page supplement by the united states it's been given to me as well today in a bound copy is there anything in that that wasn't in the district court record my understanding and i don't actually have personal knowledge of the tense or the questions my understanding is that all of this was a part of the sealed district court record so it's part of the record if you are the records in front of us so i'm not sure what the disputes about well i will say one thing about the dispute and then leave it to the court because i don't know that there's anything but that for me to do i believe that the time for disclosure reference to this but i'm not different question if it's in the record we can examine it it's a part of our record now if something's not in the excerpts of record we may not have physical possession of it but has no impact at all on our ability to examine it or its its placement within our record so as i understand it the government simply saying here's a physical copy keep it under seal because it was sealed in the district court but it's not adding anything to the district court record in which case it's in front of us anyway fair enough ok the primary focus of my position before this court is that there was a misapplication of a couple of different guidelines and that the restitution amount simply lacks any factual basis mr ruddock believes that the plea agreement was breached and i' the court to consider that portion of his brief that addresses that i really didn't understand his argument until i received that i formatted it put it before the court and that's all i'll say about that specifically with regard to sensing guideline section three b one point three the position of trust as i mentioned in my brief it was simply misapplied both the district court and the united states in their answering brief analyze the application of section three b one point three as though the u s border patrol were the victim have to do with whether or not there was a position of trust the position of trust has to be analyzed from the perspective of the victim but cases that there cited in my brief can be just let's just wrong with case to support the proposition that we must view the position of trust from the perspective of the victim i would say the strongest case is probably the language is the strongest in garrison which is an eleventh circuit case so what about the ninth circuit the ninth circuit i would say is christianson eight twenty eight fed third seven sixty three specifically pages eight seventeen through eighteen who can now in that case the guideline itself three b one point three when it talks about a position of trust it specifically states relative to the victim however it also carves out in the language of the guideline and this is a do noble review that according to the case life cited that a position of trust is more then they use the example of a bank teller  do to explain what it was issued of trust is they specifically use examples of attorneys doctors people that hold special licenses that have sort of special training at that kind of thing so the christianson case that i mention it's  guideline application was guideline application was upheld because mr christianson was an attorney but and so that case is much more in line with the language of the guideline but the language of the guidelines says that you apply it relative to the victim so counsel at the trial court level argued to the district court that really he was just swiping a credit card two or three times and so and ella bond indemnified the u s border patrol pursuant to their agreement so the border patrol didn't lose any money but that doesn't mean i don't understand how that doesn't make the border patrol a victim suppose somebody burglarizes my house take stuff away i'm a victim now i may get rich reimbursed by the insurance companies so the ultimate financial hit may go to the insurance company that does make me less of a victim i mean burglarized well i think that a burglary is a different scenario sufficient to take the border patrol was out it was able to get reimbursed because you could charge it back to the under the merchant agreement or whatever but it was the border patrol whose pocket was picked well i just respectfully disagree and  would the sentencing guidelines want to draw distinction like that at the point of it is a breach of trust it's trust that they're concerned about not whose pocket is ultimately emptied because of reimbursement through insurance or other means so  you can offer up something else i just don't understand how you can say the government wasn't a victim here well i think the case law is clear but with regard to who the victim is i also would submit that mr right was not in a position of trust within the meaning of three b one point three these of  government either all they gave his credit they gave him their credit card number and authorized him to use it on a recurring basis and he authorized it like crazy so isn't that being trusting  ordinarily give out your credit card number and say charge when it's time to somebody that you don't have a relationship with i do not but and besides the court seemed to be more concerned about special skills that is that it viewed what mr wright did as being sophisticated nuff so that he should fall into that category well you're right but they were wrong what special skill have he was piping a credit card and develop and delivering fuel he just did it too many times it's a skill or position that makes the crime more difficult to apprehend him because there was no one overseeing or supervising him in the crime was easy to commit what your response to that well i mean because nobody was looking i don't think rises to the level of a position of trust within the meaning of three b one point three if my credit card were repeatedly stolen from and i looked at the statement and saw it i just it's not my reading of the case law and the guideline do not have that rising to the level of a special skill or position of trust within the meaning three b one point three also going to try your attention to the case you cited as the wind that most strongly supports your position written by just clifton as a matter that trust that low life hold the traditional position of trust with regard to the victims of the wiretapping but concluded that in a real sense the legal community and the justice systems of victims of this crime so although they were not traditional victims  what's your response to that language i think that in our society it's really clear that lawyers are different ok so you make a distinction with look between lawyers and other defendants the guideline makes that specifically distinctions specifically it addresses lawyers in the quote i guess lawyers as an example but not exclusive not exhaustive really no but the other examples that it gives like physicians for example these are professions where you take an oath where you're required to engage in ongoing education where you're required to be supervised by various boards or agencies so it's just different is this my answer thank you did you want to save in time for a bottle i will think you good morning your honor serina case hargrove representing the united states before you began counsel i was just curious as to why the last minute supplementation of the excerpts of record your honor i want to apologize for that it