good morning your honor sir brian in this case robert altman runners this is a single issue appeal in light of the government's concessions in the briefing the only remaining question for this court to answer is whether the sentencing guidelines played their customary role my clients the government has acknowledged that if the answer that question yes my client is entitle to relief under strickland washington the answer is yes the guidelines served as the starting point and the focal point for my client sentencing and we know that because of what the district court said it did at sentencing the court told us that it sentence my client guidelines calculation very much in mind after repeatedly asking couns confirm its guidelines calculation it imposes a guideline sentence within the range of believed to be applicable and at the very bottom of that range and so doing it dr the recommendation of the probation office to impose a sentence at the low end of the when those two points are present the case is dispositive in a case like this one in which all parties agree that the district or erred imposing a sentence under the wrong guidelines range did the it's absolutely clear of the sentence would have been lower it's just the fact that the court applied the wrong framework sentencing is where the error stems from i want to turn to the a couple of the government's arguments in this case because i think that when you get accurate ask you maybe you're going to get to this anyway but you don't mean in your brief that there are situations where applying the wrong guy line range can not cause prejudice are you looking for some magic words to invoke that because i think that's a really difficult argument to make that's the way our journey that that's not the argument ok so why would this be among those because you've given us  sentence without looking at the guidelines there's a whole bunch of other stuff that the district courts which justified its sense i think the district court did say a lot of sentencing indeed i think that's also true and that's why i'm asking you if we don't the magic words what what is it that we need we didn't have here because there were certainly justification for the sentence the district regain i agree and i think what you're district court did this all because it was with in the range on another way to read this record is that the government was suggesting one sentence and you i think that's fair i think mike below the record reflects that that while trial counsel argued for a sentence that was slower trial counsel actually didn't suggest that a lower range was appropriate in this case well ok that's what your calculation of the range was correct and so is your position different from asking us to apply your presumption or prejudice so i think i think i'm not i'm not asking you to apply for something precious i'm just asking you to apply the standard that the supreme court applies in similar circumstances and so when will you know martinez the supreme court tells us that when there's a guidelines there in the ordinary case that alone is sufficient cause prejudice to a person the circumstance  at the transcript of the sentencing and hold on the basis of the transcript that the guidelines were were both starting point and focal point here all of the district courts discussion of various factors or feuds to some of the guidelines i mean the supreme court you know just your for some time will affect make an alternative finding the basis for their sentence and they'll say you know even if i got the guidelines wrong i looked at the statutory factors so true so true and this out so to speak i think words i think i don't even need magic words i think this court can ask whether as it does on direct review whether there are some consistent indication in the sentencing transcript that that suggests the sentence would be the that that's my position but i don't think i'm not suggesting that this court there's not a magic word in the sentence the transcript like that the that the district that this court can never find that the guidelines here did not at sentencing but rather the sentence was was appropriate regardless of what happened and i think that's just missing in this case and i think all of the indications here on this sentencing transcript are that the district judge intended to impose sentence within the guidelines range of lead applicable and at the very bottom of that range all of the criteria that you see on the transcript here point to a sentence within the range and at the lower end of that r i'm sorry i didn't want to cut you off no you didn't cut me off but i got i'm just really not sure that's a fair reading of the transcript and we get you know a lot of sentencing cases and the district court here was very worried which it seemed to me took a very specific and individualized assessment of this defendant and put him in the end and was sympathetic to the fact that he had been cooperating but still regarded deterrence as really important factor and so it seemed to me that he weighed all those things and to come up with saying that there's a reasonable possibility probability of the sentencing transcript in that case and not just florists yes no no i did not come here to this i mean this is really quite an extraordinary sentencing hearing and i too don't dispute that the district court did a very good job in centering all of the criteria as adopted the probation officers recommendation that it sentence at the very low end of the range so this isn't the case there are other cases in which you could see a consistent indication in the sentencing trip that the district court believe that the very concerned about those turns and the signs of the loss here that's that's absolutely true but what there isn't with there isn't on this transcript is any indication that it couldn't address those factors through the prism of the guidelines  and i'm just want to clear up my final point you know in this case safavian likely served nine extra months in prison because of just court's error in calculating his guidelines and the supreme court's precedents glover sentencing hearing that record and i can tell the court has looked at it very closely is really a comprehensive very careful very considered