting of a burden. I mean, if you say something, now you better get up and say it didn't happen or prove. If everything is contrary and regular criminal law is now shifted in the sentencing context where the years involved, if you don't get up and say that you didn't have that gun or give me some evidence that this didn't happen, then I can find this. You still can do it. What I can say, Your Honor, is that the burden is different on sentencing. That is true. And in this court's cases, and Terry and Love make very clear that the defendant bears the burden to object and bring evidence on faxeter and the PSR. The defendant... Pretty good evidence because if it's balanced evidence, and simply he's worried against that one, he's not... Even the judge goes one way or the other. That doesn't kill it. You're going to have to basically bring someone in, have some direct testimony and some evidence either halibut or something that it didn't happen. You've got to have some pretty solid stuff. It just don't become that. I don't know how solid it would have to be, Your Honor. It would certainly have to overcome what the probation office had said in the report and the evidence corroborating it at trial. But what I would... It just seems that it ought to be maybe a decent sea. You ought to bring sentchers in to say it. If you're going to get a man extra time because he's got extra guns or whatever based on abundance and enhancement, it just seems like it ought not just being a piece of paper somewhere. I mean, everything I'm reading in all the other cases have gone... I mean, I agree with Judge Neymar in terms of the early case. It seems like it's against any common sense on it. I got to agree with that. But this sort of goes the other way. It just seems.
. I mean, if you say something, now you better get up and say it didn't happen or prove. If everything is contrary and regular criminal law is now shifted in the sentencing context where the years involved, if you don't get up and say that you didn't have that gun or give me some evidence that this didn't happen, then I can find this. You still can do it. What I can say, Your Honor, is that the burden is different on sentencing. That is true. And in this court's cases, and Terry and Love make very clear that the defendant bears the burden to object and bring evidence on faxeter and the PSR. The defendant... Pretty good evidence because if it's balanced evidence, and simply he's worried against that one, he's not... Even the judge goes one way or the other. That doesn't kill it. You're going to have to basically bring someone in, have some direct testimony and some evidence either halibut or something that it didn't happen. You've got to have some pretty solid stuff. It just don't become that. I don't know how solid it would have to be, Your Honor. It would certainly have to overcome what the probation office had said in the report and the evidence corroborating it at trial. But what I would... It just seems that it ought to be maybe a decent sea. You ought to bring sentchers in to say it. If you're going to get a man extra time because he's got extra guns or whatever based on abundance and enhancement, it just seems like it ought not just being a piece of paper somewhere. I mean, everything I'm reading in all the other cases have gone... I mean, I agree with Judge Neymar in terms of the early case. It seems like it's against any common sense on it. I got to agree with that. But this sort of goes the other way. It just seems... I mean, you're talking about putting a man in prison. He used to mean something when you put someone in prison for an extended period of time. Just see it in a PSR report. Some other criminals said this. And if he doesn't get up and refuted with substantial evidence or something, you can use it against it. And I'm sure that judges who go both ways on it, that sort of cuts it even more so. The law is what it is. So your point is well taken. And I'm not saying that you are arguing anything against it. I'm just saying that when you look at what this case is about, this is really flimsy. And I'm not saying it's not supported though, to get you to the relevant argument. But it really is challenging when you see this kind of thing happening. Understood, Your Honor. We think that it is consistent with the law. And further that, sentencing has always been different. He's not being put in prison for the November 30th transaction. His sentence is being based in part on it. But he's being put in prison. He's getting a sentence to begin with based on his conviction after a trial. And for long before the sentencing guidelines, courts have been able to look at conduct outside the offenses of conviction when fashioning a sentence. I think the commission was trying to bring that into the sentencing guidelines. But if I could turn understanding your concerns to each one, if I could turn to the relevancy aspect of those facts. As Judge Neymar, you were pointing out this common schema plan, you look at things like common participants, which we very much have. You look at a same purpose. So common participants, two of the three participants in the November 30th transaction were the two participants in the other two transactions. So there's only three participants total. Two of them were present in all three transactions, the defendant and the informant, Mr. Finesca. But it's more than just that. This was the transaction. Again, Judge Neymar, I think you mentioned this. This was how the informant and the defendant got together and eventually decided to cut out Mr. Sanchez, basically
