the next case on the calendar is united states  i'd like to focus my arguments on the thirty five fifty three eight arguments because even with the disputed abuse of trust and handsome and the guideline range was seventy eight to ninety seven months and so at a minimum court upwardly varied by close to two years on a ready serious sentence there was no written statement of reasons by the district court but i think there's no real dispute what that upward variance was based on the first was the district court perception that cabot's offenses had closed a loss of greater than seventeen million dollars and second that cabot was aware that his victims were vulnerable just workers decision in the united states versus jew which i know calibrated with joined i think guides this case that case do a hell that due process requires that the district courts this question be based on accurate facts and then any factual determination and must be found by a preponderance of the evidence and judge work or your decision in court closely held that the failure to do that constitutes plain there was no objection here to these two findings but it investor was three hundred million dollars to the extent that those there's a question a serious question and the record is replete with the government's concession and findings by the district court that there was no way to determine whether that three ht but that's but that's a big if that's not right so that the seventy million people were so certain of and then there was an increment above that but an indeterminate one that could be considered as part of the three four five five three analysis along with reasonable anticipation of the vulnerability of the victims and so forth but that additional increment that's that's precisely subject to question say wherever he knew or not they were vulnerable and i am putting a higher sentence because when that happens we want to give you know we want to do it that's a good idea to do in general because one is based on a wrong fact the other one is based on what the court might do and i'm not sure what the district court did that's my question first question my second question party denying loss causation to show that it isn't clear that's a rather complicated situation you know if somebody is lost causation is due to something like an earthquake hit the house  rather of in another house and the misrepresentation had to do with who want the house then last causation is not their own as it is shown if the suggestion was that the house was a strong the first question i think the record is very clear to me that the district court was relying on the fact that cabot knew these victims were vulnerable and that were snow and it looks that way shouldn't we go back and it said we're looking at that these victims were people looking to sell their primary residence in order to take advantage of the tax breaks ten thirty one this is that the statute is very clear that's not available to such a such an investor a ten thirty one of the exchange is for investment purpose not for someone selling his primary residence so i think between the fact that the investors were accredited that there was a requirement that there should be a credit investors and the nature of the investment comes straight from the complaint it's a ten thirty one exchange ten thirty one has very particular rules the most important of it is you sell an investment property and you could roll it over now into a different investment property nothing to do with primary residence so as to i think your honor is talking about a situation where the parties disagree as to who caused the loss the government was very clear and i could just give examples from the record that there was they had they say they simply didn't know caused the loss so it's not a situation where you see manifest in the situation where a misrepresentation we respect to market value and security and then there's a general crash that is a situation where we assume that this was due to work and misrepresentation wasn't less somebody shows us that it was a market crash that was big because if you look at the complaint it's very clear that the crash came first the reason why one of the reasons why the cabin result was ordered to the front for what it is because many of the investments were failing that's an allegation straight out of the complaint and that what he was doing was he was taking money from more profitable investment but again and others so we don't certainly nobody this record does not support any basis to conclude that that three hundred million dollar loss how much of please the court at work in paris or for the government i have represented the government in the district court and in this court on appeal the judgment of the district court should be affirmed in all respects the district court committed no procedural error much less any plain error in considering the undisputed facts that there were some victims of the offense who were vulnerable and second that there was some is the question of the defense knowledge important there  it's not your honor and let me begin with the vulnerable victim enhanced men which did not apply in this case under the vulnerable victim enhanced meant which is a two level enhanced meant that enhancement would apply if there is at least one  victim who the defendant knew or had reason to know was vulnerable there so in other words even to apply an enhancement there's no requirement that the defendant actually know that the victim was vulnerable so certainly your point is that just just if i goes to the question of the loss of the harm that was caused independently of whatever the defendant might have known that's correct judge walker this is a section thirty five fifty three a issue and judge firman properly drew the inference from the undisputed facts that there were vulnerable victims here and he also vulnerable victims but the question is did he use the ground that there were vulnerable victims and that was reason enough under the guidelines and on that basis gave the enhancement and my problem is that if you read what you said it looks is well he was making an assumption he went on to explain that he also believed that cabot knew based on two two inferences that were based on the undisputed facts in the record first the nature of the investment itself and second the tax benefits that would flow from it let me take a step back and explain that this is a this was a form of fixed income investment where we are victims as expected to receive distributions from rental income on propert  clarity just calibrate it is the latter the judge changed his finding on the fact of vulnerable vulnerability in any event there were certainly if undisputed facts of the in the record from which judge firm could properly conclude that the defendant knew that there were vulnerable victims i mentioned the first factor being the nature of the investment the second was the nature of the tax break that would flow from that and i'll just observe that the government read into the record the statement of one particular victim named frank stewart who was an elderly gentleman who explained that he expected a tax break based on transferring the capital what would have been capital gains from th into this investment but in any event your honor it doesn't need to get there because that take a step back to the district court properly considered the section thirty five fifty three a factors and drew a reasonable inference from the undisputed facts that there were vulnerable victims here judge foreman did exactly what one would hope the district court would do he considered those factors in light of the specific nature of this offense and he drew a reasonable inference that there was some it's not necessary judge caliber easy for this court to conduct an inquiry and it would it would not make sense to do so here first of all bear in mind this is a rising in the context of the judge's balancing of the section thirty five fifty three factors this court has made clear that it's within the sound discretion of the district court to apply those factors in the way that it sees fit this was what judge firman was essentially doing here is he was making a determination that relates to the harm that was created by the offense it was also