evidence against them separately my client was romantically involved with mr williams who actually owns a business that in which the fraud was alleged to have occurred and she also worked for him and in closing the government what the government did and what exactly what the government said it set forth in the brief and in the excerpts the government lost the two defendants together and in particular the government prosecutor we heard to the fact referred to that they got the money out of the bank account and that they basically both that it benefited financially and that is the problem with the argument in fact there was no evidence that might client ms but hala had any access to the bank accounts at  all the government didn't make clear of course that structuring the money the money structuring charges were alleged only against mr williams but really did argue that my client had sort of implied that my client had some sort of financial the problem is that here it was i mean the government did have a strong documentary case but the only issue for the trial was knowledge and my client testified on our own behalf and she also presented a character witness and the character witness was not impeache at all and in fact because credibility was the critical issue any any slight scintilla of it makes the misconduct that much more significant and i would you know in of a firearm charge and the gun was actually found under the seat that he was sitting in and there were other people in the car and he argued well the guns not mine it's it was equivocal whether who the gun belong to but in that case that is a case where this court reverse had a connection and got a financial gain from that would be the kind of thing like you know that that she got some in there was no indication of her salary that she got some kind of heightened salary or some kind of cash bonus for parties in the flood there's just nothing the correct guidelines my client was sentenced under the two thousand guidelines and those were the guidelines that were in effect at the time the offense was committed she did that's that's where we have different cl please accord brian gets on behalf of cornelius williams we are asking for more than a limited we're asking this court to vacate the sentence and send it back for a full sentencing hearing a full rehearing where mr williams can be personally present for allocution and we're all his sentencing requests can be fully made we think we're entitled to that because there were enough errors and enough plain error in the court below to justify it in a situation where there is confusion this c said to avoid confusion we vacate the sentence and send it back for a full hearing that was united states versus gunny there was an abundance of confusion at the district court during the sentencing hearing for one thing the district court made it clear that the guideline range of forty one to fifty was the appropriate one and it now appears that the guideline range was much lower twenty one to thirty but that's not all that happened the district court used the wrong guideline manual ignoring the mandate of united states versus or will in which inured to the detriment of mr williams because he scored significantly more points than he would have scored had the older manual been used so that was a separate error and we've also raised the issue of whether or not the conviction of the one thousand and one should have been scored or two extra points under the circumstances there was an abundance of error in the in the district court sentencing hearing and we then have to ask is this  situation that can be corrected with an animal line renay san there is the issue of puff of the public's trust the integrity of the proceedings and how things appear it's interesting also in the majority opinion emmeline that justice rollinson wrote about how it looked from the defendant's point of view i can't remember a recent case to did that but justice robinson said that it is inappropriate to have a procedure with a defendant feels abuse i think carroll mr williams felt being active and participating in the preparation of his case as he was he was out on bond at that time and eventually sell surrendered following sentencing but he was out on bond during the proceedings during the trial and during the sentencing hearing for several weeks or after participating with his lawyer and urging his to make an argument that would result in a guideline range of twenty three thirty months then he sift through the court proceedings in district court after the trial and here is the judge say now it's forty one to fifty think think of the shock that somebody would would experience going through that and then think of the further shock when he having told his lawyer to use an older guidelines manual gets a higher score because of a different one think how that would make somebody feel and then think if it's an emeline rematch and it goes back and the district court and comes back the same forty one months think how that appears in some ways and emmeline renae and that results in the same sentence as we have here would really make a mockery of the proceedings and district court it would be much more fair it would be much more appropriate to vacate the sentence send it back for a rehearing give mr way and the chance for a full allocution under the conditions for which he now would be speaking and be if this involves one hundred eighty six now dollars fraudulent credit card yes the money it's a tremendous amount of money but i would just ask the court to consider this one hundred eighty six thousand dollars was also the restitution amount for mr tague and the district court judge saw fit to give her eighteen months so while i know that the cases are not same if one codefendant receives eighteen months and the other one is facing a guideline range of of twenty three