you there are two broad issues before the court today and i think as i indicated in my reply brief the most straightforward and dispositive is this efficiency of the evidence support to support either the guideline enhancement or the upward variance in the alternative sentence however the issue of whether the government may present knew in this case contradictory evidence on re mand without a persuasive reason requiring it be permitted to do so will arise again unless the government has presented a persuasive reason why fairness requires a nd opportunity we also have quite a bit of case law that tells us what those persuasive reasons are be that lack of opportunity to address defen evidence or a previously unclear and big big us area of law that a sense been clarified we saw that united states versus smith and more recently in united states versus trant the court recognized that a technical matter or momentary inadvertent might be a persuasive reason particularly in the case of reopening a record a little different from here but what we have below is simply the government assume that its presentation was correct and that is a quote and we know as far back as united states versus cower dischord says that neglecting to put on evidence readily available or a misunderstanding of the law is not a persuasive reason why the government to get that nd bite at the apple whether we're going to have to come up and come back again is contrary to notion of finality it's contrary to the notion of a sufficient see in the appellate process but if i may a very important point about prejudice that i would like the court to take notice of  if we read the cases it's very clear that the prejudice inquiry only comes after the government has provided a persuasive reason why it should be permitted and the reason i say this is because this persuasive reason requirement is written in absolutes as the smith court said the government must provide a reasonable explanation this requirement is a constant and there's no need to reach prejudice and till the government has gone through that door and i'd be happy to go through the cases particularly the sentencing enhancement cases that make this clear where the court does not see any persuasive reason in the record it has not even mentioned prejudice it has explicitly said the court may only consider what presented at the  st hearing and i'm referring to united states versus a species and roe on the other hand where the court has gleaned that there might be a persuasive reason or intimated that there actually was one and now i'm referring to united states versus declared smith both times the court left it to the district courts discretion to weigh that persuasive reason against prejudice so for these reasons your honors i don't think that you need to do the prejudice weighing i think the government cannot get past th client's a public safety risk that i think it's quote the most important thing close quote is the criminal history that seems difficult to extrapolate from that that remand district court would not simply reimpose if you're going to do it you ought to do it right  i would like to nd that sentiment but also i would say iran or much of what the district court said was its basis for scenting sentencing higher in the guideline reigns and this court has repeatedly said that when we're when the court is going to impose an alternate sentence it must st calculate the guideline range that it's varying from otherwise we can we have no sense as to the size or proportionality so to the extent that certainly other factors were involved in the  sentence i don't think we can attribute that to this sentence or assume that that those factors which pushed the judge to the higher end of the original range would do the same thing in a lower range the argument with respect to mr martin's is much more straightforward in that much like the two victims that the government had to concede on the st appeal we have no evidence that mr martin's is anything other than a disgruntled customer and that is because there's no evidence anyone intended to defraud him there were a whole lot of disgruntled post i think there probably were i can summarize the evidence on mr martin very quickly he paid for two motors to be purchased those motors were purchased and he went to trent marina and visually inspected those motors at that point he paid for a rd and that is where the record ends we know now all those motors have not been installed on his boat but frankly we have no idea where those motors went and we also don't know i think most importantly we don't know where his money went there was only one account that dennis kelleher could access and we don't know that that money actually went into that account  so there is with martens it's really a void in the record we just don't have anything to show he was part of this scheme the is the issue with mr mcluhan obviously is quite a bit more complicated but there is certainly i think st and foremost  reliability issue there and i realize this is difficult argument to be making on appeal sufficiency but we have a record of unreliability from the st hearing the government had to come in and say this agent testified incorrectly at the st hearing and now we have the same agent again testifying without any specifics as to expenses that might not have been reimbursed we don't have any dates we don't have any locations generally we just have again a disgruntled customer who apparently said oh yeah there was some stuff he should have paid for that same lack of detail means we can't differentiate what was and was not paid for the