hands meant which resulted in a four level increase in our clients in my client's guidelines sentence fence level we made it in the briefs that there was a single victim that was paragraph thirty two of the p r the victim was known as the initials j m satisfied the requirements for substantial financial hardship or contention before this court is that the district court erred in finding that there were four of the remaining five victims that qualified and met the criteria for hardship that was substantial in nature the standard review is clear air for the factual findings and its denote concerning the interpretation of the enhancement and also the application in the hands of an under this court's president i would note that day it appears there is three court of appeals through the united states the eighth circuit in brain yet the third circuit more recently in polson and the seventh circuit in m that's had the opportunity to interpret this it does not appear that this court has ever had the opportunity to interpret this newly amended modified and handsome and that recently went into effect the pick want go ahead the question the legal question is whether or not the hardships which the district judge found as fact amount to significant harm to the  victims in the case correct it is possible to say that and i would actually use the terminology in the mini house decision which is that the hardship resulted in a significant alteration of the victim life circumstances and there could be some set of circumstances that we are actually at the record illuminates here where there is significant harm but there does not appear to be some significant alteration my sense is that the long and the short of the appeal is that these folks only lost about four hundred to eight hundred dollars and you and many people would probably argue that forty eight hundred dollars in the grand scheme of things would not result in a significant significant financial hardship but the judge found number one they were threat three were threatened with the action three were forced to borrow money to make the payment one had to work extra shifts one had to take an extra part time job and these are not the types of factors that middle or even wealthy americans would have but for these people it caused a significant financial hardship that would allow finding that factor and to the other four victims and their four and handsomeness sons by four levels those factual features were present in the victims that you're on  refer to however in going through each of them that and again were conceding victim j m paragraph their return but the remaining five are you going to i guess the question is why is why aren't those factors looking at the application note for i believe af that it has to be something substantial and that that application or gives examples insolvency bankruptcy closer to the issue with these victims there the issue of making substantial changes to his or her employment such as postponing his or her retirement plans concerning the victims and thirty farah graphs thirty four and thirty five those individuals  dollar amount stolen so they can add men who lost seven eighty four who as your your honor noted if if all four of these folks went bankrupt you wouldn't have appealed right if all four file for bankruptcy we would not be raising this claim because it would meet the plain language of the substantial financial hardship and handsome and correct or if they were insolvent or if there was evidence that they delayed their retirement or if there was evidence for example that they had to move and that is the reason why we did not challenge j m in paragraph thirty two because that individual alleged and it was not disputed the district court found that that individual had to break his lease incurred financial loss moved to maryland i mean he experienced the type of substantial financial harm contemplated by the plain language of the statute in looking at for example victim m w again paragraph thirty five she was allowed or he was allowed to make missing rent payments over several months it's acknowledge that she fell behind in the electric bill cable bill and she cut down on food shopping but at the same time given the reimbursement given the fact that it was just a part time job and the loss was limited to seven hundred eighty four dollars and ultimately given the language that you know a substantial change to employment would be postponing his or her retirement plans it does not appear and we contend that the application was in the application note and the enhancement was improperly applied to that individual the list and the reason for amendment seven hundred two is is not exhaustive i think that's the the hard part of your argument i mean we would have to find clear air or by the from the findings of fact by the district senate thing doesn't you know in looking at and again it looks like the third circuit in footnote nine seems to have indicated that it agrees with what your honor said but if in looking at some of the recent presidents from this court for example i think as recently as october thirtieth two thousand and seventeen in a footnote the standard of review in another criminal prosecution case was there is no dispute with that because in noted that i mean it went yeah it looked at the definition of substantial it said there was a middle ground substantial consistent with the regular use of the term as well as the application note which is that you know the extent of the harm to the individual has to be considered we have no dispute with that our dispute is if you look at these individual victims just the fact that they were paying their rent with money orders the fact that someone had a part time job that the fact that they fell behind that individual fell behind for example in the electric bill that is certainly a hardship we are contending that is not substantial financial hardship and i would also point out i think  judge murphy in your honor as well mentioned the issue of the district courts facts the actual finding of the district court again those facts in the p s are now the district court's findings of course we acknowledge that but the actual conclusion of the district court was a very sync finding that seems to point out that because or seems to conclude that because these individuals are paying money orders there's a reasonable inference that they satisfied substantial financial hardship requirement and we objected to that in the in the agreed to that approach and we even acknowledge that inference is of course can be taken district courts as you have seen numerous times do that on a daily basis but  case is a good example of where there was trial testimony in one of the cases there was sentencing testimony there was victim impact statements and then a methodology was put together of you know a procedural process to determine the extent of harm and it was concluded that those working