and quite frankly candid assessment area or  sentencing colloquy still rely on the wreck this is not a case like the ones we see some district courts maybe this one sometimes where the district court makes a very specific alternative finding and says even if i got the guidelines wrong still being the sentence or the reasons why this would be so it's very clear you don't really have anything quite like that in this record that's correct the fact that the court was care and that it was comprehensive is not dispositive talk about why you don't oh was anybody suggesting that the guidelines range that he was using wrong did anyone suggest yes well yes so the at the original sentencing hearing the government explained in a sentencing memo the fact that the commission had changed that range we made it very clear and we also made it very clear that based upon plea negotiations and plea agreement that the loss even though was adjusted up by fifty million the loss was still within the uk between one hundred and fifty and two hundred million therefore there was no change and defense counsel agreed unfortunately judge her door ten months later a year later found and we're not contesting that that was ineffective at least he should've made a record he should have timely object and that's what i'm saying the original at the original sentencing nobody suggested to him that this was the wrong no no absolutely not absolutely not  wasn't like shows he had two opposing views of what the guideline range was you chose the wrong that's correct and two the courts or an earlier judge she judged or was not looking within the record at the original sentencing hearing to have a minimum sentence within whatever appropriate guideline ranges cack that was not his goal a lot of these cases that you see sometimes the court will say it was like one case that was mentioned at the court mentioned i can only give you the minimum allowed and i wish i could go lower but i can't you see those kinds of things here chief judgement or landed at the bottom of the guidelines edge or consideration of all the factors and important point in the way  counsel for mr feldman looks at the record the way the government is looked at the record is that the defense seems to conflate to be one loss with the the terminology used by chief judge bedard massive hundred and forty eight million and change was the restitution amount and the court seized upon that as the only number sixty stayed within the legal arena now in the plea agreement in the state on the facts we talk about two hundred and sixty seven million laws you talk billion eight hundred and forty eight million which is what mr feldman had raised in this petition and the court seized upon that and found that that was the exact laws so what's the difference between the two hundred and seventy five million get into the particulars of that your honor so that's why we agreed to arrange your say in the defendant stipulated to seventy five times do not understand where this one hundred and forty eight million stating the facts what happened is that there are two other numbers that are also in the beginning one is the forfeiture amount and one is to restitution and the what how much are they seeing forfeiture amount was two hundred and seventy five million seventy five dollars yes but frankly if we were to reset and see him now we would probably use one hundred and seventy eight million that's because mr shishkin went to trial he contested everything and to make it easy on the government when we decided the sentencing we went for one hundred and seventy eight million dollars and that's what we proved and that's what he stipulated so under the one hundred and seventy eight million dollars would be under lower god now he'd be in the higher because the the the new guideline range one hundred and dollars and it was always understood between the parties that it was in the neighborhood of two hundred million dollars but because mr feldman pled so early in the process to cooperate we did not have to nail that down at that time as you know a lot of times you learn about loss over a course of time and that time we just said the guy lam range is one hundred and two million we know it's up towards two hundred million it's pretty simple but in the commission you know four weeks before change the guideline range so you're not arguing now but  it but the problem is and the government and probably the court that was not flushed out properly that we noticed the court about the change in the amendment but we didn't provide the court with a good number of l because we just had this range and so fast forward ten months later and now the court doesn't have an exact number and frankly i think when i looked at the petition i decided an evidentiary hearing was a necessary one not there are political here but that kind of goes back to whether the one hundred and forty eight million is the right number or whether it's another i think one million certainly is a pickle here and i think as the the court has rightly question  to come up with some definition in my mind of or you come out spring or it says in a couple places here is one of when a defendant is sentenced under an incorrect guidelines range whether or not the defendant's ultimate falls record the error itself can and most often will be sufficient to show a reasonable probability of a different yes and that's the line of cases that the discourse should consider but the keyword there  sentencing record as well as a very particular lies twenty to fifty five that shows a window into judge doors intent in this case in the four six and the forty six months is the record that he was i mean the what standard is  alternative grounding for my sensing opinion because even if i got the guidelines wrong still get saying i think there are reasons why we don't have that this case like a lot of other cases what's the appellate court supposed to do what what's our what's our guideline figure he said well i think there has to be a constant indication here and i think you have to go to the record of the sentencing hearing and what you don't have in this case is where the court is saying i want t minimum i'm relying on the minimum so that you don't have that here as well also tonight the court