and may please the court i'm joshua weiss from the federal public defender's office here on behalf of appellant james lindsay with the court's permission i would like to reserve two minutes for the do that thank you the government for the burden to prove the intended loss amount by a preponderance of the evidence and have to show that mr lindsey subjectively intended that is that he purposely saw the losses the government alleged the government met that burden with respect to the diamonds that mr lindsey  have the diamonds that you're referring to were worth ninety thousand dollars and so the question is where does another five thousand dollars or more come from right and here other than your clients admission that he had previously stall on other diamonds and valuable jewelry why isn't it a reasonable inference that those other diamonds and valuable jewelry would have amounted to five thousand dollars or more  well two points and that you're on the st of to draw that conclusion would be an independent fact finding that the government ever alleged below that mr lindsey's statements to law enforcement about his prior mouth  was at all related to this case for that it what amounted to losses greater than amounting to five thousand dollars and those fact findings would were not made by the district court so just what if the i'm sorry go ahead i was just going to say it's in the stolen so there's five thousand dollars in his pocket correct i believe it was in his backpack i think he was right in there and there's also the picture of on the phone of the girlfriend with the great big rock on her finger with no apparent of obtaining money that was talked about by the district court and its mitigation discussion i would just point out that in the case of united states versus thomas this court said if i could quote that the allegations that these other alleged losses were related to this case or with respect to the prior mouth after mr lindsey i talked about how much that was worth should we make every case for assessing the sentence and so in the air with respect to calculate in the guidelines range is is never i don't believe is ever really considered harmless but this is a rather colorful case  courts you know wasn't one hundred percent clear on this but the court does say that it infers that the defendant would have taken as much as he could have and would conclude that the probation department properly where ever they arise in the case correct yes your honor ok so the picture of the five thousand dollars doesn't that have threshold well i would argue no your honor and  jack's from ninety thousand two hundred or whatever so the five thousand takes him over the threshold but your your argument seems to be that well there is a possible innocent explanation for this five thousand dollars and ca but that really isn't the test i think it's whether the inference is that were drawn are permissible yes well yes your honor but again i don't see this record as  district court excuse me the guideline requires findings of the specific losses that mr lindsey purposely sought to inflict and here the district court calculated a particular loss amount question is whether these other facts in the record can be used to supplement the district court's findings however given that the district judge and i make findings about those other potential losses nor was there any chance for mr lindsey to rebut those with factual if there was an allegation below about those other things in mr lindsey would have the opportunity to rebut them so if we were to agree with your argument in return for recent saying on an open record presumably the judge could rely on other information and still get to the ninety five dollars plus correct that is correct your honor that would be if there was an open record remand and we'd you argue that there should be a close record re mad again because the government had an opportunity to make all  even if it did that error was harmless because there are two additional grounds in the record to support that last calculation category i want to start by noting its reply brief the defense argues that the should be  review the case it cites for that proposition united states versus santos applies a clear air review to a very similar question which is the valuation of tax the government would submit that the last is a question of fact that should be reviewed for clear error and what is the the district court seems to have although it's ambiguous seems to her live on the checks the thousand five hundred dollars checks and much of our discussion concerning the five thousand dollars in cash so in your view do we review only the six thousand five hundred dollars and and if we determine that courts application of an offense level increase not on the basis the district court used but on different bases in the record the government believes that that is appropriate here both the five thousand dollars of cash that were found in the defendant's backpack as well as his admissions that he had been stealing valuable items from the mail for months those are both undisputed facts in the p s r the defendant had an opportunity to object to those facts and motorcycle accident so minor or something else why in your view is there enough to charge him with the six thousand five hundred dollars checks yes your honor i think it's  combination of the facts here a defendant targeted the bucket of mail that he took because he knew that was going to the jewelry district he took it he admitted because he thought there was valuable stuff in there and he wanted to steal it and make money from it  he'd been doing this for several months right but he was basically targeting the actual jewelry that was his desire so the checks i mean that could have been somebodies birthday card in there too he was targeting the actual jewelry so how do we get to the checks i got and not his route either as i understand it he was stealing tubs of mail not from his route correct they were not from his route  of times and it's in your view to having stolen other items as recent as the prior week so while there is nothing specifically in the p s r about him previously having stolen checks he does  that he had previously stolen a variety of items i believe the record supports him friends that both the diamonds and the checks were in his mail satchel and the front of the mail truck with him he had not  put the checks or the rifled mail back in the back of the truck he had not brought them back to the post office and when his home was later search when his home was later searched a piece of rifled mail was  found i think all of these things together with the focus on his admissions of his intent and his past conduct are enough to support the district court's conclusion that he intended to take as much as he could from the said that it was applied on a level adjustment up words for intended loss including the diamonds for ninety thousand dollars for ninety one thousand and forty one dollars fourteen cents and two dollars stolen checks in the sum of six thousand five hundred dollars