move made well when you are ready no no problem when you're ready derived funds the district court sentenced him to two hundred thirty five months concurrent terms of two hundred thirty five months on the wire fraud counts and one hundred twenty minds on the monetary transaction counts and also ordered over five million dollars  restitution i raise six issues on appeal i would like to begin with the sentencing guideline issue which is the fifth issue just d he was sentenced under and in correctly high guideline range and that was a the guidelines calculation i understand what you're saying is that these enhancements were applied to the wire fraud as opposed to the money laundering and that's plain so what would be an example of a guidelines mistake that wouldn't be plain well that is more difficult your honor given the supreme court's cases of moline in martina's where they said if you are sent if a defendant is sentenced under a high guideline higher guidelines reign that sufficient to show effect on substantial rights and i'm not willing to go that far and i'm not willing to make that statement on behalf of the federal public defender i can't come up with an example of the top of my head where it would not apply i would be most interested if you know in a supplemental letter brief if you could think of an example because i can't think of one i guess my next question would be what is the purpose of looking at the pre sentence report prior to the sentencing hearing if you can use premier to challenge any sentencing guideline miscalculation on appeal i do understand your honor where you're coming from we were in fact the lawyers on rosellas or ellis and we discussed this issue prior to going before the united states supreme court  reason is that we tell our trial attorneys over and over again your best chance of winning something for your client the lower sentence is in the district court you need  you need to make those objections clear i don't mean to interrupt but that's just not true based on what we were just talking about right i mean if if every error is going to be plain error then why would why would you need to object to preserve this the right thing to do that unless that's what we do as public defenders we scour the record we try and find all the errors we argue them to the district court we also argue for variances below guideline sentences and you can't make a proper variance objection if you don't have the what you believe is the proper guy thing in and that's what i certainly understand that i wasn't suggesting that did it was the wrong thing to do right there was and there was no moral valence to the question i was simply trying to ask as a legal standard if the standard we apply on the district court and my understanding is that they would be exactly the same we would just try to figure out whether the guidelines are calculated incorrectly and i think that goes back once again to the supreme court's decisions that has kind of left us in the in an odd position but determined as as an office was that we have gent in the in the district court all the time and it was my view as head of appeals that our best chance is always in the district court suppose it wasn't p attorney in the district court and it was some other attorney why would it be an unreasonable strategy to hold something back hold a couple things in the tank maybe breckon eyes if there's a clear that there's a there's a problem with the guns the guidelines calculation but not make the objection argue for other things focus judges attention on other you know whether it's a variance or some other fact in the elocution and knowing that you're going to have a great you know a great appeal issue in the worst that you can end up with is being right back in the district judge and have a reconsider ation after getting to remain from the fifth circuit what would be wrong with that strategy well your honor i suggest that not many employers function on that strategy first of all for example in our office trial counsel are separate from appellate counts and rarely do trial counsel think about appeals it's a frustration i'm having to tell it counsel that that is in fact true i have worked train the c j lawyers from the western district of texas and i can personally tell you that i don't see that type of strategizing going on so that was one of the concerns that actually i believe the government raised on rosellas morales was the idea of hiding behind the you know strategizing to to you know win on appeal instead of in the district court i just don't believe it's realistic when with criminal defense work for one thing you have a in the district where you have a personal relationship with this individual so you really are trying to represent them in the best fashion that you can and so the appellate issues really are on the side and as i said we've instructed our attorneys and i've never in any if for whatever reason i miscalculated the guidelines assuming i'm under the statutory maximum so i don't have any data from actual problems in this comes back to me for any other reason conceivable in the world i'm going to look at the three five three factors and the other factors i'm supposed to report you know  willingly there's i think there's i think it could meet the playing error standard but you wouldn't be able to show effect substantial rights depending on what the court said with the just report said when it imposed sentence and this court there are several cases out of this court that say where the court says in no uncertain terms even if the guideline range i calculated is incorrect i would have imposed a two hundred thirty five month sentence for these thirty five fifty three any reasons and so i think that that would be where it wouldn't come back on play in your review would you like me to address the