defended it obviously he was on the top the indictment on this is a income tax case where these these folks essentially claimed to have worked for various casinos of money claim to have made a million dollars and paid in six hundred withholdings and then see three hundred thousand in refunds well it actually worked two or three times and they were able to get this money afterwards is that in about your one when this happened years going by these folks continued to submit these refund requests which were never approved by the i r s this case started with revenue so he helps folks occasionally for i r s issues well when he learned what exactly was going on it turned out to be a little bit more than a typical run of the mill income tax problem so frankly the iris investigator was was cackling on the phone and i will go into the adjectives that used to describe mr pierce but suffice it to say that he was not too impressed with the level of intelligence used to execute the scheme and that's the reason we're here  is the sophisticated means enhanced but that was applied at sentencing our effort your client used his son's i d that's correct your honor and used his son's residence in kentucky correct i believe that to be correct i can't recall off the top of my head if they were living together or if they had close residences but they  nevada starts coming up with businesses and addresses and there's no state income tax no state income tax right yes  find any and i looked at it yesterday one thing i found that was interesting is that you know some of the language in the cases points out well it's almost invariably applied when does it not apply and  n thinking through i think what happened in sentencing is that the assistant u s attorney said well you know if it had been a regular taxpayer and he simply had increased his deductions and said that his income wouldn't change but he increased his ducks in an effort to get a bigger refund that wouldn't be sophisticated well you know i got to thinking about that was that the thing in this situation is i mean when david pierce uses his own information or uses the suns and they they use actual people's information but they simply increase the income that's no different than changing the deduction amount that's essentially the same effort because the end result is just trying to get a bigger refund wasn't the best evidence that this was sophisticated the fact that they got what hundreds of thousands of dollars from i r s you've got to i mean you know they don't get them all but they  form submit it it doesn't make it sophisticated i mean there was no you look at the guidelines the guidelines talking about offshore bank accounts talking about dummy corporations and what we have here we've got a guy that just basically cooked up a put it in the dummy corporations it's your honor i don't know if it doesn't it you know how do you talk about he goes to they get some figures out where i mean well he got on the computer in kentucky and he looked up the i realize that about whether or not that would fit or not and you know i think that if david pierce had routed the money off shore or out of the money to another bank account with the purpose of concealing it i think maybe there's there's a better better argument but i think this is this is one of those cases that's frankly on the line as to whether or not it's and let it go on the line and the standard of review in some piece of discussion i understand your honor i understand the point but i but i would say this that the other thing i noticed when i was reviewing for the swirl argument is that it also is apparent that the federal sentencing guidelines have been updated in two thousand and fifteen and the language has been changed to actually  basically limit more so limits of sophisticated calls for more sophistication maybe well i think it calls for let me see the language exactly but it essentially said that that your client benefit from a change in the gu language maybe maybe the language has changed to simply it what it said before was otherwise involved sophisticated means and quote now it says and the defendant intentionally engaged in or caused the conduct constituting sophisticated means this may be more apparent to the other defendants but i will say this that with respect to mr peters i mean what do you have going on if you've got david peers sitting in a computer and you've got people coming to him with their information and saying submit my information you know i want what you've got i want your deal i want the money routed to you know the money would be go have to david's bank account and after the other coconspirators bank account which never worked by the way but that's that's kind of what we had and all they're doing is saying here's my information here's my false income information that that i earned you know and i worked at m g m or caesar's palace or wherever in las vegas and then here's the f e n yes i am number that i pulled off the internet for that littoral corporation which by the way i think of my recollection is correct that's part of the reason that this got found out so quickly is that m g m and whoever else was notified by the i r s hey who are these people that are claimed to be employees so they should the fact that mr pierce encourages or facilitate coconspirators figure into the sophistication i think this year i think that it's a simple fraud perpetuated over and over and over i don't think that changes the piers i think that you've got a situation where you know that the guidelines appear to be amended in a sense that they're trying to limit it and essentially in a situation like this you good morning my name is robin cornet my defendant is timothy smith and i would like to reserve three minutes for a bottle please i believe judge north had asked a question or had had made a comment that  standard the main i think what i want to do is the reason why i want to get back to that question is that when you look at the vast majority of cases that deal with sophisticated names they are so incredibly more complex than the honor i think there's so very few overrules because when you're dealing with multiple jurisdictional issues when you're dealing with offshore accounts when you're dealing with