.. I mean, you're talking about putting a man in prison. He used to mean something when you put someone in prison for an extended period of time. Just see it in a PSR report. Some other criminals said this. And if he doesn't get up and refuted with substantial evidence or something, you can use it against it. And I'm sure that judges who go both ways on it, that sort of cuts it even more so. The law is what it is. So your point is well taken. And I'm not saying that you are arguing anything against it. I'm just saying that when you look at what this case is about, this is really flimsy. And I'm not saying it's not supported though, to get you to the relevant argument. But it really is challenging when you see this kind of thing happening. Understood, Your Honor. We think that it is consistent with the law. And further that, sentencing has always been different. He's not being put in prison for the November 30th transaction. His sentence is being based in part on it. But he's being put in prison. He's getting a sentence to begin with based on his conviction after a trial. And for long before the sentencing guidelines, courts have been able to look at conduct outside the offenses of conviction when fashioning a sentence. I think the commission was trying to bring that into the sentencing guidelines. But if I could turn understanding your concerns to each one, if I could turn to the relevancy aspect of those facts. As Judge Neymar, you were pointing out this common schema plan, you look at things like common participants, which we very much have. You look at a same purpose. So common participants, two of the three participants in the November 30th transaction were the two participants in the other two transactions. So there's only three participants total. Two of them were present in all three transactions, the defendant and the informant, Mr. Finesca. But it's more than just that. This was the transaction. Again, Judge Neymar, I think you mentioned this. This was how the informant and the defendant got together and eventually decided to cut out Mr. Sanchez, basically. This was the transaction, the informant testified about this at trial. This was... And there was testimony to that's why they got together to cut out. It was this something we are inferring from the way things look. The testimony was that it was after their meeting. And I think this transaction, that was after that, then Mr. Panetta called the informant and wanted to deal directly with him instead of Mr. Sanchez. So that actually happened. They made the decision to do so after, but this was sort of the meeting that brought the parties together. So that would be the same common scheme or plan analysis. The other way to look at it is same course of conduct. We think either one of these fully supports it. For same course of conduct, you look at the degree of similarity, the repetitions and the time interval. Here, we've talked about similarity already and these transactions are really quite similar. They're not just guns and drugs. They're guns and cocaine. They're involving similar participants. They're involving similar amounts of drugs. This isn't just some random occurrence. It's a lot of the same people. Then when you look at the time interval, it was only two months. Which transaction was it or the after which Panetta called cut out Sanchez? It was after the 1130 of the November 30th transaction, Your Honor. The two charge conduct transactions were January 25th and February 8th. And those transactions were both the informant, Mr. Finesca, buying directly from the defendant. Which was in accordance with what they had arranged following the November transaction. That's right, Your Honor. The transaction where they first did business. The middle man in the November transaction and he was cut out for the next two. That's right. And they even talked about that during one of the recordings
