disadvantage district court judge we begin with understanding what the guidelines were because that i was starting point so we begin with that we understand th judge irizarry after discussions with the parties settled on a guideline level twenty nine dollars criminal history one which is eight hundred and seventy two thousand one hundred and eighty eight nights one hundred and eight months excuse me specifically said no departure upward or downward is appropriate in that case so we then turn to the statement of reasons let's look at that and that indicate any kind of imposed and it was substantially higher than that guidelines range that was also brought to the attention of the district court right if this is fifty percent higher in the district court says this is this is the sentence the senate stands correct your honor i did want to go right to that point because in fact when she says and the objection brings up that this is a fifty percent higher and in fact include conduct that was the money d one point to is considered when you group is in fact the fluid guideline so they don't look at that and that's the last card mine so get the call what a doesn't speak about it at all in  her orally in the pronouncement but in the statement of reasons in fact says on page one of the statement of reasons it checks the court adopts the pre sentence investigation report without change what we know that's incorrect because she did change the amanda loss and that definitely affected the guidelines range under rule under guideline level twenty nine but in fact that the p s r had dollar which is a basis for this court to remains as a procedural error but there is also problems in the the evidence to understanding what this case was about this was after all just not a just it was a serious up building up billing of medicare not medicaid medicare so the st fact she talks about is that after all the  guidelines the judge does say when she concludes her guideline discussion that the guidelines are just the starting point and it seems to me that everyone now knows that so the suggestion that your client didn't expect a variance doesn't seem to me to be too persuasive the judge then went on to balance the three thousand five hundred and fifty three a factors and explained why she wasn't prepared to sentence within the guidelines if appearing to be among many reasons but one of the main ones your clients laundering took place not as part of the crime he committed but after you realized that federal authorities who are investigating him and what effectively did was take the proceeds of the crime and took the beyond the reach of united states law and the judge wasn't prepared to treat that as free which is how the multiple count guidelines would have treated it what am i missing what you're missing here on it is i think that while you're on a has explicitly stated it as such there is nowhere in the statement of reasons or weave in her statement that is it explicit in that including when there was an objection pointing this out and the guidelines do account for and accounted for in their enhancements and it to be one point on the various unhandsome and that he was a physician and that this was a medic care fraud and i want to stress that the confusions here he didn't there's no evidence that he he was a good doc the but this was a case of up billing in other words he charge for procedures that he didn't perform with struction to to provide the reasons right reasons and to  infected by the that's not that's not what you're really after i understand that i'm just asking a further point assuming we don't grant you the relief you really want should we nonetheless does propriet think that's improper because her position with respect to this case and what happened i believe was incorrect that she relied on things like as we said that it was the medicare when i think she was magistrate meant was she was concerned about the scope of the crime pointing out that your client was the highest pillar in the united states were nd highest biller in the united states which is quite a feat that there was nothing mitigating about his co of the crime there was no you know desperately needed set or it was a pure greed crime and she considered that particularly egregious given that it took did take place in the context of a federal program that serves the poor that has budgetary was wasn't considered by the guidelines and then the fact that he put the money beyond the reach the federal government because as i understood the record he had brought it back right that year and i write about that that the money he didn't bring the money back abroad to demonstrate his acceptance of responsibility or anything like that am i right that that's not in the record well that may not be in the record your honor had on the same point as circumstances if articulated more clearly by the district court wouldn't support a variance no your honor because to that extent if your concern is that they're not adequately stated what what what why would you be entitle to the relief of not having this remanded i mean i'm not sure remand is necessary but you said you don't think agree man for clarification is warranted i'm perplexed because in fact i did one the entire view of this case had other parts of it too you're looking at it just in one aspect there were many more points put out a bad a med that the court didn't consider totally now i know we can see this if the child is no question that i don't hear is eric considers a child but i don't think it's appropriate to consider that he came from a middle class intelligent and that it was of course all cases that i deal with and basically all agreed and so though if it's not proper to consider that somebody has you know from a lower class and commits a fraud that it's not proper to consider that he had that he was a doctor and committed for that's  correct that all fraud cases are greed they're all fraud cases are out for money but in some cases there are there are circumstances that make it much more palatable that a person use fraud to get money when they're in dire circumstance their home is being foreclosed their child is sick and needs medical care that they can't afford things like that this was like pure greed as opposed to a cure and it unquestionably and i've dealt with many of them i've been before this quote with many of them that's not my point my point is if you can see you cannot consider in a vacuum that he comes from middle of middle class or that he's intelligent of you that's the problem that you're focusing us on that it's is