court in us in this case we do appreciate it whenever you're ready you can begin thank you a judge jordan again on martin fagan bomb representing appellant yomi let us i'd like to address issue for relating to the guidelines calculation that judge conn approved we are asking the panel to vacate the appellant sentence because judge kohn did not correctly calculate the guidelines we argue this point this issue in the initial brief at pages thirty six to forty two and in the reply brief at  this would make ms diaz's total office level twenty two dollars with a guideline range of forty one to fifty one months instead of the eighty seven to one hundred and eight months which judge con approved now we filed extensive objections to the p s i i and a reply to the government's response these objections are found that docket entries one  aggravating factors the government's argument isn't it answered brief at pages forty to forty nine if not the government did not reference specific and reliable testimonial or physical evidence to support the loss amount or the aggravating role that you would bomb on that on that issue what do you think was the highest loss amount that the government was able to prove either through the evidence at the trial or d other documentary or testimonial evidence your honor it was three hundred and sixty thousand dollars which was the amount of kickbacks which ms cal the owner of good friend's home health agency says she paid too and there were checks to support three hundred and six thousand dollars now the six hundred dollars some one thousand dollars the government argues for adds to just good friends itself relates to its argument that it's the amount of benefit medicare concert on a good friend not the amount kickbacks paid to ms diaz and i'll tell you why that's wrong that six hundred thousand figure which doesn't make a difference because i believe the guidelines tell us that when you get above five hundred and fifty thousand dollars you have a fourteen level increase instead of a twelve level increase which we're saying applies if if the conviction is proper and so forth and the reason why the six hundred thousand dollar government argued conferred benefits to good friends does not work is because the two cases that the government relied on to an air force base the other case no ray was a medicare case but in that case the court found that the home health agencies that issue had submitted patient claims using inflated medina which is a very important case for us and the reason is because in medina judge faith tells us that the government judge they did not accept the government's found that the government had failed to prove that the higher loss amount related to claims which had to be proved they were not medically necessary or not delivered to the patients so when the government failed to prove that judge faith found that the lower lot secure the amount of kickbacks paid to the defendants were was the proper measure in this case here there is nothing in the trial record or anywhere else where the government ever proved that anything good friends furnished in terms of medicare services to the patients at issue were not medically necessary or were not provided therefore the lower amount the actual check amounts paid to diaz which again was i think was three hundred and six thousand dollars should prevail over the higher figure of conferred benefit on good friends due to the failure of the government to show that good friends provided services that were not and billed for services that were not medically necessary are not provided so when you go to the three hundred and six thousand dollars figure you get a twelve level increase over the baseball fence level of eight and you end up with a total there of twelve plus a twenty now as to aggravating  role the government failed to prove an aggravating role the evidence and again we went through this very carefully in our objections and our reply to the government's response to our objections the government absolutely to prove that the us did anything except basically sell patient names to good friends and then good friends use these patients to do whatever they did and that is insufficient to assign the as an aggravating role you have you would have to have the government prove things like a claim that a right to a larger share of the fruits of the crime  planning and organizing the offense the nature and scope of the illegal activity and the degree of control and authority exercised over others we find these factors in an important case that we cited did district court say or what did it agree with to impose the aggravating role adjustment well your honor the judge agreed with basically what was the government pro stephanie so the government just completely failed to they the government basically if you look at the record made a proffer that that d s coached patients she met with doctors she paid off patients some kind of a portion of the kickbacks and she paid doctors but there was no evidence nobody came in and could actually say that happened so the government proffered the judge no no no we're confident that the trial record reflects objections at every point in time to any proffer attempts by the government and its failure to provide reliable and specific facts to a court to support any of very good thank you sir i do apologize i don't know why he's backing out that's all right no problem apologies on my end everyone here be clearly yes very good thank you your hon please the court michael rocker from the department of justice on behalf of the apple e united states of america let me just respond on the two sentencing issues that mr fagan just raised and i would like to begin just jordan with your question about what the district court found with respect to the role of the offense and then i'll turn back to the value the benefit conferred the district court as to both of these determinations made specific procedural question before you go into your argument the government then on for example on the aggravating role adjustment did not present any additional evidence at the sentencing hearing it was relying on the evidence presented a trial yes your honor and the same goes for the last amount is that correct yes ok thank you go right ahead thank you and on the aggravating role and i'm reading from volume three b of the joint appendix at the starting at the bottom of page thirty three dollars and then spilling over on the page thirty four dollars the court the court's ruling on the aggravating role was as follows with respect to the defendant subject to to the three level unhandsome and the court finds by a preponderance of the evidence th patients