questions that's correct your honor i see ok go ahead thank you turning to severance using the defendants against each other the government's closing argument described the trial as follows but i suppose it doesn't really matter because if it separated severed but that's our argument so this idea of waiver is not as we see in the briefs this gotcha game designed to punish criminal defendants the whole point of preservation and my impression is that at the point of the opening argument i e at the point which presumably reflects what the district court knew what the time these motions were originally made that the government's just scription of the way the parties were situated was pretty accurate actually kind of surprised me in a sense that the just their main description in their briefs is that everybody was really pointing at the other two  at the point at the closing arguments and that seemed to have changed a great deal so the problem for you it seems to me is that there was in the what happened at the trial and in the closing arguments seems to quite arguably to have changed the dynamic in a way that a district court could have made a different decision that it made the first time it wasn't given a chance there's two responses to that first let's talk about i think what happened before trial because if you look your honor at e r four zero six this was specifically described exactly what was happened with foreshadowed not the way the government portrayed it and i'll quote the c r s defendants that is the california contingent the shops can well engage in a defense that is mutually inconsistent with the defense of him or and vice versa the parties have already stated in their testimony and inferences with the f b i the inconsistent offenses particularly relating continue and if we look at your four twenty one again the creature but the point is the judge didn't buy it and the judge basically telegraphed that that this should be brought up again if something changed so what what's the problem why would why wouldn't it be brought up again it's a pretty easy rule to comply  that would have been best practice but it's not a waiver requirement in the sense that we now are precluded from raising this issue on appellate review i agree it's  it could have gone but in the middle of a six week trial trial lawyers can you know maybe they don't meet raise it the first time so why is it not precluded is really gets to the question well there's there's multiple answers to that question first of all rule fourteen says it has to be raised ahead of trial now we have this judicially created renewal requirement but that renewal requirement has multiple exceptions each of those exceptions applies here and the change the idea of why severance is required on appeal you need to renew it during trial williamson is the first case from the ninth circuit that adopts that eight circuit rule common sense it's one thousand and believe sixty two they say when it essentially renewals required they say quote a defendant will not be found to have waived his challenge if he can show either that he diligently pursued severance or that renewing the motion would have been an unnecessary formality you see the same grounds though you started off your argument by pointing specifically at what the government did in closing our i meant the government in closing arguments is this guy's point the finger at this guy this case point the finger back at that guy before trial the government wasn't saying that so something did change i mean and you highlighted it by the way  started off your argument i sort of my argument say even the government described the inconsistency in the defenses but it but when it was argued before trial the government was saying oh yeah it's inconsistent we're going to argue they all pointed the finger at leaders that's it that's not what they argued the government argued that we're going to argue they are all guilty and they're all pointing the finger at somebody else what in the government was able that's true and the government was able to use the inconsistences to advantage and that's exactly what was raised that's the problem that was raised by him from shelters point of view from your client's point of view this or i don't really and i understand that the defense was i essentially did what they told me to do but i don't point that they gained from although not exactly as they gave it to him and it doesn't seem fair all that relevant to me except as i say in kind of an emotional appeal as a jury is defense case witness who says we went to florida we had these meetings they told us they would be responsible for x they would be responsible for why if that's the case if you are hired to give a pitch that you are told is true and in good faith you make that pitch you do not have the necessary intent to commit fraud because you're not intending to misrepresent anything that's the essence of the shops defense they gave me this power point they said they've been doing this for all these years and i trusted that that's what they were doing but in fact what they gave him was different and many put on he went in in ways that seem material to whether it's true or not i mean for example whether or not the properties were going to be rehabbed and at their cost before they were given to these people he would argue that it was not in that it weighs that his argument the defense the shorts camp argument our argument is that it would not be material in those ways and that he was told that there would be sufficient money and that to him or that the florida contingent was responsible for all of those things now that i don't want to relive again in the sense of that that the whether that defense was the best possible defense but that was the defense and not defense had the legs i would just say cut out i would say smashed out by the accusations and the evidence put on and then the closing argument of the florida case tensions you see in so far as you're complaining about evidence one has to assume the same evidence would have come in  individual case that and i wanted to go right there your honor because i think there's a lot of ways we can think about the prejudice from joinder here one way is we can go chronologically through the trial but i think it's much more effective to talk about