good morning your honour's maryland been our ski on behalf of the talent there this is a case about a man who at the time of his research served nearly ten years he was cents inconsistent with the guidelines and three five five three and there are really two prongs to my argument the first is that the guidelines were not calculated correctly finding by clear and convincing evidence that the display of the weapons the flex cuffs and all the other paraphernalia in the crew beatings before the robberies at which your client was clearly in attendance should make a finding that it was reasonably foreseeable a good finding don't we have to conclude that he clearly i've added a fact before we can c law and what's your best argument that there is a clear error in the face of this record it seems to me that's an awful tough argument for you made and i want to answer that question and let me say it's a different analysis as to lost because he made no finding first then we'll get to the other one all right let's do the hard one for you know what it's and it's an interesting question because in some ways i think it's an easier one because the government had every opportunity at the recent say to present more evidence new evidence anything else but all we have is the trial record the government's problem backers pretty strong i mean he the judge listened to the testimony of the coconspirators and between what what more do they need to show in order to support the foreseeable that they were going to use you know to tie up the victims hold them at gunpoint and then walk off with billions of dollars worth of their inventory first i think that the government overstates the trial evidence in the direct appeal i mean that's a jackson argument that there's just nothing in the record to support the jury's verdict that you participated in the crew meetings and the guns and weapons were displayed and so i out to the circuit and resulted in the december for order that resulted in sentencing is different from conviction the question i ask you goes to the underlying conviction and then the question was did he appeal the sufficiency of the evidence under the went up on appeal was sufficient i don't know i don't know if it was appealed but what could have been appealed i suppose was sufficient siesta conspiracy theory and i don't know if he was if he was convicted on a pinkerton theory hotel rooms prior to robberies where there were several participants eight or nine took place for several minutes not lengthy meetings he was not one of the planners or one of the people handing out  say it's a fair summary of the evidence to say two or three accomplices turned cooperators who had said that they start guns or restraints in a hotel room where at the same time other persons were present including dan like no one ever said he was in the same position i was in or you could have seen what i saw or he didn't see what i saw it's clear that the people who saw the guns were the particular to mr van like and some of the facts that i think are very strong is that in a lot of the cases the government sites where they attach a kind of a for see ability aspect to things because they involve robberies or violent robberies we don't lesser role in the case would support that well let me start with the premise that liability for a conspiracy is not the state is liability for sentencing and within took thirty to forty five minutes or more to complete because they're loading all the inventory and your client was identified as one of the loaders carrying the computer parts back and forth to the getaway  and the testimony was that employees were being held at gunpoint and restraints in the building at the time this was happening why couldn't you consider that as well as evidence  foreseeability or actual awareness that there were certain different people did different things in these conspiracies but it's clear from the evidence that my client was not involved in the first crew that went in which was the job that cr and not specific language as mr van y were then talking about general roles of other persons what is clear is that he was not a high level person he was not a planner like some of the cases the government the evidence have to show to convince to establish a record of foreseeability well i think what we know is what his role was and what he did and that was concrete because after the planning meeting then the robbery occurs at which he's placed by witnesses at the scene of the robbery i'm having a real hard time with your i don't know what more the government would need to show or what more the district court needed to hear to make this foreseeability determine this seems to me to be a no the agreement of the parties that the last amount calculation was between two and a half and five million dollars but from there to get to it to impute on him a finding that if you look at what his agreement was to do which was a very low level person to either drive or go unload boxes not a manager no evidence that he helped in making these plan nothing other then and i think even judge hatter talked about his role in the record as being a very minor player a bit player there's language that suggests that he saw him quite differently than others there's no indication here that he shared proportionally any profits there's no evidence like some of the cases the government sites where he's integral involved in designing it or a very important player  to buy your argument would have to conclude that all we can look at is what he was paid as his share in the face of the evidence that this is a guy who's carrying the boxes of the stolen goods from  inventory room at the at the company to the getaway van and driving away with all the goods and why is it unfair to take him for the value of the foreseeability of the loss when he knows he that they're targeting high tech companies for valuable electronic you know what i don't think there's any evidence in the record that he has any knowledge of the value he knows they're robbing warehouses right he knows he's carrying boxes i  there was and again it was in a van and there was no indication that anything was open there was no indication of anything of value with the same m o right i mean it's all part of the same course the conduct of all of these robberies are similar of doesn't that make it harder for us to say that just that it was wrong and finding foreseeability if you participated in multiple crimes that constitute a pattern under  are two two and a half and took five million and a robbery that he was not convicted of for account that was dismissed against him for which the judge made no factual finding that it was forseeable and t insert into the record that he must have thought it was forseeable it seems to me that we can't substitute our findings for what he should have done about three hundred ninety thousand dollars know i mean i think that's the answer the judge welcomes question that it's partially his role it's partially that he was given instructions and only followed instructions he wasn't involved in any planning he wasn't a manager is merely a loader and what do you think  what makes the amount foreseeable i would say that if someone is involved in the discussion of who are we going to rob that forseen it when you have a person way down low i would say on the other end of the spectrum it's much harder to say that we could guess that well he must have thought what's in the boxes was very valuable but there isn't any evidence that right now i'm just asking a question you know maybe you can say well that something there would be more valuable than a dog food store you know or you know some some location where there would be an item of lesser value but it's part of what's wrong with if i made a point out your