agent agreed that mr methuen was reimbursed well over and above the price he paid for the boat to cover his expenses and we don't have any breakdown of what was and what is not what's not covered so in that sense i think we don't have any reliability or sufficiency to establish by a preponderance that this man had expenses that were not paid for trying to get reimbursed our point and that really goes even further  the government had come in in the kennedy smith line of cases stating that it wanted to show losses incurred in seeking reimbursement none of those losses that agent kugler testified at the nd hearing were incurred in seeking reimbursement so and of course there's also some issues about whether closing costs occurred because the boat was never actually title was never transferred so there's no evidence that any kind of closing costs occurred and of course he also references rd parties that had traveled we don't know who they are and they certainly were not considered victims in this case so for those reasons  the evidence was simply insufficient to establish mr macoun as a victim and what that does is that takes us down to eight victims when we take out martin's and macoun and then of course what we have is an error in the calculation of the guideline range first of all i want to just command mr payne and this and the court staff i think they've done a remarkable job in making this work as smoothly as it works and i know the court is aware of that they just want to make my two cents on that with respect to this issue well the main thing i want to emphasize i will go through the different points and of course address what the court's interest then but the main point i want to stress is the variance and the fact that this judge has decided multiple times the ninety six months is the correct sentence and this court as we know just st to the judgment of a district judge who is the preeminent actor when it comes to federal sentencing that's going to be my main stress today but let me go in order and we'll talk about preservation of the issue we'll talk about these different victims but i am going to come back to the fact that the end of the day this is a discretionary decision by the judge that whether there are eight victims or ten victims or travel costs came into effect and i had a great deal of discretion in choosing a sentence but when the guidelines came in of course in the beginning they were a man who are now they are not mandatory but nevertheless there are certain explanations and considerations that have to be presented to the court an order to justify a particular sentence and if the trial attorney has simply not adequately to put on at the sentencing the evidence that is required and if you're if the case is remanded and you're told to resist this i think they must deal from the record as they have presented to the court and to give an excuse well we just we thought we had enough for that in our well i mean to address their honor and address and perhaps i can change your mind a little bit but also address the other judgments st of all very importantly the government here did not introduce new evidence in order to seek the enhancement the we agreed at the st appeal that was not supported very significantly shouldn't on the same guidelines on the same sentence be able to put in more evidence so instead you turn around and say all right we all cry that we w try for an answer instead i find that subterfuge perhaps a little and knowing and i would not consider it adequate to say that you are taking a nd bite of the apple well with all respect your honor and i take personal responsibility for this i consulted with the trial usa ness i did not consider etc future that i do not consider etc future now we're familiar with the president of this court we know that the cases have gone in different directions and i'll talk about that but there are certainly cases that have held as ms martin says that the government should not get a nd by in some cases fully aware of that we didn't think it was a subterfuge we instead thought it was a proper act on our part to say to the court do not apply to level enhancement we give up on that two level unhandsome that's not devious that puts us behind the eight ball that we agree at that point that the guideline range is sixty three to seventy eight months and to achieve a higher sentence becomes a greater burden at that point on the government we now have to persuade the court that there should be an upward variance in addition this notion of an upward variance in this situation rather than being devious with all respect is explicitly suggested by this court in its kennedy decision kennedy was the case that held that in order to be counted as a victim there has to be actual  loss and that's of course the problem in this case because many of the victims were reimbursed but kennedy then says that we recognize that this is an odd guideline that it's odd to talk about somebody as a victim whose money was stolen only because they were promptly reimbursed and we therefore know that district courts have full discretion to grant an upward variance in this circumstance so reading kennelly i advocated that course we took a hit from not presenting the evidence at the at the outset we took the head that we were agreeing to a guideline range of sixty three to seventy eight months and now in the more difficult position of asking for an up or variance so this case with a with all respect this case is not row this is not declare this is not any of those cases in which the government wanted to introduce additional evidence for a