case now we raised both the trial and sentencing issues in our brief i'd like to start with the sentencing issues specifically and i think the sentencing issues are all are all fairly similar and that  they in that they deal with the enhanced mounts and also the land through which the the trial court implied the enhancements so the first enhanced meant the largest unhandsome and in this case dealt with loss and the district court found that mr miranda intended to cause eight point four million dollars before we get to that could you talk for just a moment about whether the coup was the correct standard standard applied because of the disproportionate impact of all of the enhancements were starting with a base offense level of sex but at the time we get the cut the time the court sentences mr miranda oh he sent sentenced at a total offen in reference to the amount of law so even assuming that it's clear and convincing ins that a preponderance is not satisfied here i don't think it is your honor and and here is why first of all the court also sa preponderate standard applies in a case like this the court very clearly said that now the court also made no real distinction between clear and convincing and preponderance and i think that's where the problem that's where the problem lies night and i think i don't think you can insulate that finding from from appellate review just spice just by saying those words the court made no effort to distinguish those two standards so we're going to going back to the going back to los issue so it's  clearly it's the government's burden to prove loss the court found that eight point four million dollars was the intended loss mr miranda testified at sentencing unrebutted testimony at sentencing that he never intended to receive eight point four million dollars well i think i think there's there's nothing there's no way in because there's no evidence on the other side so the government certainly did not question mr miranda at sentencing even though he testified let me have you address a couple of points in the record the court said there's no credible evidence to support the defendant's assertion that the total amount built over estimated his intent so to me that's that's a factual finding rejecting the defendant's statement that he didn't intend the loss to be the full amount so that one portion of the record i think is troubling for your case to me the second part is that  at one point i don't know if it was counsel or the court asked him well if the insurance had paid out would you have kept at me says probably or something along those lines so that's a ferment of evidence of intended loss how do you  pieces of evidence in the record so that finding in that piece of evidence from his testimony so of all addresses in turns in turn first of all the right to the course correct that was the court's alternate finding but i would address i would ask the court to look at the eighteen which is the court statement prior to mr moran dose testimony and that the court says that mr miranda did not submit a declaration prior to sentencing regarding his understanding of reimbursement and that any such declaration at least in my view at this point in this case hardly seems credible so we're starting sentencing that is the court's position before mr miranda ever testifies after the randall test of the the court win points out it after him if he would have kept the eight point four and he said yes probably so that's his own testimony i understand that your honor but i think that there is there is more to that testimony and i think what mr miranda goes on to say is that essentially that's an impossibility that that never happens that reimbursement rates are twenty five to thirty percent a build amount and i would know that the restitution amount in this case which we which we have issues with and which we've which we've raised issues with in our brief is three million dollars so if you look at the amount that was actually reimbursed as opposed to the intended loss of eight point four million that is certainly in line with mr miranda's testimony about about expected reimbursement and certainly courts around the country pop our frac guys this sing in the second circuit is a well they in the fifth circuit naturally in the southern district of new york all of these courts five to thirty percent of the building the house he testified to that well another way to look at it is he tended to knock some ice the loss and whatever he could recover he was going to keep so in light of that possible plausible reasonable interpretation however you want to state it which is the way the district court looked at it can we say that that's a clearly erroneous finding or a  reasonable way to interpret that evidence your honor i think especially in light of i think it is unreasonable and i think it's especially in light of the fact that the court went into with this position and that basically anything that mr miranda said at sentencing would not be believed now mr miranda did not testify at trial so this is not a we're not in a in a universe  which someone piss your argument then that somehow the district court was biased and that bias infected the evaluation of the evidence is that what you're saying i think the district court viewed sentencing through the trial through a trial prism and i think hernandez the case that in this case this court that came out last year said that you can't do that that sentence seemed a trial and so they're not either or proposition so i think i  do think that the court looked at everything that was presented through the trial lens and i think i think hernandez is clear that you cannot do that so again this testimony and i would refer the court mr miranda's testimony is that you are twenty nine thirty one thirty two and thirty three thirty one thirty two and thirty three those are all under oath so he started started to speak to the court the court then put him under oath and mr brando answered and testified and certainly answered the court's questions now so what do you do with the credibility finding i think the credibility finding i think the credibility finding is not due deference by this court again because of the statements of the core at the outset of sentencing where the court clearly indicated that it would not credit mr miranda testimony now counsel prior to sentencing submitted a declaration indicated that mr merrick brando would testify rather than athens but the court knew the court was on notice that mr miranda would testify and generally what he would testify to so i think the court's findings but this was not this was an issue that was that was raised by sentencing counsel prior to that's right and i want to take up your time and we can look it up ok the other issue i'd like to just less or more more questions on the last issue it's really the sophisticated means issue the court applied a two level enhancement for sophisticated beans because of the use of other companies and that the unre evidence at trial which actually came out from the agent agent kennedy in this case was that was that the kind of coconspirator that that this is that this business was not hidden from the coconspirator and i actually that there was no i don't think there's any evidence that this was that this business had any nexus to any of the fraud in this case so  transferred from from puerto labs the main company to that company but then but then the evidence says that in the age of testified to this the fact that the at that the the funds were then transferred from that dos and that business was set up in mr moran those names the transfers work there was no there was no there was nothing to be hidden