application of the wire fraud statute without a clear affirmative indication that congress and its such a reach and this there are affects both mr driver's conviction as to count nine and his sentence as a sentence was largely driven by exclusively the five allegations here are based in canada and poll seventy five out of the eighty seven identified alleged victims in the case work and eighty and so there's a tremendous for the only use in a connect his of the canadian also he did from canada from canada the only arguable use and i don't think it's even necessarily proven in every case but the only arguable use there would be  canadian investors if they if they used the wires as well in the sense in context we don't have very much information the only arguably is there would be possibly wiring funds over to us accounts but if you look at both the domestic or extraterritorial and in this case the issue is whether the focus of the wire fraud statute is the use of the wire in this case as account nine it would be  versus the conduct at issue in count one the count nine actually does involve an investor in in california who did use the wires but the factual basis does not establish where that is what where the likely deceptive conduct occur so in that case the issue becomes what do we focus on it as as a focus as the statute and i think paskin teano and more center very instructive on this issue because past and you know focus that conduct was not you know that your example of shooting across the border this was the the victims canada and only this one strand ends up here through not mr driver but through mr trainor and his conduct really is the one he drew in california so even if you could draw in the california investor that doesn't allow for current bringing in all of these canadian investor who were only involved and with mr driver in canada and the representative mr driver agreed to the number of victims here and agreed to the amount of loss here that then we're looking at a play near standard review are we not and given of the morrison even if mr driver's interpretation morson is it was and something that was not addressed by counsel and but it is a law of this circuit and so we look at the laws of it yes and you know even without fault we look at this makes it clear and it certainly had assistant had an effect on mr driver substantial rights because this is what may made his sentence more than double i believe if you took out the canadian investors and canadian losses it would cut his sentence it please the court monica tate for the united states i want to point out a couple of areas in the record in which the defendant admitted that his investment fraud scheme was a us crime and are there for inconsistent with the position he's taking now on appeal first of all in his plea to count sixteen which is lying to the securities and exchange commission the defendant admitted that the f c c had jurisdiction to investigate access automations investment offering that's the very same thing that's the subject of the  grieving guilty is an emission of the underlying facts the facts certainly the ones that are stated in the factual basis and this one the fact that the f c c had jurisdiction to investigate and access automation investment offering is stated in the factual basis in writing and also at the plea colloquy that's what the district court heard at the plea call it way and mr driver admitted to that in addition i know that this court case authority indicates that a plea of guilty necessarily the underlying facts when national it is an element of the offense that the government has to prove in a trial of a one thousand and one violation it has to be a matter within the agency's jurisdiction i believe it's one of this court's elements for one thousand and one if i can mention the commodity pool operator the sentencing enhanced band for which the defendant agreed expressly and is not contested on this appeal that requires that the offense of conviction involve a violation of  questions indicate in the responses it's clear that wires were used to execute this scheme and it is not the victim who made these wires happen it is mr driver who made these wires happen because he induced that victim count nine victim to send him money there was an allegation in the reply that there's no proof that this was victim relied on mr driver although i don't think we need to prove that because it's supported by the factual basis the government sealed excerpts of record at page three ninety nine is the letter from this victim who describes his investment if first he invested fifty thousand dollars and he detested that money because he had heard about the prior success which was false that mr driver had been having he then he tells the court i was making so much money based on the new false statements that he got from the defendant that i invested another one hundred thousand dollars that's count nine the one hundred thousand dollars so there is evidence in the record that this victim relied on the false statements that mr driver sent to his point person mr trainer and that mr trainor distributed to the california investors the charts that mr trader distributed least some of them are in the record at page five sixty five to five sixty seven and see case name is on those charts so they're a little hard to read but they are there in the record i want to just address briefly the voluntariness because of course if the plea is voluntary then we believe that the appellate waiver kicks in in this the appeal certainly present did you tell your lawyer everything about your case one thing we didn't point out is that mr driver six years earlier gave testimony to the s e c in which it was clear