the defense put on a very strong case in mitigation but there is no the evidence and what she relied and her understanding he didn't perform procedures on dead people he didn't remove a sixteen and you not need to find my just answer question i know i'm over time so i might just you need to consider that they looked at just sixteen only a portion of the sixteen actually and that the remainder had to do with a very specific karna billing that's not to say he didn't fit of form procedures and that i think was lost so it had to do with an i i don't have the time in this the court grants me that to go into the type of billing procedures that are under medicaid so that if you put the wrong code and there was a finding that this was intentional but that's not to say he didn't do procedures and i wanted that to be clear it's not like he came nothing and did nothing i know one case they mentioned that they just said hello or something you know cordiality is but the point of the matter is that did the remainder of the cases there was a lack of hospital records and in fact there was evidence presented that he did do procedures and that he was a well respected surgeon so to look at it just skewed like that i think is improper but i good morning your honor some may please the court ross goldman for the united states as an initial matter the district court properly applied the grouping guideline and the total punishment guideline with respect to the grouping guideline i don't think there's actually even a dispute on this doctor on the and in his in his opening brief pages twelve and thirty eight says that the district court group the six counts and elsewhere says that the probation office also properly grouped those six counts with respect to the total punishment reflexive adoption of the p s r to the contrary the district court said several pages explaining why it was disagreeing with the p s r in particular with respect to the loss calculation explain how using actual rather intended loss resulted in  agreed that that's the correct guidelines range based on the use of actual loss then approximately twenty pages later in the sentencing transcript the district court sent his doctor on a two hundred and fifty six months and i think it's fair for this court to presume that the district court both obviously the court imposed the sentence that is roughly fifty percent over the guidelines range and he objected to running counts five dollars and six dollars consecutively to the senses on counts one in four now if the dish a court had thought it imposed a within guidelines sentence one might have expected the district court to clarify with dr ahmed no no this is not an above guideline sentence this is a within guidelines and or to question or to push back or to see clarification or something but of course none of that happens what happens is the district court overrules the objection and in particular notes that the money to conduct underlying the money laundering convictions had the sort of what we what we characterize as quite as i obstructive nature to it sending two million dollars overseas days after learning that he was under federal investigation that is a nd point that we think pretty clearly shows that the district court knew as dr ahmed himself called it as obvious that this was an above guideline sentence and the rd point here in this is that joint appendix page one  the district court articulated toward the beginning of the sentencing hearing the difference between a departure which looks to provisions of the guidelines to determine whether to go above or below god the guidelines range and a variance which is guided by the  and fifty three dollars a factors to determine whether to go above or below the guidelines range and so when the district court sat and that was a it was a correct explanation it mirrors the way this court described to purchase and variances in the stewart decision so when the district court says a joint appendix one don't think the guidelines range is adequate i'm going to get it no that's true and we note that in our brief there is no explicit statement on that point of course under this court's case with respect to not requiring special incantations or magic words i think what  is correct that's exactly correct and again that the centerpiece of dr ahmed's argument here is he continually refers to the statement by the district court that it found no basis to depart and he equates that with a statement that the court found no basis to impose a non guideline sentence and that in our view is the fundamental flaw in dr on that argument because it confuses departures from variances in the district court again pointed to an appendix one hundred and seventeen dollars was i think pretty clearly not confused on that issue the final point i would make in this is the th point as to why the district court was not confused is that pages one hundred and sixty three thousand one hundred and sixty four of the joint appendix the district court says that coming into the sentencing hearing that day the court was inclined to impose the maximum sentence on the money laundering count in the maximum sentence on the money i'm sorry on the health care fraud count and the maximum sentence on the money laundering count in the run them consecutively which we understand to be a statement that the jewish c hearing contemplating a sentence of two hundred and forty months but then as the court explained it was only but for it was because of defense counsel's arguments at the sentencing proceeding that caused the district court to impose the sentence the way it did and what i think that shows is that the district court came that's why in our view it is beyond any real question here that the district court knew that it was imposing an above guidelines vary in sentence and explain why largely because of the sort of cause i have structured nature of the money that the defendant had in the future would continue to lack the authority to pay what the dischord thought was a low and guidelines fine of twenty thousand dollars and we think there's no there's no such clear of it we think there's no error but certainly no clear obvious  is a highly educated skilled person he will be out of prison when he's roughly sixty years old and so there is a reasonable prospect that he will be able to earn employment earn dollars to pay down the fine he has substantial family support have and there's a footnote in our brief one that we it was a representation to the court that we were able to recoup most of the two million dollars that went to pakistan now we