specific enhanced man or provision that had not been supported before we  announced but it is a case where the assistant u s attorney put in insufficient evidence to justify the sentence that she was demanding and i think we should not encourage we've really increased the burden on ourselves i do want to address while i can and it may be a lost cause you know with respect to your honor but i i do want to say for the record that i am not fully agreeing that there is a blanket prohibition against the government or a defendant giving quote a nd bite at the apple this court to be very frank has said different things at different times i have addressed this issue personally going back to the coward case which remarkably is twenty years ago that are where the court did allow us to go forward and go back to the district court to attempt to present more evidence on a suppression issue where we had a pretty lousy excuse that in that case the excuse there big true  e but it was an excuse that the a u s a was brand new and she didn't know what needed to be introduced we honestly said that to the court in coward that morning coward allowed us to go back these cases play out differently over the last twenty years there's not consistency there's only consistency regarding one thing and that is what i believe was the smith case said is the quote the paramount consideration the paramount consideration is prejudice is the defendant prejudice and to be honest here the defense has not suggested anything that meets the legal definition of prejudice the defense at full notice of the evidence that we presented every sentencing a full opportunity to address or a full opportunity today now your honor judge rocky or correct that certainly a district court consider prejudice to itself we don't dispute that what this comes down to as this court has said many times is the dish did the the discretion of the sentencing judge or not or the judge in any situation because this doesn't only come up at sentencing the district judge has discretion to decide is there prejudice to itself to the defendant that's the paramount consideration and i  film and the judge permits it in his discretion because it's just no big deal to do that and it's not prejudicial at all and chief judge smith on appeal says this is not a game of gotcha this is because everybody makes mistakes prosecutors make mistakes defense lawyers make mistakes and judges of course also sometimes mean well it what this really should come down to my pitch on this and i think it's consistent with this court's body of law as a whole what this court what it should come down to is is is are you hurting somebody because if there is no prejudice then the interest of justice is certainly served by getting things right that's what we're all getting up every morning and trying to do and here there was no pledge of not having said that we nevertheless did not make this argument in the district court we nevertheless did not record i think i think appropriately and say let us put in more evidence nobody's prejudiced we want that enhancement we said we're giving  government's we sentence in a memo it's evident from miss martin is always an incredibly able lawyer so this does say much but she will it's clear from the record that she was very well prepared and addressed that in cross examine the witnesses and made all the appropriate arguments there's no legal prejudice here whatsoever in considering this evidence and then you add to that the fact that we were only offering this evidence to prove a different point which is the up with their hands and not the  question and i'm and i'm here to argue that he did not get it wrong that he considered the evidence for it so i could sum up before i go on to the other points there's not a preservation issue here because we didn't try to impose you know get the same enhanced wear and even if there is a president preservation issue with there was no prejudice and actually be what controls that's what allowed further evidence and smith and power in other cases and i think all of this court's cases can be reconciled accordingly turning to the question of the victim's family spent very little time on the evidence except of course answering the court's questions martens is is really easy kelleher was the guy he was dealing with keller said semi thirty six grand for these three motors in never got the three motors the money came in walking scheme was well underway in february and march of several months before the scheme was exposed then this martin says that well we don't know that that keller had access to this money we know that keller had access to all bank accounts he had direct access to the wells fargo account he was forging tipped and signature on the bank of america account and even if he didn't access the money what does it matter this is the fraud he lied to martin saying give me thirty six thousand you'll get three engines get in get the three engines somebody else got the money that's the fraud so you know that that's a very weak presentation and mr martin's was good enough to come in and testify and explain what happened to him and the court should consider that whether it's for a variance or for the guidelines self with respect to macoun again very clear testimony from the agent we're explicitly following this myth decision which says if you are not reimbursed for time and money you expand that that count now qualifies you as a victim of the agent testified very clearly several times both on direct and on cross that he spoke to  where the smith decision says doesn't matter how much it is doesn't