thank you may please court on behalf of just an hour we are asking this court to reverse and remained for re sentencing on two distinct bases although containing in a related concepts the first is due to the district court imposing a procedurally and reasonable sentence by including amount of loss from conduct was similar to the offense of conviction conduct but not in preparation for the offense of conviction god the second is we are asking this court to reverse the remand for restitution issue  common course of our common scheme or plan or common course of conduct analysis to allow prior conduct to be relevant it must be of a type that three d one two d would allow for grouping here there is a very specific answer that question and it is that when dealing with an extortion extortions can never be grouped so looking at that specific textual statement that this cannot be grouped based on a theory of common course of conduct or common schema plan we move to the interpretation and this is the district court's interpretation of in preparation for in looking and considering the plain meaning of in preparation for as applied to this situation  the plain meaning of in preparation for implies that there is a dependent relationship or a but for relationship one has to make the other easier or or more likely and there's also an intent aspect to it one has to be done with the intent and the idea that the next will occur not necessarily just the intent to continue but the intent to make easier here we have prior similar instances but not dependent and not necessarily done with the intent to make one easier or the subsequent one easier we feel the chief error in the district court's analysis is due to the fact that it applied basically what amounts to a common course of conduct analysis it point of the similar conduct point of the similarity of the victim these are relevant concepts to a common course of conduct analysis but here the guidelines specifically tell us that that is not enough pursuant to one b three one a t are there some situations in which the earlier incidents in the common course can be in preparation for later incidents in the same common course absolutely all right so you say that's possible it's just that for some reason on these facts you don't think the earlier extortions were and were in perpetration for the later ones sure that's correct we do not or not why not why what's the district court's rationale for why extent first facilitated the later the district court concluded that one was done with the intent to prepare for the next what these are demands for money the and they are separate demands for money when complied with the individual's end is to obtain the funds it is not  to obtain later funds or or or continue to do it again in looking at the facts here saying that the losses the fifty three thousand dollars some lo relevant would mean that the twenty five hundred dollar request for an insurance bill back and i forget when it was november of two thousand and eleven was to prepare for a subsequent one hundred dollar demand in july of two thousand and twelve some eight months later the there is a repetition about the conduct but that does not necessarily mean that there is an intent that one makes the other easier there is not there is not any aspect of one discrete extortion where there is a demand and a comply that makes a subsequent  easier and that on the issue of intent there's not a lot of case law on this right so so are you asserting that as your understanding of the guideline and what should be have to be shown or are you relying on anything else within the guidelines in the other case law to say really it's got to be an intentional i'm relying mostly on the plain meaning of the  guideline to say something is in preparation for the next is to say that it's done with it you know that the previous act is done with the intent that it's going to make easier the subsequent so i think there's an intent element there and i also think there's a bu intent was lacking you can say that somebody illegally entered the country with the intent or there was no record evidence of it here were saying there is no record evidence that justin howard intended one of the hear from you please the court counsel i'm kevin collar from the district of south dakota here to argue on behalf of the government your honors the standard of review here on the relevant conduct question is clearer and it's a question of whether this court is left with a definite and firm conviction that a mistake was made by the district court there's not much dispute about a few things here one is that the district court made their decision on relevant conduct based on this factual inquiry of the phrase in preparation for the and the other thing that's not in dispute is not much case la fact that the briefs are arguing over the were over a vacated six circuit decision tells you where the stable law is on this question the facts here are that this was an ongoing extortion conversation between mr howard and his victim each extortion effort built upon the last one and was escalating by the point at which law enforcement then became involved and the final kind of controlled extortion took place that was charge of the offense how do you think the earlier exist or should facilitate the later ones can you articulate that well these two men and his briefs point out met on a dating website and the initial interactions were about these men getting to know one another in howard's case getting to know some embarrassing details about  victim here that he is holds a position that his presence on the website would be a problem for him august seventh two thousand and eleven he sends the first explosion like text he gives the victim's name where he works and says call me at that point the victim calls and he asks for some money now from there within the next few months he's and asking for him to pay for cell phone charges for car insurance time passes the victim learns that the mr howard has gathered photos the demands escalate to demands that he take out a car loan then when the victim says he runs out of money there's threats then to use these pictures that mr howard has gathered he text the victim the pictures alternately he calls of in a welfare check by police calls parishioners and other priest using the cell phone book he's showing through the course of this conversation that he serious and the conversation is escalated tell it's a testing boundaries issue as this goes along he's asking for more and more money heightening demands to the point at which he's seeing if this victim will take out loans and when he finds out that the victim will take out a loan that is one of the that's the context that surrounds some of the last