now in the appeal from the hades denial is new skete edge versus united states did not go to trial he pleaded guilty and he pleaded guilty pursuant to a plea agreement however as mr ryan has just described to the court the same government hoax namely that hundreds of  employees were not occupationally disabled when in fact those employees fully met the our own criteria for occupational disability so when you say hoaxed are you implying the government knew full well at the time of the trial that they later determinations would reveal that all of these people were disabled what i'm saying is it seems from the evidence before the government this entire time period that it's clear that the people did not meet the permanent disability standard that the government seemed to proffer as the standard at trial that we reviewed some of the evidence about false statements made unnecessary tests required exaggerations admitted and so on right so i'm not sure it's fair to call it a hoax but please go ahead you have another hurdle to clear your client plaited guilty pursuant to an agreement that waived his right to  sentence within the range that he received and us that that should not be enforced because he did not specifically allocute to the intended loss and counsel was ineffective yes you're ineffective this claim provides only conclusory assertions and your intended loss figure seems to be for your failure to allocute to it seems to be under clear cut by the stipulation as to the lawsuit now want to tell me why you think you nevertheless can know that provides considerable support for the the fact that there was a sizable loss here the issue at this point is what is meant by a large and large there's a huge difference the fact that there is a waiver here because the where ever was made without it being involuntary because the advice he received from his lawyer was that the government could prove their case even though the lawyer acknowledged that there were some applications that he didn't even know whether they were approved or not but they should just assume that they're going to be the case that mr that dr james received did not amount to effective assistance of counsel that's why he had the full brunt of the u s government coming down on him and saying you're going to get three hundred years in prison his lawyer said they're going to parade potentially hundreds of people who will come in court and lie against you that wasn't dr james petition he wrote that in his petition he was told witnesses will come and lie against you and you are facing the rest of your life in prison and he filed it because he thought he was going to be convicted based on perjured testimony that is  what placed in his petition that was put before the district court and was ruled on before i was appointed so that is in the record he's please print your yes he pleaded guilty  he's not guilty of i'm not saying his plea is the issue pleaded guilty without think thinking that he would be convicted based on perjured testimony there are two issues the issue right now before the court is the issue of recent thing and what is the appropriate loss amount that should be applied to doctor i believe that the record before the court unequivocally shows that the district extent that your client provided false narratives all of that would be ten get lost because the government would not have paid  every benefit they awarded based on needs falsified documents so i'm not sure the just the possibility of the actual loss be less helps your client because the intended loss was generated off of the actual loss figures that the government proffered and that's on the figures that were paid on the falsified documents and we know at this point that the r r b has not paid out a dime as far as we know for a  false actual loss with intended i don't think you understand the difference your honor but the intended loss that was used in this case was premised upon the actual last numbers that the government generated sued their through their statistical is not tied to the number that's an admission of guilt but it is not an admission to the astronomical loss figures that the district court adopted at the behest of the government and at the behest of counsel that did not do his job properly for as many doubts as i have about action it is been a mystery to me how he ends up with the same sentence that dr jamie and get unless there's a trial tax and i don't think there was because i think even judge merrill began to see how the government's evidence was shifting but eight years was way too much and no matter what how mr klein concludes in our in our argument even if you give the government every benefit twenty percent if you go with their twenty percent argument which i don't concede but orders mr klein twenty percent to ninety three point four million that still gives us a guideline range below what he gave the low and it was still better than it was eighty seven months i'm not sure i'm following how this haiti's challenges posed to drink to appeal challenge on the argument you've just danced what's what's the the what's the basis for seeking this on haiti is that you didn't seek on direct actual loss is less doesn't go to whether the intended losses and  be paid out but they want prepared to pay out anything on full soon from ation that's why they cancelled every one of your clients application and so you tend it lost by your client it seems to be remain son changed what you want to say why that should be the conclusion because i think that presumes that every every patient that he ever submitted was was not disabled which is so it is not the case every submission he provided was false five were fraudulent but you can't make that claim that that the record doesn't support that for average good that he could have challenged his own sentence and could have challenged on direct appeal but we couldn't then claim is based on the statistics and the case of sentencing including was driven by the statistical arguments we can we couldn't get around that what what i'm trying to say is even if from a due process standpoint the actual loss amount has to become very relevant that's the problem here if there's a million dollar actual loss versus seventy nine million that's a huge difference and if i think we should get a reset and saying i was dumbfounded when judge were brought us back for a hearing everybody thought we were going to get a resentencing and lo and behold all we got to do is argue and nothing ever happened it was a mystery to me i read his opinion and if you read it i have a hard time understanding why we didn't get a response and based on would have in the end i think we could just think eight years how do you explain eight years for thank you and whatever they did at sentencing are all time barred and they're also not properly before this court those were claims that were raised before the district court judge moreau rejected them and there's no service or to figure to appeal ability on those issues the only thing that's probably before this court is whether dr jamie is entitled to a recent unsing that argument is squarely waived by his plea agreement he cannot he could not challenge that in the district court and he cannot appeal the denial of that challenge both of those challenges are waved and and and his appeal should be dismissed but on the merits of all of these claims i'm as as a court has  has as noted judge sentenced all of the defendants based on their intended losses that's what he said at sentencing is what he has repeatedly found in this case with respect  to these particular motions he found in denying the motions for the sentencing and he made it explicitly clear in rejecting mr to be on his motion for bail pending appeal there he said the sentences were based on intend was there's no ability to challenge their intended loss and to draw to you would you would suggest that this this was a challenge or could have been raised on on direct appeal it actually was raised on direct appeal by mr took me out of the challenge the criminal cases here but there is something about the fact that in such a large number of the claimants turned out to get disability benefits and i indicated that i you know read through the transcript and saw where the inspector general expressed some concern about that it is your position to us that a criminal court a court hearing a criminal appeal should just be unconcerned with the fact that it turned out that most of these people who reapply got imagine that if the sentencing judge knew that out or up an issue you know the difference between now one of the people was entitle to benefits and well most of them were might might be viewed as two different was the judge who sentenced each of the defendants he was the judge who calculated their guidelines and he was the judge who imposed sentence on each of them and what he remained convinced of was that each of the defendant were crucial participants in a massive fraud and that their guidelines were clear calculated correctly and that they were entitled to the sentences that he had imposed on them and to be clear on this point the government has argue repeatedly in this report and here that the that the standard for me sentencing on a twenty to fifty five is it is a very very high standard is it is a it is a complete miscarriage of justice that is not even a standard the judge  been has been applying or has been articulating his his view as the judge who presided over the trauma judge who sentenced each of the defendants is that nothing about what the r b a did now affects any of them both was parked to to their on submission so we stand