sense of nightline issue any further than that or would you like me to move on to something else i'm hearing your question age much quicker than i anticipated so i'll talk about the restitution issue just briefly i filed a twenty eight j i apologize i filed it yesterday but it was on and i have the courthouse it was on an opinion that came out of this court on friday and it had to do with the government's argument to them that the objections made in the district court did not were not the same as the argument raised on appeal so i filed a twenty a j letter on that and in there i set out a lot of the bases for our view that the restitution issue is not underplay near that it is in fact preserved for review and the government essentially argues that we're pointing out things in the record that should have been pointed out to the judge and therefore it it's plain air review the defense counsel repeatedly objected first of all the probation officer when when they calculated the pre sentence report and did the restitution they said in investments only that in a ponzi scheme you don't credit get credit for return so defense counsel filed an objection to that then the permission officer issued a revised pre sentence report and in that said investments only and the fans had who provided the government with thumb drive that held information they said represented returns in the probation officer said the government says that's not verifiable and so here's the investment only portion and the defense counsel objected to that again then and he requested a hearing of restitution hearing so the government then had a forensic accountant who reviewed three basic sets of information here reviewed the bank records  documentation which he said bank records and bank documentation then he reviewed the thunder that and untied and based on the bank records alone he found around five hundred thousand in return then he reviewed the fun drive provided by dell carpio and credit about five hundred thousand returns there was another two hundred fifty four that were credited and then he looked at investor victims information and credited some things from there now defense counsel asked him at one point why aren't you crediting the returns of the fund drive for lose martina's and they're actually  automatically generated appear to be automatically generated e mails from bank the moneths which is a bank that mr carpio has in mexico automatically generated notifying him of wire transfers that were made to lose martinez on a particular day in a particular mail to her wells fargo account and he so he asked asked that the forensic expert the for it was an accountant why did you not credit these e mails on lose martinez the documents that you've done show that she did in fact have a wells fargo account and the racist and he said is it because they're mexican documents what's the rationale and the response of the account was just well let me look at my spreadsheets and i don't show any documents in my spreadsheets but there are in fact documents there so defense counsel was objecting to the friends accountant not crediting the information on the thumb drive he was objecting to the forensic accountant not crediting victim testimony he was objecting to the methodology used that that failed to credit for the returns so all i did on appeal was actually point to evidence in the record that supports the objections he made that there really are bank records and that's what the forensic account was doing he was reviewing those records there are actually records to back  up those claims now it's possible i'm on plane air on some of the i mean i think you argued the methodology you know but were right to be on plane air and some of the returns that were not on the thumb drive or the f word that the government would like to explain what would happen there there isn't an error in the money laundering guidelines the p s r had an error in that it omitted the wire fraud guidelines calculation it only needed the money laundering done lines but money laundering guidelines compilations are correct that's page sixteen zero nine of the record and that lays out the p s r age and that was that was was used as the base level and then separately and explicitly these role the expense were applied to to the money laundering conduct and that's what the hearing was about but don't we have a problem with the way that the district judge explaining how the abuse of trust in the leadership and hanson it's apply because the way i'm reading a district judge is saying is the abuse the position of public or private trust that is being abused is not moving money from one account to a different account it is that you're holding yourself out as a broker in this fancy investor getting your friends to give you money i mean it's all the stuff that makes it a ponzi scheme it's the wire fraud parts not the moving the money around to hide it slash spend it so two responses to that question the first one is that this case is different than the pass case that was referenced in opponents break where there were multiple guidelines being discussed at the sentencing hearing here it was only the money laundering guidelines that are being discussed at sentencing hearing so the judge wasn't constantly saying and this is why your money laundering conked a criminal activity here's relevant conduct for your money lender it wasn't made explicit but it was all about money laundering but it would be the abuse of trust that would go to money launderers the secondly the issue of the money laundering is that you can spend the money if the victims weren't reassured and so it seems that you can if you are holding their money for a long period of time they were victims that testified that the reason that they let him hold their money for a year is because they trusted