assignment of insurance stopped been shown to the jury that she would have been acquitted of the charges the question is whether or not this is truly newly discovered evidence whether it's material to the issues and whether she exercised diligence from attempting to locate the the document doesn't seem to be just just a question as to whether this is newly discovered but there does seem to be a legitimate question about the authenticity of the document talking seems quite inconsistent with the way in which a hog dealt with each other is that they things were carefully typed things were carefully spelled out well when they had prior prior monies they were they were down to you know six thousand three thousand thirty thousand dollars and all of the sudden you have something written vietnamese not militarized and it covers three hundred thousand dollars and nobody knows about it until after the trial well that's a that's a good point  judge by me refers to also go to this whole issue of whether it is you know newly discovered evidence or why if there w honor but there is there was testimony that she did it that it did exist and she had the chance to find it again i think just from the practical standpoint i mean i know what my garage is like and i can't imagine what somebody else's garage is like but was presented to a jury if the jury determined that the document was number one authentic the legal significance of the document would be that so the defendant is not responsible for any of the criminal conduct of a codefend was made i think that would be the legal effect of the document again whether it's authentic documents or not of course this is a jury question that should be determined by a jury guideline range with a maximum sentence of thirty seven months i'm from fifty seven months down the thirty seven months this is what i mean that's and it's a significant increase in a sentence which is based on a factual finding that was not found  true beyond a reasonable doubt by a jury and it's not even within the guideline range of the federal sentencing guidelines if assuming the amount of the judge found to be the true amount of restitution is correct and i soon that is correct her guideline range would not have been fifty seven months it would have been i think a maximum of thirty seven months so she's still below what you think the guideline range would've called for i guess the question manners since it's above the guideline range we don't have to address the issue of whether there's a presumption but what  of a new territory on reasonableness determinations in the court of appeals as you know yes and so what he says or factors do you think we w who has no criminal history whatsoever was involved in a romantic relationship with a man who had been running this stuff fraudulent operation for a lengthy period of time and who in my opinion controls everything she does this is a person who was recently divorced suffering from the trauma of that but recently divorced and has three children she was pregnant i think at the time of sentencing with another child she has four children please the court laurence called the united states your honor that i might have like you just address that very last point first to make sure that it doesn't get overlooked one point that i'm not sure was fully fleshed out or pointed out in the briefs was that judge stahl or the district judge in this case typically does two things to set forth the reasons under thirty five fifty three one is to discuss the factors orally at the hearing but judge sautner in this case as she typically does one forty three to one fifty four is where that document is found then it goes through in detail each of the not just the factors but the court lays out the government's position defense's position probations position and the court's finding on each of the various scene where the judge says well for all those reasons plus the stuff i've just said is my reason i believe although i don't have it right in my thinker tips that towards the end of the hearing the court did say that something to the effect of the factual honor is on i'd like to respond to a couple other points that were made by counsel going back to the money actually rather than going back to the guilty i mean focused stay on sentencing and that's what we're discussing right now it's actually two points that are i'd like to focus on first this idea that the court somehow made a sentence that was outside and beyond above the guideline range is just flat wrong it we pointed out in our brief i think clearly explained in detail that restitution was calculated in a different way from last what the probation office did for restitution was it took the responses to questionnaires that it received from victims and most of the companies apparently didn't respond it added attributed to all fourteen of the entities who paid false claims those numbers were added up and came up with this approximately one point two million figure now it may be that some confusion was created because just by a pure coincidence the total of the fourteen companies payments happened to be almost equal to the total of the four companies who responded for restitution but that was just coincidence those big years are have a different basis and the fact that one was cut down in no way indicates that and another point the counsel made i think was it was incorrect and should be called should be and should be noted that it's not correct was that the government i think you argued that the sixty three months was in excess of what the government questioned that's actually wrong with government the defendant had several young children and there are cases that say sometimes find that to give basis for a lower sentence those others that rejected those cases primarily and most often look to how this case would not really be affected by those because the judge here appropriately applied booker and the thirty five fifty three factors went through and discussed those factors in detail considered and came out with a sentence that took those factors into account the court did not make any type of improper statement of reflecting the use of a presumption that did the court did not go off on any of those types of considerations and the supreme court cases were s granted really deal more with what's this court standard for review but in looking at the district court here even under a more strict standard the court considered the factors and reach an appropriate decision gave weight to the mitigating circumstances here went to the low end of the range that range covers fifteen months which is approximately a twenty five percent swing the court shows year after trial where the defendant had testified and i would submit if you look at the at the evidence and look at the defendant's testimony in view of what the jury found that we argued for obstruction of justice the court did not enhance the sentence based on that but taking those factors into account under booker the court going to the low end was giving credence to the mitigating factors was given credit for those looking back at the first portion of the argument the new trial portion of it the court i think your honors have focused on the two key problems of the new trial motion one that this was clearly not newly discovered evidence that best newly available there is extensive testimony at trial about the particulars of this agreement this alleged agreement to sell the pharmacy how much was being paid what documents moralize it that was extensively discussed both on direct and cross examination if she had entered another agreement and had written another document and these documents written in the first person i mean if somebody wrote this doctor at the time the defendants the one who wrote it she obviously knew it existed she never mentioned that it existed she never said anything about trying to find it and she didn't  it continuing to try to obtain it and in fact on direct she actually said as you point out in our brief when i asked did you change the contract to indicate this four hundred thousand dollars she said no and that's mention of page twenty nine of the government's brief but even if the document was considered and was deemed to be admissible and had had been there at the time of the trial the fact is that in this case there was extensive documentation created by the defendants to create the appearance of a legitimate transaction when there really wasn't one this document would just be one of the other in a series of documents that they created to make it seem as if the pharmacy had been put or in fact by convicting that depend on the money laundering counts the jury found that in fact this whole thing was set up in order to disguise and conceal the president was coming from fraud so this document would not have been persuasive to the jury even with respect to the of the issue of the children though there are cases that stress whether or not there are others who cannot care for these children she has four children one of the