one four days five five three five usa vs birdie anderson or argument fifteen minutes per side mr brandon for the may please the court my name is andrew brandon i'm here today on behalf of bertie andersen i've already requested three minutes for rebuttal here well thank you your honors the sophisticated means enhanced mint is specifically defined in the guidelines as requiring especially complex or especially intricate behavior especially intricate criminal conduct in this case the district court applied that enhancement despite the fact that it specifically found that miss anderson's behavior was not terribly complex that nothing she did was particularly intricate it did so based on a misreading of the law in which it determined that almost every crime is or almost every fraud receives the sophisticated means and handsome and this was error runners now the government has raised the important question of what kind of error is that specifically the standard of review question the government's proposal is that unlike the other guidelines skinny unlike the other guidelines enhancements sophisticated means enhanced meant gets a special  sort of down the line clear errors standard where both the facts and the law are reviewed for clear error there's simply no reason to apply such a standard in this case there's nothing special about the sophisticated means and handsome and some courts have correctly noted that sophisticated means is a an essentially factual issue i mean it is certainly a heavily fact based issue and therefore much of the analysis is going to sense i got from your brief was that you think the core simply applied the wrong standard had sort of the wrong threshold as an interpreted matter in its application and  using the two the two examples where the the one the first example sort of sets a bottom floor if you will for the for the enhancement above which almost all fraud cases it legal analysis now when the when the court starts to apply that to the facts and then of course we would defer to the court considerably more about when he says you know he goes through the different parts of this  elevates the complexity or something like that yes he said his term was in tandem the right they operate to be more specific and i mean that that finding i guess that we were clearer i think that's that's the one issue i've struggled with in this case i think that it contains a factual component it contains a legal component and i think the courts the court would say the supreme court would say do due deference and i've never been entirely sure what that means either  but but jumping into that exact point i think it's important to note that i want to say factual but maybe the mixed level the the conduct in this andersen undertook it doesn't actually work in tandem i mean it works in tandem in the in the sense of one after another but not in the sense of two to bicyclists pedaling together if you  will that her conduct doesn't compound or doesn't sort of build on itself it just goes sequentially i mean she essentially just asks the v a for money once and then again and then again in each of her she kind of use some of that money to do it sure looks like it your honor and it looks like you from what i could tell in the record my bigger question is this if if if we say out that was sufficient but not very lester and so what's the result of well i disagree with the with the assumption just in the sense that i believe the case law in the case of the government of cited requires that we be certain as to how the district court would would have acted if it had not taken the district court made a finding made if any departed now were made finding that distance would be sufficient but not greater than necessary in this case and he made it in this case but that doesn't mean that you can never appeal and erroneous application of a guideline but if he's departed downward basically they had one of what the old district judge trick is i don't think i'm one of the know about this decision but i will give you the bottom end of what you got last would be he that is factually what he did but in this case because the district court based his downward variance on five or six different factors only one of which was the fact that sanderson's can't conduct as as he specifically found was not terribly complex there is absolutely no way we can know i mean if he had said that factors would change but you would obviously have a different starting point from which to launch your variance and already point of thirty months the i mean the yes yes clearly you would you would you would jump down to the new guideline range but the court might see fit to say this is not you know my sort of unique mix of of of guideline fact or excuse me of sentencing factors thirty five fifty three a factors is now off and  it's just not the same and the cases from this court such as the mic falls opinion have said that this is a very delicate balance that you've got to go back and look when when things change because the courts are doing a as your honor knows a very sort of delicate balancing act in the sentencing process and so is it it's just not certain at all what what it would have been and you  i mean are there any cases you can point us to that would have a similar scenario to the one that you advocate here in other words where an enhancement supplied the core after the  bacon opinion for instance that that the government cites to that is somewhat unusual case in itself for that harmless error principle and it's highly qualified i mean it says the parties didn't disagree with this analysis this harmless error analysis that says that here we have absolute certainty because in that case the court specifically said you know the this is what i would have done anyway and so so here we don't have that and so i think think just going back to sort of basic sentencing principles of you know you have to get the guideline calculation right on the front end and i guess i would like to thirty five fifty three a which requires an accurate calculation of the guidelines on the front end and then we just have no certainty on the other way around brennan i want to take you back to whether there was a proper or enhanced been here for just a second when i counted the various things that this woman allegedly did seem to me there were at least six things that she did some of which were the acts of getting the money others were the acts of concealing what she had done that seemed to be the concealing acts clearly i relate to the acts of getting the money less clear to me whether we use each act of money is one facilitating the other i soon your position is no on