pled guilty to conduct that involved tampering with their otherwise misusing medication during her years as a nurse the parties agree that miss ball's offense conduct involved fourteen vulnerable vent victims leading to a two level increase under three a one dollar b one hour at the government objected to the failure to assess affected an additional two level increase because it believed fourteen victims qualified as a large number the district court sustained that objection and this is the sole challenge on appeal now before getting into the heart of the legal issue i think it's necessary to address the standard of review this is a legal issue this is a question of guideline interpretation so the standard  are no factual findings that this court needs to review or determine the parties generally agree there's fourteen victims and they were vulnerable the question for the secure court is a legal one ok also what about our anderson case that says anything to do with this is a clear error standard and i think it's in the bruce court yes your honor so anderson only actually addressed whether the victims were vulnerable and the court said there whether someone is vulnerable number mean i think that the district court was correct in that it varies on the crime and varies on the criminal conduct what's going to be a large number for a murder is different than what a large number would be the telemarketing fraud scheme it's not going to be unfortunately a one size fits all number and i think what we can do is look to start with the case law and use that as a guide post one thing i didn't highlight in my brief this i think is also instructive is the amendment from the commission adopting this two level increase there the discussion of them was that the motivation for this additional to level with telemarketing schemes that were aimed at the elderly this is in the late ninety's and that's what really pushed and rolled evaded this additional enhanced myth and that hundreds of people these massive telemarketing schemes that's consistent with much of the case law that cited in the brief admittedly it's a bit the case was a bit all over the place but there are the cases where it's you know hundreds of victims telemarketing schemes these wide spread offense conduct aim to hit as many people as possible telemarketing cases and i think that's more akin to some of the other cases i think both parties cite where that involves health care where someone is either misusing someone's information or overly prescribing  financial gain or whatever it might be this is just one nurse who has a drug addiction and she is you know misusing medication to feed that addiction she's not is part of sub big large criminal conduct criminal conspiracy where she's taking pills to sell or working for financial gain and i think what's most destructive here is the percentage of  she saw at and her most recent appointment she would be response for responsible for almost one hundred patients at a time there's only fourteen vulnerable victims in this case that's not even twenty percent of any the number of patients missed full was responsible for and one shift and the offense conduct spanned three years and much of her conduct while illegal didn't necessarily involve taking medication because you really if you're in a small and do something they could just be one or two people if she it didn't seem in shows or just a small town the small nursing home we could just be one or two people that's where your argument goes right if you're doing percentages i believe minimum number and they seem to apply that in the small town in new york city in l a right correct i don't think that what you advocate or not no i don't think it depends on where you are i think it would depend say legally it means whatever the drug say is i don't know tell me and i don't think that court should be saying like the district court judge sit here and you know misuse of pills case it's ten and that's ten because that's taking the role of the commission and that's i mean i don't know how you come up to that number without just pulling it out of thin air will come when you look at all the other guidelines you know all the arguments here right and i think the other guidelines of anything are instructive of the fact that ten shouldn't be considered a large number one of the cases that the government sites it is involuntary servitude and that there's an upward departure if there's ten or more victims of involuntary servitude i would not put misusing medication in the same category as involuntary servitude or slavery and the fact that the commission could put a minimum number for those kinds of offenses and chose not to hear and a case that they didn't want to be a one size fits all kind of determination and it's know that this kind of legal analysis that the court must do is no different than reasonable suspicion you know we don't have these necessarily bright line rules but based on what the case law and the framework that we have it indicates that fourteen is on the low end and we have these cases where it's really hundreds of victims and number especially over the timeframe that her offense contact was committed we're talking over three years that just as a nurse or the government you know that's conduct of misappropriating medication occurred and often also the context of the crime i think gives us give some guidance i mean these other cases even the health care fraud cases where the the doctor is overprescribing or the health care health care professional you know people that information you know using it as part of the overall bigger criminal context where they're to make money and it's a large scale for out here it's one nurse who is  d and i really hate checklists as a prosecutor a checklist that like bright lines but i think checklist of factors that to consider for or to say if you look at these factors you can find a  large number and i think some of the factors that at work here are this is a hands on offender it's a defendant who knew everyone or victims personally min of the large scale frauds telemarketing broad wherever they don't have hands on or don't know the victims and talk about some of the cases in a moment that kind of reach that position but this defendant had accelerating behavior from in victims where she was wasting to steal the drugs to then hands matter every person who was in that hospital was seen was vulnerable by the fact is they were ready inpatient treatment they were unable to care for themselves and outpatient care couldn't protect themselves from the dependence on so the defendant chose these victims knew they five and twenty five and we point to the good point roger and that's why i think you have to read all of the guidelines together and that's where we think ten seems to be the right number because other guidelines  large number so what is a large number when you're dealing with smaller numbers of victims in a crime in the andersen it was a wire fraud case with eighteen elderly victims in a misery mandated to determine whether that two patients receive diluted cancer drugs from a pharmacist eight of the victims were used as a large number so there was a pin it was just eight of those were particularly vulnerable for whatever reason to get t and of course we talked about often with the involuntary servitude thing and found ten patients and jane of course applied for with ten i think openly when you when you boil it the smaller populations or smaller potential victims this is a dependent as a hands on offender didn't have access to thousands or hundreds of victims access to the victims she had access and she knew each one of the victims child pornography cases uncovered old dope prosecutors so you're stretching my knowledge there but i think there are adjustments on the under chapter too for the numbers of images that you would deal with than you might have a potential double counting whether it's master list of every person with the mention the united states and that's the only people that he call to select all of the victims and every one of the victims had dementia actually there i think maybe you would have every one of those would the faking party case as mentioned by the government didn't actually decide formal victims it wasn't an issue that was actually raised in the appeal i think in one of the cases i can't recall which one it said in dicta that it agreed in afoot now but it was actually an issue that was raised briefs and decided on appeal and i think the final point i want to make is i think it's dangerous to point to it's hands on so that indicates that these this is a large number and i think that blurs the line between vulnerability and views of trust enhanced minutes with what is a large number even in the telemarketing scheme sure they're not face to face but they're getting an individual's you know financial information and some of these cases we decided people lost their retirement their credit was destroyed and they couldn't get loans so i think it's you know it's kind of blurring the different analysis that go in with these enhanced minutes by looking at hands on