english living with his mother and working at a dunkin donuts during the conspiracy was sentenced to fourteen and a half years this sentence was substantively on reasonable and procedurally henri's and this fourteen and a half year sentence place mr patel squarely in between the corporate defendants and rico us who committed one hundred million dollars crime for which they obtained more than one million dollars in gross receipts this this demonstrates the s on reasonableness of the sentence that resulted from a guideline that routinely produces sentences that contravene thirty five fifty three days requirement that sentence since be no greater than necessary into or be this court examines the child porn guidelines and found that those guidelines because they were teen lee recommend sentences that exceed what thirty five fifty three a requires and routine run of the mill cases need to get careful consideration by the district court keeping in mind that substantively on reasonable sentences often really what's the basis for saying the court didn't give consideration to the  factors that you claim no to in favor of the los and the basis for that is the court's comments at sentencing indicating that the court believed the guidelines would give discretion to punish the masterminds of this fraud more harshly well the guidelines recommend that sentence with the base offense level specific offense characteristics and roll adjustment was a thirty seven which recommended a range of two hundred ten to two hundred  sixty two months this exceeds the twenty year statutory maximum for wire fraud so we're saying this squarely puts it indoor vs coroner and the district court we've allowed a twenty year sen years less than your client years meet the concern here on the piling on of enhancements is that each unhandsome in unless i'm overlooking something did capture something different and i so i'm not sure that they captured different aspects of the crime i should be clear on that i'm not sure how the we would be concerned about the application of the guidelines in this case what's your argument on that well argument just to clarify because the government responds to an impermissible double counting which is not our argument our argument is that to be one point one guidelines have you know a variety of specific specific offense characteristics that if applied on carefully can lead to an reasonable results like the one in this case so the piling on it's not that the court should not do it under the guidelines but that the court needs to consider and how they were extorted was being by being threatened with law enforcement action i mean there are other aggravating facts too but just focusing on those why why is a fourteen year sentence reasonable because of the nature and circumstances of the offense and the offender make this honestly a shocking sentence and that when the guidelines put him  the statutory maximum for wire fraud when everyone acknowledges he's a relatively low level player in this conspiracy he is not a mastermind behind and so the fourteen and a half year sen is too harsh given what he does what he has done and moreover violates thirty five fifty three a but by really giving the district court and nowhere else to go with the criminal actors we know are out there in a more his underlings so if you have underlings seems to me leader in some degree or you well i would say he qualifies as a leader under the guidelines by virtue of managing knowing participants however characterizing him as a leader of the fraud itself i think is an accurate and by imposing a guideline sentence didn't he provide names or contact information for potential victims no the district court made a clearly erroneous finding on that points so the government's first of all this fact was not asserted in the p s r rather the fet the allegation that mr patel was involved in the lead sheets came in the government's june cent june ninth sentencing submission and that submission they in making arguments that mr patel obtained these lead sheets and then they attach an excel spreadsheet they purport came from an email account involved in obtaining these lead sheets which describe just your court indicated was an additional aggravating factor that should increase in sentence and so and this was just not proven  on the record mr patel explicitly denied obtaining sending or being involved in that conduct and the government didn't perform put forth enough evidence to substantiate that the district court actually said was that i did not organize the call center but contributed names to it and the support for that is the government's demonstration of his access to an e mail account where the lead sheets were an hour and and his concession that he knew these sheets were used to identify victims on a preponderance finding why isn't that enough that's not enough because simply showing that mr patel had access to an electronic storage container for which an on a  logical inference is it's possible even if it's not direct evidence so so again on a preponderance standard and having trouble understanding why this is a clearly erroneous finding of fact by the district court we would say that this falls under united states versus jude law which is just you have explicitly denied conduct and an unsubstantiated allegation i mean are you meant is that submitting an excel spreadsheet purportedly attached to an e mail at the bottom that i'm over but going ahead so we argue so although there was no objections to the p s r repeatedly at the sentencing hearing the arguments referring to the guidelines overstating the seriousness of mr patel's conduct and arguing under the thirty five fifty three a factors for a reasonable sentence which the guidelines recommendation you know did not provide so we think based on that there's you know sufficient grounds to find mr patel did object to this guideline sentance thank you thank you you've received some  at least two years with respect to the the appellant's first claim here with respect to the erroneous or portably erroneous factual findings there was ample support in the record before judge patel not only had access to a shared account that contained multiple lead sheets a fact which was not disputed mr siler even agreed with infringement hellerstein was also facts put forth in the government's sentencing submissions that mr patel in an e mail account exclusively used by hand in fact named with a variant of his own name contained what was submitted as exhibit in which was a single lead sheet from that particular account and there was no dispute at any point before judge hellerstein that that was his e mail account or that was a lead sheet that supports the entire basis for the identity theft and you are arguing this is plain error review the effect on those coconspirators not only to judge hellerstein understand both the impact on the victims that it was the people who were being called by these call centers he also understood that they there were people working for mr patel some of them knowingly some of them we didn't really who were also negatively impacted or potentially negatively impacted there's no confusion in the record and no confusion in judge hellerstein as mine reflected in the record that there is are two different categories of affected persons and that both of them are well within reason is people who could be considered victims or types of victims of mr patel's offense in particular the second category of people are the ones that mr patel himself reveled and exploit and these are the people that he considers dumb who he says treat him like a god because he gives them a little bit of money that goes to i think ultimately the put people in fear and put people in fear of law enforcement put people in a position where they could not call law enforcement felt that they were already in trouble did so over and over again and did so using young participated in virtually every aspect other than actually placing telephone calls and the basis for the leadership points it's clear and also it was undisputed with respect to the guidelines calculation enhanced it's not simply double counting or piling on and then beyond the guidelines with respect to the thirty five fifty three a factors there's also plenty of support in the record the judge are so to begin and the contention that mr patel was involved in basically every aspect of this conspiracy and therefore was a low level participants is refuted by the government's own sentencing submission which was a twenty fifteen testimony by the treasury inspector general detailing how this fraud was operating gaining money both before mr patel's involvement in the conspiracy and after mr patel was arrested so i think that in an r itself that the fraud went about without a hitch without the dunkin donuts employee getting debit cards show he is not in fact a mastermind of the fraud that should be getting a guideline sentence near the  max i'll just say that so to be one point one has caused many problems and it's evident in this case where you have a one point two million dollar fraud of someone who admittedly of someone who's not one of the masterminds with a guideline recommendation over the statutory max so we would ask that the court exercise its responsibility to patrol the boundaries of reasonable n by applying door vs requirement that district courts carefully consider to be one point one with the recognition that this is a guideline that routinely recommends under reasonable results that contravene thirty five fifty three  there thank you thank you both thank you we will reserve decision in the case of ballo versus from rago we are taking that on submission and the case of united states versus over this is taken on submission that's the last case on calendar