that but why well i think that there is another words did the fact she got the money the first time did that affect her ability falsely did that affect her ability to get the money the second time in the third time or not i mean i think factually we can assume that she has established a relationship with the v a but i don't think that it's fair to assume i mean the record is very clear at least from the both the district court's findings and the government's own witness that this was a complete breakdown in diligence on the part of of the v a so so i don't think that we can really say that that they're trusting or more or they're trying to you know what can somebody say well she started out small forty three thousand she does that then she moves up a little bit to  three hundred thirty two thousand and then well i guess the last one was two hundred fifty thousand i think it was eighty thousand and then the forty three the first property was eighty thousand and then there was a forty three thousand and then a two hundred i'm forgetting the exact numbers but there was a first property then a van and then a second real property yet she applied for eighty and she lied about the forty three or something like that so in any event there is at least a plausible claim that the government can make that one enhanced her ability to get the i think it's plausible to say that she had established that relationship i don't know that it so then why particularly of clear standard why would it be here  in this case there's just there's no way that each act each clearly non's of just a gated act according to the court really compounds her ability to get these things i mean i think  that that the there's no there's nothing special about the first act that uniquely ingratiate herself there's nothing special about the second act that builds on the first there's nothing special about the third act that builds on the second in the first they're just there's no evidence that she would have been given the third if she hadn't had the had the first other then we can see that there is at that point an established relationship but it's not as though you're understates the concealment effort none of those even occurred until well after the fact it's not as though even those concealment efforts is is are assisting her ability to get the next the next loans or grants in this case but th scheme is to get the money and not get caught going ceiling is obviously part of that scheme if that's the case she did a lousy job your honor and certainly didn't didn't didn't take any efforts on the front end i mean she made some sort of hail good morning to members of the court to hear your tester for the u s attorney's office and nashville in the andersen case and as summarized in our brief for our posture is that the district judge in analyzing the either we submit that judge campbell did not err in assessing the enhancement it does seem clear at least to me that none of these individuals steps seems to be particularly complex yours is to get it would you agree with i would in fact then it if we're if we're looking at in totality the questioning goes back to the discussion with your opposing counsel and that is are these really tied together as some schemes are you do a lot of different things but you know you have to do it all together in order to succeed here just seems like three different acts really don't particularly relate to i can address that but i would have to mildly disagree that that there is an absence of any complexity with respect to at least the first in the third scheme and i know will respond to the court's question about the inner relation ship between these two  dress that first first of all the the second scheme which was to get this specialty van was related to the first and that it was purportedly to transport the residence of the first property so there was a a a logic if you interrelated aspect to it and i think the final answer that is yes if the if the court agrees with the district court that when the totality of circumstances and the in a relationship between these things the juggling if you will between the first draw the second third fraud raise this case above the baseline of the mine ron false statements which can be accomplished simply by making a false statements i false statement or the minor on theft or government property which can be accomplished simply by snagging a treasury check out of the mailbox we've got is a lot more activity before during and after the crimes were committed in this case he elevated this to one under the guidelines what are you referring to when you sail a lot more she made the false statements three different times so what what in addition to that is comprises your a lot more in the first fraud with the v a she made a false claim that she had the money in hand to support that false assertion she committed a completely separate fraud to obtain a loan alone to obtain the money that she claimed was in cash for she lied about her income to the loan company she lied about about her credit worthiness claiming the money that she had gotten from the v a was her retirement fund she would not have gotten that alone but for that for that separate false claim absent getting the money from that fraudulent she would have been able to close on the property and v a would have found out about that income down are so that secondary fraud elevates i would submit that the were pretty darn simple but in both cases we just keep hearing about the totality when you consider together but it's conclusion i mean it's just simple i mean big deal so she gets the money for the car i mean that's it's not like it's so complicated to get the money for the car and then use it to maybe pay a mortgage payment over here like oh my god you know now we're talking really complicated and i just want to be candid i mean it sounds conclus y to me this totality stuff and why is it why is it especially complex i think it could respond to the bigger are the third scheme in which she got the largest amount of money by that point in time unbeknown to the be a v a she she had defaulted after about a month on her mortgage payments for the first property in order to keep the v a from finding out about that because they were unaware that they're worth any third party interests in this first piece of property which there aren't supposed to be because a supposed to be in service for veterans for seven years she takes funds from the third fraud and applies it to repurchase however briefly  to keep the whole scheme afloat and to avoid detection and as judge mckee pointed out earlier there's also the considerations of concealment in