communications that are charged where he's telling him look do the a thousand thousand dollars or let's kick this closet open he says in the end sending nude photos and so forth this is all about getting another loan at this point so what is your view on the issue and in terms of if there has to be some intent i mean do we have to look at each of the prior case law that directly defines this issue i understand the point that in preparation for seems to mean you know one thing takes place in order for another thing it to take place in the defendant ought to have some inten here i think the facts are that the defendant was intending to bleed this victim for all he was worth and and that was the intent from the beginning through to the end but in terms of the extension conversation that took place over you know dozens if not hundreds of texts and cell phone calls and various extortion acts it was an escalating issue the other way that this court of course can affirm the prison sentence in this case is by a finding of harmless error the district court here made a very individualized fact based determination before a arriving at the  did not it's true proclaim that this would have been the sentence arrived at but for the guideline range now we see that sort of bullet proofing statement made in a lot of sentencing records and that was not present here  but it also didn't treat the guidelines as mandatory it didn't employ the wrong standard of proof it asked the defended a number of questions about himself about his background about his future plans about his past job duties making an individualized fact based assessment the district court talked about the victim's own emotional damages talked about the money damages that the victim has talked about similarities between the victim's life and the defendant's life and that the defendant should have known how this crime would have affected his victim consider the defendant's addiction issues  sexual abuse considered family real relationships and also consider the nature and circumstances of this particular crime in the sense that it was multiple actions over a period of time and that the defendant knew about stress and that the you know victim would be losing his life savings and the ultimate statement that the district court made is i find a sentence in the middle of the advisory range of twenty one months is appropriate here  believe that the court on this record can find that if there was error in applying the in preparation for standard on relevant conduct that any or hear was was harmless that this was a fact based individual ice sentence that was arrived at  through consideration of all the sort of factors that are compassed with thirty five fifty three do you have anything to say in defense of the restitution order that your brief seems to acknowledge that offense did not have as an element a scheme conspiracy or pattern of criminal activity which is the predicate for including harm by a course of conduct beyond the offense of conviction so i wondered if although you then go on to say therefore the award should be a fur and well your honor as i've prepared for this i had lots of arguments if ronald's were not the law of this circuit and reynolds is good law on the circuit and i i do think it's strike the restitution award from the judgment i don't think there's a need for a full reset and saying now would the whole award have to be stricken or was some of the rest to sion to add to the offense of conviction the offense as contained in the indictment involved the like this how could the government proceed i guess you could get in a plea agreement if you have a plea maybe but i think it's possible to indict in extortion offenses a scheme type offense by broadening the offense but i think here it's simply a matter of indicting it with the timeframe being different well how would that make a pattern nurse conspiracy an element of the offense or you mean to say that it was well go ahead explain that i think if the indictment had the time frame different then each of the extortion acts would be part and parcel of the of the indictment mean just or substantive count of extortion that covered covering altering time periods the other possibility of course of the restitution statute leaves open is a plea agreement that includes an agreement here there was a plea by petitions or i suppose you could charge each of these acts or you could charge each of them prosecute all the counts exactly so so i think that's the way this one was handled the only conviction is on the controlled that's right if that was the only count of indictments thank you waling behavior when you think of walling behavior it is incrementally increasing you cannot explain how you got from point a to point b on the other side without all the steps in between here we don't have escalation we have one secret and a repetitive demand the secret is known to the defendant in august of two thousand and eleven between escalation i think is unfair in these facts and and how that plays in here is a demonstrates that the conduct in july of two thousand and twelve the offense of conviction is independent it stands on its own so was there some sort of incremental increase in the amount he was trying to get from this man not any discernible pattern no actually and the money was given voluntarily prior to august seventh two thousand eleven so no i mean it was to pay a bill to do this to do x y so it's all over the map with anything else escalate like the level of threat or the exposure the level of threat escalated at the very tail end during the offensive conviction that's when when the victim had a run out of money it escalated but prior to that it was independent extortions and finally i wanted to address the hardness of this go and the question i have is in view of that absence of forty other cases involving this and  t the absence of other authority really on point i think neither side was i mean to find any cases that were really clarify this area h that we come away from this with a definite in firm conviction that a mistake has been committed by the district court and i think improper in preparation for is not defined and this is a unique situation and does not come up heck of a lot but it is plain language that has a defendant meaning there's not a lot of case law because it just doesn't come up doesn't mean it doesn't have a clear meaning here the clear meaning is one act is to get ready for the next act we believe that each act stands on its own doesn't need the context to explain it there's one secret one demand and so on so forth is repetitive not dependent not be a point thank you thank you sir thank you both for your arguments the case is submitted and we will file an opinion in due course