next matter on for an argument yes united states versus mor read your papers and we'll let you get back to never let me just so i make sure i'm understanding why i think you're here notwithstanding the fact that i invited you to come and so which i thank you for honor and your problem is that in order to comply with the rule and make a motion before the northern district of new york you have determined that it is impossible or very difficult for you district and once i receive the sentencing transcript and saw the scope of the procedural errors that i identified and saw how much time or real left i had left to serve on his sentence and read the whole of our opinion and determine that this court in my opinion is not in any worse position to decide the motion  the district court would have been i filed a motion this court instead of the district court instead of waiting for that ministry of process to be admitted to the northern district and then going through that process there while my time is running while his sentenced you know according to our calculations he would have been out either now or in the very near future near future if you've been sentenced according to the proof that was actually before the district court in connection with the sentencing process and so that's why it's filed here although we're really asking the court to do with respect to that is to extend the last the reasoning presented in the last page of the whole of our opinion to a case like this where full briefing an argument isn't really necessary for this court to identify and decide whether there is a substantial question on appeal it jumps out from the record and the like you proceed down the path pretty well to the full briefing and certainly you're prepared to make that argument at least orally in front of us how quickly can you have a brief filed by the middle of next week how quickly can the government respond about one yeah i mean you put in a nice opposition to this sort of raised some issues although i know you've you've addressed the issue of likelihood of sticking around to the government i also want to point out that there's another procedural error that with respect to the district court's explanation of the sentence imposed i don't see why that would take so much more time for either side to brief given the district court transcript but i don't want to sandbag the government when they have a tigh deadline so is it really impossible for a motion to be made before the district court whether you are the move you were when you were the attorney representing him as a movement or whether other counsel is brought in c j appointed counsel to make the motion for the district court if maria could have c j councilman or the district appoint to represent him quickly to file the motion with the district court very quickly then yes but i have contacted clerks in the northern district i contacted c j office here in the second circuit to try and find a way to get me to file on his behalf as quickly as possible in northern district you know the admission process in the northern district i don't know how long that takes i mean i certainly i think we all appreciate  bind you find yourself in and i have your client appreciate the work you're doing certainly appreciate the work you're doing for mr mario we're going to want to proceed at least with the merits of this argument about why court's docket before sentencing where he reminded the district court of the fact that i had specifically allocute it to joint under during the undertaking criminal activity involving a loss amount of two hundred thousand dollars not the two point eight million dollars that he was sent there was no argue the issue wasn't really read it was a i mean the defense lawyer didn't argue that it didn't raise the last man issue there was role in the fence argument in the context of arguing role in the offense he said that your client didn't have an understanding of the total scope of the criminal activity but i don't think anybody focused on the what is it two point eight million i don't think anyone focused on  mario himself that he submitted a pro se submission once he realized that his defense counsel was only going to be arguing something with respect to mitigating roe it just meant which was the defense's burden to prove at the time and summary i was sent a letter had his girlfriend fax it and file it with the district court it was docking before state saying in which he specifically reminded the court i pleaded guilty to two hundred thousand dollars and the reason i did that was because that was all that i had agreed to all that i was all that i had known about with respect to this offense and under the one b one point three sensing guideline section it discusses the scope of what's called jointly undertaken criminal activity and how a defendant's relevant conduct in a conspiracy is limited to his own agreement the application notes to that section make that very clear and so does this court's opinion studly which we cited to and are in principle brief i see that my times are beyond gone if there was one question if you were successful in the appeal the result would be would it not a remained the district court for  resentencing and on that remain and would the government would not be open to the government to submit evidence that it had not submitted before so how can we predict  to let mr maria out on bail at this point if that were the standard i'm not sure one veil would ever be appropriate the fact that the government could possibly introduce more evidence that we don't know many times many times the  issue that's being presented on appeal would lead to dismissal of the indictment or to judgment doesn't matter of law on the defendant's favor that would terminate the proceedings but here we've got a highly discretionary decision by the district court and if there's an incomplete record now it's a little hard to predict when the point that i think the thing that gives  sentence that's going to be reversed it's all together possible this is not the time is ticking away on a sentence where when it goes back you know it's not clear why he should be out on bail at that point anymore than given the extent the magnitude of that yes i also know now we may have riddick what the whether that's true the only way that we can predict that now is the fact that the government did not introduce any evidence with respect to that despite the fact that marino had made a point during his own plea allocution of pleading only to that the government and the and the defense counsel and the district court discuss that the plea hearing will talk about money at the time of sentencing but government was well aware that marina was not was disputing that it was anything more than two hundred thousand dollars and the government failed to present any evidence after that and so the other aspect of this is that doesn't have to be clear and convincing evidence is not