good morning you're on there's katherine young from the federal public defender's office for appellant adam a tiny i have five minutes and i would like to reserve a minute of my time for about i'd like to turn st of all to mr patani claim that the district court erred and applying enhancement for sophisticated money laundering under section two dollars s one dollar application five describe sophisticated laundering as complex or intricate offense conduct pertaining to the execution or concealment of the money laundering offense and application of five dollars states that sophisticated money laundering typically involves fictitious entities shell corporations two dollars or more levels i e layering of transactions or offshore the government did claim that two dollars or more levels or layering occurred but it wasn't ever proved and i want to focus on the language of the application though because you notice that it says twice levels and layering that means one on top of another both of the and both of those concepts are repeated twice in the application to the guideline and in this case there was no proof of anything along any levels or layering of laundering this fact in your view an absolute requirement  it's not an absolute requirement your honor and what is our standard of review the standard of review is a review for abuse of discretion yes your honor and but in this case you have to look at the government's case is also that layering is if for example many multiple transactions on the same day or even over a period of time where you channel and the government traces the same funds through the levels or layers of laundering but the  application note begins by just saying it's a complex or intricate yes and it has some examples of what's complex intricate so why isn't what happened here doesn't fall under the complex or intricate because i think there was nothing that was complex or intricate that was proved if you look at the description of exactly what happened in terms of wandering they the government st of all repeats some of the elements of the offense the government contends in the indictment and the plea agreement in the plea colloquy that the trap the initial transfers between accounts was part of the offense the probation officer and the government's confidential sensing documents also describes the initial transfers between one bogus account to another to the defendant's account as extracting the money from the offense so there are the st transfers are extracting the money not laundering it but getting the money from the offense and the government's authority miles tells us that we've got to make sure that we don't turn the money laundering statute into a money spending statute you have to distinguish between actually spending the proceeds of the fence versus laundering the proceeds of the offense and so the initial transfers were extracting as the as the probation officer says and that's the government's indictment and please call it we suggest when you talk about initial transfer which trant what are you talking about because this well they were is a very complicated scheme well that what they did was they had direct refunds deposited into bogus bank accounts and then they extracted or transferred the money to using checks or to aliases to get the money into their own accounts or they withdraw from cash talking about the transfer or from the bogus accounts to their account yes that as allege colloquy and the probation officer is extracting the money it's getting the money from the offense so that's not part of the laundering operation that's part of the offense itself why i guess i don't understand why getting the money severity of the underlying new criminal offense here cemetaries guidelines range was six to twelve months out of the tommies was even less afforded ten months but us probation recommended the statutory maximum of twenty four months expressly because of the number of felony violations underlying the reputations six the district court that imposed the maximum sentence for both brothers stating that they are extreme financial danger to the community  question before this court is whether it should reverse the revocation sentences because they were primarily driven by the underlying offense conduct in united states versus symtab this court held that a district court may not impose a revocation sends sole or even primarily based on the severity of the new criminal offense underlying the revocation and part of the reason for that is that the seriousness of the underlying offense is already taken into account under seventy one dollars of the guidelines so clear the brittanie brothers were facing grade b revocations for the new law violations but isn't it a permissible consideration for a court looked at the fact that they were barely our firm one set of crimes when they committed the next which is sort of typically not deserving the trust of the court isn't that really the main reason that the court of well i think yeah and why isn't that a permissible reason like obviously it's not working well the court didn't make that observation although i would point out that it did so while at the same time speculating about what the brothers must have said to the district judge in vatican couple of years before so i think some of that was speculative but again i think that the exception starts to swallow the rule here when you have you can take into account recency to go about the guidelines range you can take into account the need to protect the community to go above the guidelines range all of which is based on the underlying offense conduct so i understand what would your honor saying but again i think that the the exception swallows the rule at that point clearly these both these gentlemen were facing guidelines ranges of half or at the upper end of the guidelines range was half or less than half of what the court imposed this was driven by the underlying offense conduct just briefly i'd like to touch on the public intoxication offense that sam baton he was convicted of that the court counted as a criminal history point in united states versus martinez this court presumed that six hundred and forty seven f was a public intoxication offense not a disorderly conduct