the house never get it gets you know over the line to count as a victim again i want to wrap up by focusing on the variance question because i do think that's the most important issue here and to be very clear about what judge wilson said was not i'm considering in the new evidence and that justifies a very if he said something different if you look very closely at the transcript he said that he was promoting that he was listening to the new evidence and permitting the government to present that new evidence but he said and he said i'm not familiar with the rd circuit case that would prevent me from doing that but if there is one i would still impose the same sentence in other words i would impose this sentence even if i did not hear this new evidence even if there were eight official victims instead of ten victims and that makes sense when you think about sentencing white and what but what booker makes clear and this court's precedent since booker is that courts have to make a correct i'd like that's what the supreme court has all the starting point but once you have that starting point net with the lesser number of victims asking for the enhancement and that was never done well with i believe it essentially was because this is the simplest case imaginable no one well no one  it may have been going to evidence but it certainly wasn't done in black and white again where your honor there's only ever in this case then three choices on what the final guideline me to the it's either twenty four as a fine a level twenty four or it's a level twenty six nobody has ever suggested anything different and that's why when judge nelson said what he said which is that if i didn't hear this evidence and i didn't apply the same answer i would give the same sentence the defense at that time did not object there was no procedural objection to it to remind the court well you need to specify what guideline ranger varying from because everybody knew it being you know sort of an awful thing as martin because why should she say the only choice here and level twenty four level twenty sets so we absolutely know what the ranges that the court is varying from and when it finally leads us to is why this sentence should be affirmed at this time that i think it is now with the district court then beaten into the ground as to what the facts of this case are and what the judge's view of this case is based on his discretion he according to this court is the superior actor when it comes to irrational sentences and i can remember judges before the guard lines it would give very extreme sentences because they could within the statutory limits but they have no basis in the guidelines has told us you must have a basis for your sentence and that cannot just be the fact that then that is a really nasty sleazy guy that has to be considerations established  guidelines and that requires it careful procedure that is not a gut reaction to what you think of the defendant i absolutely agree with your honor and that certainly is not what happened here judge and  during my answer to judge ambrose question how much money he tried to steal over two million dollars the for multiple multiple people the final loss here was about one million five hundred thousand because tipton at pay back some of the money people didn't come from or the the sentence here is not based on the fact that mr keller her is a sleazy person it's based on specific facts and at the end of the day it came down to this question of victims deliver and what we wound up debating because of the way the guideline is written is things like macoun travel expenses and how quickly martin's was reimbursed where after kelleher stole a two hundred and thirty thousand dollars boat from and so what the district court essentially is telling us is do you really think that the final sentence for this man comes down to a macoun travel expenses when when macoun was purposely defrauded the judge nelson is looking at the actual facts he's not looking at that this you know sleaze factor he's looking at the actual facts that caliber sought to defraud people of over two million dollars that there were at least ten victims there were more than ten people who were targeted tipton himself you know was nearly destroyed by this obviously it was his business and this is a man kalahari who's on supervised release after completing another federal sentence for fraud and judge nelson has now told us twice no matter how many times i look at this as the sentencing judge who's been on the bench i think for close to thirty years this is a ninety six month sentence and i don't think that there's any basis in any precedent at this court to say that that's not a proper explanation of an upward variance when we all know the guideline range that he was very firm and that's what should control this at the end of the day  respectfully urge affronts based on the fact that judge nelson is have the chance twice to consider this and made very clear that he is basing his sentence on the actual facts and not on this one last technical issue even though i think of correct also in presenting that evidence and asking for the awkward variance we get and so i respectfully and again must disagree i'm sorry it's so frequent in this argument but there was a suggestion before well a fully resolve this preservation issue which is done this is just go back and the answer is no because judge wells told us he said even if i can't consider this evidence i know this case and this is a ninety six month sentence and the end that his prior criminal record and the details of the scheme tell me that even if