move to the fifth case it's morning or rather the fifth case it's morning nice state's first cook its calculation of mr cook's sentence when it applied it to level enhancement based on the finding that the check cashing business which was the subject of the robbery that mr cook participated in whether that check cashing business constituted i'll put it in quotes for a minute a financial institution within the meaning of that the united states sentencing guideline to be one point three b one which applies to robbery short i'll refer to the robbery applicable guideline as one point one the other guideline is applicable to larceny offenses and i'll refer to that as one point three for the sake of short first for the sentencing outcome by applying that to level and handsome and it moved his sentencing guideline range to level twenty four instead of level twenty two and given the calculations that then follow sentence below guidelines yes it was it was of no harm how far it was seventeen months below the guidelines but the minimum for the guide the minimum adult level twenty four is boarding to my ch t the minimum number of months would be seventy seven if the range for a level twenty four is seventy seven to ninety six but she did receive a sixteen month sentence on the at robbery count and that was below also the range of court and the court laid out i don't have the page cite for me now to the record of the sentencing but the court did take into account a number of background creatures about mr cooke and made reference to the fact of the nature of his participation in this offense and that it depicts me led to the court feeling it was within its discretion to impose a below guideline sentence which in other words i'm suggesting that the court had it looked at it differently at level twenty two rather than level twenty four the outcome instead of being at sixty months would have been sold below sixty more it fourteen months low as sixt months for an armed robbery involving physical restraint with more than three hundred thousand dollars taken right there was more than three hundred thousand in the in the robbery yes i would be an extraordinary scenes i'm sorry that played a factor in the court's analysis as well now the writ i'd like our five reasons why guideline one point three does not a did not apply does not apply in these circumstances armed robbery cases in the seventh circuit that in heaven vol check issue businesses but we're here to determine whether in essence whether this kind of retail establishment a check cashing business  is falls within that definition one point three the first reason i'd like to advocate that this is an overly expansive application my argument would go to in the general application principles of the guidelines and sells at one be one that there is a statement as follows in the up acacia notes definitions of terms also may appear in other sections such definitions are not designed for general applicability instead applicability must be determined on a case by case basis i offer them point because the government maybe today in previously in the case has argued well the way to inform what the one point three financial institution term means is to look at the larceny one point three guideline definition where there is a very detailed very long definition of what a financial institution is under the larceny guidelines there is no such comparable definition under one i'm sorry i may have missed  substituted the wrong guideline numbers but mike my point is that the robbery guideline one point three has no comparable lengthy definition is you find in one point one and the first principle in one point b point one of the commentary to the guidelines says you don't look at definitions in another one another guideline for general applicability how about just look at the title of the outfit he robbed i beg your pardon what was the name of the organization iraq the the embarrassing fact in this case is that the name of the business was the community financial services center yes  l that were involved in sensing you were spending more time regarding sensing it was probably personally spent on the trial of the skis and this as judge hamilton pointed out that you and the guide the guidelines  the i'm sorry you're doing your job and i'm just thrilled about the guy but but this case is not about whether anthony cooke had reason to think he was walking into a place that was doing financial business this case is about whether that guideline cabin is the meaning of financial institution as it relates to the robbery guide link is cabin by the other reference is my argument there are other reference to post offices those are the two words that we've got to work with and  the meaning of the term fight in this case financial institution by the way it gets more precise meaning from the neighboring words so our argument all along is that guideline was of big bank where do you get the depository concept as as the the limiting factor it comes from both number one looking at the function of the post office and with account holders and box holders where they to return to chicago maybe a little calmer than last week help so thank you please the court my name is keith alexander i represent the united states community financials core function its only purpose is to provide financial services to its customers i don't think there's any dispute about that the record was clear the community financial offered a wide array of financial services and nothing more than if cash checks for businesses and individuals that offered short term loans it provided a t m machines for people to access cash deposits money and debit cards that are f d i c and sure bill paying services money transfers so the only services that are offered was financial services and so when anthony cook robbed community financial he was quite clearly robbing a financial institution now the one of my colleagues likes to say i think we have your alexander the guidelines have this is an aggravated for robbery well a number of reports have said that the purpose of this enhanced meant west of punished more severely those businesses that would be targets of robbery just because of the high amount of cash that it tends to hold onto your community it's a little hard lou let's compare let's say an off track betting parlor or a supermarket who has a few a t m s around or something like that who we see a lot