don't know as we say in your brief whether there has been a light watch on that the record is silent and i i don't know the answer to that particular question standing here you know but with a judgment that's got this kind of restitution forfeiture you don't know what happened to that money ok what i ask about the special condition of supervised release  sentencing proceeding itself explain that we do know in the statement of reasons that the district court said that the quote the supervised release conditions concerning employment are imposed in light of the defendant's self employment as a medical doctor and the use of his medical licens numerous medical practices to fill silty the instant offense i think the insight here and this is also laid out by the by the probation office is in its recommended sentence were recommended these conditions is that he was able to facilitate his offense here because he was self employed and when someone self employed there is no oversight there's just no hierarchy there's no checks on one individual can do and so it makes it easier for someone to carry out that that kind of crime that's the inside i think that's mode that's driving the three or four cases that we cite each from other circuits that up held substantially similar conditions and so again we think that condition is right it's permissible under the statutory framework in the guidelines framework for occupational restrictions in that it's reasonably related to possibility of criminal conduct is that is that the purpose i think that's right your honor and i think it would probably depend on the the nature of self employment if he were to open this is i understand to be a highly stylized and perhaps ridiculous  but a pretzel stand outside maybe that's something that probation would necessarily need to care about if you wanted to open a more robust probably not a health care bill in more robust business that involves much more dollars coming in maybe that would be something that probation would have to look at more closely so i think that is the insight behind the condition and and so we think the conditions right and if i could just end on this the fact that it's that dr amen is not cited a single case in his favor on this i think by itself shows that he can establish a reversible plan or to the probation think it is appropriate and i don't know that there is a standing here today your honor i can't think of an obvious reason why an obvious reason why would be clearly or obviously inappropriate in this case for this kind of delegation and this kind of with this sort of limited  seeking approval for for self employment to give the program for the judge as part of the sentence to give the probation office the authority to decide what self employment is that condition if if that kind of circumstance were to arise  not what the government says we argue basically that the entire sentencing is and the determination by the government that this is what the court meant is speculation and that it's not clear and that we're reading into the court statements to find support theories no question that she was upset about the money laundering but there could been an enhancement and there was nothing bad if this wasn't a kind of money laundering where he secretes the funds there's a whole reckon trail here this is easily found and so the money was obtained which is that the government concedes and all the money that was no hiding in other words that was the trail was obvious under his name and one of the accounts in fact was open the capital transfer was open up here so i think that's important you could have they could have argued for two points of finance meant they could charge tips struction alternately they didn't it was money laundering they charged you don't do this and that's what he was found guilty of had still i'm contending that this reading that she intended to do this upward variance is so clear i believe it's clear and i leave that the record is clear that she could have stated when the objection was raised but way don't you understand this is a variance and i've given you the reasons not only she wasn't obligated i mean it's very hard to read the sentencing transcript and not come away with the conclusion that she knew precisely what she was doing well you're on event if she knew what was she would doing why would she say that medicare is only for the poor it's not well there are who are individuals that rely on medicare your client was with medicaid and he was talking about no no medicare she was in medicare and so my that's my my focus is that when you're looking at this and you're saying it's focusing on these victims he was a doctor who did wound care and so yes they are going to be in stern that's the nature of his practice and some of her concerns with this targeting and when you look at the other cases that we cited as far as some of them there were much more as far as the amount of fraud that was involved i don't excuse it we are not here to defend the conviction it is really the sentence and only the sentence as to that which could be up to fifty percent difference between the lower end and remember probation even though they had a much higher guideline recommended a downward variance to one hundred and twenty months so that has to be considered under the same facts that they have that was before the court as with respect to the fine to say that when he gets out at sixty a man who only was a doctor who obviously no ability to be involved in any kind of health care right that's precluded him barred we understand that can now go and make a living and support even fifteen thousand dollars fine i think is not founded it's not founded by the reason why is argued to the district court in not respond in fact they admitted he was pending this as to the we raise the condition of self employment he has to have the ability to do this obviously in all cases probation has and can look at the a tax return how other earning their money whether or not from its involved in any case not just this case so i think it is a factor in determining that as a fact condition was on warranted but i do again want to end with that here saying that it was a variance really is looking into the record and the fact that the district court on the statement of route reasons clearly said that she adopts the p s r that she that there was no  variance and it was within the got one range by the way the nd one i mentioned that i didn't mention before is on page two of the statement of reasons really explained that in my belief that it was implied when she said