court my name is andersen ganster and i resent the appellant this case still even us the facts of the case matter and a criminal sense seen certain facts are exceptionally important for instance in a narcotics case the amount of drugs in a robbery the amount of money taken in a fraud case like this how long the fraud went on but the judge below got that fact unmistakably wrong the offense went on for eighteen months he thought it went on for four years and we know this because he said so when he was emphasizing the seriousness of the offense and declaring that mr verus had no respect for the law spite mr virus was otherwise spotless record his confession and his efforts to assist the government  about his saying i stand corrected after your client corrected him about the length of time well i corrected him about going to the doc and what he said was i stand corrected which i think i view as a clear admission that he had gotten it wrong had wanted if he had mis understood it as the government suggested he just misspoke if he had done that that was the prime opportunity to say so say i understood the facts i simply misspoke instead by saying i stand corrected a correction occurs when you've done something wrong and you have to make a change so he was actually admitting that he he got the facts wrong and misunderstood it well whether he misspoke that the fact wrong for you to succeed in this argument you have to show that he based on that misunderstanding and there were other reasons why you know that he identified for the length of the sentence that he gave your client that's true but they all turned around the severity of the offense it all turned around you of the amount of money the number of victims and again how long it went on and he repeated this wasn't a one time occur it's this happened again and again and when he mentioned the link the offense he was talking about thirty five dollars to q three a factor in particular he was talking about the need to promote respect for the law and whether mr farris had demonstrated respect for the law and he said listen i that totally destroys any any belief that you might have some respect for the law given how long this went on and the other cases where courts have made some mistakes and that the government points to in those instances the courts were told or knew or learned or to realise that an error been made before the sense of been imposed and that's really one of the key differences here is the judge in the midst of you know the status fiery management my client he said four years and the st opportunity we had to talk to him about that was after the censor member and imposed the sense of imprisonment put it out there the sense of supervisor lisa and even the supervisor least arms effectively that the sentencing was pretty much over all we really talked about after that point   no recommendation about where you'd be incarcerated so if you read the transcript the judge gets in the middle of that portion where they're just emphasizing how severe the offenses as the government notes in its own brief that's really what drove the sentence so this makes this case exactly like what the court talks about in the miller case where it said a single mis informed comment warrants re sensing ever a veals that the judge misapprehended the record with respect to an aggravating factor that the judge considered important and in any fraud case how long the offense went on how many transactions there were how many trips in this case how many back and forth there were how much time you had to stop doing what you were doing that is clearly an aggravating factor and the more it goes on the more important it is where you're more concerned with the ready the length of the sentence you are comparing to others when what about a nd issue here are well if that's what you want to call it the  nd issue that's what i'm looking at that that you're that i don't remember the exact numbers but there were three numbers his was sort of in the middle yeah so i and that's sort of w deal with that argument your honor is you know if the court didn't agree if the court rejected and didn't buy and thought our client you know fell fell in place that's you know that's the court's call to make we're making the arguments to the district judge it's up to him to decide how persuasive he finds them but there are there is that both us and the government were both relying on those three other cases argument was that our clients conduct was much was much less severe than the years of the three people who all ran their own schemes who all committed these offenses for much longer periods of time were all in the country illegally and mr varus never had just did sort of a portion of the scheme kept in much smaller percentage of the money and the scheme went on for a much shorter period of time so argument was listen he perry pales in comparison to these these other defendants and the government sort of viewed a different way the government said no mr verus kind of falls in line with with our view and you know where we're his and should and they don't think you also have this  the minatory consecutive yes to twenty four month good that's right on the ten twenty eight am that much you can do about that right that i mean that that part of the sens was was them and argument was one of those defendants for example got a fifteen month sentence on top of his twenty four month mandatory minimum and mr vast coursed got a twenty eight month sentence and our view was that mr harris was much less culpable at a much did much less in terms of his offense and we noted that and argued that the judge and since the government was using that same argument and we're also talking about a guideline that you know isn't followed very often is fault less than half the time and the government was realigned on those same comparisons all are simply arguing here is that the judge should have at least mention the issue should have said ok you know i don't really buy these comparisons or you know i don't find them persuasive or i believe you know i think the government has the better better argument with regard to these issues but the judge didn't say anything about it at all had let me ask a question is going to make sure i have at the record right yes so in this foyers comment what the district quite said ways you victimize five hundred individuals over four years