please the court my name is melissa salinas i'm with the university of michigan law school i have the honor today of introducing to boston's suzy choi and jen chon their third year law students who will be presenting the appeal under my supervision thank you first the district court erred in adopting the government's loss and without resolving the dispute on fees and penalties second the district court was procedurally unreasonable for using already rejected guidelines range first the district court erred in adopting the government's calculation of the loss and without resolving the issue on fees and penalties this court should review this under abuse of discretion at sentencing mr cox objected to the government's loss amount of four hundred twelve thousand dollars approximately mr cox argued for a loss amount that excludes speeds and penalties which were not two three hundred eighty thousand dollars approximately this is the difference in twenty eight thousand dollars these in penalties should have been excluded from the last calculations under the guidelines manual section to be a one point one application at number three d i use this come down to the argument that the restitution amount is necessarily the loss of my old and why do you think that would be so we argue that the resolution should equal the loss amount because restitution is primarily based on the calculation of the lost amount but for the purpose of of this argument i would like to address on t procedural aspect of finding the lost amount and thus the restitution i'm out so i believe that the district court erred in not actually finding the exact last amount during the sentencing hearing penalties the district court was required to respond to mr cox's objections to the last amount and we believe that such air warrants remained in this case for resentencing u s b nelson we're appealing this lack of adequate process on the issue of loss amount in addition to failure to resolve the loss amount the district court created confusion to the defendant and the public by  designed to make whole the the injured party and under that definition the make whole procedure would include all laws whether on the the fact that the resolution could include such peace and penalties but for the purposes of finding the last time out we're arguing that those fees and penalties should have been excluded and that was not a harmless error for the district court to not understand your fundamental premise but are i want to hear you tell me more about why it should have been excluded under my broad definition and also to i would like to also mention that the restitution amount could also have been different but we just don't know because there's a court judge foreclose the possibility of finding out because he did not actually find the exact last amount with the remaining time i would like to address the second argument which is about the procedure on reasonable mess that this record was procedurally unreasonable for relying on the already rejected sentencing guidelines range and we ask this court review this under a plane air at sentencing the district court decided that the government computation of thirty seven to forty six months is the correct guidelines range when sentencing mr cox the district court judge indicated in sentencing transcript here's number two ninety seven that the court will vary too an amount slightly above what mr hope who is a probation officer overage annoy the computer at the sentencing range and this range recommended by the probation officer is forty six to fifty seven months and this is a player that increased that could have increased mr cox a sentence even though the court did mention they had one time it pretty would agree it seems to be an incorrect statement but then didn't the court  on and make its decision clear by clearly and repeatedly referencing the chosen range can't can't a judge make a misstatement and then correct it in the remaining proceedings so that there is sufficient clarity for the for the determination to have been made reasonable in your honor you are correct that the sentencing court that this record judge mentioned the correct range he also stated that misto i believe your numbers are correct referring to that already rejected sentencing range and that could have been a mistake but we believe that for the purposes of sentencing finding the actual correct sentencing range there's a purpose for that it is starting point for that as the court judges to base their sentence and variance and that serves a purpose difficulty in the family but then he went on to say pretty clearly that this is very very troubling behavior and there's no question it is this is taking advantage of a disabled woman and dissipating her remaining estate i think the court touched on that it touched on it calling it the most serious financial offense one can imagine did criminal history addiction his going full employment his abuse as a child does not that explain nation qualify for making the sentence reasonable he explained in appropriate your honor you're right that this defendant committed reminding this case for the sentencing because there was a reasonable probability under us the story this court's published opinion and that the sentencing could have been different had the district court based its perry and upon t correctly found sentencing range and if there are no further questions i would like to save time for the rebuttal thank you  agreed upon that ultimately by the party is in the district court the there was a dispute initially before sentencing about what the last amount should be the government cut delayed it at the four hundred twelve thousand figure  but during the plea agreement and the parties agreed to apply the lower amount for the purposes of the sentencing guidelines the united states didn't think it would be worthwhile to engage in to take the time of the court on the parties and disputing whether fees and interest were properly included in the restitution amount so we agreed upon that and