morning my name is my corvette ever represent the appellant john called a piano i believe the court would like to address me to address outright whether or not the notice of appeal complies with rule three c under the the notice of appeal that was filed which indicated that the judgment was being appealed from as well as the sentence was going to be addressed complies with rule three c in that jurisdiction this court has jurisdiction to to address the challenges to the conviction the court's own form only indicates two choices when you file a notice of appeal and those choices as far as rule three c is concerned  indicate the choice between a judgment or an order in this case the primary indication on the notice of appeal that was filed by called mr call to be on know was for the judgment to be appealed from in there why is it that on this form there was this appeal concerns it's this conviction only sentence only sentencing in conviction at the time that the form was filed our office was using that warm and believe that that was an inversion indication of that the the fact that the sentence was also going to be appealed from but the option of sentencing and  have the option sentencing and conviction also has the option no at the end of that form actually i have no idea i don't even i can't even figure out where that is coming from or is this you said this is a form that you were this was using but it looks like from the little notation in the lower right hand corner that this is some kind of government form from the ministry of office or the district that from what i have been able to ascertain it came from the a o at some point and operative part says an appeal from the judgment and as a matter of law that usually brings up everything that merges into the judgment is it your position that the the little buttons for conviction only sentence only sentence and conviction are only to serve an administrative purpose because sometimes i mean i know that this court considered though we've never done it saying well sentence only appeals you go on an argument calendar and  you know in terms of allocating work among panels it might be relevant whether an appeal is a sentence only matter which might be really simpler than something that involves trials and so on and i do believe that that's where to rose from and i think it was also part of alerting opposing counsel to the type of issues that may be raised in the appellate brief and that brings me to my second point and dressing this matter is that even if the court that that indication that this appeal concerns sentence were to indicate that this appeal was only about the sentence there is the argument that it was a liberal construction that as applied to rule three see by this court and other the courts throughout the country that that appeal notification would be the fact functional equivalent of what purpose it was serving and it indicated that the judgment was going to appeal be appealed from and and said the sentence exactly which is what the form is for just on the second circuit website now and would have combined it to only an order repercussion here is that if if you're going to be concerned only sentencing in the defendant appellant to that it would have meant that he would have indicated that before seeing any sort of transcript or any sort of fulfillment of his obligations to finalize the record under rule there is trying to anticipate what the issues are going to be would be defeated exactly if the court worse you consider this as a jurisdictional issue i would ask the court allow me to further brief sensing issue was the most troubling in looking at the record it appears apparently what happened at sentencing was judging augustine there was an argument between whether the actual losses should be used which was the argument that mr counsel for mr coutts piano was making or whether the future intended losses should be used and the court came down and decided that the intended losses were going to be used in during that discussion there was a discussion and  frustration by the court as to what amount of loss was going to be used and how that was going to be calculated within the submissions presented by the government there had been proven raney calculations for the future intended l sixty years old and sixty seven years old and then there were also some submissions that indicated a loss as far as the social security as far as the worker's comp part was concerned i believe that indicated in eighty year old amount or a period of time was going to be factored in settled on sixty so the court settled on sixty but in doing so she indicated during sentencing that it could be sixty could be sixty two be sixty seven and then the amounts that she used were calculated on sixty seven so in essence mr cosby i know sentence rests on calculations that were pro rated future intended losses calculated to the age of sixty seven if they were calculated to the age of sixty the resulting guideline range would have been reduced by two and his guideline range would have been thirty seven to forty six as opposed to the forty six to fifty seven and he received the highest sending the guideline range based on a number of other factors that the court took into consideration but the baseline for the court sentence was this determination that the future intent of loss was paraded out until sixty as opposed to judge reliant on an age sixty seven mistakenly as opposed to sixty if you look in the numbers that are used by the prosecution in arguing during sentencing and i believe the discussion it in my appendix that a fourteen through four fifteen through four seventeen where defense counsel is trying to get clarification on what numbers are being used to calculate the future intended loss and the prosecution keeps going back to the to their sentencing memorandum where they have a footnote that then refers to the exhibit that was presented by the social security administration for calculation of future intended losses of that for those benefits which were based on sixty years old and then there's the future intended losses for the socialists are i'm sorry for the workman's comp who or which were calculated from the testimony of the worker's comp representative during trial so those are the two actually say sixty is the right number no she never she didn't say during the sentencing proceeding itself it wasn't until stephen reasons came out that there was an indication that sixty was the amount or that was the age that was used if the age she used was sixty five would the guideline calculation be the same or different if the age of sixty five i was using would be reduced because  as