first prosecutor evidence second prosecutor evidence and closing argument and if you'll allow me to unpack that first prosecutor evidence what i mean is evidence that would not have existed in several trials or evidence that it was not simply reiterating government arguments but it was new evidence it was evidence it came specifically from the defense in this case let's start with evidence that came specifically or arguments from the him or side that the government wasn't making what how did he more a first prosecutor toward shields well it started in the very opening statements when the lawyers on the florida contingent the him or camp say that as soon as they heard shots presentation they didn't want anything to do with him that's not something the government brought out and the only reason to say that is hey we're not guilty once we heard what sholto saying we ran for the hills then there's more the government focused on the alleged assaults misrepresentations at these seminars but not to him or camp they went out of their way to talk about him personally and to him to make him seem as a liar written large they went way beyond what the government with donald along for example they talk about this allegation that he said he managed nine billion dollar hedge fund that's comes from the defense with omar alley here's a great one talking about somebody totally irrelevant whether he was rude and mean to this alleged victim on the phone that doesn't come from the government that's supposedly a codefendant with mr   he even says he morse lawyer says i want to ask you questions about him personally and then he goes through a litany and by the end the judge is incredulous how can you ask that question the judge says the answer it's a rhetorical question by the judge the answer of course is because he more is doing everything he can to make scholz seem like a liar and a cheat he used his own witness corey cooper to play in the schultz side and then it continues into closing argument just to quote thousand that should go for rehab and put it in his pocket so he could go ahead and shoot people including us he specifically blaming him he says deceit came from schultz mr schultz participated in the fraud we're not going to stand here with a straight face and say that those investors that you heard from they weren't cheated but it came from mr schulte mr schultz did what he did to get the money he didn't put the money into rehab mr schultz put the money in his pocket i mean at every stage of the game this was cross attack it started lightly jabbing leap in opening it was seated more and more through the government's case with each government witness being used to reinforce the theme that it was the other side and then went to direct attack men you're going to your guns are going to hear from mr scott in a minute about the power point that power point was given to the over to state investigators before or during the investigation phase to say now obviously that's not a trial prejudiced but i think it goes to the context and then in terms of the admissibility of i don't want to try to my colleagues toes but you know raising a different defense and in fact i think this is the government tries to portray this binary version of severance that doesn't exist where it's either this pure mutual exclusivity that your honor gave you know the knife in the back in two people going and then i will not go into it but just the end ending ending here is that inconsistency to take says alone seldom produces the type of prejudice that warrants reversal the defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant the existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor that is exactly what we have the attacks the grotesque nazi references that we saw throughout this trial would never fly that the blatant vouching would never fly coming from the other side this was not caze is the admission of two key evidence at trial exhibits that the government described as fraud blueprints factually these exhibits were a powerpoint slide show and a  form contract respectively that the government asserted and that its witness asserted when together that they were attached to one another and it was that attachment and the fact that they were supposedly linked to a certain e mail at a certain time given before a particular seminar that's what generated the meaning and was in the government's argument in view was so incriminating about them now it's our view that the admission of those two pieces of evidence violated both the confrontation clause the sixth amendment as well as the rules of evidence in terms of the sixth amendment argument the problem with admitting the power point as an amalgam made it exhibit with the email was that it was tantamount to an implied assertion the true sponsor of this evidence was mr schultz was a person who was trying to place blame on mr a more into sort of preemptively before even being charged start to build this defense that i was just a hired pitch man following this particular script that had been supplied to me factually mr schultz fed this information to the third party on there's no dispute that it was contemporaneous business documents this was explicitly this is the problem what souther be authenticated was that this e mail as sensually showed up on my computer and this is what it says right now that after the end what it says is that it's came from a more just shelves that's when steps and that attached to any any directly why why just anything more than that require the first is that had he described it the way you honor just did this is a thing that showed up in my inbox and in the sort of agnostic about what it was or where it was from it said and it said on it it came from a mine but what he said is this is a document from him or to shields it is the way that he described it so he was sort of imputing that meaning to it that he wasn't in a position to describe now if we're just talking about you know i think this is sort of the spirit that's a that's a weight issue i mean you could argue that he's not credible but that doesn't affect the fact that he says more than is necessary for the foundation doesn't mean that he hasn't said enough for the foundation well it would serve the way to organize and i think there's two responses one is sort of what