the plea agreement and at sentencing guideline based on the below four hundred dollars an amount was applied both parties coming amendment i'm sorry was that we said involved in the pending amendments there was a discussion of the in fourteen days new amendments to the guidelines would take effect those were amendments that took into account interest so the last tables were higher and the district did discuss that as part of it so ultimately the loss range of the last base guidelines range that the defendant wanted was applied and that was clear and restitution to was undisputed in the district court  at sentencing mr cox's counsel indicated that the four twelve figure was correct there was no dispute about whether that was the case the one advocated by the government and the one adopted by mr cox so  it appears that there is some academic discussion about what restitution what explanation for a solution was given by the district court  but that is just an academic discussion in this case there was no dispute about which ring should apply and there is no dispute about what restitution amount should reply should apply so to the extent that they want to challenge that on appeal is appropriate for two classes of people people who are in a position of trust and abuse it and people who say they're in a position of trust is something applied to people with professional or managerial discretion which means that they invest the largest victim's money in a reasonable way he made choices about the investment vehicles he determined when trades were appropriate i certainly had a wide amount of discretionary authority and it's clear that he had views that trust he lived he stole her money he pushed her into a dangerous part of town and essentially left her penniless and he would not have been in a position to do so if he had not been her investment adviser the purpose of this enhanced men is to punish people who are able to commit their crimes more easily because of their position and it's clear that he was  s r discusses how there is very little supervision over him at edward jones and it is clear that someone in his position is able to lie and more easily because of the trust any of given to him by the victims what is the specific distinction between choosing the vulnerable and actually abusing the trust for those to enhance mets sure the opposing your opposing counsel argues that those who are effectively the her capabilities her ability to understand or her lack of understanding of what he is doing and someone in the position of the defendant here could have used trust in even if the victim w someone who was sophisticated certainly and he did hear there were four victims including the one who is developmentally disabled dare he pled guilty to offenses involving all four victims there's no allegation that the other three had any inability to understand so he completed crimes against all four victims and there is no dispute about that there was some noise made about the fact that  discovered the crime rate the crimes were complete before they were discovered in all four cases so he was able to successfully carry it about based on his position of trust if there are no other questions and penalties that the government included which was which yielded to the amount of four hundred twelve thousand dollars they add to the loss of grain didn't he because he got the under four hundred thousand dollar category  again i think you're referring to the last range and the last range is important when it comes to producing the offense level but when it comes to the exact loss amount that actually has multiple functions two of them being amount does not have to equal the loss amount but in this case and that is that is actually the reason why it makes the lack of specific fact finding on the part of the district court so egregious because in order to reach the the process is very near the district court has to find an exact loss amount and then he reached of us to shoot him out so in order to returning to what judge donald has raised we wholly agree with your honor that the rest t could be higher than the last amount in order to make the last of the victim incurred wholesome but in order to do so again we come to this lack of specifics about finding mr cox consistently objected that the last amount should not have included fees and penalties and the federal criminal procedure rule thirty two makes it clear that the district court should have done that specific to finding when there is such dispute or explain why that kind of specific fact finding was not necessary there was no such crucial step during sentencing and that is what we are appealing today had he done so and had said but regardless of what the loss amount is the amount should still include fees and penalties because i realize that that will make because i believe that that's what will make this victim holes we would not be contesting this issue today you know if you are to  this court has made it clear that what matters is what was actually said during sentencing and if you take a look at comprehensively the sentence that the district court says he says i will vary from a range that was a referring to the probation officers range at this point which was at the stage of variance there simply was no be reason for him to mention his range at all if he had said i will vary from thirty seven to forty six months or from the range the government had proposed again i think in that case that there would be a stronger argument that the district court was varying from a range that he had chosen but but so coming back to  your contesting the very fact that he decided to reintroduce the sentence reads and thereby creating confusion as to which range he was relying upon and i think the record and the record makes it pretty clear that he was he was saying that he's very from a range that he was already that he has already abandoned if your honour's do not have any more questions i would like to recap by saying for these two major procedural errors one