hasn't talked about the twenty to fifty five ruling to address a little bit here of the same judge at the end of the sentencing also head of the twenty dollars to fifty five dollars review and of the probability he calls it a post hoc rationalization which i think is unfair and slightly cynical the judge here in this court has the good fortune to see that the sentencing judge had a chance to do a a of the probability same judge who would do the post hoc assessment if this case is remain and that's part of this record and what molina also says crystal clear it says that the record below record by the judge including the judge's statement the circumstances control what should happen next and then molina says look at the th circuit look at us versus curry they ask for a post ho assessment from the lower court before it gives a full remission they'd like to know a sentencing judge what is your assessment you're going to give the same sentence if you correct this error given this error without affected which you would have given at the of sentencing and in that limited remain by letter i believe a sudden circuit judge district judge would say yes i would or no i wouldn't or i don't i'm not sure i need to have another hearing i've got to think about so what the court has here the court doesn't need to do a limited remand it already has a limited riband it has a post hoc assessment in the twenty to fifty five where judge dark could not have been clearer so then really in the twenty to isn't directly on point but it didn't really make the point in that case that you're focusing on what was going on at the time of the appeal what the sentencing judge said in the trial not what the  it seems to me that it creates a potential potentially troublesome cat but all the court has to do is say some magic words there's no reasonable probability that i would have done something different i did what i intended to do  i think that you know is is raising a really good question and a question i had but the way this seems to all work is if we should find for the defendant here we would remain to the same district judge exactly this i mean i'm not sure that that worry carries the day because i don't know there are remain we curate unless we were sent to another district later on whether it's ten minutes ten days or ten months looks at it and then gives a very reasoned detail comprehensive assessment and review of what he did at that sentencing hearing then the court knows that he's not it's a different result actually the same evidence it's a different result depending on whether the defendant appeared in front of the church trial that doesn't seem like an outcome that this court would want circumstances of the case rule the day and if it happens to be that it happens to be that your original judge is the judge who does a twenty to fifty five assessment then the court has a clear indication all the way through the stream of information that comes to your honor's if it's a different judge and he's not entitled to the same deference in terms of his review he wasn't there well you know it's not even sure that i thought that if the heaviest case went to discussion of the massiveness of this fall outside of the limited definition of loss on that to be one point one it was talking about it way far away from the guidelines it was all the other circumstances that this defendant had received so many downward adjustments cooperation for pleading guilty and so forth there's no way judge garbs going below forty six months and that's the way the what the reflected record reflects here the massiveness is the number of victims not just the amount of money it's the complexity the deception the number of co defendants his deplorable conduct with the other codefendant was involved in exploitive relationship with mr rosenberg there were so many other factors that went into determining what is massive about this case beyond just to be one point one thank you very much for the answer there in johnson the facts were highly analogous to this case you had a sentence that was imposed at the very bottom of the relevant line strange and the judge erred by imposing a sentence that reflected the two level no cure for the prejudice here just because it's the same judge which we look at the record cold our review is to novo and we find that on the basis of the record here it was unsupported that the sentence so i'm going back  that was in response to the line good line of questioning that your kenyan raised which was it's troubling that you have the same judge and what you're saying no it's not troubling at all because the standard is exactly this and i don't think it's necessarily not troubling you so you want to have it both ways and i'm just trying to suggest that that the fact that it's the same judge that it would be the same judge on remand isn't a reason not to remained in the fact that it's the same judge that did the sentencing in the twenty to fifty five isn't i think the government's proposing a rule that that would allow district judges to cure any guidelines there i just by saying that i would have done the same thing anyone else if they are there i don't think that i didn't read it that way contacts so if you you need to analyze the transcript and look at it and if you're not seeing it consistent indication that the result would have been the same but for the guidelines there if you're not certain the result would have been the same you can  was correct in the st time the district court went to the sentencing and i don't think that's accurate i think number one the government has forfeited that argument and agreed in this briefing that the district judge did in this case did apply the wrong guidelines range so to the extent it's now coming back and suggesting that maybe maybe the district judge didn't commit an error here i think that argument is foreclosed and just just to wrap up finally your honors i think i think judge matsch you're right i think you just need to a cold look at the guideline range ask yourself well are you seeing anything in that transcript that suggests the guidelines didn't matter at sentencing and then make your decision on that basis i think it's there's no there's there's magic words there's criteria that you can look