him because this business had to do several liability against a roscoe and mario and  binder were involved in that that made them believe that this was a legitimate business that these seem like successful businessman for the business unit trust him and spent they believe that he was a broker which is one  of the examples given in the guidelines for a position of trust and they trusted him to hold their money for example a witness testified at the sentencing hearing which twelve seventy three eighty three twelve seventy three and twelve eighty three that the reason him to hold this money for so long and which allowed him to spend it yet but the very next paragraph says i mean i'm sympathetic to this argument but i am looking at what the witness said and very next thing is i started with a little and i started giving it more because i trusted him he seemed like he was giving me good interest rates he looked fancy he's got the thing the screens in the clocks and all this stuff so it begins even that testimony i guess two points one one is that that testimony seems to unless i'm misunderstanding it seems to go to the the wire fraud but more important in what i'm what i'm wondering from the position the government is when it comes to the finding you know the district judge obviously has to make the court's findings and there's a relatively short paragraph in the i'm sorry passage in the transcript where the judge finding it's a matter of to get the money a couple responses and this is a factual finding whether these enhancements apply subject to claire or via the question is whether there's evidence of these enhanced meant in the record so we're pointing to the evidence and asked to that evidence i think i'm wrestling as to that evidence there isn't a clear cleavage in the relevant conduct between wire fraud and money l some of the conduct that was done by this group of people applied to both and there's no there's no case that says that they have to be surgically separate and can't overlook so while there was some conduct that was purely money laundering and there was some conduct that might have been purely wire fraud it was also conduct that overland for example built the lowing behavior by buying there could be both it's certainly helped the money laundering and made the money laundering possible the victims trusted that the carpio was holding their money that this was a legitimate business and that a lot of them to spend it it also allowed them to get further investment on some occasions and the government notice was it was a mistake by the probation office but in not including the wire fraud guidelines but the the result of using the money laundering guidelines was there's no error in the calculation of the money laundering guidelines themselves in my understanding it correctly because we're talking more search switching back and forth between two guidelines errors rate that as to the fact that the p s r includes one range not the other  error but i take your point but as to that one it it does if i'm understanding up the position of the government whether this be omitted guidelines was lowered obviously the one that was provided would apply because the higher the two applies and if the one that was admitted was higher than the higher one would apply which of course wouldn't prejudice the defendant i don't think that's the government's position the government made a logical point in its brief in our brief that carpio could only be advantage you i just like to point out as well that in that record in the record you're talking about on page thirteen thirty seven the judge separately found both problems of the leadership enhanced meant to stage thirteen thirty seven that there were five or more and that also he was a leader of a criminal activity involving five or more people and alternatively and both he was also criminal activity a leader of a criminal activity involving three or more people and the unknowing assistance of many outsiders who were not criminal participants  his or her loss amount should not be identical to the restitution about that although they got the money from fraud or that they got the business through fraud of the kickbacks they still did provide some legitimate medical services and therefore the restitution amount should be reduced that was argued at restitution and then the appeals court reviewed that found the district court to be wrong and that was reviewed the no this is not that case this wasn't a case with additional court simply refused to reduce the loss amount i ne repayments at all of addition the district court did do that and what it reduced the five point four to six point five million dollars loss amount by one point one million dollars of offsets and order five point four million dollars recitation and what's been raised on appeal for the first time is and there's something sixty one sixty two and sixty three of appellants brief are these u s bank records these twenty six are being raised for the first time in up this issue was these transactions were never before that issue of court and what's significant about this is that it was the defendants birder under the sheinbein face and under the loan case l o e this court and this court is being asked to make a determination about whether the forensic accountant or the government's restitution expert was wrong and the restitution hearing describes the restitution sprott restitution thousand and eleven payment of sixty two hundred dollars it's just in a different list on c four now that's why it's defend its burden to raise the appellant's burden to raise these things at the restitution hearing so we can have a conversation and the district court can address these and then the other issue on restitution is this twenty thousand dollars to lose martinez it's cited in the brief but i'll