clear error in sentencing i submit to the court there was plain error the guideline level was six no amounts no dollar amounts or pled no dollar amount to prove the other sentencing factors for neither pleasure proved by blakely i can discuss reasonable probability of a different sense of court with like i have a theory about what might happen if the court is interested but i sure like the ninth's decision as opposed to the eleventh like to make and in all of this and that is the prosecution's propensity argument i need to characterize it as misconduct i characterize it i frame it in the context of misconduct because that is what is re about the statements during closing argument i'm talking about his statements during closing argument the prosecutors the prosecutors yes i choose to refer to those as misstatements or poor choice of language with the same fact as misconduct i've known mr arc where i was for a number of years now i've been involved with him he does nothing misconduct just not in his four take none the how i agree with the court and with the prosecutor that reference was made on at least two occasions and perhaps even three to the instruction that sa that this evidence can be used only for knowledge and intent and if i may refer the court to the government's brief page twenty three the last reasonable argument based on the government's position and perhaps the evidence and the government goes on in its rethinking knew that there was no confidential overseas media this shows an intent it shows knowledge from the past to the forward but that is not what the government argued the government argued these guys did it before these guys mr stagg's did it before he did it again he did it the government argued that same point repeatedly that could not have not had an effect on the jury regardless of the instruction that's given the government pointed to the instruction and the judge read the instruction but with that are being hammered a pejorative term to be sure but after being hammered by the prosecution that you can't turn agent's opinion that what they were engaging in is fraud was fraud and the i f r and and the other prior this may or may not have been a ponzi scheme it may have been a similar kind of scheme it was a high yield low risk investment opportunity it may have been fraudulent no money took no bunny transpired no prosecutor stands up and he says these guys are con men they're doing the same thing they did before you can turn them off they have a propensity to commit fraud it can't pinion it seems to me that permissible opinion evidence rather than relying on on the jury to intro print the fruits of their investigation they get right to the bottom line well with these drugs for sale in my opinion yes they were was this a fraud well in my opinion yes  over and over and over again we are seeing these kinds of trials in the district court not unlike this what evidence was there of this leads to fraud now in my grief i go to great lengths to explain why what he said is the same as saying it's a fraud and i'm not going to reiterate that  well i've explained the excuse me i'm sorry the prejudiced the prejudice is it is palpable and beyond that your honor i can go and i really could be wrong i don't think i am but george is it happens that because in that case the relationship between the prior act the prior scheme if you will included if transaction that was part of the transaction part of a tangible there was a tangible linkage a tangible linkage between the two schemes there wasn't just a similar mens rea the fraud and the second scheme involved the scene tangible object whether it was a friend's action or whether it was the boat itself they involved the same tangible thing here the only similarity is the mens rea if you will and i suggest that that is not enough to argue that the two are inextricably intertwined and with that if the court has any court any additional questions i would be more than happy to respond but you said the time for a battle and we'll hear from the government thank you very much multiple evidence the government proved the trial that staggs had lied to the undercover investors about the return the program he was currently in the government proved it stags lied to the undercover investigators when he told them and a half an hour to get a full f b i background check on you stags lied about the general's sags claim he had access to high level air force generals and retired n s a directors who would verify essentially he admitted that he lied what he said was well i had one conversation with some guy who studies in the air force he said he could check people out completely different forty told investigators the undercover agents on the tape stags lied about this julie how a woman on tape told the investors we've got a connection with a woman named julia how bank of america she knows these programs will get us set up so help you through the prosecutor misconduct issue the fence takes snippets out of context when you read those snippets in context as governor puts on his brief there's no the government never argues he did it before so we have to do it again what the government ar and what this case comes down to is that it's knowledge and intent and once that act is promoted for these programs before he gets in the charge scheme every single one of those programs has turned out to be a fraud and every single one of those jury that we say what those what that evidence comes in for is knowledge and intent but that you know in all fairness he did you get awfully close to arguing propensities he didn't actually argue when you say you can't turn these guys off their say you can't turn it off what does that mean except that he'll do it again well i respectfully disagree on i think what it means is this guy has done it four times prior he's lost every time prior he knows he has the intent and he are point out that this court is held in a christian that can mean they made the same objection to the trial court and trial court said no no counsels just arguing knowledge and intent and the christian this course point out that you have to give considerable deference to the trial judge who sat through so all the arguments in cont and then of course i point out that counsels pointed to virtually no cases that would say that the misconduct here even if that approach minor or briefly went over given the fury of instructions given the repeated cauthen testifying as an expert they specialize in coffin was not offered as an expert he was not admitted as an expert defense counsel never objected to him as an expert as i put in my brief it's the exact opposite on the record defense that's stags did anything wrong and i am far he just puts that as i noticed hey that program you're involved in it turned out to be a fraud so you really should be doing any more of those that's it he says nothing about the charge s promoting fraud schemes evidence came in but rogers was an i f r promoter just like stags that rogers had received this notice from the f b i and the evidence came in that even after he  promoting it seems to and then i circuit held that in a public decision that evidence was admissible to show notice it's not hearsay there's nothing it's not improper for for me it's admissible so noticed this illegality or actions after being warned it is fair to assume she knew the program was a lawful and unfair that's exactly what all coffin's doing here there's no expert there's no expert opinion as to the makes note that makes no mention of a nicer precedence makes no attempt to distinguish if you can't i mean it's clearly admissible under four four v finally unless of course one of the questions i'll just wrap recognized basically booker says to the judges the dispensing judge you should use the guidelines take them into account maybe as a starting point but you're free to go anywhere within the range so i guidelines and you've got to have good reasons to go away from the stuff but one of the one of the very i think the difficult issues in this case is the amount of intended loss of course there's a finding on that  a ten million dollars king the undercover agent said yes we're going to give you ten million it was a ten million dollar minimum scheme so before judge them real stacks tried to argue like you try to argue to the jury well look this was this was a guarantee no money was going to be lost of no money would be lost and the general said well you made that argument to the jury and they rejected it and i'm going to reject it as well this was a fraud scheme so the last now is a lot i agree in the last not is what's driving the sentence but there's really no there's there's no issue in the last month the ten million dollars seems a ten right that's not mandatory anymore that he would apply true true i mean i think that's that's the that's the difference if you have you have a i guess i probably didn't articulate my question probably on this record given the judge's findings given the judge's comments at sentencing given the judge's comments on leaving and i don't think you can come close to showing that he's going to do any better setting aside the third prong the fourth prong says and to leave this sentence which is the lower end of the guidelines the government's needs does not affect the fairness integrity public reputation so you can't make a third or fourth prong again i think the court i  very quickly it seems to me when the objection is made before hand the instruction doesn't say the government there was an objection at least  and generally i believe even prior to the beginning of the opening argument and certainly there was prior to the government's reply with respect to propensity and i  submit that that does that the instruction doesn't help the