going to flee correct and given what's in the record of the bench warrant son's right he still has less than a year left on his sentence but he's served the majority of a sentence but the circumstances in general are different than they were before he pleaded guilty when he was told by the district court or you're facing a maximum of twenty years in prison and i'll note that the district court even at that detention hearing which the government somebody to the court on page twenty two said quote this is somewhat of a close call at the time and also with respect to his prior bench warrants three of those were issued for a case that took place in two thousand and seven when he was seventeen years old and he was  of a new york city administrative code violation now he should've shown up to court that's not making any arguments about that but when he was a teenager facing an administrative code violation conviction it's different now that he's served the majority of a federal that issue is it's the district court before whom your client has appeared on a regular basis who has certainly a much more fulsome knowledge of what's been going on and can take evidence with respect to that issue something that we would find it difficult to do evidence is in the pre sentence report with respect to you know more current information than was in the pretrial services report to me nine hundred stand what your argument is mr anderson let me let me just ask you this the government has indicated in its reply that it would not oppose our referring this motion essentially to the northern district of new york with an instruction that you be permitted to represent your client there correct and that was the morning please the court just to reiterate that the government would not oppose any expedited scheduling here for the merits of this case but we do believe that this is not the right forum for his his motion for a number of reasons having been convicted of a sophisticated frauds and a conspiracy mr miller and now has the burden to overcome a presumption under thirty one forty three that he take detain case he evaded arrest on this charge first several months he did that previously as well it is in the past the court found he had strong ties the dominican republic but not very strong ties to new york a history of drug abuse all those findings were were were considered very carefully by the just by the magistrate judge and there's just given the presumption now there's no basis to find in this court that he's presenting clear and convincing evidence that he would not flee turning then to the other side side of the coin here mr almost says now establish a substantial claim that would be likely to result in a sentence that is less than time he's already served plus the expected to ration of the appeal process again the government would emphasize that we would be entirely willing to expedite the appeal process to in light of the durance raised eight million i mean the district judge and this is in a context where the man at the time of his plea was very careful to only knew about two hundred thousand dollars he then sends a letter or makes a pro se submission at sentencing again reiterating two hundred thousand dollars and i don't think the district court judge addressed the issue of whether it was two hundred thousand dollars or two point  as far as the total loss amount we make put this out in our brief that was in or not contested by the defendant that the t point total it's whether he could be accountable for the full amount and so your honor is correct that there is no memo which was considered by the district court and here if on appeal here i think mr miller has acknowledged he would have to stand was plain error and so there have to be a clear and obvious error here by the district court in determining in adopting that in the district courts the p s r is determination of loss which the district court did and the standard here is whether the defendant knew or reasonably should have known that the a harm was a potential result of the offense i think mr miller repeatedly says well you look at what i said in my play and it's very important to do that because in his play he said i knew first of all that the computer was going to be used in the incident and the conspiracy and he also said i agreed to participate and also to submit returns to complete the conspiracy now he said i only you know thought this is a two hundred thousand dollars skin but he this completely contradicts his later claims that like i all i did was just go up to syracuse and pull up help pull out stuff from the mail he's admitted to submitting these these false returns to the i r s and so efforts to limit his his his liability of two hundred thousand dollars he also centrally admitted to knowing how the scheme operates in the scheme only operated in one way the two point eight million was all generated by the same modus it was finding people people's identities in puerto rico finding addresses in syracuse and binghamton and generating false returns based on computer research of fortune five hundred companies to find their addresses as the purported employers it was all the same modus and so i think on those having admitted to providing the computer to mr may he to be using the offense to steal identities having admitted being involved in submission of the false tax returns have admitted to knowing the scheme would be extensive because two hundred thousand dollars is not a little amount and having admitted to being involved in the retrieval of the checks i don't think you can find it was clear and obvious error that the district court determined that he could have foreseen or should have known that  the scheme was going to generate much more than two hundred thousand dollars the other thing to point out here is that mr merrill has now been convicted in new york state court of possession of a false identity document i believe is the charge were recovered for going to syracuse and binghamton there's another four hundred thousand dollars that were actually negotiated we do not have information about who negotiated those checks but even if the district court were to hold mr martin should have seen that first scene some of that four hundred thousand dollars plus the five hundred thousand dollars in the checks that are actually being into sarah case his his loss amount and would put him in a category with criminal history to that includes the sentence that he received so it's  not a likelihood here i think that he can establish likelihood that he would receive a lower sentence but again the government would not oppose any expedited briefing schedule here to address his concern let me just ask you a couple of questions your admitted here in our court obviously right southern district and eastern district ok great as my colleagues have any further questions thank you both will get you a decision 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