wasn't until i took over the case and began searching the record that i found those documents i i believe that the second argument fails simply on the plain error standard but because it alleged wrongdoing by the government i was concerned and i wanted to get to the bottom of it so i searched the record and the reason i provided those documents which are in the record to the court is they were extremely difficult even for me to access i had to call the clerk's office and get them to unseal a good number of them and and they just very clearly established that the government did not do anything wrong the government was well aware of the strategic resources group in january of two thousand and sixteen well before and sixteen proffer so i recognize that i could have just cited the numbers for the court but those documents are hard to get and i do have copies for each member of the panel i can give them to the court clerk  the argument i thank you for the excellent problem your honour's judge lodge did indeed rely on two alternative bases for that three b one point three enhancement as judge clifton pointed out the alternative basis that was not addressed in the blue brief at all was the special skill and handsome and and in the guidelines commentary they don't just list fancy white collar folks who have nice degrees doctors and lawyers tellingly they also list a different example and that's a demolition expert now that someone who has a special skill and they emphasize that it can come from training alone what's the special skill here releasing that sophisticated your honor mr rock had ten years of experience working with government contracts he had been employed by two different contracting agencies he knew precisely how to manipulate the system and make those charge backs in a way that were fairly difficult to detect he also placed himself right in the middle between the credit card processor  on and the border patrol so he knew how to blame and different folks he knew how the system worked he even knew common problems that government contractors have processing credit cards so he could blame those common problems  on the double and triple charges so his special skill was understanding the ins and outs of government contracting the lingo the details of it he also had a great deal of knowledge about fuel which was the specific area he was contracting in so he could make very credible sounding allegations about how the fuel price of change so there was confusion and so they had had to you know work things out and so on so yes it's sort an odd special skill i have to i have to grant that but he spent ten years mastering these details and he used them artfully isn't this though just a criminal skill that in the case united states versus harper they declined to issue but the the these procedures and from the perspective of criminality seem not to have been recognized in this circuit as a special skill and what would your response be  that and i also would be interested in learning whether you believe counsel for the appellant has waived this argument because it is not in the opening brief it was just brought up as i understand it here in opening argument thank you your honor you're absolutely correct and it was the focus of judge lodge's argument but it was not raised in the blue brief so i could focus on what was raised in the blue brief because that fails as well and that is the abuse of the position of trust and in this case first of all in the ninth circuit there isn't the same requirement as there is apparently in the eleventh circuit about having that position run directly to the victim the text the plain language of the guideline does not include and this is contrary to what opposing counsel said it does not include any mention of the need for that trust to run directly to the victim and ninth circuit precedent bears that out judge clifton issue and christensen certainly does that attorney did not represent the victim he represented someone else in addition the aubry case which was cited in the briefs also shows that because there was an intermediary but the general contractor who was the defendant and the tribe in the united states but he had stepped into the general contractor had stepped into the shoes of that intermediary and really that's what we have here mr ruck was stepping into the shoes of what seemed like a legitimate government contractor government services but it wasn't he could never have run that company because he was a felon he wasn't allowed to be in charge of it but he effectively was with respect to the border control so he had gotten himself into that position through deceit and at the very end of the commentary to section three b one point three the comment notes explain that when someone puts themself in a position that appears to be one of trust that is particularly when there really shouldn't be that is particularly egregious and merits additional punishment so your honor there are two alternative bases but the first bases which was raised in the blue brief is certainly sufficient for affirming on that first is want to touch on two points that i did not bring up previously we submit that the heartland of this criminal activity was sufficiently covered in the guidelines and so an upward departure under five k two point zero was not  warranted i think that that's sufficiently laid out in the briefing so the next thing i'd like the court to consider is mr rux pretty subsists substantial arguments for a breach of the plea agreement again those are submitted in his briefing which he wrote and i just format it he's not authorized to file a brief i filed it on his behalf but how many opening briefs is a party allowed me not it is there but i think it's even marked received by our court and unless there's a motion i'm not sure that it's well whatever in  my opening brief i in passing said leave is requested to supplement so that was the basis upon which i was doing that ok you can't supplement bank corp you can supplement your brief by incorporating a different very ok well he has an argument he wants to make that's exactly as it i'm going to difficult position because i didn't understand his argument until i received it it was late he and i had been communicating via the court links email system i just submitted it ask you to review it i'm sure it's discretionary finally i just want to reiterate that there is no factual basis in the record whatsoever for over one hundred thousand dollars worth of restitution i think that's a strong issue i know it's not mr rock's main focus but it's a it's a clear error standard and with no factual basis whatsoever and i mean there's none there's none to the point that the government in their answering brief didn't even address it they simply said it was reasonable so with no factual basis at all i think the court should order that the restitution amount be one thousand one hundred five thousand seven hundred two dollars and ninety nine cents which is the amount of conviction minus the recovery amount was there in objection to the restitution amount at sentencing i see that my time expired can answer that question no there was not which is why i'm suggesting it be a clear standard whether it would be plainer that's what i think i mean your honor and i also point out in the briefing that that's the standard anyhow so whether he objected to it or not it's the same