people who've created businesses in order to accomplish their fraud it's pretty obvious that it sophisticated and this is one of the few cases and why there are so few cases on the skating maze that it isn't the fifty k did in fact i think it's why we need some form of published case to give some analysis to god the in order to accomplish to try to accomplish their refund fraud and that arguably that made it more difficult to conceal because they had made up people and false addresses they work i think your honor it would be our position that the well it wouldn't be against our argument i think in terms of the it would be against our argument terms of the standard of review and i think that we do have a problem in the circuit that there is a conflict between the crossroads in what should be the appropriate standard of review and craig the craig case was a much earlier decided opinion of this court and it's very clear in the current case that the standard should be that of the individual's actions and in this smith when you look at his actions which the predicate indicates that you should he did not do anything sophisticated he was almost four of analogous to a drug mule in a drug he passed information he delivered thing he gave any cases from last circuit with similar facts that would support your argument in terms of the standard of review your honor in terms of whether this this type tax returns and they made up what was necessary you know in order to have you know tacked a fraudulent refund scheme you have to make out the information and that's essentially what they did they use real names real social security numbers real and real addresses real bank account information all that stuff to make it easy for them to file and what they made up with things like the income how much someone may how much someone to well it is multiple times your honor and that is true but what i am hoping is that these pages is no i'm going to stand for the principle that doing something over and over again and repeated is enough to be sophisticated because the g especially interger especially complex and then the application notes give concrete examples which i'm sure the commission that was the best i could come up with is that they're trying to give you kind of a rank and so they give these examples of states i want to focus my argument on what i believe should be in a standard review dealing with my while i stand review i'd only whether the novel i think this case should be to know because we don't really question the facts that the district court came up with in order to establish this finding that this is decayed we do question is the f k sion of those facts to this guy i don't but i want to focus more on that and what my client actually did in this case and what he did to conceal but first some of the touch upon the overall scheme i think you know my own kind of your guy make you know what two hundred thousand dollars and i don't think that the amount of money that somebody makes should be a factor in the sophistication i begin my look at this by looking at the guideline definition of especially complex and especially intricate and we're not just talking about complex here we're not just talking about entropy they specifically put that modifier especially before both of them and when i look at the facts of this case i just don't see these facts rising to that level i look at this more along some of the comments i saw in the jag and case where the peers case not this peers but this is lying on a go to the application notes your honor goes and gives a little further definition especially in this in as i saw that language taking it that the argument that you'll offer to us today is the same that you offered to judge  i don't think i'm not going to change my argument that's right so but he despite the that the deference about especially in all of this was also said to judge repeats and he nevertheless found enhancement we're going back to what i was saying here is that you know could anyone have accomplished this scheme and i think the answer is yes i think a teenager with an  state of the art of one time and so we came up with a pencil now we've come up with a computer and we keep them on our pockets all the time there's nothing sophisticated about that anymore the only thing that i think about these guys only hope they had of not getting caught was two things attrition in law and i thought i say attrition what i mean is that the i r s was just too busy to realize that somebody didn't pay one point nine million dollars in taxes before they issue a check or send it to an account that is what they were counting on not any layers of the union of sophistication but what i want to focus for my argument is on doing smith's actions defendant unless that person's personal involvement was sophisticated the guidelines now have been referred changed to reflect that very thing that's been law in this corp since nine hundred ninety six and the reason for that is because we want to reflect the individual culpability of each defendant you know the way it has always maintained that his actions in this case were passive he said yes use my identification use my address but he never met david piers never spoke to him had no input on what david pierce was putting into these i guess he used turbo tax or something you buy best buy one numbers were being put into this and i'll tell them again i didn't disagree with that when the district court said you know i think your general knowledge of what was going on just not all the details didn't hide his true under he didn't hide it and that's my point transfer if you know when i look at what he did to conceal this hour long lottery or i won a game can we think of a more common or asinine excuse for having a bunch of ill gotten gains how sophisticated  it's not it really isn't or the fact that he and this is what's important to the very divisive this from on the tax return itself had to wayne smith's name  wayne smith so security number on it had the account number going to a bank in mt sterling kentucky and that's all that the i r s handle looked at once they figured out after four months th wasn't quite right but transferring the money around well i would think ok if they used a warehouse space