may have pleased the court will smith titus wanted an opportunity to show that he was responsible for three and only three fraudulent mortgages in this case the government wanted an opportunity to show that he was responsible for eighteen indeed the problem with the judge your honor we have eighteen properties on our last chart and i can hand the chart up to the court and we can begin going through them and i said judge we're prepared to respond meaning to each and every property but the court gave either side the opportunity to address any of the properties and there was very little information in the record on any of the properties beyond the three that mr titus acknowledged responsibility for but at that point the judge judge normal arbitrarily said i'm going to hold mr titus responsible for eight properties he didn't they were he never stated a loss amount and then on top of that having said ok he's responsible for eight properties i'm going to use the guidelines for the government's eighteen properties and he never made any connection between the that prop the guidelines for eighteen properties and the eight properties that he explicitly and clearly stated that he was holding mr titus responsible for so  of the of the transcript of the sensing hearing with respect to the number of properties the court rejects the argument to the defendant's own responsible for three even the most conservative view of this matter is he's responsible for another five the government's position is eighteen in the subset perhaps another twenty but the idea that mr titus should be held accountable within the context of the conspiracy for only three is rejected he recognizes the government thought he was we the government the government's contention that that sense can be saved by relevant conduct is not not true and this issue of the number of properties doesn't just affect the guideline numbers it also affects the thirty five fifty three analysis because the judge imposed sentence without understanding mr titus his role in the case not giving him an opportunity to explain his role in the case so as a result of all this and also because of his view or or lack of an informed view of mr titus his role in the case he was skeptical of for the other five and mr titus was prejudiced by all this because if we had had a hearing on the eighteen properties and he'd been held responsible for only three there would have been a lower guideline range the judge would have understood the role more clearly and he would have given him more credit for acceptance or responsibility so we asked the court to find that judge good morning to please the court this record adopted the government's guideline calculation that the offense level was level twenty six in this case and that's consistent with the government's calculation it's also consistent with the probation officer calculation and it's based on the argument the contention of both that the defendant was responsible for losses stemming from eighteen properties that were involved in this market trotsky i don't understand i don't understand what you see eighteen and judge norco's that at least eight but where do you think what the the the figure eighteen comes from the governments yes i know he didn't use eighteen thinking well it's our contention that what the what the judge was saying when he when he said that the defendant is responsible for at least another five properties it was by way of saying that the defendant's contention that he's only responsible for three which well the judge made the finding that the offense level was twenty six and that's bigger already the rolly didn't want to interrupt him so that's the government's position is that is that well i think that it's it's it's evident from the record that the basis of the decision was eighteen properties because that's what the offense level calculation is based on and what the guideline range was based on and we think that that i didn't make a find that's there's no suggestion of what oh he must have meant you know x y z there is nothing in the record that specifies which properties or that i can draw a line and say ok you know here's where the the other five fall on the side of a line i don't know where that line is and it's not clear from the record where that line is the judge also rejected these sophisticated means or i'm sorry accepted the government's an argument that the sophisticated means adjustment applied saying that you know great house make money so well but there was also the acquisition of documentation from the city was owning certificates and water certificates that were necessary for the closings to go through there was false documentation regarding repair work done on the properties the defendant was involved in all that he admitted his involvement in all of that and and this i think contributes to the to the notion that the judge found that he was that that the officer had available a loss amount regarding our last figures regarding twelve of the eighteen properties and out of those twelve the dollar figure was three point three million dollars or somewhere in that neighborhood of the probation officer of a qualified debt finding in the in the pre sentence investigation report by saying that as additional information comes in regarding losses on other properties that figure is going to go up and then the government in its sentencing memorandum with the most complete loss information that it had available so that the last figure was i think in the the three point seven million dollar figure that was proposed there and that's the figure that the district court heard that so reliable that's figures based on the eighteen that's correct how can the judge base use a figure for eighteen properties when all he said is that at least eight of them were  well you know again this gets back this gets back to our contention that that in finding an offense level of twenty six that the judge was ruling that that the government that the government's assertion about eighteen properties the probation officer current that would make this a different case that's true i mean i don't understand why you or whoever the prosecutor was didn't say to the judge well judge you know we certainly agree with you about this three point seven million but that's based on ok thank you very much to both counsel