. This was the transaction, the informant testified about this at trial. This was... And there was testimony to that's why they got together to cut out. It was this something we are inferring from the way things look. The testimony was that it was after their meeting. And I think this transaction, that was after that, then Mr. Panetta called the informant and wanted to deal directly with him instead of Mr. Sanchez. So that actually happened. They made the decision to do so after, but this was sort of the meeting that brought the parties together. So that would be the same common scheme or plan analysis. The other way to look at it is same course of conduct. We think either one of these fully supports it. For same course of conduct, you look at the degree of similarity, the repetitions and the time interval. Here, we've talked about similarity already and these transactions are really quite similar. They're not just guns and drugs. They're guns and cocaine. They're involving similar participants. They're involving similar amounts of drugs. This isn't just some random occurrence. It's a lot of the same people. Then when you look at the time interval, it was only two months. Which transaction was it or the after which Panetta called cut out Sanchez? It was after the 1130 of the November 30th transaction, Your Honor. The two charge conduct transactions were January 25th and February 8th. And those transactions were both the informant, Mr. Finesca, buying directly from the defendant. Which was in accordance with what they had arranged following the November transaction. That's right, Your Honor. The transaction where they first did business. The middle man in the November transaction and he was cut out for the next two. That's right. And they even talked about that during one of the recordings. They talked about how I believe this is someone on the lines of sometimes Sanchez has good stuff. But not always. And I think they said something about his prices as well. They even talked about don't tell Mr. Sanchez that we're dealing. And all of that sort of feeds together that these transactions are related. And of course, the district court only had to find that by a preponderance. In this court reviews it for clear error. The other thing and this wasn't discussed with Mr. Smith, but I did want to bring up because it's in her brief about the fact that events involved three firearms using this relevant conduct. You have the assault rifle. You have the sawdust shotgun that was sold on January 25th. And then the 380 that was present on the January transaction and then sold on the February transaction. Defender also argues that because he has a 924 C conviction, then that would be impermissible double counting under the guidelines. And we disagree and we think that the 10th circuit's reasoning in the Torel case is right on point on that. They're addressing separate conduct. 924 C is pertaining to the particular manner that defendant used the weapons in the crime. And then the 2K 2.1 B1 enhancement relates to a feature or characteristic of the firearms. And in the word case, unpublished case of this court, citing Torel reached the exact same conclusion. And we think that's exactly right. I also just wanted to very briefly address Mr. As mentioned that she contested that the firearm that there was a fire stolen firearm on the record. Now we agree the one that was stolen was the SKS. So that only comes in as relevant conduct. There are a couple of different routes by which it was shown to be stolen. Aside from the fact it's in the police statement, the testimony at trial talked about both from the informant and Asian events talked about a stolen assault rifle. And then finally, when defendant contested about the assault rifle being stolen when the presenance investigation report came out, the probation officer's response was that ATF had run a trace on it and confirmed that it was stolen. Defended did not bring that up or contest that before the district court. So the district court was free to rely on that statement from the PSR. I can also go into the other issue in this case about the motion for judgment of acquittal. If the court is interested in that, but I if the court has any questions on anything, I'd be happy to answer them. All right. Thank you
. They talked about how I believe this is someone on the lines of sometimes Sanchez has good stuff. But not always. And I think they said something about his prices as well. They even talked about don't tell Mr. Sanchez that we're dealing. And all of that sort of feeds together that these transactions are related. And of course, the district court only had to find that by a preponderance. In this court reviews it for clear error. The other thing and this wasn't discussed with Mr. Smith, but I did want to bring up because it's in her brief about the fact that events involved three firearms using this relevant conduct. You have the assault rifle. You have the sawdust shotgun that was sold on January 25th. And then the 380 that was present on the January transaction and then sold on the February transaction. Defender also argues that because he has a 924 C conviction, then that would be impermissible double counting under the guidelines. And we disagree and we think that the 10th circuit's reasoning in the Torel case is right on point on that. They're addressing separate conduct. 