if you look at the testimony which is the record of page one thirty six and one thirty eight he was thinking about these issues hey i sometimes i'm in canada most of my investors are canadian maybe i shouldn't be here and he raised those issues six years before his guilty plea to the f c c and to the c f t c on those two pages that i just mentioned so i think that the defendant had in his mind a conscious thought that gosh i some of my investors are canadian i don't think i should be here but he gave that up and he decided to plead guilty anyway and it was a well counsel plea and he did that voluntarily  let me a real quick for you on so the analysis you would ask us to apply here is that if we agree with you that the factual basis was sufficient despite the arguments of ms james then we should then hold that the plea waiver is solid and we should dismiss this appeal is not the process we should go through here that is what we've argued yes i do agree with that that's also the conviction as to the sentencing our main argument is that it's way and one of the reasons for that one of the reasons for that is because they accepted all these facts and they told the district court oh there's eighty eight victims will know we project to one victim we want to take him off the list because there's something wrong with that one victim so i have to having had the full financial analysis given to of eighty seven eighty eight i am eyes victims they only complained about one and that clearly case that they thought about it and they dived into the list and they've found this one that they didn't like and they wanted to take him out and the government actually agreed to take him out but other than that expressly said to the district court what the exact restitution number was what the exact the loss was and indicated that it was uncontested and these actions were not accidental this w a plan it was a tactic to accept the the bad news about this crime except that it was serious and it caused lots of loss and nevertheless present what looks like a good case of you know  that it is within guidelines ever be substantially on reasonable honor i'm not sure i do apologize i don't know if i can answer that question accurately for you today but i think that in this case clearly the district court had a big fraud in front of it had eighty seven victims people came to the district court and talked about the loss of their retirement savings how they had made plans for their lives they had sold their businesses because they thought they had made all this money and instead they found out that they hadn't one person actually it was c k said that his marriage fell apart because of the depths of disappointment to which they had gone he had sold his contractor business and turned down work another gentleman and his wife came in and said that this was all the money they had saved for retirement so it's a very serious  fense and i think that the district court was well within its discretion to impose the sentence that it did i'd like to just address one other point about the impact on the canadians sorry the canadian impact on the us this was no canadian scheme there was no canadian corporation it was a nevada corporation that everybody sent their money to including the canadians there were no canadian bank accounts that he asked people to wire money to there's at least one instance in the record where he's asking them to wire money to to the united states also several of our victims this is glossed over by the defense many of our u s victims were members of the canadian groups and k is in the record and he was the member of the rutledge group and k n confusing ly was a member of the steven taylor group and he was an american member of a canadian group in the government sealed excerpts there are letters from s b he is a rutledge investor a canadian group but us investor p k another one in the main scroope which was a canadian group of p k was in the united states and so it's all mixed together they sent their money to united states they combing he comingled their money with the americans money any money to be paid out to anyone american arcs an a t m was fictitious profit because he didn't make enough money trading those commodities and so in light of that it's all commingled and necessarily they're all part of one domestic scheme and unless the court has prosecuted here when i was operating in canada but he said he makes clear i don't understand law this was he was acting on his own behalf at that point i don't think that can render his plea his subsequent much subsequent guilty pl appeal as to the sentencing issue so clearly that would have to remain even if the court were to find the plea on but there could be two parts of this appeal where you could dismiss part and then do something one more the other on the sentencing issue right if the court i mean obviously we believe that what you are not states as a sensing issues i would just bring the court back to south and to in that case there was clearly impact on the united states there was in that case the defendants had engaged in fraud against the bank of china but they as part of their scheme fled to the united states used in immigration fraud that could immigration fraud and such to conceal assets in themselves in the united states so there was clearly a u s component nevertheless the court said you can't consider the crimes against bank of china in the relevant conduct you can only look at that portion that did occur in the united states and similarly here to the extent that was fired that was occurring in canada it's not properly considered part of relevant conduct rather only their crimes that that occurred in united states can be considered