taken under advisement our final case of the day united states against mesa mr pearl asking that this court because the district court erred and counseling the amount of loss for purposes of the guidelines and the mandatory think the rest who should ask the for purposes of this appeal this court does not have to determine that the district court actually got the sentence wrong it is enough to remain and if the district court did not adequately document its reasons or if there are other points in the record that the district court did not adequately assess particularly if the record is not sufficient to allow a meaningful appeal by this court i would note that the analysis under the guidelines and the m v are a appears to be the same in view of a position the government took in its response brief in our opening brief we argued that the district court erred in its analysis of relevant conduct to the crime of conviction the government's position is that  district court did not assess any loss pursuant to the relevant conduct analysis but as part of the crime of conviction therefore what i would like to do is focus on the crime of conviction in the analysis of the crime of conviction  still understanding that we have made arguments as few the relevant conduct analysis in the event the court wants to consider that issue brief background is the jury reached its split verdict after a trial found finding mr meza not guilty on count two of the two count indictment the indictment count one which was multiple pages alleged a broad multi year scheme to defraud mr meses friends to encourage them to invest in underlying investment opportunities to underlying investment opportunities were themselves fraudulent but the government acknowledges that mr mesereau was not part of that fraud and did not personally benefit from any of the transfers to the underlying  investments the particular wire transfer alleged in count one was a made two thousand and twelve transfer by someone named scott spencer account to then in one paragraph purported to incorporate all of the allegations in co one except for the allegation relating to mr spencer's specific transfer and then count two alleged a transfer in september of two thousand and twelve of fifty thousand dollars by a man named cordell crane the district court's assumption is that the jury convicted on count two but not on count one because of the difference in the dates of the alleged wire transfers the district court i believe assumed that the jury thought that mr meza had formed some intent or knew that certain representations were false in september but perhaps did not have that intent or did not make knowing misrepresentations as early as may the particular misrepresentations that the government alleged involved mr meses well his experience his investment experience with these two particular investment opportunities his business connections and the like as well as a misrepresentation to mr crane specifically with regard to that fifty one thousand dollars transfer what distinguishes that fifty thousand dollars transfer from the other losses by the investors is that mr meza told mr crane that mr meza when he received the fifty thousand dollars directly from mr crane that mr message would forward it to the underlying investment the same day that mr m received it he withdrew the funds and used them for personal reasons and he acknowledged at trial that he always mr crane this money there are several reasons why the district court's assumption about the jury's verdict and the crime of conviction is irreconcilable i believe with the record but at least insufficient in view of the entire record and deserves further consideration by the district court the  st is the government's own explanation of count to an argument to the jury during its closing argument when the government was imploring the jury to convict mr meadows it spent what the mounted to  several pages of argument discussing the broader alleged scheme the misstatements about his background his experience and his finances when it specifically discussed come to the government said that count two alleges that mr mesereau lied to mr crane about where his money would go and used it personally now that is a different type of wrongful conduct and the jury  to mr meses misappropriation of funds i should also mention that the majority of the other investor sent their money directly to the underlying investments with the exception of some money from scott spencer who was the principal subject of count one and that is another distinguishing feature of the transfer alleged in count two but the nd point that i think the district court overlooked is view of the government's argument is the nature of the indictment itself it's well it's not improper for the government to incorporate allegations in an indictment into another county by the way i hate to break the somewhat i don't have a clock on my to the nature of the indictment as i discussed and the count two alleging the transfer by mr crane in september of two thousand and twelve but purporting to incorporate other allegations  the rd is that the trial testimony itself when it came to mr crane there was a lengthy portion of the trial that focused on whether or not the amount mr crane sent to mr  alone whether mr crane knew that mr madison might use it or whether it would be transferred to someone else that's a very different type of case a very different type of fraud from the broader scheme that the government alleged in count misstatements about mr meses finances and his background and his experience because no facts had changed between may have two thousand and twelve in september of two thousand and twelve that would have made those statements true in may but not true in september the principal and most significant difference between the counts was the fact that mr meza told mr crane that mr mesereau would send his money but personally misappropriated what the district court should have done was create an adequate record and the next was simply explain what the offense of conviction was enough certainly for the disk reviewing court to adequately analyze and this error resulted in the inclusion of losses of nearly eighteen times the amount of alleged income to this court had said in the past counsel you are now just a little longer two minutes ok thank you very much for that i would like to reserve the remainder of my time certainly mr for this well i think you may afternoon and me it please the court my name is alex morgan i'm here in the united states the district court did not clearly  calculating the last the timing on the count of conviction at something the district court properly found that the defendant caused eight hundred and eighty one thousand five hundred dollars in losses over the course of his was a conservative estimate and one that took into account the jury's acquittal on one of the two broad count and gave the benefit to the defendant about acquittal the district court held the defendant responsible for all off the occurring from september two thousand and twelve and but for the point at which mr crean made that fifty thousand dollars payment that was identified in the count of conviction and this is a rooted witness to the victims in boston and not pay the returns that he promised and that he knew of the fraud he was perpetrating the district court loss calculations was well within the realm of permissible computation and it this evidence of stablish in this statement just found it had made these victims over the course of his misstatements about his background and personal well misstatements about the risks involved in the investment and the expected return on the investment misstatement felt the defendant's own participation in the scheme to some of the victims misstatements about where their money was going and at the sentencing hearing the court heard argument about the amount from both parties including the government argument that by no later than september two thousand and twelve the jury had determined that the defendant was knowingly engaged in a scheme to defraud and the defendant should be held responsible for all losses incurred from that point forward the poor credit of this reasoning and all roger walking out eight hundred and eighty one thousand five hundred dollars i would like to briefly was convicted thorough discussion of the issue occurred at something and is available in the record to give the court an adequate basis upon which to review for all of these reasons the government court at sentencing attic we considered these issues and particularly the evidence relating to mr george and mr tomlinson those points are set forth in our briefs as well as the  of the sentencing transcript but what they reveal is that the underlying information that the district court may have been relying upon and i say may have been because like the sykes  decided the district court adopted the p s r only by checking a box in the statement of reasons an action that the government itself in its brief characterized as nothing more than a mark on a boiler plate form during the sentencing the discussion about mr george and mr tomlinson actually revealed that the government did not have support for some of the alleged misrepresentations what was also one more point i'd like to address is it's it's it's interesting that the government is still taking the position that the jury found mr meza guilty because of his misstatements about his experience and his well in his background because that was the conduct underlying the charge and one in the jury acquitted him of that cow and i think it's incumbent upon the court to consider what do you do with the defendant who was acquitted of a broader charge that includes the very misrepresentation that the government is claiming the jury found him guilty of and down to the district court should at least clarify the record so this court can perhaps provide a better assessment for purposes of mr meses los calculation thank you yes thank you mr perle and the court appreciate your willingness and that of your law firm to accept the appointment and the assistance to the court as well as to your client the case is taken under advisement