the three level unhandsome and finding that mr house was a manager or supervisor and i think too i think we went under any standard of review and whether or not you have to show that he supervised a participant or not but i do think it would be important for the court to clarify this court's case law on whether or not you have to actually supervise a participant to ever get the enhanced because apple it he did not supervise anyone in the district court did not find that he supervised anyone she specifically did not find that she found that he helped plan the scheme and by the way she did not find that she participants were important without the people recruiting the the bar worst it couldn't work without miss williams who was the cooperating defendant creating the false paperwork on the computer to be submitted it couldn't work and certainly without mr largest raw dollar amount but as we explained in our briefs percentage wise he got the same percentage cut from each of the transactions that everybody else got it's just that because he was the car dealer and this scheme involved fraudulent cars he had to be involved in everyone because you had to have the car and in fact the assistant u s attorney who tried the case made this point at sentencing it's on page twenty of the sentencing transcript you literally said it's like yeah mr house made the most money but he said he did that because he was quote more money than anybody else because he made money on a volume basis so it's not that the application note says one thing that couldn't distinguish a organizer leader from a manager or supervisor is a claim to a larger share of the fruits mr house never said he claimed that he got a larger share from any transaction he was just involved in more transactions so look at this we're not questioning that he was guilty and that he was going to get a sentence and i think what's really interesting about this case is if you look at the pre sentence report and then you look at the government's version of the offense that they submitted to the probation office they didn't say that this supervisor the there should be any truths or role in the offense their version that they submitted to the pre se writer was that mr house should not get any role and handsome and then that he should just get the base basement level seven plus sixteen for the amount of the loss plus two from orland ten victims plus two for sophisticated means we agree with that and that was the position they took it was the probation office that recommended a four level enhancement the judge said the government then said all right well we'll say we think a three at the sentencing hearing they said well we think that three instead of a four but i think that part of the confusion is and also there are cases from this court that say you don't have to actually supervise a person to get enhanced if you follow every one of those cases back you go to west law and you click on the site the case that it cites and you click on the case at its site it takes you back to two of these this court's cases are united states versus skinner and united versus application no two in the sentencing commission when they gave the explanation of why they were doing application no they said there's a split in the circuits about whether or not to get the role and handsome and whether you have to actually supervis participant or if you can get it just because you were high up in the scheme or you were really involved in the scheme and they said there are some circuits you know one way or the case that they cited as the minority view  said you don't have to supervise somebody was a fourth circuit case name chambers that said defendant may be a manager even though he did not directly supervise other persons in the sentencing commission said we're rejecting that that's what we're not that's what we're saying is the wrong side of the circuit split within the very next case that this court had on the issue was us versus foam and us versus phone said hey we were one of the circuits that said you don't have to directly participate was wrong in phones then quite properly sad because no two requires that infinite have control over at least one other participant in order to be subject to an offense level increase under section three b one point one it effectively nullifies the law of the southern circuit because now you have to have a participant but what's happened if you go on west long you look at skinner and you look at carson in you look at ruby arrow they have a red flag is sitting no longer good law superceded by statute as set in u s versus phones now i understand west law doesn't decide if one of your cases has been rule but it's a pretty good sign that when when you go back to all those you just you have to in as you say judge you the whole idea of being a manager supervisors you actually are supervising someone in the government says well the government takes the position of no you don't but even if you do mr house supervised miss williams but you know that just doesn't hold any water number one they didn't argue that the district court at all and the district court did not find that mr house supervised miss warden's the government claims that miss williams that mr house one of the ways the supervisor is that mr house came up with the idea that for this scheme but they cite to the right pages of miss williams testimony except miss williams testified that she was the one who raised the issue with mr house mr house was trying to get a loan for himself with miss williams health it didn't work out and then miss williams said she brought up this idea of car loans that then get converted to personal loans in paragraph twenty i'm not at all saying that he should get the same sentence as miss williams i'm just saying the government and its brief to this court says well mr house came up with the idea they told the jury even in the closing arguments that quote both of them came up with the idea of doing these auto loans for cars that were never sold miss williams testified