this case when the v a realized at the tail end still  property and she claims she's got cancer and she's being treated for cancer in order to to hold them at bay if you will and prevent to hold back their discovery of fraud and referral from that unit which is untrained at fraud detection to the people who are which is the inspector general's office when the inspector general's office gets involved and do a search on her house to try to find where this money went and where it is she tells them i've still got it it's in a safe in new hampshire leading them to in order to dispel that or perhaps hopefully discover when this money is try to track down that claim and so  there were there were layers if you will both of her activities in acquiring the money keeping the money over a duration of time in a repetitive fashion and finally to  forestall if you will in an effort to however temporarily conceal the fact that she didn't gauged these frauds the bottom line is you're saying she took what otherwise were was a pretty simple act and made it more complex by the additional stuff she did  that is it your honor and all these all these up so those are the other question i might want to follow up on what judge who'd was asking your fellow counsel about it does seem to me it seems to me that if the district judge had very downward to the lower guideline range incensed at the bottom of the range harmless error would be probably a political in this case but it also seems to me that he did say he was varying for several other reasons as well so if that is the case you're varying for other reasons you've got to start from the right spot to start and if you didn't start from the right spot to start with if we find it wasn't sophisticated than it does seem to me we to finish my thought there but i need to point out that counsel in his opening argument conflates the judge's findings and observations the district judge's findings in findings and observations about sophistication that were made during the three f analysis and what he was going to do a bit with the guidelines in this sentence with his initial findings in which he was discreetly examining the guidelines he started off in the guidelines lane clearly shifted into the three five three lane and then after finding the well one of the guidelines sophistication applies under my criterion for a three five five three balance sentence they don't and he essentially jettisoned the after after talking and six of the of the of the record page eighty three one six is the bottom line is i think that what is sufficient but not greater is a sentence of twenty four months i am going to downward variance to level seventeen for a means enhancement that we're discussing today after jettisoning that considering these other factors he said i think a fair census twenty four months i'm going to very sufficient to do that so i think given the chronology of those findings we do have an i don't think the case law requires absolute certainty which is a believe that the terminology used by counsel with respect to evaluating a harmless error i think i don't have the texan from b but i think the cases or if it's clear the reviewing court that the district judge did not rely on the guidelines with respect to a contested issue in fixing sentence i think that very clear and unequivocal assertion of statement rather by the district  ge page eighty three one six makes it clear he fixed the sentence and then determine the variance that was necessary to get to that sounds and you want to speak at all to this proposed amendment to the  well at the case law is clear that that district court can't be faulted for failing to foresee a proposed this is an even amendment this in place yet we don't know what the language of it is going to end up being but whatever it ends up being the district judge i believe to the letter apply the examples and the the language of the guidelines that were in place and in force of the time he fixed sense in this case and therefore there's there is no basis to find that the air because of a potential amendment that you get to take place judge was using to make that determination the standard is wrong i mean he's assumption about sophistication is is legal error and so so he's viewing it through that lens when he  says that together these were sophisticated as he specifically stated his view is that at that point is that sophistication or sophisticated means encompasses virtually all conduct yeah but you can't win on that by saying you know he committed error in the standard he applied by the way i want you to used an overview so if we're if we're looking at it afresh whatever that means then what is the matter with the argument that each thing here starting out the application was pretty simple but then she did do several more things arguably in connection with each one of these loans yes your honor and i look at it in a totality we do look at it in  but having said that then speak directly if you would whether these other things then collectively add up to sophistication well i think the concealment efforts are really sort of flailing desperate efforts i don't i don't know what reference her saying i have cancer has to her misuse of a v a funds or i mean these are these are really hail mary kind of excuse making and as to money in hampshire frankly i think i think she still believes there's money in new hampshire i think that's an easier thing for her to believe than that she's been on scratchcards but but that just goes to her having certain  diagnosed mental problems that even the v a was a aware of at the time of the loan or the time of the grants but the the the issue of them sort of aggregating i think that if you if you look at the  hance case the eighth circuit case that we cited in the in the at a case from the fourth circuit they all involved conduct that you could look at you could you could mash together and say i mean the district court could have made that exact same analysis on those cases only those cases involve much more sophisticated behavior than then miss anderson did and as as the fourth circuit wrecked recognize that sort of behavior  realm of the special complexities and intricacies involves more than the forgeries misrepresentation and concealment inherent in bank fraud they're saying just because you you add together these things it doesn't make them greater than the s their parts and i think that's what where you have to arrive in order to say that there's something special about this and there's nothing special about about this crime it's in fact the sort of prototypical fraud against the thank you runners thank you case will be submitted