class folks that were deprived of their money to go to the pilgrimage to saudi arabia who were deprived of that money you know the district court found that if they lost more than three thousand dollars it was it determined that that is a good sign that those individuals sustained substantial financial hardship given their circumstance the district court here seems to say that because the conspirators in this case targeted apartment complexes that had drop boxes in which money orders were imposed and some criteria was used by the district court so they went through the yellow pages i don't know people do that anymore i think it was actually the internet they targeted the apartment complex's they took the money orders you know there is that is some evidence perhaps that someone is all use the phrase working class just like the victims one man house but that doesn't in our our position is that does not get you to substantial financial hardship and you say it needs to be a more individualized review of the each victim's specific circumstance yes in this kind of record because again in there were numerous signs that there was enough record evidence to support the district court's findings that a loss of over three thousand dollars constituted substantial financial harm i mean they in the district court actually group the people together made inferences and again there were two different cases it looks like the defense in the case bonded out committed some more offenses which resulted in the second case the first one went to trial there was plenty of evidence here and here the district court has paragraphs thirty to thirty five six paragraphs as and then made one conclusion that they were drop boxes and these and conspirators targeted them therefore it was substantial financial hardship that was incorrect i mean and going down the list i mean if you look at paragraph thirty four which is victim and b that was a loss of four hundred forty one dollars amscot reimbursed did it reimburse that individual completely it is acknowledged that the facts in that paragraph or that they fell behind an electric bill car insurance and water bill and that they're still trying to catch up but at the same time that does not appear at all to be substantial financial hardship that is fine if that is financial hardship but it's not substantial so rough morning may please the court if it rose on behalf of the united states the victims in this case the based upon the undisputed facts in the present report sustained substantial financial hardship if you look at the commentary in application note for a it clues a variety of things that  margin loss of retirement income that's that's something about i don't know that tone it was relevant the application note is clear and i think the defense attorney has a pretty good argument here did the victim become insolvent no did the victim file for bankruptcy no did the victim suffer substantial loss of retirement education other savings or investment funds no except for perhaps savings we don't really know the judge in finding out well i think we do wait a minute making substantial changes to his or her employment such as postponing retirement no making substantial changes to his living arrangements such as relocating to a less expensive all know almost they almost couldn't pay but they did and six suffering a substantial harm to the ability to obtain credit none of those factors were found or indeed occurred in the district court here that is correct however as the application notes states and as jazz martin has noted the it says that these are among the factors that a court can consider  and miss rose it was in that regard just a follow up on judge murphy's question the district courts seem to rely on the fact that people who play around with money orders you know don't have bank accounts and  you know these apartment complexes were characteristic of that was there any testimony about the offer by the government or or anybody you know testimony with regard to that specifically but i think that was was there any other evidence of that the with regard to the the fact that people who pay their rent with money orders which seem to be a finding of the district judge the people that pay their  i'm not saying that that's always the case but i think that it's a reasonable and i'm not talking about your inference i'm talking about the district court in front and that was one of the findings that the district court made and i'm just asking you what was the evidence in the record to support that finding i don't think that there was evidence per se but i think that the reason the judge came to that conclusion was because that that's a reasonable inference that you can make if you're not paying your rent with a personal check and there were people who were paying their friends with personal check but a large number of these people were not paying their rates with a personal check they were paying with a money order i think that's a reasonable inference from the evidence is that if you're not paying your rent with a money  not with a check that there's a reason for the reason or it could be that you don't have a bank account just martin mentioned earlier that the court has to write an opinion that presumably gives guidance in the future where where should the distinguishing line be drawn i mean it seems to me that without some limitation on the factors that we can state  enhanced you don't look at the monetary loss the case is that the courts who have ruled upon this say you don't look at the amount of money per se you look at the impact of the loss on that particular victim because that is the emphasis here the emphasis here is whether or not there was a hardship sustain to the particular victim so you have to look at how much money it was and what the impact was as they did and the cases kno if it's a harm to a lot of money taken from bill gates it's not necessarily the same as taken from the common man and looking at these victims in this particular case even the ones who reimburs were reimbursed said that they still had hardships that they sustain they it took them months to pay back the money in one instance th v paragraph thirty four the present report said that is rent was stolen well that precess report establishes that the rent was stolen in february two thousand and fourteen he was reimbursed several months later is what he said and even if you take that to be a year later he still said he reported it in june twenty sixth he he was still trying to catch up and what was he trying to catch up on he was trying to catch up on basic necessities of life including his electric and his car insurance and his water bill what happened in this case is the victims we're not talking about disposable income we're talking about something that goes to the very heart of their existence the red was stolen the the rich which was going to provide them shelter was taken here's a look at the