and then he kind of reemphasize that again he said you know this wasn't a one time occurrence so clearly to him it was an aggravating factor of one hundred individuals isn't a one time occurrence of course you know four one hundred and ninety nine dollars more than on yes of course although the way mr virus would do it is he would get stacks of these fauth you know fake refund checks ship them or bring them to marquee have them cash this particular check cashing business that was you know obviously sort of a hotbed for this kind of activity and then bring the money back and so what we're talking about is just more trips right more time more maybe in smaller amounts but more trips and over an extended period of time where my client if it had been four years you know every day he should've known that he should every day he's engaging in more transactions he's doing more of the same thing and he's putting himself in deeper and deeper and i would submit that eighteen months is dramatically less than than forty eight months is the equivalent of thinking of it the equivalent of robbing three banks for that crime he received a below guideline sentence that was in line with sentences imposed on similar defendants his appeal focuses on two quibbles with the judge's sentencing remarks st mr  attempts to characterize a fleeting misstatement as a violation of the due process clause of the constitution that attempt should fail as this course as this court cases recognized what we all know as a matter of common sense there is a big difference between a judge actually relying on misinformation and a judge briefly misspeaking before accepting correction but how do we know for sure it was a misstatement that's a pretty big that's not twenty one months versus eighteen months and four years maybe it was a misstatement maybe it was a misapprehension of the facts a few ways your honor st the sentencing judge accepted the undisputed correct facts in the pre sentence report which specifically stated that the offense went on for eighteen months so those are the facts that from the outset of the sentencing hearing define a crime and the sentencing nd if you read the sentencing transcript from front page the last page what you'll see is that during the remarks of defense counsel and the defendant they used the phrase four years five different times understandably because they were talking about mr virus's good conduct over the course of the forty years that had elapsed since the government execute a search warrant at his home but just as a matter of human nature at least i know i think we all know that sometimes when you hear a number said over and over you when you go to say a number accidentally the one you just heard comes out of your mouth and that i think is just the fairest reading of the transcript here and as soon as mr virus's counsel corrected the district court the district court accepted correctly crucially and contrary to what counsel has represented here today that happened before the district court formally imposed mr harris the sentence what happened if you look at the transcript of this the district court's initial sentencing remarks go from the appendix pages twenty nine dollars to thirty three on page thirty three dollars then mr varistor immediately corrected the court the court accepted correction and on page thirty five dollars the corporate announced its judgment beginning quote this is the formal sentence of the court so the distinction the council has drawn is simply inaccurate on the facts of this case as to the nd argument mr bear's argues that the sentencing court failed to address his comparisons to other defendants as an initial matter the district court did address role calling him the linchpin of the extensive scheme which was the heart of counsel's argument about the comparisons with other defendants but in any event even if even aside from that a long line of precedent from this court and the supreme court squarely forecloses mr harris as argument on that score as the supreme court put it in gaol this sentencing judge quote necessarily gave significant weight and consideration to the need to avoid unwarranted disparities and quote by correctly applying the guidelines there is no exception to that rule for white collar offenders whose guidelines are calculated based on section to be one point one of the sentencing guidelines and this court has applied that rule in the context of defendants who were sentenced based on section to be one point one united states against oliver seventy three  counsel did the district judge accept the recommended sentence in the p s r and he go higher up the guidelines range was thirty seven to forty six months the district court impose a twenty eight month s i do not have access to what the probation agent actually recommended that is sealed and neither party can see ultimately both claims in this appeal boil down to the same thing an effort to find any flaw in the sentencing transcript however small and to leverage that flaw into a nd bite at the apple you can see that particularly in the remedy requested here not just recently saying but errors but a chance to be sentenced by a different judge fortunately there is no reason to remand this case at all not to mention resigning under rule thirty six the government respectfully request that the decision below be affirmed if there are  were four years represented something else at least in the context of this case just a yes and so he talked about the four year period about fifteen minutes beforehand so the suggestion that somehow mentioning that  government he had done the job he had got married i mean been living through a crime free life so that was one of the arguments we're making your honor but again and having too much fifteen minutes before the judge made his statement and the record speaks for itself he said what he said and then when i brought up the actual peter times that i stand corrected he got it wrong and with regard to when it happened on page thirty three dollars of the appendix before i can i can bring up the for your comment he says the sense that this court is going to impose is twenty eight months followed by the statutory maximum twenty four months and even mentions the term supervised release and talks about supervised release terms one final note is that's kind of it what the government is arguing it has sort of been