they please the court counsel i name is daniel helis i'm with the federal public defender's office i represent mr seymour raised thank you your honor he raises six issues time permitting i'll get to them all with the exception of the sixth issue i'd name names of the victims rather than just the initial yes you are because that poses a due process problem which caused the loss not maybe to be unnecessarily high which  incidentally it appears from the record that the district court you still in a different list than this one that we say is too unreliable to satisfy due process which later on that was and this list judge i think the said the thirty nine victims the individual victims and of course a lot of that is done in ways that we just can't figure out who the people are what the basis is for the laws we know that some of the last amounts even the government did try to verify them were wildly wrong only one way he claimed i think was a fifty eight thousand dollar loss the government said it could only verify twenty one thousand dollars of that in the course the postal inspector said that he relied on people's work trusting them at their work we know we can't rely on somebody at their word when there's evidence elsewhere that says that people did not report correct and verifiable information so your honor that affects restitution that affects guidelines it also makes the case look far worse than it is if the amount is higher than what it should be if mr similar did not cause losses close to two million dollars and cause some amount of loss that is far less than that that puts this case and different footing in would affect sentencing so we think that that due process issue warrants a remained for a full recent incident in an up itself did you have additional questions on the topic your honor  bill victim enhanced many enhanced meant for five or more victims who experienced stansell financial hardship that's our first issue and we think that there is this clear problem here the vulnerable victim unhandsome it was applied because certain victims grounds for this and in that case says that when a person has a certain descriptor they cause them to be prone to this sort of taking being taken advantage of th more than you know just as they were among the kids in the case were chosen randomly they were targeted because they were in a demographic in the brief they suggest that she has a debilitating brain injury and i don't think that there's proof of that and she's partially blind that's true enough and says she has recently or she was divorced we have a pool of people who were then  know part of dating sites and things and he did use that to gain victims but the rule that the governor proposes is lacking in definition and contours it will apply to everybody there always be somebody who has some characteristic if we don't have a limiting principle that makes every victim vhong so we gave the example of the overly optimistic investors in financial fraud cases and so one person expects agreed to return their optimistic so their optimism now becomes a basis for vulnerable victim where the limits i think there are none of the government's rule kellam has in instance where you have illegal aliens who because of their status are able to really resort to law enforcement for help and for assistance and that's not the case here these people did it they went to law enforcements they participate in the prosecution they even participated at sentencing this is a far cry from that case in for that type of rule it doesn't apply here if it does it's going to apply everywhere and that certainly couldn't have been the commission's intent because the commission intended for this to be applied to particular circumstances under the government's interpretation of the law it will apply in every circumstance it is not hard to find somebody in a group who is sad who is overly optimistic who has some feature that allows them to be then said to be especially vulnerable as for the five or more victims if i may transition to that the government hasn't presented five or more victims based on reliable  government presents evidence of trial testimony that's not a judicial finding the government presents evidence off of its own pleadings and things of that nature those are not traditional findings not to mention some of the losses and things we've got problems with substantiat so the government may be able to prove this but the problem here is that it did it and so there should be remained for an appropriate assessment based on judicial determinations not point of the government's pleadings and not pointing to testimony which may or may not be accepted by the district court that's not a judicial find apparently there's some kind of the group back where you came from that are i don't call them acolytes or whatever but this is of course  warning to them that yes the deterrent is what he said yes this is you know when i look at this and say this really can't happen and yet it did people giving up their state their insurance proceeds right you know and i'm a blank when it comes to social media but there certainly seems to be all sorts of gimmicks and ways of taking advantage of people in people who are exposing themselves voluntarily to lots of information yes and it is sad when this happens but when it does for the district court to impose a sentence as a general deterrent when we know through the scout leader literature that general deterrence is not really an effective theory it's been criticized that's a problem too we can't put a three hundred twenty four month sentence on this guy because we can't prosecute others and say let this be a warning and then this will stop it doesn't work that way and so this leads to unnecessarily long sentence i believe this guy he was in his thirty's when this happened as i recall your honor he's thirty three yes and you're on his i'm down to about a minute and you have additional questions i'll answer them otherwise i'd like to reserve the remaining time for rebuttal thank you names and i want to be clear to the the report that the defendant appellant is now contesting is a report that was generated by the probation office and attached to the p s r as an addendum so what happened was our case agent the postal inspector generated a report that had all the names first and last the home addresses contact information and individual amounts of loss provided that full complete detailed spread sheet to the probation office for their development of the p s r how many people ruined their well so there were the initial one had over one hundred but what happened was we knew the names of these folks from the discovery and from things that we collected investigation then the inspector would call these people try to locate them hunt them down and say can you tell me did you lose anything what did you lose and a lot of them didn't return his phone call didn't submit anything and so their names just fell off the list and we couldn't confirm that they had a loss we took them off so that list got whittled down it ended up being about fifty two victims thirteen of them the probation office included which was just initials and amounts that answer your question judge or i don't know exactly how the defense could have investigated those specific last calculations without coming to us and saying could you please tell us about these you know specifically this one in this one who are these people what is this based on and we would have done it but they've never did there was no objection made to this addendum ever by the defendant this really wasn't an issue at the