but we do appreciate the opportunity here today the district court noted that this was a complicated case even though the government's agreed to remain and their offer isn't nearly as broad as what we're seeing here today the main issue i think that wish to talk about the one that would help mr is ok by far the most is the denial of the five g one point three adjustment quick recap of what happened below there was d a single state contend this was an error for three reasons that i will explain right now number one being i mentioned this in the reply and i'd like to expand on it here is the way the state court indictment was structured supports a finding that count two was relevant conduct and this is so because to itself was a single count at that made up of various allegations that occurred in state court which the state chose to lump together under state law with respect  law and the better revised statute two hundred and five point zero eight three four different allegations in state court could only be lumped together into a single count of theft if they are part of a scheme or a continuing course of conduct likewise count one count two could that ok well that's that's definitely not what i'm saying i just i just wanted to make the point that under state law if count one is relevant conduct under the guidelines it could have been joined in state court with count two unless it was all part of the common scheme or plan which they were joined in state court that's the same definition we use in federal court so that's that would be suggestive of the fact that they are both relevant conduct if one of them was your question seems to focus more on how we would figure out if something's relevant conduct under the guidelines and don't disagree that those courts prior decision provides a if not the starting point maybe the ending point as well hondo vitae that you should then consider the issues of similarity or regularity and time windows when trying to figure out if something's relevant conduct i am happy to go through all those but i would like to make a special mention about time with us and we expanded we put this in the brief i think that it could have been expanded a little more because the timeliness factor is by far the strongest of the three  if we reference the record page five hundred and eighty four is where the count to in state court is found it alleges conduct between june of two thousand and twelve to the jury of two thousand and fourteen if we refer to the federal indictment it's it alleges wire fraud between february two thousand and eleven and june of two thousand and thirteen the p n allegations at particular all dated from two thousand and thirteen the federal money laundering counts of the federal indictment alleged that mr laundered money at casinos and about it in two thousand and eleven this is virtually the same conduct alleged in the state court count two in two thousand and twelve where he goes into casinos and obtains money under fraudulent pretenses for an additional comparison from the time period of two thousand and eleven to two thousand and fourteen covering the time period of both the federal conduct and the state court conduct so in answer to your question with regard to the timeliness factor at least there's a strong comparison that these things are all happening during the same time period now as to the other two factors i would turn here to the government's four hundred and four b motion discussed in the briefing i would prolly be constrained to agree that not every bit of conduct admitted under rule for four b is necessarily relevant conduct although there is a great deal of overlap and those may often be the same thing but if relevant conduct includes a common scheme or plan we should take a look at what the government argued about its forum for be emotional low which is on pa and seventy five dollars of the record where they specifically said that the evidence in count two was conduct which showed mr soucie was quote common plan to use worthless checks to obtain money for gambling and quote the district court granted that motion from the district court that mr is ok procurement of fraudulent property was evidence of a common plan which was his desire to engage in gambling and that relevant conduct included conduct which is part of the plan explained in count two of the state court proceeding for that reason alone we're asking the court to reverse angeline and with instructions to either have the district court go through this analysis and apply the adjustment or if the court were so inclined it could award the adjustment which we had figured was adopted the pre sets report and i mean the rd version of the report where if you started basically concluded it in conclusory fashion that down to was just not relevant conduct nobody went through the individual d components of count two or consider the factors that i'm trying to address here today that would have shown the strong similarity of conduct the exact same regular conduct that mr o'keefe to engaged and of course the timing with this is all taking place around the same time so if they're joined in the same indictment alleges a continuing scheme to obtain money to gamble would therefore constitute both relevant not just one of the other and we do a very handful of other issues and though i think there is a great benefit to that st issue another one that was somewhat well explored was the issue of the foreclosure of the home by i think it was victim kal below the issue being the government as a paralegal agreed to remain and to determine whether victims would tend to drop a below that possibly resulting in a lower computation score i would simply suggest here and if we're going to go back and take a look at whether this should be considered restitution the district court be in a better position in the st place and largely it consists of a docket she from the civil litigation nobody apparently went into the litigation cell to determine how is the property transferred missed we do know from that docket she which is part of the record that mr it was named as a party and that occasion and that the home was foreclosed on through that litigation so there is some evidence and on the ground i know in his deposition he claimed he didn't but that wasn't the ultimate ruling of the court and i ego on the docket sheet and ultimately the court did transfer that home to become k l so my suggestion would be if we are going to go back to district court to determine whether that should be part of the restitution the district court could in the st in straightforward than that and then dependent is making it cases in which only part of the prior offenses relevant conduct in the instant case are covered under subsection d subsection besides if it's if if there's if it's within this course discretion determined to run the census partially concurrently could occur and are fully consecutive and i don't think there's any dispute that some of the conduct in this case was quite different than that in the scheme alleged here or i mean it's hard to honestly it's a little bit hard to keep track of all of mr various criminal nevers but one thing that he did well as he embezzle mercedes and he sold it to somebody and that that does that has very little to do if any i mean other than just being dishonest well if anything that i think a certain to do with a check commit clear error in finding that they that the state conduct was in excess of relevant conduct and i think it acted well within his discretion when it decided to run the sentence partially when it declined to reduce the sentence based on on the time t prosecutors in their charging documents and nevada courts in their in their conviction somehow bind this court to it's what is the inquiry into relevant conduct or what is the inquiry into whether that conduct should be credited against a state court sentence i think as an inquiry for this court to make based on this court's precedent and as my colleague extensively explained it is embodied within the one case and what and what the courts look at the appeal but i think it was well within its discretion when it excuse me it was it did not commit clear error when it made this determination that it involved relevant and i don't want to conduct previously but i don't think it is particularly necessary and elevated to that to that issue too deeply simply because of lawsuits that are paid back after a defendant as after his conduct is detected do not count as credit against a loss and that is the reason that remained on the issue of whether the restitution should be reduced is not the same as the i reminded of the issue of whether the lawsuit now should be reduced because i don't think there's any doubt that he was able to wrest rest the house away from that that that that the victim was able to wrest the house away from zahi about he did so after the fact and it is just simply not relevant in the last calculation because because of the rule that that was the last system once the fraud is detected it no longer counts against the l is there a good reason to treat the phrase common plan or scheme differently than the state court did when we are interpreting what it means under the guidelines of federal courts and the supreme court of said if there is no good federal policy reason to do so that you are certainly free to borrow a state courts interpretation of common phrases that's all i'm asking here we haven't heard a reason that common plan or scheme would mean something different in state court than it means here under the guidelines and i don't think that it would so my point being if the state court joined those counts both the offenses together in count two as well as count one with count two as part of a common plan or scheme that there would be no good reason to treat that differently in state court than you would treated under the guidelines if if it is a common plan or scheme it is relevant it however we're talking about taking other people's money during the exact same time period for the exact same purpose which is to illegally gamble and comparing his conduct in the state court proceeding to the federal court count t using a lot of those dogs involved in casinos he's obtaining money filtering it through the same exact bank i think there are greater similarity is if sure there are differences as well but it ultimately all comes down to the same type of conduct as part of the same type of plan which is to conduct this gambling that he does with other people's money there's nothing further i'm happy to submit it without question by my