to thirty doesn't seem reasonable that at a full sentencing hearing with allocution as a fresh look at this the district court judge would come in somewhere between twenty three and thirty and doesn't it also seem that if the guideline range that the district court selected forty one to fifty and the district court judge says obgyn of this individual forty one months because he has no prior convictions under those circumstances doesn't it seem correct that if the guideline range are twenty three to thirty the judge would come down a lot closer to twenty three than thirty and even if he didn't come in closer to twenty three than the thirty isn't that meritorious of a full blown sentencing hearing instead of an emeline remey and doesn't this case more than most others cry out for a full rehearing instead of an m r i am aligned second look particular risk on that and we welcome that risk your honor and a higher sense we can get a higher sentence which is of course what happened in u s vs fanfan but in the u s versus fanfan the defendant was trying to avoid the resentencing and i think to use your honour's hypothetical if we go back in there and the district court announces a sentence that's worse than the one we have there's going to be there's going to have to be a reasonable basis for it and there's going to be a reasonable recitation of the factors that would result in a higher number and if i really am willing correctly and i read it a few times this morning if the  sentence is not reasonable we would be able to come back here so we'll take our chances and we'd like to go back with the four hearing to district court thank you from the government running the cards through the machines and that's what happened this case is that the cash came into the possession of the defendant's next sentences and you saw that when you how the money was taken out of the bank account and count which all the money was positive from these credit card transaction was i'm sorry you are very interested i'm happy about that the next statement the next statement was that the defendants were going through a to financial time prior to the commission of the crime in the year two thousand and i referenced them in the plural that they had been evicted or addiction proceedings had begun against them eight different times and at the end of that second passes that is challenged by ms but hala i said they use the business they use the credit card and they use the bank account they got the money from the credit card charges and that's it g e r one fifty nine and the point of these two statements your simply that mr tall was not in this in employee of the business one which was the side of the fraud she was a member of the conspiracy and this conspiracy simply put did come into the possession of the hundred eighty six thousand dollars  her own admission when she testified she said she ran every single credit card that was the subject of the fraudulent charges through the machine so she placed herself there at the center of the fraud she also said that she prepared invoices that were connected to the fraudulent charges and that she obtained a manual predicate hard for the fraudulent charges those facts your honor give rise to the inferences of what i said in these two separate passages that as a result of the problem charges the defendants came into play into the possession of the money in the second point was that this conspiracy was not simply a random person conspiring with another random person and these two people were romantically involved they were residing together and mr williams was the owner of the business and mr tall was the sole employee of the business as such these these individuals stands to reason  would benefit mr williams would also benefit mr tolle given the fact that they were in a romantic relationship and also given the fact as presented a trial that mr williams purchased a ticket to london immediately after the fraud for  batal using the proceeds of the fraud besides the inference to the size the facts i just mentioned in addition mr tolle said that she handled every single transaction and many of these transactions occurred five minutes apart from each other twenty nine of them occurred after five pm these were facts that i argued to the jury gave rise to the conclusion that she was an active member of the fraud but in fairness whether or not it's predicated on an inference from the facts and it wouldn't conspirators engage in fraud the purpose is to obtain cash obtain money and this case the conspiracy utilized the business one bank account to obtain the cash what what if you like your honor another way might have been to say this conspiracy used three different tools to execute the fraud they used the business or the conspiracy utilized the business the conspiracy utilized the credit card charger as firstly for the the the business in december through the letter word you're correct your honor is correct u se the business use the charger and use the bank account to carry out the fr besides these limited statements in the closing argument there was nothing else besides these isolated passages to lead the jury to conclusion that this defendant batal was involved in the structuring or was involved in physically taking the cash from the bank on that account the government argues i argue that the jury could not have been confused about the isolated passages that i made in other words they were not in the position to think that i was trying to say anything more than that defendant atol was involved in the conspiracy to carry out the access device fraud after this specific passages i went on and discussed williams's specific involvement in the access device fraud in the structuring fraud and then in the false statement that said g e r one sixty three one sixty seven so these specific references to what defendant williams