to clinics to obtain prescriptions for them she coached the patients on what to say to help them obtain the prescriptions the court further finds that the defendant introduced ms cal a good friend to another patient recruiter music we left so that  could refer additional medicare recruits means d s for the consulting billing shell corporation which was specifically designed to receive the illegal kickback payments diaz recruited in excess of one hundred and fifty patients for which medicare was billed by the home health agencies the court further fine but ms diaz degree of participation in the planning organizing of the offense was substantial her degree of control and authority exercised over the patients recruited was extensive therefore the court finds the three level unhandsome for manager or supervisor applies and the objection is overruled i don't have much more to say except that the trial record bears out the district court's findings and the court i'm confident can look at the page twenty or page twenty five of the transcript the sentencing court said and i'm quoting again the court finds by a preponderance of the evidence that the improper benefit conferred was greater than one  it's that in a case like this one involving kickbacks you only take the amount of the benefit conferred as the loss amount if the benefit itself was medically unnecessary or not provided  all in other words if i can put it in practical terms if a medicare beneficiary that ms diaz referred to good friends was in medical need of prescriptions  of medications had them lawfully prescribed by a doctor she would have gone to some pharmacy somewhere to get the medication and medicare would have paid for the medication then i legal aspect of his argument your honor i appreciate the question i while your honor was speaking i i went back and i've been looking at the defendant's opening brief and i don't i don't i didn't actually understand that to be the argument that he raised the newspapers that may well be the argument he was presenting here this morning but i do know that i'm referring i'm referring to the argument that he made here today and so will it will obviously obviously take a look at whatever arguments were properly raised in the brief but since you're here i'd like you to respond to that argument as well to please sure i mean to be candid you're one of the reason i brought up that i i'm not i don't think i'm prepared i don't think i have an answer to that except to say what we argued below in the district court which is that the value the benefit conferred is not limited to the kickback amount even in the hypothetical you did in the scenario that your honor pointed out that we're focusing on what medicare paid out to the extent and so i would i would urge the court to look at the briefs carefully because i i feel a little bit taken by surprise by the legal argument that mr feigenbaum was raising i so i don't have a comprehensive answer to your honor's question to be completely can no evidence to support them there's no evidence to support them and what i was saying on the value of the benefits conferred if you look at page twenty three of the sentencing transcript the government specifically told the court where the read the transcript the sentencing for dotted the i's cross the t s it made the necessary factual findings by a preponderance of the evidence and the record evidence backs up those findings unless the court has further questions for me about these issues or any of the other issues i'm happy to see back the balance of my time with a rocker i do have a question for you this is still prayer my understanding is that the the benefit conferred enhancement is based on a conspiracy theory  in is there evidence in the records that the the beneficiaries the patients were knowingly engaged in the conspiracy not into all of that here i don't know the answer to that you're i don't believe so but that's the if you buy the party i do also want to emphasize though that for purposes of the relevant conduct it isn't only the did joint foreseeability there is also the other provision in the one of the one point three the relevant conduct line that talks about page thirty six of the initial brief where the issue or my issue for that i argued earlier begins you'll see the st sentence says on april th two thousand and nineteen diaz filed her objections to the assessment loss amount of so forth and cites of pages from the objections that i was referring to this i consider to be a fair notice to the government that i was relying on my objections to the p s i i seventeen there's nothing i said that the government was not on full notice that i was relying on the objections and the legal cases such as medina to which i referred in my earlier argument let me turn now  to the issue of aggravated role and the last i'm out those two things let me just say this i noticed the government read from judge khan's findings at the sentencing hearing that he was going to approve the government's arguments as to aggravated role and loss amount but really it's the same thing i was saying before that was what the government's argument is here today just as it was at the sentencing is that  organization especially with five people maybe one with one but not all five recruited accomplices there's no evidence that she recruited accomplices except that one day she brought witness abigail two good friends and introduced her and then ms callow the owner of good friends took it from there what about the district court statement that she also coached the beneficiaries and took them to good friends and maybe other pharmacy how does that play into the equation no evidence of that your honor no evidence no evidence of coaching patients no count as to loss amount again the government just says there were nine hundred and ninety three thousand dollars i think it is of moneys that ms diaz got from other home health agencies you seen the charts that the government prepared you see what was admitted at trial but nobody came in from those other agencies and said we sent d s checks for patient kickbacks because she sold us pensions and we gave or kickbacks we don't know what those checks were for and the government had a responsibility as an aggravating factor to increase the loss amount the government had a responsibility to bring in somebody from those agencies and said yes we sent her these checks here they are we did it for this reason so we don't know whether it was for money laundering or st some other purpose or even for hector hernandez which was during the terminal times in a relationship with ms the if and he had signing authority on one dollar of the two bank account