924 C is pertaining to the particular manner that defendant used the weapons in the crime. And then the 2K 2.1 B1 enhancement relates to a feature or characteristic of the firearms. And in the word case, unpublished case of this court, citing Torel reached the exact same conclusion. And we think that's exactly right. I also just wanted to very briefly address Mr. As mentioned that she contested that the firearm that there was a fire stolen firearm on the record. Now we agree the one that was stolen was the SKS. So that only comes in as relevant conduct. There are a couple of different routes by which it was shown to be stolen. Aside from the fact it's in the police statement, the testimony at trial talked about both from the informant and Asian events talked about a stolen assault rifle. And then finally, when defendant contested about the assault rifle being stolen when the presenance investigation report came out, the probation officer's response was that ATF had run a trace on it and confirmed that it was stolen. Defended did not bring that up or contest that before the district court. So the district court was free to rely on that statement from the PSR. I can also go into the other issue in this case about the motion for judgment of acquittal. If the court is interested in that, but I if the court has any questions on anything, I'd be happy to answer them. All right. Thank you. Thank you, Your Honor. Ms. Rose? Just briefly, there's been a lot made out of that there was testimony connecting Mr. Sanchez to Mr. Panetta. The agent testified that he was very first witness calm. The agent testified that there was a gentleman by the name that he had talked to in the gentleman by the name of Sanchez. That he was the new Mr. Panetta. And that's about the extent of it and that they were involved in that. What's their discussions about cutting them out and the benefits of it and not telling them? There was that for Mr. Finesca when he talked about it. I understand, but this is corroborating and this directly relates the subsequent transactions, which are the product of that arrangement, which is in reaction. In other words, to be a same course of conduct, there was a transformation of the relationships, but it was the same course and it was transformed by Mr. Finesca and Mr. Panetta agreeing to cut out Mr. Sanchez as the middleman, which was the arrangement in the first transaction. That is great. And the point I was getting to was that there was not any testimony with regards to that fire order. To the S.K.S. I think that there's been some statements made that the agent indicated that Mr. Sanchez had that. And that's how you get Mr. Sanchez. Mr. Finesca and his testimony talked basically about having bought some drugs from Mr. Sanchez. He did not talk about an S.K.S. There was very limited. You say he later bought this gun? You don't need to read the transcript, either you know it or remember it
. Thank you, Your Honor. Ms. Rose? Just briefly, there's been a lot made out of that there was testimony connecting Mr. Sanchez to Mr. Panetta. The agent testified that he was very first witness calm. The agent testified that there was a gentleman by the name that he had talked to in the gentleman by the name of Sanchez. That he was the new Mr. Panetta. And that's about the extent of it and that they were involved in that. What's their discussions about cutting them out and the benefits of it and not telling them? There was that for Mr. Finesca when he talked about it. I understand, but this is corroborating and this directly relates the subsequent transactions, which are the product of that arrangement, which is in reaction. In other words, to be a same course of conduct, there was a transformation of the relationships, but it was the same course and it was transformed by Mr. Finesca and Mr. Panetta agreeing to cut out Mr. Sanchez as the middleman, which was the arrangement in the first transaction. That is great. And the point I was getting to was that there was not any testimony with regards to that fire order. To the S.K.S. I think that there's been some statements made that the agent indicated that Mr. Sanchez had that. And that's how you get Mr. Sanchez. Mr. Finesca and his testimony talked basically about having bought some drugs from Mr. Sanchez. He did not talk about an S.K.S. There was very limited. You say he later bought this gun? You don't need to read the transcript, either you know it or remember it. I have a loot data and I've tried to find a mention of the S.K.S. both by the agent and by Mr. Sanchez. They ran it. They had enough information on it. They ran it and tested and found it was stolen. After they wanted to bring it in his real account, the bomb... But where did the gun come from? Finesca had the gun, right? Mr. Sanchez had the gun. The reason he sold it to Finesca... But it was sold to Finesca. Finesca had the gun. But... But... But that was something that was between Mr. Sanchez and Mr. Finesca. Of course, but it's all part of the same characters. What they're doing is cutting out. Pineda is dealing with Mr. in the first transaction. Pineda is dealing with Mr. Finesca through Sanchez and they know media. And in the second transaction, they agreed to cut him out and Pineda is dealing with Finesca