more cash taken for those kinds of operations are from than that from a typical bank robbery that that is true i  think for using your example of a t m machines there are some ports that said that that the financial institution answers that apply to them because they're taking the property of the bank and certainly there are other businesses that are or rob that you did that you identif in which they could take a lot of cash that doesn't mean that they wanted to got this much cash it has somebody inside it with they did have somebody inside here the teller was one of the collectors this doesn't depend on government insurance deposits doesn't know it doesn't ok so i guess i'm just in tracing the the evolution really kind of in the early years of the guidelines the seems to have wavered back and forth a good deal with banks and financial institutions or presume you made a loss of twenty five hundred dollars early on at least that much but it's a little hard to find a unifying rationale behind this  was because these businesses tended to have a lot of cash on hand and nuts or are targets of robberies or the top it's hard targets of robberies and so the guideline writers may have been wanting to deter a little bit more than those who would punish or who would choose these businesses to rob or to punish them a little bit more i think that's what we're left with but it's but certainly that the text of this  men would apply to a business like this in the district court didn't air doing it just because there are yes i think you're right there are other businesses that have a lot of cash on hand but they just chose a financial institutions are ones that often do have a lot of cash on hand and i was certainly the case here where they took over three hundred thousand dollars from them from this institution and the appellant says that the limited characteristic is that it is a depository function because and also applies to post offices i don't think that works for a number of reasons but even if we were to assume that that somehow informs the definition of a of a financial institution the depository function of a post office is much like a money transfer which is what community financial provided you go to the post office you deliver your mail it's delivered to somebody else community financial takes people's money can transfer to somebody else it's much more like a money transfer than depositing your money an account that you can later withdraw from the appellate site's community through the futures versus worthwhile end and i think that is instructive here because the test that the court use this court used in that case was what was the core function of the business the question there was whether a precious metal dealer was a financial institution out of the right to financial privacy act and while it was true that these precious metal dealers offered financing to its customers the court found that that was just ancillary to its business that just was meant to facilitate the sale of gold and silver and other commodities that its sole this core function was to sell precious metals here the function of the of the circumstances would have notice that their conduct would be at risk if they were to rob this business and for all the reasons that i've said the name of the business the services that it offered certainly a reasonable person would be put on notice that that he was about to rob a financial institution this court does not need to read man that question the record is complete the legal briefs are before this court while it's true that harold burke came in after the sentencing i don't think the court needs to for the district court to answer that question the person since given the completeness of the record and the fact that this is then brief fully here finally just briefly the other challenge that the appellate raise in their briefs is that there's a impermissible double counting with regard to physical restraint in other words that the same conduct results in more than one enhanced nor that the enhancement is necessary element of the offense but that argument was  by this court's decision in the united states versus this car which held that double counting so called double counting is permissible unless a specific guideline express leigh sales says otherwise if helen has no answer to this there is no one for miss will double counting here the district court appropriately calculated the guidelines and this core should affirm the court's below guideline sentence here and i would unless the court has any other questions i would rest i'd like to address at least two points number one your honor a dog hamilton raised well where does this posit tory idea come from i would offer this if the court looks at the smith case which it actually is relied upon for part of the arguments provided by the government the smith case is cited there that case will take you to the early history of the guideline one point three the early history of that guideline is that applied the language was not financial institutions and post offices it was banks banks and post offices that's where the concept of depository institution i would argue is kind of infused  in this concept of work as guideline was intended originally and continuing on to cover so i offered that in response to your question you're in the second what a second point i'd like to make is in reference to the a argument that well community functions of financial services are heard a wider worry of financial services it's kind of an all purpose financial services center well the difficulty in this particular case in this could actually be a basis for a very narrow ruling for this court in my client's favor the particular facts in this case are that in the plea agreement the only reference fair actually to the nature of this business is here in document thirty five in the record which is the plea agreement at page three when in which it characterized the only function of this business as check  that location the day before sentencing the government walked in with a website printout indicating that this business which does business in several states at numerous locations also has the capability to provide this wide array of other services but that was never introduced either at the sentencing that this particular location did anything other than check cashing and it certainly wasn't the basis of the plea i see my time is up