this morning on the guidelines calculation issue that is the issue about why mr joseph for telly under the guidelines and its commentary can't be considered a victim under the more than one victim section counsel you're familiar with the advisory version of the guidelines the district court must and that that the a correct version of the guidelines calculation would you think that the more than one victim calculation is relevant for the courts consideration today and that that guidelines for vision in the commentary your honour's to at one point one the to be mr virtually isn't a victim of the fraud because there's only one victim that's capital partners the commentary two to f one point one says that his scheme to defraud more than one victim is a plan to obtain something of value from more than one person and it defines a victim as a person or entity from whom the funds are to come directly on loan documents or other official papers couldn't that potentially destroy his personal credit rating and so on down the road so that he doesn't have to be out any money but he could certainly be injured by your client's conduct and your honor the guidelines provision does recognize that under other guidelines provisions it's possible that people who are not the people charlie can't be considered a victim because crimes never came directly from him to either of the defendants or their corporations vs just felt this question in a different way if if the guidelines are now advisory and not and why couldn't the district court consider the theory that i just articulated in concluding that there was more than one victim here for purposes of punishment and even though this particular provision of the guidelines doesn't consider that wouldn't that still be a relevant consideration at sentencing in fashioning an appropriate sentence for your client's behavior potentially so your honor just as the other thirty five fifty three  factors would be areas in which the defense could present potentially relevant relevant mitigating factors that could influence the district court's decision to give the sentence less than the one it imposed before guidelines are not binding what is it the you're asking us to tell the district court i mean even if we give the district court an interpretation of this guideline it's not binding on the district court in based on a number of factors that the government proposed at the initial sentencing before booker so you're kind of like she's not yet basically that that you're going to be able to convince not been charged in the indictment which our office was during doing in this time period that we felt constrained in arguing for the application of that enhancement the government's position is that on remand we would seek the application of that enhance honor as an initial matter the district court actually applied the november two thousand and one version of the guidelines and therefore the two f one point one application definition of victim didn't actually apply to the dis s findings the defendant argues that it's actually an ex post facto issue that if the court had correctly considered the two thousand version of the guidelines it would have come up with an offense level that was that capital partners on behalf of their client did nova and you understood although was actually the company that cosima robert cole operated that capital partners acting on behalf of their client would eventually try to obtain fifty two recover fifty two thousand one hundred thirty dollars and that capital partners admitted to collection notices to just a potentially and there follow the government concedes that the move the money didn't actually move e collection activity could potentially destroy credit yes trauner what happened was that was that the person at capital partners discovered this fraud when they spoke with just for tally the evidence at trial was that just of her tell it was actually in and out of the hospital and very ill at the time and therefore the government's position was that the way the skiing would have played out was that he would never have disclosed the fraud because he was still at in addition there was evidence and it was charged in the indictment that the defendant had engaged in a lowly lulling scheme excuse me and when justice patel we learned of the collection notice she told him don't worry about it are the government's position is that there's no ex post facto concern because if they just report had applied the november two thousand version of the guidelines it would have concluded that the base offense level was fourteen and indeed that just a court made that finding on the record that  a difference does it make if the advice if the guidelines are no advisory and the thirty five fifty three days factors that inform the district court's decision making on the sentence who cares what version limited women and my sentence would not have been materially different i'm not sure whether or not the defendant could then appeal the district court's conclusion that if it had applied the november two thousand version of the guidelines it would have concluded that the sentence would have been the same but as long as the district court judges careful to say i understand that these provisions are no longer binding but in consideration of the thirty five fifty and that under a proper application of the guidelines including the application of two f one point one that the part should at least start from the range that would be mandated by those guidelines and therefore we would still urge the court to consider bottom line in the paragraphs of this court's decision in your view and it's important that ms newman listen because she's going to have to rebut it if she can the bottom line view would be that this case would be  to obtain money for defendant lavelle and new tech from capital partners so that this scheme charged and the scheme charged all through that paragraph nine is all about getting money from capital partners by these two provided by these two defend s and since the guidelines section says that the money has to come from the victim directly to the defendants you have to to show in some way that joseph mortality is something more that  presumptively reasonable with thirty five fifty three a factor substituting as departures i think that mischaracterizes booker and this characterizes the vastly increased collectability that district courts now h direct review but if you look at what other courts have done the first step is to see first that the guidelines calculation is correct and then to look at the thirty five fifty three a factors and then see whether given the thirty five fifty three a factors and the the court's own reasons the court's stated reasons for giving the sentence that the court did impose that there there is nothing honor's question but i think that the courts point of inquiry has to begin with the reasons art thank you lady by the district court given what the thirty five fifty three a factors are and given the arguments in mitigation and aggravation proposed by the parties i agree that the standard seems to rather nebulous right now and if the court is really concerned about this issue i would say the standard seems to be very flexible in terms of giving district judges more a legal way that sidelines ever get we're going back you may be a little young for that but we're going to the good old days when i was a defense lawyer and you actually had a shot at convincing sentencing judges that maybe probation was appropriate in a case that the guidelines that you can't grant probation and so we're kind of moving back in in that direction which is going to give i think appellate courts clause before we overturn sentences that are within the statutory as long as the district judge for adequately articulated the factors that led him or her to impose