i described as as a unit of measurement somebody else at the very end of the trials and this was that this was the powerpoint that we in fact sent there were various versions of the power point to any number of witnesses talked about what what was always missing was saying that this one schultz god was so similar to the one that he gave to the investors and there's some statement that it was on the same or company's website that there were some of the statements on the web site were similar to some of the statements in the powerpoint but which is not to say that the powerpoint itself or the verbatim language what was the same but what i was starting to talk about terms or unit of measurement is the meaning in the relevance of that exhibit and again these  amalgamated exhibits you know putting them together is the link and that's the damning part of it is claiming that they came together that they were attached at the same time you know as i said if these are just separate exhibits and the government and the and  more claiming that they came together it would be much less troubling evidence but it's that link that's missing now that mr souther be but let's take him absolutely at his word and say that this is precisely what he got from shoals and if that  was exactly the power point that was attached to it that's a lot different than saying that's what mr hay more had attached to an e mail that he sent to mr szell's so it's a step removed it's just a question of you know there's there's literally no proof that district court you know i felt like i was stuck with it i you know did my best to argue it basically you're saying we don't really you know about for this thing but you know what assuming that he stood up at the very beginning instead of course this was sent yeah and this was after the government said the same thing in opening so i guess the response to that is when he said it in opening had it been admit it had been pretty admitted in evidence or anything like what it was actually in the indictment in it was also opened on in great detail so in terms of him having to deal with something that was already in when he said it in opening it wasn't already in it it wasn't in the habitants at least that well it wasn't in evidence and so but i think that that's a double edged sword in terms of the way the government was argue that because if it's you know if it were fair enough it's what i understand but it's so my point is it wasn't in evidence but him describing it is a self not evidence either for the same reason that the government statement is an opening statement isn't evidence neither is the attorney you know saying so when b s testimony is that twenty nine twenty eight i think is where the exact objection to it is and there's like the sidebars and so forth i'd like to read the government's rebuttal closing body of plain error mr misconduct in closing case law and each one of the factors of this court has discussed exists in this case first it was in rebuttal there was no chance for the defense to respond to the things that were said this court has recognized in cases like sanchez and al can terah that when the government saves these these low blows for rebuttal then that increases the likelihood that it's going to be significant to the jury they were explicit references to personal experience into experience in other cases that that's something that tips heavily against the government as mr him or at least it went to the heart of his defense his defense was that this was an who would memorialize fraud in a contract and the response was every fraud case that i've ever had that there was a there was a contract and in the government in its brief and this is a page one thousand nine hundred of the government's response brief it minutes that that was the best evidence for the good faith defense of the existence of this contract in this third party dealing with this is page one thousand of the government's response response brief the government acknowledges that what they were responding to w describes it there their best argument and it's not a bad argument i'm not i'm not backing away from that argument if the court feels differently and i respectfully disagree but the point is that was the argument that they made and that was the precise argument that the government was responding to it's not fair and it's not accurate for the government to say that these instances of misconduct were quote few and far between the rebuttal closing is twenty four pages long it starts on page fifty nine hundred of the record the fourth page into it the government is already talking about with the four there is the thing about the contractors the thing about the gangs i know there was lowing why didn't they go to the why didn't he admit what was what was wrong because then they would have gone to the f b i it's called lolling it happens in every fraud case so that's fifty nine zero four by fifty nine eleven the government is talking about when i was trained as a prosecutor they told us to draw a line down the page and then he starts talking about how we drew dollar signs and what his you know reactions and his view of the evidence were now that standing alone might not be so severe but in the overall context of the sort of you're a fan of time aren't we give it come this rebel very good please the court greg staples of the united states i want to address briefly the waiver argument just i think we've made it clear in our papers but they all have waive but does this mean waiver that there's no review period or does this mean plain error what exactly as i understand it it's a waiver in the sense that they've waited unless they meet certain conditions such how is the this is an implied that it's more of a forfeiture isn't it they didn't raise it at the appropriate time yes so why isn't that plainer of you i mean i mean weather makes a difference or not is another question but then it would be ok also i thought strike me that the severance issue is is the worst possible example of why to be tough on the fifty eight question because there's basically nothing the judge could have done at a point except to try to pass another was in many instances when you're when you insist on having a fifteen it's because you might have been able to reopen the evidence and facts well you might