good morning please the court when we over myer for the defendant leon benz are and i'll reserve three minutes for rebuttal thank you and today we're here to address the erroneous facts that require a reversal of the high end sentence imposed on and this fight this court's prior remained bends or has not yet received a sentencing based on correct facts and there are two main erroneous facts here that i'll address today the st is the district court's erroneous beliefs about what happened during the previous proceedings that kind of persisted throughout this recent unsing procedure talking about him saying that there was a trial there but that was partially it but more concerning was that when the court imposed sentence and says well i imposed a high end before and so that's appropriate here i'm going to impose a high and now and that was not true and the defense corrected the court after imposition of sentence but yet the court  didn't correct that misstatement or explained why a high end sentence would be warranted now when it was an imposed before because before in fact the lowen sentence was imposed and in part based on the fact that bends or had pled that was a large factor that went towards the low end sentence before because ben's or pled to all charges early on saving the government and the court time so because the sentence was directly tied to that erroneous fact that i gave a high end before so i'm going to give a high and now this court requires reversal when again the sentence is demonstrably based on a number only as fact but the judge acknowledged that mistake right afterwards right i mean looking at the transcript here i thought of as you or some other counsel you point out the error and then the judge says i'm sorry then so i mess i apologize seems like the judges acknowledge that error and the judge then says well then i did depart upward i mean isn't a reasonable reading of when he says i did depart upward he's not talking about the sensing guidelines that he's departing upwards he's saying well i acknowledge the mistake i made but i'm court meant from that statement because a departure you know is a specific a very specific procedure that's based on you know it's a term of art but i think a fair reading of the transcript is that the judge felt that a high end sentence was justified by by the facts if we don't think your your procedural irregularity arguments  nt reversal why isn't the fact that under the of the political guidelines which both you and the government agree weren't weren't used that under the a playable guidelines it wouldn't matter  whether the loss took into account the services that you say your client should have been credited with because the agree that the two thousand and fourteen guidelines do apply but there is still this l dispute of five million dollars which is a forty percent difference lost so that's a considerable amounts when considering the totality of the circular argument is that if you're right on this even if the guideline range would have been the same the judge might have given your client a lesser sentence if he had found that the loss was less yes that's correct and so on that issue i mean on the merits of that issue i have a hard time seeing h services rendered by conspirators for their own for their own ends where it may provide some collateral benefit to your clients have any value when you're looking at it  in a realistic economic way why services rendered by crooks for the purpose of advancing a criminal purpose have any value at all when taking a realistic economic view of that's it's the offset rule of the guidelines which is the same under two thousand and fourteen or two thousand and sixteen at notes thirty one dollars that contemplates that services rendered even by a defendant conspirators in the conspiracy still can have a market value but i think the cases that you cite talk about actual legitimate services as opposed to cases where the services themselves are driven by the fraud and that for lawyers rendering them they're doing it on every act they take is a breach of fiduciary duty do you have a case that deals with a circumstance like is i'd like to compare it to the strickland standard so and the fact of assistance claims there's two prongs st was their ineffective assistance it was some kind of duty violated and that and then there's the nd prong was their actual prejudice from that performance and so here there's no dispute that the attorneys you know they pled guilty they were part of this conspiracy but was there actual monetary peculiarity harm suffered by this stand off from their actions and the answer is is no when you look at it clinically because for nancy kwan her she handled the construction defect that was a legitimate suit it had to be filed because the condos were unlivable and so santa would have had that suit regardless of who filed it and she was successful in getting that suit settled and there was an independent evaluator that the government called when she really do toward her multimillion dollar fee well she settled for nineteen million dollars which w a sergeant that testified on behalf of the government that the typical the average contingency fee is around thirty percent for these types of cases and i turn it would i kind of look at it as if this were somebody say who we're going to be suing under so with theory that hears the value of my services and you should disregard the fact that i was part of a conspiracy for my own purposes i just can't see any court ever saying those services have value so i'm going to a word you the attorney money as part of the services you supposedly rendered which are part of this this total fraudulent scheme i just can't see a court ever saying the lawyers would have been entitled to any money and if that's the case i don't see how your clients entitle to an offset well i like i can't say what the civil remedy would be either for the victim or the attorneys in this case but the guidelines of the commission chose to include services rendered by conspirators now the guidelines could've chose not to include that said anyone involved in the conspiracy could never give valuable service that could be a fair market value of