sentencing whether these victims were in fact victims whether the amounts were reliable none of that but i will say to just make sure it's clear that a lot of this was based on not just the what the victims told us but what we were able to confirm from western union and money gram records and those records were provided to the defense both industry normal course of discovery and they were used as an exhibit at the trial before and it and those were not redacted so it would have  impossible for some of these victims for the defendant to at least be able to look at those records and say ok i can see where that this person lost that much suit do address mr avila says comment about the one victim that we had she claimed a fifty thousand dollars loss and now is in an interview with us she never came to court to testify at the trial because it ended before she had a chance to testify  what we were able to do is confirm twenty one thousand dollars that she sent to the defendant in south africa through the wire transfer records that we had we had nothing else from her to corroborate the remaining fifty thousand and a lot of the victims we had in our cases they would end up being victimized multiple times so they might have been a victim of this man and then their names and their information gets passed around and next thing you know they're sending money out to other people so we really didn't doubt that she had last fifty thousand dollars somehow and this whole scheme we weren't entirely confident that she lost it to this man in this conspiracy and just to be conservative just to make sure that we weren't tagging him with losses that weren't fair to him we agreed that we would go with only what we could confirm in the wire transfer records which was twenty one thousand so we did our best is really want to try to say we did our best this whole way through to make sure that this  was a conservative approach to the last calculation and at no time was this an issue at no time was this objected to so i think it's it's difficult now on appeal with the record that we have for me to be able to defend all these individual amounts that mr hillis wants to pick apart with the only question i guess and he is he's not being punished for their people's wrongs you know right to bear of you see these some of these people any of the various people promised marriage right and i hope it came through in the briefs because i think when it comes up on appeal you you know you don't see the victims and you don't hear necessarily the whole wealth of evidence that we put to gather you just see you know what's in the appellate record when mr avila says that this sentence of twenty seven years was unnecessarily long i would take great exception to that i think this was a sentence that was  reasonable sufficient but not greater than necessary and of course they haven't challenge the substantive reasonable midst of the sons except with regard to the court's consideration of general deterrence which i'd note for the record i think this court even in  d i don't think thirty years would have been unreasonable and this is a crime that you know that if you read the district court's sentence and the statement of reasons that the district judge gave you know he said this was pretty much the most horrific crime you could conceive of without actually laying hands on another person and and that's really what we saw too with this i mean these victims are still recovering they're still devastated so i'm up here trying to defend what was a very reasonable sentence against attacks on on specific sentencing enhancements a lot of which were not objected to at the lower or at the lower court level and so i didn't have as much of an opportunity maybe to provide some more detail but we did you know agency and we had sufficient evidence all this i don't see where mr hillis has come up with any evidence to contradict what was in the p s r in the record really what he wants to do is nitpick and say that's not enough that's not enough and i would just say he has to do more than that to show clear error but are there any cases pending against any of the other associates oh yes we have no open cases in court on people financially at least maybe more than that so there's not a question of the damage an injury if it's just a matter of friendly down to this guy for w other people have done as well so you know just remind the court it was a conspiracy and we thought of plenty of evidence that he was the ringleader so what we're taking with were the packages that he personally picked up you know in the western union they'll give you they'll tell you not just who it was directed to the who picked it up because they've got a record of his passport you know that he had to provide when he picked up the money or i picked up the the packages so i  there it does with him as the as the boss with him as the ring leader and i don't think he would have to be the boss to tag him with those a lot of conspiracy but i think it's perfectly appropriate when he's the one directing their actions that he should be held accountable for what they did as well i do think they should be held accountable too but we had difficulty getting him we were lucky that we were able to extradite him from the u k when he was formally based in south africa where is he where not see i just have about half a minute left i just want to make sure that the court recognizes this or this rule that mr avila says that the government's rule about vulnerable victims it's not my rules not our rule this was the rule that was explained in the limb with him in that decision and probably pronouncing it wrong with basically that that a person who is a member of a group that is typically targeted typically vulnerable to a particular manifestation of the offense and this would be romance scams that that we should we should count those people's vulnerable c m out of time begin by noting that the government is wrong to assert clear air applies clear air plies to factual review but do novo review applies to the application of the guidelines and it was their birth to establish the facts and yes we will take issue with facts on the appeal when the facts don't support the enhancements the government was required to prove the government said it was very comfortable with this gentleman spending the rest of his life in prison this is a fraud case three hundred twenty four months for fraud for nonviolent offense is an extraordinarily long sentence i'm not comfortable and i hope this court's not comfortable with nonviolent offenders spending the rest of their lives in prison for cases such as this a that provided to the government the government provided us probation there's a problem with that it wasn't provided to the defense so how do we contest something when it is given to the probation officer from a law enforcement officer for the preparation of p s r that we never get to see or contest that is an additional due process problem here and then finally the judge could conceive of no worse offense i think that it's easily conceived of like it could you have gone  list was objected to there were lots of objections i think there's a january fifteenth objection letter of i'm recalling the date correctly but when the probation officer was contacted the probation officer said this has to be done to protect the  victims here can't provide the descriptive information so the defense was shut down at that point and furthermore when the judge is using a different list with more information we don't have that available to a sentencing that's still another problem here so this reference to