making an inference through drawing an inference was he not that the defendant could have reasonably anticipated vulnerability not that he actually knew but that he could have reasonably anticipated and therefore might in effect and this would also be compassed within this is this idea that he deliberately he didn't i mean he deliberately closed  design to that to that aspect yes and that was a fair inference for for the district court to draw from the facts here it's arises simply from the nature of the investment itself the defendant set up a fixed income investments which  y as as as a fair inference any any person in cabot's position would have known would be at best meant that elderly people would appeal to correct it for two reasons one to take advantage of the fixed income and second to take advantage of  the loss could you address that point yes just the above the seventeen yes judge walker this this argument about a three hundred dollars three hundred million dollar figure is simply a sideshow judge the district court properly found that the loss amount was seventeen million dollars that was his finding he found it was a conservative and defensible law so now he properly considered that there was some degree of loss that was above and beyond  seventeen million dollars and the most significant that doesn't have to be quantified correct and the most significant judge walker was emotional and psychological harm which was totally undisputed below and of course the guidelines themselves in application no twenty two b one point one recognize that those forms of non monetary harm can actually be the basis for an up or departure in this case it was well within the district court's does discretion to consider that non monetary harm under section thirty five fifty three day without having to get into whether the non monetary harmer's caused by the defendant or by the harm that all this fel in that period of time that's correct judge walker but even focusing on a non monetary harm judge it's important to consider the nature of the harm he or the defendant stole he misappropriated money that was supposed to be used for the which is the financial statements the defendant manipulated financial statements that he disseminated to investors so he misled and prevented them from discovering his fraud so in that sense a laid out in victim in impact statements which were not contested the defendant caused harm and in ways that were not quantifiable it was a way of keeping him in the program that's correct and as his way to continue the misappropriation ground weary looks as if he's talking about actual knowledge the district court was actually saying this is something he could have known had he b want to make sure i understand your question judge calibration and i want to just also take a step back here and say the district court's sentence didn't hinge on a finding that the defendant knew that his victims were vulnerable at hinge that he the district court properly hinged on a finding that the defendant knew or would have known that victims were vulnerable it hinged on his conclusion that there were vulnerable victims full stop the district court did make the observation that the defended would have known that there were some vulnerable victims and it certainly was a proper inference to be drawn from the record in this case based on the nature of the investment in a tax break these were facts that were never disputed below and the inference itself was never disputed by the defendant there was certainly no plain error he should have known at any one of five i certainly think he knew that's what he relied on now there's a reason why congress at directed courts to write a written statement of reasons had the district court wrote a statement of reasons maybe there would be no argument and we wouldn't have to speculate what that means but based on that he did and that's not finding that he knew you'd agree with that i certainly think it's not it's not it's not saying i certainly think that he should have known there's to the fan the twenty four months of sentence hope that would just not based in the sentence on ruminations it's very clear he said you know the government before this is not about whether the enhancement for vulnerable and applies to everybody agreed the parties agreed that there should be no enhancement for that the judge went back and said yes i agree that there's should be no enhancement because maybe they are vulnerable but my point is in the reason why i'm going to enhance the sentence is because i certainly think he knew given the nature of the investment now as as you wrote in and the government says oh this is a mission matter of discretion there i just think that's a totally different thing i certainly think he knew because of the nature of the investment the judge could have said  you know the nature of the investment would cross any reasonable person to understand that this investment would appeal to vulnerable people if you put it that way would that be any different from what you've just said if that's the basis for the determination i think it would just be it would be just as much a problem because the point is the faxes and the government really could point to nothing to say otherwise is that the nature of this investment was not something that cabot should have known that these were investors yes they may have been a fixed income investor investment but it was a particular type and it may be that the victims misunderstood the tax implications of it but it's very different now and it's important to point out cabot was not the one that was market these were brokers that were mark and they market by apartment placement memorandum by large brokerage firms that's the allegation cabot that's doing it now maybe there were sharp practices in the marketers who convince these people you're going to be able to benefit from this but from abbott's knowledge cabot knows the type of investment he has a private placement memorandum it's an accredited investor and it's there's no question of the whole nature of this investment came about because of a tax ruling regarding ten thirty one exchanges it doesn't this issue about non monetary harm if two hundred million dollar loss or two hundred fifty million dollars of the waltzes were caused by the financial downturn obviously people were going to suffer non monetary harms from that but that's not something that cabbage should be thought saddled of and if it's anything if if the loss was anything more than the seventeen million dollars yes there were none monetary harms that resulted from that los the question before this court was designed to hedge against the kind of losses that were caused by the financial downturn one of the investors was thought of by the investor as a he against the kind of boss that occurred in the financial downturn which was a you know market collapse that sort as opposed to a high you know high risk aggressive stock investment sentencing the defendant was told listen there are all these losses here and i am considering whether the the other two hundred and eighty to three million dollars was caused by you and mother those monetary l were caused by you and therefore i want you to prove that it wasn't maybe then maybe it would be appropriate but that's not what happened here coming into sentencing what the government's position in that sentencing memorandum it was one last year the seventeen sentencing but here wouldn't it have been exactly what would have happened if an objection had be made and then the district court would have said oh i understand your objection  situation where it would be possible but but considering from the defense counsel's perspective going into sentence he has the government's position and the courts repeatedly durance that and that we can't determine a loss of greater than seven nine hundred million dollars i think at that point it's it's to place the defendant the burden oh you should've than objected when you know the court and in considering the thirty five fifty three factors then sort of went on to this last i think it's just too much i think and particularly when everybody the consistent position of all the parties was we don't know it's impossible to determine thank you your honor thank you best well argued that c