just highlight the testimony the forensic accountant for the government testified that she didn't get any repayments that was all reinvested that's page fourteen zero two and then loose martinez and her son both testify that they didn't get any money back at six thirty five and six sixty seven so we don't think there's any plain error there either a couple other things i just highlight from the just to clear up the briefs on issue one count thirteen the bank statement sort of make this clear the bank statement that was put into evidence that's exhibit two pages seventy four through seventy six these are the bank of america records it clearly says or where it says that the money or originating bank is intercom bank in mexico that was the bank record that was put into the that was put before the cherry and that the receiving bank was bank of america in new york and that was the evidence for the interstate commerce owners they transfer the wiring and then i'd just like to clarify one more thing from the briefing for issue number four that's the money laundering i like the to provide a record cite page ten sixty eight ten sixty eight and it's the testimony of the secret service agent and in in the reply brief i think there's some confusion where the reply brief that he testified that the bulk of the money in this bank of america account was from the wire fraud scheme that was not his testimony the question is is the bulk of the money in this bank of america victims that's his testimony each time sixty eight and ten forty seven he explains that he went through this is bank records and line by line and that's the credibility finding that's the credibility of the terminations that the jury  made now in the reply brief on that issue appellant asked the court to make an inference that he wasn't talking about all of the money in the bank accounts but just all of the transaction that were testified to a trial that's not a reasonable inference and that's not th a sufficiency review and then finally on that there was also some so argument that there were unexplained deposits into those bank accounts and unexplained transfers from bank records from mexican banks but that was explained at trial for example page six thirty one of the record a victim named loose martinez testified that she had traveled across the on the sentencing guidelines issue it's a legal heir and there were two separate legal layers the first one had to do with the grouping rules the commentary to two s one point one and incorrectly applying three d one point calculated it would have the highest often it's level would have been the thirty seven in the wire fraud the government argues first that it's not an error because the district court based the chapter three enhancement on the money laundering that's just not correct and it's clear from the record the government then also argues that it doesn't affect substantial rights because the facts are sufficient for those and handsomest to apply for the money laundering and it cites to a number of things so for that i'm going to address the four level of hands meant leader organizer of criminal activity that involves five or more participants or is otherwise extensive and the court found five participants for the wire fraud and the and that it was otherwise extension and in fact the courts finding that it was otherwise extensive was the reason i didn't challenge that any unspent as the wire for so for the participants they have to be criminally liable a wire fraud is a scheme it's a fairly complex federal offense engaging in monetary transactions are discrete individual acts and in this case we're talking about ten transactions by dell carpio three writing checks and seven ordering wire transfers the government at one point in their brief argues that one of the participants in this these monetary transactions were rosko and also maria i guess would fit in there because they were signatories on the accounts that is incorrect the only signatory on the bank of america and the wells fargo purple those were personal accounts the two j p morgan chase accounts over us going the rio were signatories but they were not involved in the monetary transactions they the government also argues a rosko in the rio because they were recruiting people and getting paid in journey money most of this crude recruitment though is in mexico and if they're getting paid in mexico even if it's coming from that's not engaging in monetary transactions it's required by statute that that it either be in the transaction be in the united states or that it be by a u s citizen and there's no evidence  s citizens the government also cites combined or david binder who came in at the very end on sentencing and says he made willing calls well he did make calls to an investor victim ortiz and evidence for plain error and in fact that was recently stated in a tourism opinion from twenty seventeen by judge smith who is not a fan of plane or review and that guideline here got reversed and  restitution the the burden issue is kind of unique here because the restitution statute said the burden is on the government but a court can under specific circumstances put the burden ship the burden to the defend it what we have in this case is we have the government accepting the burden in the first instance that's their forensic accountant going through the bank records doing investments and returns then we have the defendant providing some relevance and then at the very end after all these calculations are done the defense that the government argues that any other burden to produce returns should be on the defendant and the defense argues no because you have better access to these people so it's not clear that all of this was on the defendant that the court placed all of it on the defendant and even if it's under play near