. I have a loot data and I've tried to find a mention of the S.K.S. both by the agent and by Mr. Sanchez. They ran it. They had enough information on it. They ran it and tested and found it was stolen. After they wanted to bring it in his real account, the bomb... But where did the gun come from? Finesca had the gun, right? Mr. Sanchez had the gun. The reason he sold it to Finesca... But it was sold to Finesca. Finesca had the gun. But... But... But that was something that was between Mr. Sanchez and Mr. Finesca. Of course, but it's all part of the same characters. What they're doing is cutting out. Pineda is dealing with Mr. in the first transaction. Pineda is dealing with Mr. Finesca through Sanchez and they know media. And in the second transaction, they agreed to cut him out and Pineda is dealing with Finesca. Third transaction, Pineda is dealing with Finesca. So you have that continuum. You have the fact that their first transaction was cocaine going from father to Pineda to Sanchez to Finesca. Second transaction, it goes from Pineda to Finesca. Third transaction, it goes to Pineda. In other words, we have the same structure, the same characters that are dealing with each other in different ways. But, John, that was... And I agree with you. I don't disagree with you. That's the fact. That's what happened. But there were three different drug transactions. And in US versus Hodge, they've said that's not enough to bring this... ...outside activity into... ...addressing the standard by which we find the same course of conduct. And the same course of conduct is defined by the nature of the product. Is it marijuana versus cocaine? Is it the same people? Is it within a relatively contiguous time? In other words, all these things we look at to decide whether it's part of the same course or scheme. But even if you look at that, the same course of conduct... You've got to also look at the fence of conviction. He wasn't convicted of anything but what happened in January and February
. Third transaction, Pineda is dealing with Finesca. So you have that continuum. You have the fact that their first transaction was cocaine going from father to Pineda to Sanchez to Finesca. Second transaction, it goes from Pineda to Finesca. Third transaction, it goes to Pineda. In other words, we have the same structure, the same characters that are dealing with each other in different ways. But, John, that was... And I agree with you. I don't disagree with you. That's the fact. That's what happened. But there were three different drug transactions. And in US versus Hodge, they've said that's not enough to bring this... ...outside activity into... ...addressing the standard by which we find the same course of conduct. And the same course of conduct is defined by the nature of the product. Is it marijuana versus cocaine? Is it the same people? Is it within a relatively contiguous time? In other words, all these things we look at to decide whether it's part of the same course or scheme. But even if you look at that, the same course of conduct... You've got to also look at the fence of conviction. He wasn't convicted of anything but what happened in January and February. You can't just take what happened over here and decide that because you like the facts, there's a stolen gun and that makes three to seven. You can add it to it. It's whether those facts are part of the same course. He wasn't convicted of the November transaction. Well, he wasn't a doctor or a November transaction. And the government did not choose. The Senate's in guidelines say we are going to allow the court to include transactions which are relevant. And in defining relevance, it's either the same scheme and the same course of action. And in defining the same course of action, you look at various elements. And I'm suggesting almost everyone goes elements are satisfied here. And I'm suggesting only that when you look at relevance, you also have to look at relevance of that conduct in relation to the offense conduct. And cases give you the guidepost for doing that and you need to take us through that. And the question is did it involve the same type of products? It is all the same type of people, same types of transactions, same location, same general time? These are the types of things you look at to see whether it's a course of action. Well, as far as same general time, you got in November, then you got January, then you got February. They're not all happening within the same month. They're not all happening at the same time. You got some people in the November transaction, then you drop those people drop out. You do. You're going to change to people throughout. Panetta and Fineska. Same to people. And different. You got the supplier and the purchaser. Both all the way through. And you just have a different means in the second two. Sanchez has come out. Then it makes it two different, it just makes it two, three separate different drug transactions. And I guess your point would be is that it is relevant and in the course of conduct in suffocating drug transaction, but it's been in spite of the gun. That's the only reason why it's not the gun. It's the gun. That you've thrown in a gun and what it is that now, because he's been doing drug all of a sudden now, you pull in the gun, which he has no connectivity to, and there's no testimony other than Sanchez come up in the middle of it. And now all of a sudden that's relevant. And now all of that, it comes up in the course of the second. Including anything else he would have done, I guess