you as in point two of the sentencing argument the calculation of those checks was actually in error because there were very separate issues so that would impact that sixty five to sixty report charges him for what he got and then also charges him for the future a loss and you're saying the future a loss calculation actually includes the previous actual loss and so that's double counted no not the previous actual loss under the guidelines and under how the prosecution and the p s r were proceeding mr cou receiving a credit for amounts that he had been entitle to and then because of that credit and future intended loss was reduced and why do we think that there is an error in what he was  titled to because it seems to me that it would be perfectly reasonable for the judge to find i don't know what the judge did find the fraud started earlier assuming the judge could  it depends it depends on if you're talking about the social security administration or the i'm sorry or the workers comp or if it's the total amount is close that he difference between the last amount the government factored their loss amount to five hundred fifty nine thousand dollars two hundred seventy six and if you were to account for the social security administration mistake calculating what the bosses they suffered were it would reduce it by six six hundred eight hundred fifty seven dollars roughly and then if you took in six thousand eight hundred and then if you took into account what the the worker's comp side of the argument where the worker's comp represented represented accredited mr  amount of loss that he was entitled to under the worker's comp law but she forgot to also account for the fact that that amount would have been extended under law i see my time  fifty thousand dollar threshold to be in the same category that he was found to be and that was the last that was calculated by the government but excluding the mistakes that you have a serious as it comes from the we we actually do not know your honor this is not a form that we use in our office and when on the rare occasion we appeal but we get to that answer allow the just to say i'm appealing the judgment to count for both because the purpose of this rule is to give notice to the other party and this form gives every appearance of saying i'm just challenging the sentence which is part of the part of this form is mind one in effect rather than these buttons that wind farm whatever so that it starts first from the recognition that this court has said on several occasions that that errors like this  summary order and the noser appeal makes clear that the defense appeal concerns only his sentence not his conviction and as a result the court lacks jurisdiction to examine the conviction and that's based on this case new phone company incorporated from from two thousand and seven which also made the same point that threw in over the course of the last few years limiting jurisdiction that's right hours it's reflected in a narrow and brief to serve as the functional equivalent of a notice of appeal so the argument would be here that this brief serves as the functional equivalent of an amended notice of appeal or a new notice of appeal satisfies the even notice that requirement of giving us notice that there is attacking both aspects of the judgment the problem with the treating a notice of appeal as sorry brave as a notice of appeal is that it's not timely but this court is made clear in the freest case that somehow we waived it by not not responding because the court can always assume a spontaneous timeliness when we say about the form so for example if the notice of appeal here and not marked off judgment but had marked off other and then marked sentence only but then as happened here the   that there is an error there because of the new york compensation rules there's a an extension that gets applied if that the time of total temporary disability extends past in this case twenty weeks you add the time above twenty weeks to that kind of a period in which he's entitled to the benefits and there are again basically assumes that the key question in that issue which is that the evidence is is is overwhelming that that this fraud it happened long before that that twenty week period was reached so i think you get a traffic ticket driving within a few days of made clear that we guidelines make clear that intended losses is preferred over actual loss and and here he intended to get benefits for the rest of his life it's obviously going to be difficult for a court to figure out exactly how long that is which is what i think the court was getting at was that i can't obviously mathematically defined as but i'm going to say under the calculation the government gave me a sixty or or sixty two or sixty five it's going to still be over that threshold the the court then went on or the claims that are made on appeal are never hashed i think we are in the land of plain air and i just don't see how you get to play in error when the court is as is just absolutely clear that she would have given the same sentence because of these other factors his his criminal history is very  i think here the court went further and made it clear that the outcome of the this this debate over six thousand dollars would not have affected the outcome of her ever sentence plus i think it doesn't affect it the reputation of just the proceedings because we're dealing with such a and and haren lee and i kind of ambiguous idea of when your life expectancy is and sixty is a very generous cut off his health problems he said is has serious health problems they aren't that serious the court was giving him that sixty was giving him a very generous break already and the court was recognize that  he's forty it was forty nine ginsburg most recently this month or last month criticize once again this over use of the term jurisdictional i mean that's an ever hard to read it's just it hasn't reached down to all sort of all these different issues and so i think the court is bound not there yet so the courts are bound and they go on this wanted to quickly address the plane error issue obviously the counsel for mr keelty piano was arguing that the actual loss amount was more reasonable to use in light of the confusion that occurred and the amounts that were being tossed about both in peepers enduring sentencing it would seem that his argument may have been more rational although the court didn't buy into  that i would request that that objection along with the fact that he made objections within the sentencing arguments themselves about the total calculation of the loss amount were enough to preserve the argument about the issue of how that