offense in contrast to health and safety code section eleven thousand five hundred and fifty and that it therefore never scores morning your honour's may please the court and the water wolf on behalf of the government other than the evans related air which this court can correct the district court did not commit any error in sentencing the  defendants st with respect to the two level enhancement for says sophisticated money laundering that was properly applied because here we have not only layered transactions we often also have the use of offshore accounts either one dollar would justify application of the money the sophisticated money laundering and handsome and so the steps are it goes into the  bank account from the government and then it goes to another account and then it goes to transactions or or purchase of stuff or transfers overseas and that's the nd yes there are so of what i refer to as the bogus bank accounts are the seventy plus think accounts that the defendant opened at five different banks in the names of the deceased taxpayers so that the money from the i r s went into those account yes defendants then admitted that they then transferred the money amongst those accounts in a variety of ways one of the ways was that they would write checks from one deceased taxpayer to another deceased taxpayer and then move them money by depositing it from one dollar so in other words after it had gone into  the money laundering begins so then it's moved from one account to another they make multiple cast withdrawals all the time both of the defendants from these accounts approaches so or they purchase exactly your honor then the purchase silver they purchase money orders and they wire the money to offset shore accounts in denmark and lebanon and other locations with regard to the statutory maximum twenty four month sentence that the court imposed for the supervised release violations the court made it very very clear that she was considering only permissible factors  st of all and i think most significantly the immediate resumption of fraudulent and money laundering activities after their release from previous five year sentences imposed in the district nevada for executing a nother fraud and money laundering scheme where the losses were over five million dollars so as the court noticed stated the defendant history broken is and lack of intent to lead law abiding lives was not only an enormous breach of the court's trust but the court wanted to also attempt to deter defendants from engaging in similar conduct yet again and protection of the public from the extreme financial danger posed by the defendants all permissible factors the guidelines themselves of course recommend that the in  the sentence or the term for a supervised release violation run consecutive to the term that is imposed for the underlying offense which is what the court did here and the probation officers themselves recommended the twenty four month statutory maximum because of the extreme breach of trust that the terror value and the need to protect the public finally with regard to  disorderly conduct conviction st and foremost it's entirely harmless the one point that was imposed did not increase sam baton in these criminal history category the district court never even mentioned it during in fact no one mentioned it during the sentencing hearing so it is entirely speculative that it weighed at all in the court determination the court elaborated on the reasons for the sentence imposed and again it takes up multiple pages of the transcript no one ever mentioned this conviction but in addition to that it is disorderly conduct as one of the specifically listed offenses and sentencing guidelines section for a one dollar c as accountable offense it is not merely generic public intoxication as defined by black's law dictionary as being under the influence in a public place rather california penal code section six hundred and forty seven like the other off answers listed in for a one two see as the critical element that the offender in danger is the public himself or interferes with the public right of way in martina's it was the defendant who argued that health and safety code section one hundred and fifteen thousand five hundred and eight conviction for being under the influence of a controlled substance was similar to six forty seven f which the defendant argued was a now non countable public intoxication offense and this court rejected the defendant's argument coleman is unpublished it's not president the discussion of california the purpose of concealing the source of the funds because that's the whole point of money laundering in this case the defendants did not have offshore accounts if you look at the indictment the plea colloquy the plea agreement they were wiring money to individuals overseas not used the money to buy a cadillac car use the money to pay a debt that i'm not really sure why that is any less culpable in the circumstance why it isn't still more complex scheme when the money goes overseas and cannot be recovered well i think that's the key distinction between money spending and money laundering if they're paying debts with it they're not laundering it they're spending it because if you turn spending into laundering then there's then everything is laundering and that's well my what you're really arguing is that they shouldn't even be guilty but they are so i'm not arguing that they're not guilty i'm sorry but i what i'm arguing is that it's not sophisticated all they proved in addition to the offense itself and the offense itself involved transfers between accounts because that was for the purpose of concealing the offense itself not concealing the source of the funds which is money laundering arguing was that it wasn't sophisticated all the government proved in addition to the transfers was purchase of a few silver bars purchase of sending money to individuals overseas and all those things do not account amount to sophisticated laundering and  sorry what do you know about the individuals for all we know in the record is that they were wearing to individuals overseas your honor thank you counsel thank you have a case just argued is submitted and we appreciate the helpful  arguments from paul three of you