. You can't just take what happened over here and decide that because you like the facts, there's a stolen gun and that makes three to seven. You can add it to it. It's whether those facts are part of the same course. He wasn't convicted of the November transaction. Well, he wasn't a doctor or a November transaction. And the government did not choose. The Senate's in guidelines say we are going to allow the court to include transactions which are relevant. And in defining relevance, it's either the same scheme and the same course of action. And in defining the same course of action, you look at various elements. And I'm suggesting almost everyone goes elements are satisfied here. And I'm suggesting only that when you look at relevance, you also have to look at relevance of that conduct in relation to the offense conduct. And cases give you the guidepost for doing that and you need to take us through that. And the question is did it involve the same type of products? It is all the same type of people, same types of transactions, same location, same general time? These are the types of things you look at to see whether it's a course of action. Well, as far as same general time, you got in November, then you got January, then you got February. They're not all happening within the same month. They're not all happening at the same time. You got some people in the November transaction, then you drop those people drop out. You do. You're going to change to people throughout. Panetta and Fineska. Same to people. And different. You got the supplier and the purchaser. Both all the way through. And you just have a different means in the second two. Sanchez has come out. Then it makes it two different, it just makes it two, three separate different drug transactions. And I guess your point would be is that it is relevant and in the course of conduct in suffocating drug transaction, but it's been in spite of the gun. That's the only reason why it's not the gun. It's the gun. That you've thrown in a gun and what it is that now, because he's been doing drug all of a sudden now, you pull in the gun, which he has no connectivity to, and there's no testimony other than Sanchez come up in the middle of it. And now all of a sudden that's relevant. And now all of that, it comes up in the course of the second. Including anything else he would have done, I guess. It comes up in the course of a statement made to an agent, made to another agent. You do include the transaction in November, then you include the whole transaction. And the whole transaction was Panetta had possession of this stolen gun. And what turned out to be stolen, and that doesn't matter when the establishment. But he had possession of this gun. He turned it over to Sanchez. Sanchez turned it over Finesca. And Finesca acquired that gun, which is later determined to be stolen. There is an illusion by Sanchez that it's also stolen, but that's not necessary. We have an actual run, the ATF runs it and finds it stolen. So I don't understand how you can take the November transaction and say we're going to include just the drug part and exclude the gun part. I don't think we need to include anything out of November, because I don't think it applies. I don't think it applies as relevant content. And at the point of being just maybe a little bit picky, you know, what the fast word was that Mr. Panetta was at his father's home. Nobody ever established who was hiding the gun. Whether it was Mr. Panetta, or this was something that he was Mr. Panetta's father was hiding from Mr. Panetta. And that's not what makes it such a problem. There's a lot of ambiguity that nobody ever brought anybody to court, talked about, testified. And then all of a sudden we go from a sentence that would have been somewhere between 27 to 33 months, to 63 to 78, based upon a whole lot of speculation. The question you have is that what we end up is some good emphasis in circumstantial evidence that we here can pull together and tie it in as though it's fine. But when you look at the actual testimony, it doesn't tie in. No one tied it in like that. Only us on the pellet level in the trial court may have, but no testimony in. And then tied it that way, it may just look like it is. But you just really don't have anybody that says that's what happened. It looks like that. And I suppose that's the, so my argument is you just can't come in at the back end and say, well, here. I mean, reality is we know that Mr. Panetta had been charged with two 924 Cs. If it had been convicted, it had been a lot more time
. Okay, I think we understand. You recorded a point at? Yes sir. I'd like to recognize that and thank you for your service to the court. It's nice to have you. We'll come down and greet Council in adjourn for the day. This honorable court stands adjourned until tomorrow morning at 930. God see you in the United States in this honorable court