honor something that i don't think came up before i agreed that the district court particular findings on november seventh two thousand and five weren't very specific as to the actual foreseeability it's a lo he did however adopt the previous sentencing that he'd done before and i don't think he needed to be and the reason is this you'll notice that the government print came prepared to present about ten million dollars and mawson proffered its paperwork and property at that point there was a stipulation offered by defense that the government could indeed prove by clear and convincing evidence and we went down at that point two point five to five million and there was a discussion and i cite some of that in my brief and it's in the record as to the fact point eight million dollars claim of the insurance company and they paid it therefore the amount of the loss was nine point eight million dollars and your stipulation which was quite generous i thought the strength of the proof that you already put on takes explained also the district courts rock of a very specific finding on foreseeability is that it was kind of assumed that that stipulation by going so much lower paid being so generous to wrapped up if you need it you need to but i think that will happen in august there was a little bit of argument but mr nice he started out and she brought up the points that she made again later so eloquently which had to do with his actual disadvantaged background and out in the papers and you certainly argued multiple times that the fact that he was actually loading the nineteen foot you haul which was caused which was there to holly these of how these things were done and he was convicted on that then we have two weeks later spent time and even though he wasn't convicted the jury actually hung on that count and the court subsequently dismissed it from from what i can tell of the record that and i know that the people in our field section would be rattling off all these things i am aware of those cases though and as a matter of fact in speaking with our part section they were of the opinion this this case was actually taken off and we counted on the court's own motion twice and it was originally set in december i should say the argument and then it was reset i believe in january and then we were reset for march and the session was actually very surprised that it wasn't either we said again around the country as to whether or not a guideline sentences person should be reasonable as i say i'm not sure i think the united states will has question as we may not have any further in light than we currently have with regard to individual eighty eight which would have been the bottom of the guidelines for when he came up with two hundred eighty he said look and you kept trying to get me to put aside the so called guidelines so i don't know if you can notice that from the record and i of course i'm thinking you know we have to make these guidelines satisfy these guidelines and i'm going to and i can consider everything that you briefed me on maybe he didn't specifically say like your family circumstances he didn't say like you're behind the station you know if you have them but i can do all this and will and in doing so he intended to use or used actual force or threat of violence and that was my point in answering that on his questions whether some of this and so least some of the arguments that come from the restraints and gun liability is that what what that phrase references it's no different than any other in the conspiracy count the question is always whether it's fair to attack a members of a conspiracy fo right back to where we started half an hour ago and that is you know how can we overturn judge hatters determination when he rules that based on the evidence that was before him by clear and convincing evidence that the ties and the guns were reasonably foreseeable by law well i think you mind or the way i think you can overturn it on the money because he didn't make the required findings and he has to do it testified as to whether it was really nine point eight million dollars or that's what you can buy the insurance co and that's why the discussion at the hearing that precedes the stipulation is about we don't know what method he is we don't know how they arrived at that and the judge  something to me like well don't you think insurance companies are going to be even harder on them than you are and so it was really a bit out and not known for paying out three times the amount of the claim if they don't have i suppose that was the reason why the judge s probably a pretty good number but that the question had always been about mr vandalize more limited role in this contact why should he be tagged yet fourteen level higher why should he get a sentence three times higher then person similarly situated not all of those persons were cooperators so you'd agree that that is a cooperation would be a legitimate for imposing hires i think some of the two i think two of the people who got sentences in the range of fifty to sixty months which is exactly where i think the guidelines were in our case were cooperators and i think that was  basis for judging pattern of believe they should've gotten a lower sentence but a couple of other ones that i mentioned in my brief were the government conceded similarly situated to life they were not cooperators they were people who went to trial and were convicted and the think that he gave reasonable consideration or the consideration he had to to all of the three five five three factors but that's my question on the end it was an on guideline sentence in the end whatever he may have thought about the guidelines he gave the sense that he thought was reasonable under three five five three with a great knowledge of the case and the defendant but i don't think you can you can't separate it from his incorrect calculation of guidelines because he keeps talking about you know it was three sixty and i gave him twenty eight and the three sixty was the guideline calculation right then he came back on the research saying and he's like well but i'm not giving him twenty i'm giving him a break if you  incorrect calculation then coming down from that is not a fair sentencing but aren't you ignoring his his statement that you know you're a lucky man mr lie because now you're back you're going to remain from the ninth circuit in the law has changed and now now i can give you a sentence that i think you did use the word reasonable but now i can give you a sense for you of the constraints of the guideline that i couldn't give you before clearly he knew that he didn't have to give an in range sentence but what i think he had to do beyond that was not just consider ok i can look at the guidelines and then do something else but he had to look at all of the seven three five five three factors and luck when you get out there i hope you're ok but it was hard for me to tell if he considered it in terms of nature and characteristics of the defendant in a minute geisha in context which is what he has to do i mean i think it was almost  course as i get back to the seriousness of the fans i mean you may have the best family in the world but if you're involved in high robberies involving huge losses i mean this is not a seven eleven string of robbery and that's or we wouldn't force them to do it it's one of the seven so there they certainly have to consider it but there's no presumption that should be attached to it i think that's what's of all is all about is that it's really up in the air is there a presumption of reasonable s and i would say it's not the law in our circuit i think in terms of the calculation of the guidelines if someone starts out with a mindset that well looks like it's thirty two but that seems too hi