and put a different layer between them and the government authorities because those only go by account numbers i think there was mention one of these cases or even if my guy was smart enough to go under the ten thousand reporting he did what he did is it this two hundred thousand dollars appeared in his occam and some of the scheme amazingly worked and he went to the las vegas and gamble twenty five thousand dollars on it and then came the money was sent right back to the same bank and i'll say this is important to how sophisticated this is  as a matter of fact i mean  repetition and the copious case i'm running out of time here but i would think and i believe this was said by someone else that committing a simple fraud over and over again does not make it sophisticated this is the repetition we're contribute or reflect upon the complexity of the intricacies of the case there's nothing that these people repeated that created more layers of the on the ends for the government to peel back on the co case which again was an unpublished case but you know had similar facts and you know they just read i agree it was wrongly decided as my question to this court is how sophisticated can a crime be that can be committed from a jail real and also that when you look at the cope it's guy he was the right hand man he actually planted with the guy in jail when did all the leg work made up all the false no where house bank no lawyers no c p a s nothing to make it look more legit again what it comes down to when you look at this case you don't look at and say man how ingenious with these guys you look at and say to yourself how did they expect not to get caught that is how you look at this and it's because they did not do very much to conceal who they were where the money went and it took four months four months for the arabs to figure this out thank you and i mean you've heard the arguments it's a it's close call very close what what what's the what's the stronger than they've talked about what do you have that stronger respect or  actually govern the i think it's a particularly close call and i don't think the judge recent column if i can just walk through the court i think some of the factors when you really kind of parse them out i notice described it as hey they used simple tax forms they put their own names on it how could they be led to with that so let's look at kind of these are the factors that when you look at the case all that kind of get teased out repetition they used thirteen different rate returns of eleven different identities there's coordination between multiple individuals or five different co defendants in this case three of whom were before the court here they used real employer i d s out of state these addresses out of state that takes assist occasion they used to deposit the money in multiple bank accounts even in the very inception kind of simplest when mr pearce used his son's name but they sent the check to  he didn't know that then kind of morphed into a kind of increasingly sophisticated consecrates a kind of more elaborate steps to evade detection including using out of state addresses out of state employers the the process of filing these returns also generated false w tuesday and they used to store identifications all those things kind of humanly indicate a pretty sophisticated scheme doing it once much less doing it thirteen times it's a defense attorney kind of said over and over again that just doing something simple over and over again doesn't make it this ticket and frankly that's not what the case law says the case law says the very opposite i point the court to us the masters in a number of other cases that say just that that something individual acts which in themselves aren't sophisticated either when the repeated or when they're taken together do add up to fifty s occasion for the purpose of this enhanced and that's exactly what happened here the kind of tease out from the briefs and some of the comments of an argument what the coach unsophisticated acts were here i think each of those kind of fall by the wayside when you look at the case law the first is that hey look these guys used their own names they used their own bank accounts and all led directly back to them that was the case in u s b pierce us e mail telling us be clear for instance just be clear you know a guy essentially doesn't pay income taxes so the i r s levy says you put a levy on his employer's kind of payment to his he's an independent contractor so it's not a salary but the funds so what he does and he takes a fake letter fake form from the i r s supposedly to get rid of that levy and get them the money sent back to the poll is no name at all traceable directly back to him frank that's a lot less sophisticated than using eleven different identities here some of which are stolen the next point they make is that there were no offshore accounts or shell companies and just because you kind of raise this point which you know didn't defense here kind of use dummy corporations i want to know because you know m g m companies like that are real they're not democratic regimes but it's the same idea and the idea is they don't actually work for these companies and they purposely put these other companies in a different state so that you can track them down very early and there wasn't a direct tie back between smith and kentucky when you put an employer out in that that in the last is again this point that you know they were unsuccessful they got caught well that's the case for every defendant that appears ultimately before this court in each of the cases that are cited the briefs all of those people got caught so whether you get caught or not and frankly the relative ease with which the i r s can catch them one doesn't really speak to the level of sophistication of the scheme the other point that's raising the raises raised briefly and argued today is this suppose a conflict between there's a craig case and the crossroads case and i just it's a little bit ten years but it's one of the walk the court through this very briefly because i think it's important to kind of understand what happened greg was back at believe in one nine hundred ninety six and there is some language in there that indicates when you're looking at