the actual service right yes which was the you know the contingency fee for these type of construction defect lawsuits the standard would have paid the same contingency fee no matter who represented them in the successful suit and so government witnesses that contingency was within the average and then the government brought in jan brussel who was an independent evaluator to said the nine hundred million settlement was sufficient and she advised the stand that yes this one billion settlement is deficient so here the fraud w the contract fraudulent lee it performs that contract the attorneys perform that contract and so that's why there is no monetary loss because the theft aspect of the conspiracy was for the construction repairs which bends or has conceded that you know any money that he received that he didn't go towards contract but this is towards the attorney's contracts that were performed that should be should offset loss and you want to give you another minute range was correctly compute it for that reason alone the court does not need to reach the merits of the dispute with respect to law you know i although i understand your argument and i have a hard time agreeing with it because i mean the government told the judge what the right what the right guidelines supposedly were the p s r did everybody was under the impression that it was a particular guideline level it turned out everybody was wrong people make mistakes but but why isn't your colleagues argument that irrespective of which guidelines there were if the judge had found the last was five million dollars less he might still even under the correct guidelines have imposed a lesser sentence why why why does if we agree with her on the merits why isn't that right to give the judge a chance with the correct loss amount to reimpose this to have another shot at sentencing to reason i want to get to the merits of that argument in a nd and the merits were discussed below and we think that this court did not air in the st place and for that reason alone affirm it will be in order but as a procedural matter the on a different record it guidance range now it is undisputed that they did not in fact the fact the guidelines range and for that reason alone the fact that there is no longer a dispute about the guidelines for a suffices for four months i do want to touch on the merits of the  i want to touch on the merits of that last claim as the discussion just a minute ago i think suggests that the question in there too is narrow is what was the fair market value of this services purported legal services the benz or coconspirators rendered and the that question too i think is straightforward the answer is those illegitimate legal services has zero fair market value and that and that flows directly believe should be enough in the context of legal services but they were also rendered in a frontal fraudulent way throughout this retentions the attorneys were out to defraud their own clients and for that reason alone and as the discussion before we think that the fair market value of those services should be zero how do you reconcile that with our courts right guard decision which involves medical services and th circuit reversed the district court and said you can still tease out between legitimate medical services versus non legitimate and reverse it just record because it that this record just used to bake has permeated with fraud and discounted all of the medical services provided right because there's a distinction there and i think we think this is much more like the united states versus blitz case that we cite in our in our briefing because medical services do not in those cases the serviceman been induced on a fraudulent basis but they were not rendered in a fraudulent way the point was and recognize the duty of loyalty but the attorney misc one did obtain a ninety million dollars settlement there wasn't you know for four hundred thousand dollars five hundred thousand dollars and their lease some value to that isn't there  practical point of view setting aside ethical issues and i think what is particular particularly devious and illegitimate about hijacking an attorney client relationship we don't know what the settlement would have been if the relationship had been a loyal one we don't know but the were each of those slip ups as just lee noted before was corrected and because of that that's precisely how the system supposed to work an objection was interposed a correction was made by defense counsel in my case i think by the probation officer so at at re sentencing the aggravating factors all went down in favor of ben's or the government came down from a sixty million dollars loss to twelve million dollars loss and they five million dollars dispute would take it down even further to the low the very low threshold of the enhanced mint so that could have a reason to have the problem probability of resulting in a lower sentence and it's the commission's decision again that conspirators services can have value that's the choice the commission made so when looking at this from that kind of clinical objective stance the attorneys did they obtain the contracts fraudulent lee yes but they intended to perform those contracts and so that's what the kwan did she obtained the contract will be a fraudulent leap but she performed the contract she litigated the lawsuit she took slightly less than average contingency fee which the standard would have paid to any law firm handling the lawsuit and the not she was the leading construction defect expert in las vegas at the time she actually have a television show about construction defect and she was considered one of the leading attorneys in this area and unfortunately she passed before the indictment in this case but the government's own expert and again the independent experts that the one billion that was sufficient for these repairs so that was a valuable valuable legal services for this one billion and should have been i'm sorry for the  attorney's fees and should have been credit and so what bends or seeks is again a sentencing based on correct facts correct facts as to what happened previously and we ask this court to vacate the high and sentence here