have been able to give instructions that would fix it or our some might fix it but in this instance there's nothing you can do but we try the home hey if you decided that it was a problem so what is the function of ma my reading of this court's opinions say that the reason for this requirement to renew by the close of evidence is who would vent defendants with holding an otherwise meritorious motion to see how the jury what i would say in this case though and why i think they absolutely have waived it is this judge and i believe you cited earlier were not of his way when he denied the motions to say i meant the sizing this is without prejudice basically urging him bring it forward as it comes forward say not the end of the case but what about raising it was all this purported finger pointing was going on i mean i was that would have somewhat more should be a new trial because there wasn't a severance did you argue this waiver in response to that would be out of your i don't recall yeah i honestly i didn't i should a look before and i didn't here's the thing i find interesting though the judge when he rules on the post trial motions doesn't say gee why didn't you come back your you forfeited the point you didn't you waive did whatever he rules on and on the merits so one of the exceptions to this waiver issue is futility isn't that a pretty good indication that it wouldn't made any difference the fact that he will go on and on the merits after a trial without relying on the failure to re raise the point later on i i think there's a sense to that but the issue i'm having is that would almost seem to apply in every case i mean if a judge i can certainly imagine saying in myself ruling on a post from ocean where the heck were you i would have been able to do something about this you forfeited the point and then maybe go on to rule on the merits in the line of denial of the basic trial rights such as the right to confrontation the right to present an individual defense the cases that the defendants rely upon sure a lock me field into in that they claim they were improperly a joint but on top of that errors occur during the trial where statements by their co defendants that were given to law enforcement officers that in compay did both defendants were allowed in and in that situation the defendant obviously could not cross his codefendant in addition i believe in both sherlock and  description in the briefs was accurate as to the opening statements but it greatly deteriorated after that in terms of who to the point where they at by the time to the closing argument they were still arguing of which there was really no fraud it was all these two other people but then they had each of them had a second argument which was it was that other guy who was a is a liar and a cheat and he did me and  important distinction that they didn't just point the finger at one another as into tick they began their closing arguments by saying either nobody committed any fraud or if it was just one point but the second p was i mean if there was he's a liar and shane well the second point was if there was a fraud it was shared in snyder the crooked escrow agent and the crooked property manager who took money and didn't do what they were supposed to do and let everybody down both both sides made that are you saying that it that it's that it only is is material or significant the inconsistency in other words if that's the only argument they make in closing argument other words if they have some other basis correct correct because the jury could have accepted any one of these arguments they could have accepted that mr hay more relied in good faith on property valuations he had and therefore had no intent to defraud they could have accepted that yeah sheridan snyder was real problem and in fact she was i said it arson or why i'm sorry was was the real source of the whole problem in the sense that she was the escrow officer if she had simply done her job and held back money to people who got their properties or didn't this case never would have been brought she put bill that i thought i'd actually one of my reactions reading was that one place where there were it seemed very important that they or at it at odds with each other was asked to snyder was interesting this credibility because one of them was basically assuming that she was credible i think shelves and saying you know so she was the whole cause but the other was essentially saying she's a liar she said when when she said i told her to do this and i told her to his colleagues whose name and not remembering the case is point of view the fact that one his co defendant was found in for her her credibility while he was and he is saying that she's a complete liar because she's not a complete liar in the sense that she said he's the one who told me to release this money and he is the one who who and he understood that i was especially doing this  that that was certainly prejudicial to them to the hey moral cause a group but i don't believe it was error in the sense that it didn't involve a fundamental trial right such as the right to confront a witness or to present an individual defense i mean it was simply the give and take of trial what the problem i have with a lot of what they point out in their brief as these examples of second and third prosecutors is i don't see something along the lines of them introducing say a proven error type statement or something like that i mean when you look at what they're talking about but again to the to the point of this the battle over the credibility of snyder i don't think it's enough to warrant separate trials i don't see anything they suggest now can you point to a case similar to this in which there was this much finger pointing an antagonism and substantive backing up of the government and in cases in a case where i would say you know you may think it was a very strong case but i don't know that it was a very strong case to us you know there were there are arguments on the other side is there any i would i would also point out that in addition to the i'm not seeing a violation of a fundamental trial right there is finger pointing but the cases seem to say that's insufficient so what of i'm silent you're finished i have a question about fundamental trial right th the court did instruct the