plain language of the guideline first and she said that she was reimbursed she said also that it took us several months paying between fifty and one hundred dollars to pay back what she oh and if you know can i take you back to the to the broader legal stare i think you know when you're in the court of appeals arguing about facts you know that's probably better done in the in the district court but in terms of the rule that we're going to up their game and look at the end of visual you know victims or you or you with me so far that's how they ended the word substantial you know well if i recall correctly before it was just a tell had if it was like a hundred you got a certain level of it's a five hundred you got a stalker level and that the courts or the commission is getting information that this is not really getting to the heart of the matter or it's not focusing on what they wanted the back to the district court's kind of general statement will all the people who live in these apartment buildings are kind of vulnerable because they pay their rent with with money orders done that violate the spirit of why the amendment was an act well i don't think so because i think that you have to take that in the context and what was discussed at the sentencing was the facts in this pre sentence report which were not dispute it with regard to the harm to the people and the court perhaps not as artfully as it should have said that these people were vulnerable in ways that other victims are not necessarily vulnerable they're vulnerable in that their rent checks were stolen they're vulnerable in that they were pay with money orders which the court seemed to believe showed a different level of vulnerability than a person who was paying with a personal check who has got a bank account there bought a rule in that they don't have margin as and the the record seems to bear that out in that as as you know what we're talking about is the last between four hundred and initial loss between four hundred and eight hundred dollars and i say initial because  the recent report also establish that some of these victims were behind on other bills and when you get behind on other bills then there are as late fees and things of that nature one victim who is tb she takes out a loan for twenty nine percent to pay back the base amount that she was all which means that she's in a more difficult position and which might we submit fall  under subsection six with regard to her billy to obtain credit because she she couldn't even get you know their standard loan most people if they're not this type of own she got credit at twenty nine percent bad right and she was still paying that back two years later which means that that could also add that is an impact on her you know credit going forward but there is no evidence  in the record about that but there's a reasonable inference that can be drawn from this is that she was having problems with her credit because she's already trying to get a loan at twenty nine percent i mean i'm not trying to that was the only loan that she could get and being that the focus of this change the guidelines this particular hardship to victims you need to look at the victim where the victim is and there are these people were not ever going to have an end it will not say never but the facts suggest the undisputed facts of the just that some of these hardships are not going to come to them because they're not in a position to lose their statements they don't have any savings which is evidenced by the fact that it's a four hundred five hundred six hundred eight hundred dollars payment and they don't they don't go to when the when the rental company says you got three days you got five days to pay me this back they couldn't even pay that back they had to go to family members they had to go to france to get ahead to get a payday loan at twenty nine percent to pay a bat and if worth it what we're supposed to be doing with this guidelines is to look at the harm not necessarily with regard to these expect us because there is the discretion to look beyond that if you look at the individual harm that these people suffered in this particular case is substantial it took food off of a woman's table for herself and her son it made people have to go to work to take jobs that they wouldn't have necessarily needed to take or wanted to take and if that is the focus and if the as the the cases of polson and my house suggest it what we're doing is the inquiries got to be subjected to a certain extent because we have to look at the impact of these particular victims it's bill gates you have to view it as a certain way it is donald trump you view it as starting way if it's a woman who has difficulty presenting an additional seven hundred seventy five dollars when they tell you your brand is doing you have to look at it a certain way you have to look at what her circumstances were and based upon the circumstances were presented in this case we believe that these thank you concerning the issue of publishing opinion that will provide guidance to future litigants future courts along that line yes or how do we define and solvent versus bankruptcy well some people are not able to pay the fee to go to bankruptcy so that we say their are unable to meet their bills that are often come or assets whatever we use the bankruptcy definition that's what i'm saying so that tells me that solvent means not bankruptcy but you are basically bankrupt i don't know well you know well i think you know the bankruptcy requirement reference chapter eleven so in solving could refer to a corporation i think that looked at that as evidence of a loss of a retirement slash savings fund so when these individuals suffered the hardship and it was hardship we're just contending it wasn't substantial with the exception of the victim in paragraph thirty two when they suffered that hardship it was a loss to savings i think and solve it would apply to a corporation along that line your honor of how to define it i mean in applying if i answer your question your honor  construction i don't know if i'm going to pronounce it correctly nasty or associate which is that words in company of others inform the meaning of the you know reportedly ambiguous word and i say that because when we're talking about making substantial changes to his or her employment such as postponing his or her retirement plans that specific example i think would negate the contention that the amount of time effort is my sentence you're going to have when negate the contention that a part time job qualified or satisfy that request like a broken record here but again there's no evidentiary record about what assets they had i mean we we know they had to borrow money but we don't know there was no exploration of what their their balance sheet was as individuals right there is just the six paragraphs between thirty and thirty five no indication of what their tangible assets words which