she created the park fraudulent purchase contracts she went on the internet found a template and then she would fill in she'd get the vin number make and model of the car but she would say make up the down payment amount she would make up the taxes amount she'd make up the name of the salesman and all that stuff and then send it to mr house miss williams said i got a guy in california these statements for that account got sent to miss williams in georgia not to mr house mr house couldn't withdraw money from that account and that was testified to by the government's own summary witness i would doling out the money and that he used that say to keep the most amount of money for himself and was therefore more culpable than some of the other participants in the scheme he therefore  in committing the offense that this court properly found that he organized the aspects of the fraud that touched on his business which is really the beating heart of this fraud he volunteered his company to apply for these fraudulent loans he obtained the necessary vehicle information the bins the makes the models and then pass them along to other people so they could give their purchase orders an air of legitimacy and thereby fool the victim companies he also negotiated a large number of checks that are made payable to his business the positive than the cash them and then was largely responsible in many occasions for doling them out to others and with respect to a third factor and found no for just a share of the fruits of the and the dishware correctly found that he kept the most money more than any of his coach and co schemers and co defendants because he dealt with the most amount of loans and that is a key fact that goes to show his relative culpability because when it is a volume he gave a blueprint he organized people on their one cohesive fraud scheme as opposed to everyone running their own individual scam by providing the necessary vehicle and then information you organize people by giving them specific instructions again and how to fill out these purchase orders in a way that would pass muster with the victim positive into these accounts who is acting as a paymaster who is organizing in that fashion which meant that he had the ability to control where the money went which again you frequently use to pay his coast seamers thereby incentivizing them to continue to participate in the fraud and finally with respect to the fourth factor or so either the third factor which is his share of the profits his ability to keep the most amount of money shows that he was above others in the hierarchy and it shows that he was the one doing the organizing rather than the other way around these are all facts that illustrate his greater culpability than others involved in the scheme which again must include the lowest level of the  themselves these are facts the cases that are found to be significant in affirming the enhancements and so that this record correctly applied here this court should continues to do what it did in the long line of cases factors rather than just focusing on your control over another person because again there are many ways to measure relative culpability i haven't said simple seven factor of the analysis with respect to what the fish repor argument that he was required to have controlled another person to receive the enhanced pat sensing so that this report simply did not have the occasion to make the finding so for all those reasons the government asked this laying out the case as you have but what are we to do with that language of the district judge that's of some concern to me i mean it seems she comes up with a different approach and i mean i understand what her final sentences but she has language which suggests that he's not he's a participant obviously heavily involved as they all or but seem to have language that four i think that she weighed those factors and that she came up with a reasonable conclusion that was based on all the color that is that she for sighted over the one she reject the p s r finding that's true in that she found that in the hierarchy there was no clear leader or organizer but there were people like the fende and like probably like mr hughes who were more culpable than other members in the scheme and therefore deserved the three level enhanced meant rather than for level management some of the language that this record used is consistent with the split of responsibility which cases like yours alice hold is not inconsistent with the leadership and hence mentor manager supervisor nancy because there are many schemes in which there is delegation there are many schemes in which there is a division of labor based on a person's respective talents and as a result her language her findings at sensing is not inconsistent with the section three view one point one is not called the person's culpability for the offense it's called role in the offense of course there are many different ways to measure culpability and subdue did you use it to skate it means did you u a vulnerable victim there are all kinds of different aggravating and mitigating factors that you will culpability three b one point one deals with a very specific type of book which is did you supervise somebody can we have a situation where you have serious involvement by several people this or that and it times your supervisor you're not the supervisor throughout the whole thing yet you know well i don't i would assume that you can but that's not what you had here the government's argument is basically if you have a large enough fraud dollar amount and enough people involved my god there has to have been somebody who was a manager or supervisor that mean that's what it comes down to is under their version every single case there would have to be somebody who's a manager or supervis exactly yes it just well it has to be because of that because we're here and it's just that's not the way it is in look again mr holmes was guilty is found guilty he got in an appropriate increase because of the amount of the loss that's