jury about separate charges separate defendant's statements of lawyers not being evidence and in my view something they don't address much in their briefs is we've got separate burdick's selective verdicts as i read the cases that's that's well i only asked the professional people well that's how they characterize it i don't consider them peripheral at all i mean if you look at the record mr ward got as much money or more than mr did he own the company that was to take title from the hay more defendants in the properties and deliver them to the victims in this case and tellingly war dean was on the phone in early two thousand and ten with with investors at separate times telling existing victims the properties trashing the money is gone it's all out of escrow the same time he's doing that he's still working with shots in their offices in coasta mesa conducting new seminars and bringing in new bringing in more money and new people but as to where the attacks were going and where and the importance for example of snyder testimony it seems to me that he was careful in the sense that he may have been very important but he wasn't really participating in this back and forth which was largely between him are in shelters and there's no question about that but i think and i'm sure you'll tell me if i'm wrong but as i read the cases they talk about the ability of the jury to call it evidence as to each defendant and i what i mean by that is i don't read that to mean it has to be to these specific complaining defendants in other words it journalism but you have to start with what was the problem and then say despite the problem today were they able to break down the charges and if the problem didn't involve mr warden or team then that it doesn't matter whether they could separate him out in other words who was being the subject of the cross attacks not miss not him so therefore we don't have to ask the question of whether the parser tax prejudiced him because he wasn't the profit wasn't involved in the problem very much no but i'm probably fighting uphill on this but it shows i believe that the jurors follow the court's instructions to consider the evidence separately for each defendant and in fact they acquitted sylvia macone and for seven charges i guess what i don't see is anything other than  supposition that well because these guys were all convicted on all the counts the jury must have done something differently than they did with these other defendants in terms of their jury deliberations and i don't i don't see a basis for saying  class question of the so use the phrase and it's in the breeze to you know it has to be prejudice or has to be a deprivation of a quote unquote fundamental trial right and you see that a lot in judicial opinions what's it mean i mean is there is anybody ever said ok here's here's the trial rights that are fundamental and here's the ones that aren't because i always kind of thought i have an unfair trial was sort of fun i agree and again i'm going off the opinions i've read there the basically your point though is that just having a fair trial doesn't qualify as bad with you that's really the argument here we didn't have a fair trial because we were heading to fine him up fight a multiple front war that's that is what i'm saying i'm getting that from the opinions that i've read because they did they clearly state that to to qualify for severance you have to show this extremely manifest prejudiced to top of my head at the moment so an with an update as to the statement i made about there's contracts in every fraud case of ever done i can see that there it was not we we did not conceded in our brief and the reason i can tell you is as you may know we have various levels of supervisory review the time the brief was submitted we didn't think it was there but since that time i've had discussions with my appellate section and we agree it's there we don't believe that it's there that requires any remedy because it was an isolated statement it was couched in an otherwise we believe proper argument about you know about how you can't simply why do people orally and then write down something different on paper and use that as an excuse to skate liability you know i wondered about that in civil cases it happens all the time somebody comes in and says well he told me x and you say well that's nice but you agree to why i think that's an interesting point and you know there's been times i've done that and thought well this isn't really very fair but that's seems to me that's lolling happening in every case that was directed against mr borden was acquitted and i would suggest from that that the jury was not hanging on my every word or that somehow the prestige of my my office was improperly swaying them the comment about the gang membership i don't we was there looking back with hindsight it was probably a stupid thing to say but it was clear that i was trying to make an analogy that simply following orders doesn't get you off the hook when you know the orders are corrupt or bad and this wasn't the type of case where anyone on the jury was going to think these were actual gang members they were very far from being gang members take care of transistors are commands not being i was following orders but that i was following the representation that what i was saying was true right i should clarify the following orders applied  i summarized the jury instruction accurately the comment about jurors every day in this country apply that burden to reach decisions it but even in hindsight it's like does anyone really doubt that and does it prejudice the jury and again all of these statements were in response to comments made by defense counsel and i agree what i said about the contracts was error and i should not have done that but i believe the cases are pretty clear that courts will take into consideration the context including statements made by defense counsel about a million for for paying more and the cost wasn't explained very well to put it mildly i don't know where it came from  i'm not saying there was an obligation to explain but it's someone impossible to figure out where it came from yes i i could not tell you i will tell you this  need that the money after two thousand and ten dropped out and that the the amount that was judged against the shelves