the applying the sophisticated meaning you need to look at the conduct the the problem david gergen david pierce to down to the last gentleman who says i think i did nothing you got money and banked it and told a whopper about what where it came from it's really really put before the court just so it's clear that this wasn't mentioned in the breeze what they said is there was a manner regarding whether they had been applies on a personal conduct of the defendant or the overall offense conduct for which the defendant is accountable consistent with the usual relevant conduct rules which is what i just individual conduct so you have to show that that individual intentionally engage in that sophisticated conduct but that kind of tells you everything you need to know about what that rule used to be otherwise it would be an amendment and that's essentially what the court noted that it wasn't just a mere clarifying c didn't apply because they got involved later their conduct was relatively minimal compared to these defendants you know when you look at the kind of run of the mill garden variety tax fraud refund scheme you know i could do this by that what in what would distinction is there between the folks who here i think i'm kind of disagree a little bit that the money is not if i think the money certainly should be one of the many things that a court looks at obviously if you get six hundred thousand dollars of that here that gives everybody pause and says well that's that's a lot of money but they're done something to get them but i think what the court really looked at for instance with plaintiffs we talked about it's not only did you get two hundred thousand dollars but you take that money he then wires it to the bellagio you are at a different amount back to him he then wired says that the two different bank accounts in the course that he tells somebody else he's trying to evade essentially you know where the money comes from it once you start getting into multiple wire transaction casinos and when gentry's heard all that i think you've heard enough the other quick item  see that hasn't been taken up by this court and this very specific context is the supreme court case buford which talks about a deferential standard view that applies when we're reviewing guidelines application under submit that this case should be should the court decide publish decision should further finally you know there was one statement that a couple of statements made about kind of the path of nature about each of these individuals involved that pierce just kind of took information that was coming to them i think that's belied by what the facts are the facts are that pearson timothy spence really came up with this  on repetition series of actions if you analyze master status which has been some time doing that my brief what you find is that masters has analysis they explain that it's not merely doing something over and over again but there has to be some coordination look in some planning some series we don't have that here each tax return is a single event on its doorstep is night up and that's all it is and i would submit your each other so of course it is your honor but there's there has to be a little bit of cordon ation in a game that is true but there is no coordination or planning here that is more than here is an eye of security number here's an address here's my bank account number and everything else made up if did the income tax refunds gain is especially encourage or create an especially complex which is in the never not commentary in the guidelines where that language is reference any of them are going to be so we need and alice is to help us differentiate between these types what sophisticated names it is and that's the problem where the judge could ask about what did judge reeves rely upon and he relied upon the nano money to success and the repetition and he didn't apply any analysis he just said well look this is more complicated than an individual just make an apple little bit of stuff because you've got multiple times here and multiple names and that was it he took the simple of the lowest bar he took the simple with income tax refunds came in fair because this case is not that simple it is therefore especially intricate and especially complex if you look at the fourth circuit case which is the  type which i didn't get a chance to get to your honor's that in that case they said it has to be more than what is inherent in the fraud in order to be sophisticated that case involved stolen identity and it just is this case did and your honor that asked me for type previously that was similar and i would submit that that's the closest one there is and in that case the fourth circuit analyze this decision is it look you're going to have fraud you're going to have line in every one of these cases it has to be more than using fake names misappropriate misappropriate identities it must be more than that and if it's not it's not sophisticated names and the masters case also make it pertinent and a clear case which says there has to be some planning and there is no you i've only got a minute left some of the see how much i can get out of just one minute in response here but the first thing i want to say is going to come back to the money issue i do think there's a little bit more involved in it there was i think he did judge result of risk benefit analysis very sickly was what you did worth the risk while you know so that you can keep the money i don't think that type of analysis is proper for sophisticated means because a lot of cases say it's not the success it's how you do it in relation to the clarification of the amendment i disagree with it being a clarification unless we want to say to clarify the united states speak reading was correct and it always has been i do want to say one thing about the parents stolen idea that they're claiming this was about doesn't impact the calculations and judge reads never took that into effect so i don't think that's ever been found and i don't think that should be a proper basis for this court to make any type of  you thank you the ranger and the cornet i know you both have accepted the appointment here on the criminal justice act and we know you do that of service to the courts