did when i was using the he form or the him form pronouns would have to or any kind of this conception that i was trying to pin these additional risks criminal acts first there would have curative instruction given judge refuting instruct the jury that anything i said at the trial was not evidence it was just argument in the science that the challenge statements are balanced against the fact that this defend old time machines where it's run back and forth against the actual plastic card but to finish it all on testimony could not explain why the invoices although for two particular invoices although the matched down to the penny fraudulent charge why the invoices item of products did not match the physical credit cards item is ation the products there was no explanation for that that she could give she can fully explain why it was also how there were credit card charges and over three thousand dollars amounts within five minutes of each other when she said that at the same time as you took the customer's driver's licenses ran the credit cards on her testimony was not credible enough point how could she have done all that of the transactions were only minutes apart she in her defense she said well that customers never searched or never examined all those products that they were  another point that really seriously undercut the credibility because just wasn't believable that customers would be traveling to the store and buying products excess of three thousand dollars and not taking the time to examine whether the products that they purchased were in fact plain air standard in addition your honor this case is not one situation similar to pollute for in that case the prosecutor argued that facts that he didn't have a good faith basis to believe the facts giving rise to the good faith basis here were the fact that she placed herself straight at the in the middle of the crime ran all the credit cards prepare the invoices the invoices did not match where there's a separate account of conviction forces conduct the plus to enhance what applies and the rationale for that is kind of better explained at no eight which is the sensually that this rules a rule of and although there hasn't been a similar factual case in this circuit the fifth circuit and the eighth circuit and the second circuit have addressed very similar factual circumstances and that of held the plus two enhancement where there is a fraud is committed and then a thousand and one statement or corresponding obstructive conduct count the can obstructive cound account groups but then there is an a plus two enhancement to the underlying fraud  and this circuit applied a similar reasoning in wills which is cited in our place the final point is the booker blakeley argument well there's one other quick point i'd like to mention  but essentially the argument that's presented by mr williams in these papers is similar to the one presented already in due process he argues is entitled to have these enhanced minutes proven to a jury beyond a reasonable doubt  is not an error for the judge to actually find facts and hands the sentence so long as it's within a discretionary or non mandatory guideline system the way to remedy that is simply to  there is at that time when the government proposed a special verdict forms it was done as an effort to try to predict the future but it actually was not the law of the circuit emmeline had not yet been decided and ones but i think in the final point your honor and i'm trying to get to this is the ort land issue on the district court i conceded that the two thousand and sentencing guidelines should have been used to calculate mr williams sentence fraud occurred in two thousand and two thousand and one the false statement that he was accused of occurred in two thousand and three and the ex post facto reasoning at that time but i do want to suggest one alternative possibility this time that i encouraged me more recently and that is the reasoning into costs for nineteen f thirty nine twenty specifically addresses the retroactivity of sentencing hansen's and distinguish that from the retrospectivity of criminal liability and make clear that review and perhaps then therefore that there is no miscarriage of justice to conclude that the retroactivity application of the two thousand and three guidelines is not a constitutional i would like to say that the conviction that mr williams suffered under eighteen u s c one thousand and one did not require proof that the statement significantly impeded the investigation and i argument that that is a prerequisite for the additional point under the note for the guidelines i think there is case law that if the next post facto error occurred  plain error in the matter would be remanded what makes it a little bit awkward for me to say that now i think is that because it's a guidelines issue as well the government could always argue well under book the court can consider that and we're just going to send it back for a reasonable sentence that can be done with a limited remit and i'd ask the court for the reasons i stated earlier to find that  not appropriate in this case that the ex post facto issue is only one issue of many areas in this case in this case that occurred in sentencing which i've already resized it in my opening argument  the government's argument that this can be corrected in some fashion is reminiscent of a school boy who would bring his teacher a beautiful apple and the teacher upon biting into the apple would see a worm crawling through it and would say i can eat the apple because it's got a worm in it and the schoolboy might say no no no it's a good apple it's an organic apple eat a round the worm just eat the good part and of course that apple yeah you want to tell us a little bit about the school or right young students you have the one you're on right ok well i want to clear that up