must not to not include the two thousand and ten money i believe that it did for the did it then out everything that happened in two thousand and ten there's has to be less than one point four that's why i understand their emerging right i don't have a good answer for that other than i do understand what the calculus was that judge wilford was dealing with he didn't he didn't accept the government's number of who say it was four million dollars because he i don't think was impressed by the trial testimony of this witness the defense comes forward with much much smaller numbers but what complicates it is they're saying you need to reduce because some people not many but some people did get properties and to that end they tried to offer zillow print outs to say look this is what it was worth at the time which we argue very strongly was completely unreliable and they were arguing that some people got rent payments back the six hundred dollars a month which was pretty nominal the problem i have with sending this back to say it needs to be clear more clear is i don't know how to do that without conducting a whole other trial simply on the issue of was me know how much money came in  most people got nothing or they got properties that cost them more to get rid of some people did get a few properties but are we going to go through that but the question is the relationship between the two numbers i mean that seems to me to be a really cannot tell you anything more about the particulars of those two numbers as to mr schultz and his  were not addressed by the court however there in the p s are at paragraphs eighty and eighty two eighty two there is the recitation of the factors and then probations assessment of the facts based on those factors and the court did say to adopt the factual findings of the p s r so i would argue that there wasn't fact if at least an implied finding by the court as to those factors conduct lies and wire fraud cases cited several cases in our brief that say that so with the exception of the the mystery of the last amount i believe you are otherwise on solid ground on the sentencing issues i have you thank you owners i do want to address the schultz sentencing argument but just to answer some three specific questions on severance that directly it does not need to be a severance is not required does not need to show a specific trial reliable judgment about guilt or innocence in other words whether in fact the general fight to a fair trial this court's decision in mayfield adopts that exact understanding  and maybe more reliable maybe the fact that each of them was pointing out the problems in each other's case made the trial more reliable and isn't a question of i mean we had a case destroyed addresses that and they say to be sure there was a theoretical possibility that the jury might acquit all the defendants under alternative theories but the real question for the court is considering a step in considering a severance motion is not how convincing the defendant's evidence is but whether the core of the his defense directly implicates the codefendant and here we see the corps do directly implicated each other so the government's alternative argument is been rejected at least in the roman elo case and we would suggest also in  clear this one level swing this is not some kind of a throwaway argument i asked the court for additional time because we feel very strongly that this was error both in terms of the procedure in the substance mr scholtes my coll friend describes him as a manager he says in his brief he brought the two halves of the side together let's just accept that that makes you a middleman if you bring the two halves together that makes you at all man that's what you do after that but that is what the managerial role is decide is supposed to affectionately not the leadership enhanced mint and what the government says about the p s r adopting the factual basis in the p s r it's respectfully it's not accurate and it's not accurate in two respects if the court looks at the p s r it will see that the p s r focuses almost on a minor role analysis because that's what they're used to and talks about relative culpability and says well we think shelter is the most culpable therefore he gets the director leader that's not what happens in aggravated role you're not supposed to look it's not the same as mine are all the mirror image you're not supposed to look at just relative culpability you're supposed to look at other things the nature of the participation if that the recruitment of accompli the key if you're a leader you're at the top you exercise control over everyone down below you here he only exercising ensuring there can only be one leader no there could be you could have a c e o and a c f o in a c e o or in a drug conspiracy you get a lot of leader right it's not just a kingpin but you put it there is a distinction a material distinction between a manager and one of the thing is who does he control at most he controls what about the scope well the government says children didn't get didn't get more than any other single person or that if you compare schultz to the florida group then they got more than he did i don't think he got more than any other single person ok then decision making authority he's got no authority over  first i've gone in reverse order that's the first category that the guidelines say you must consider exercise of decision making authority he's got no authority over warding no authority over him or know what already over the cahsee macone but that makes him a manager that's exactly the difference between a manager and a leader organizer we're saying that it was it should have been at most the three level not the four level and in this case it's not harmless it's not harmless because he got at level twenty nine he got to twenty nine the range was eighty seven to one zero eight he got ninety months so we got three months above the hot the low end to cases that say that you only have to exercise decision making authority over one another twenty eight which is what we're saying he should have been at most the range is seventy eight to ninety months if you take those three months from the low end you get eighty one months which is a nine month swing nine months in jail is a long time ok thank you very much thank