it's sixty three to seventy eight months i'm staying at ninety six and there's a great great deal of discretion we give to district judges post months i'm going to bear it and here's why he gave gave the reasons and i just don't know how i get around saying that's such an abuse of discretion that and i'll confess i'm not a trial lawyer and it's not as artful as i wish it was but i said your honor with regard to a variance there's no basis the facts are the same the guidelines have changed and that is true and your honor i know earlier the court was absolutely on notice from the beginning of the hearing that i was objecting to any new information any application of the enhancement or any variance i will concede that the objection i record now there are ten victims that's an error that's a clear error and this court held i want to say united states versus barry that is plain error the court cannot sentence a defendant on iranian information and like i said before this isn't about whether some little trip counts as part of law there are three defender there is three victims who just were not part of this scheme the government has conceded on at least two of those so i don't think this is not a case where the court can say these details as i understand them warrant this sentence because the details are quite frankly wrong but that but the  the judge is saying ok i'm not buying back but even if i were to buy this i'm going to vary based on prior criminal history and the way the scheme went about the way this person acted and with all of the discretion that we give going up from sixty three to seventy eight months in effect bearing upwards to ninety six i don't see too many courts overturning that now there are questions as to whether you know he he started his eyes crossed his teves or touched all the bases whatever cliche you want to use but in effect he's saying no matter what you can send it back to me x number of times it's going to be ninety six months and then we have to send it back to someone else your honor respectfully i and i maybe i sound like a broken record i need to find a better way to say it but when it's based on a misunderstanding of the facts it's very clear to me and the government intimated this at sentencing and i noted that my brief because it is not true the government intimated that the two on the st appeal to silly and karoly they were just sort of a technicality that they weren't considered that's not true they conceded that that money went to train a marine not to dennis kelleher i would argue we have the same situation on martin's the judge i absolutely respect that the judge has discretion and he was very he was very upset with the circumstances of this case but he was very upset with the circumstances of this case at the st sentencing and did not see a basis for an upward variance dischord has said time and time and time again that the calculation of the guidelines and explaining the basis for the variance is critical and that's why whether the court feels that i should have preserved it better i think of even under plain error it certainly and easy to follow in terms of supplementing the record and he reference he referenced coward and said that the court found there was the court there did not say there's a persuasive reason go back and put your evidence in the court said we're going to leave that to the discretion of the district judge to weigh whether there's a reason and whether there's prejudice and coward is the case where the court said neglecting to put on evidence or a misunderstanding of the law is not what we mean by a persuasive reason i think that's very clear very quickly with trant i want to point out that the court said it didn't say this is a lousy reason the court said this is hardly compelling but a technical matter and that's why it was such a gotcha moment because the prosecutor closed the case and then realized he or she forgot to just put in a stipulation a stipulation that the defense agreed to trant was very very careful to differentiate trials and how important it was at a trial to said the purpose in procedure and pressure in trials are different they're much more outcome determin e the court said we're less reluctant to open this case at trial for that reason but i i have to differ i think that the only reading of trant is that this court found that momentary inadvertence with no opportunity in the minute to fix it that's a persuasive reason so i just i would point that out to the court and also the courts quite a long discussion about why the trials and whether the government can reopen its case a trial is different from a motion to suppress and i would argue by extension from a sentencing hearing i just real quickly i would like to correct the record in terms of loss i have to dispute misters album or number of two million i would also dispute that one million two hundred thousand is somehow a low number this the loss in this case was based on intended loss and every single dime got counted including the stuff that was repaid so it is not a just later number and i don't have the exact number in front of me but what he said was that that was artificially lowered by what was paid back by gerald tipton that's not true at all everything was included in that i just want to clarify that so essentially your honour's i think i've made i've made my presentation as to why i think this evidence is insufficient whether it is on a plane air or harmless air but i think probably when it comes down to well maybe this case district delivers prior criminal record the prior it was it was a very similar fraud your hon