quite honestly there were there were no it was just it was a it was a pass through company and it had the reality as it had found a stun clear and convincing evidence so that clear and convincing finding was correct and was not clearly erroneous but even if it had simply been preponderance of the evidence it would have been sufficient and so the district court correctly noted as this court has held in papa which is health care fraud billing case it is a preponderance of the evidence standard when it's based on a health care fraud scheme the clear and convincing finding here was amply supported by the record as the district court noted in detail and as is supported by the p s r as well as all the facts in the record so under either standard took in other words in this case the jury only found that eight point four million w build that there was there was nothing of all talks about the presumption but of the rebuttable presumption and the defendant took the stand and he said what is basically true that you never get one hundred percent of what you bill he didn't expect to get one hundred percent zero what he built and so where is the clear and convincing evidence the clear and convincing evidence that the district court was focused on was what was the last amount and the last amount the build amount was eight point four million dollars then the question is is that eight point four million dollars the proper measure of the defendants intent and the district court didn't make any clearly erroneous findings in finding that that was the defendant's intent because the defendant failed to rebut the presumption in large part because the district court correctly found that the defendant lacked credibility make the eight point four the amount of restitution because the eight point four million dollars was the build amount and there's no dispute that the defendant didn't receive that entire amount and so the amount that the defendant received through the fraud which is the amount of the three million dollars is the restitution amount but for sentencing purposes the intended amount the intended loss  amount as a prime official standard in less than three but it and that's my point he offered evidence to rebut it and walk can't we look at the fact that he was paid three million dollars which pretty much supports his view of what he expects to receive and supports the view of what happens in health care financing reimbursement all the time every day around this country so why should we first this court's precedent pop of and then walter easy more recently does employ that standard you start out with what your honor has termed this hypothetical theoretical that is the starting point of this court press which is why popof as opposed to an era but one and then in this case in particular as your honor noted already the defendant's own words make clear what his intent was he intended to receive as much as he couldn't he would have kept more if he had been paid more and so in this case on this record that's clear and under a long line of cases in this court and others it doesn't necessarily matter that it's impossible to receive the build amount if that's what the defendant built it's the presumptive standard and if the defendant fails to rebut it it is remains the standard and here the defendant obviously failed to rebut it because he actually confirmed it with his testimony you know i don't want to  you he's credible when he says that if you had paid me eight point four million dollars i would've kept it he's not credible when he says and this is supported by udall the reality of health care fi that he wasn't going to get the eight point four million and he knew it and he in fact didn't get the eight point four million so why can't this court believe it or why couldn't the district court believe that as opposed to just believing that which would support the harshness of a few reasons first of all the district courts comments regarding credibility  which it noted at the beginning were in light of the arguments that had been made at trial and this particular defendant was not a doctor he was a sales person and so there was no there was an argument a trial that he was inexperienced in billing and that that was somehow a defense to all of this fraudulent billing and so the district courts initial comments the opposing counsel noted were a blanket finding that there couldn't be any credibility simply that going into sentencing there was no credibility to the new argument that counsel had previewed and i believe there was a question as to where that was previewed it was an e r eighty two were defense counsel said in his server reply mr miranda will address this issue at sentencing and here's what he's going to say and then counsel started at the hearing at fourteen and twenty by saying again essentially previewing what mr miranda was going to say and the court properly noted that that didn't seem particularly credible because it was contrary to what had been argued to trial and at least as of that point at the beginning of the hearing the defendant had been heard from so the district court obviously didn't make that a blanket credibility determination because the court then heard testimony from the defendant and i don't want to hang the hat completely on the fact that the defendant it made it to the full intent because the other way is that the defendant tried to rebut this presumption we're also woefully deficient the expert report which was the primary basis in the sentencing argument it went so far as to say that the methodology used by the government to arrive at the eight and a half million dollars loss amount lacked credibility so far to suggest that the insurance companies actually owed the defendant one point five million dollars after a week long trial where the jury convicted the defendant in about thirty minutes the district court was absolutely correct to find that that report lacked credibility and so before the hearing and after hearing that if the district court gave the defendant every opportunity to go through this process of trying to rebut the presumption and properly found in each step of the way that he failed to do so and therefore in this particular case under this court's precedent the intended loss amount was the correct amount to build amount to use for sentencing purposes aside from the restitution question if the court supported the defendant's trial argument which is that he was not particularly experienced in billing the cross examination of the cooperating witness his former business partner crowley crowley explained that crowley was the one at the start of the business who knew about billing and that the defense's argument in fact was correct to that extent that the defendant of the two was not experienced with billing and was unsophisticated in billing and so this is actually a case where he didn't have the evidence at trial made clear that this was not a defendant who had the sort of experience that you would assume for a proper foundation to make that statement of the twenty five to thirty percent knowledge which was one of the reasons the district court was skeptical and the defendant at sentencing as well continued to deny culpability by explaining well if i had known that this was somehow improper which is in other words implying that he didn't know exactly about the billing he said if i didn't know this if i had known this was on proper i wouldn't have built this way this is in contrast to a case like pop over to the second circuit case saying where there is some foundation for the medical professional or the doctor being intimately familiar with one of the cases puts it this is not that case the defendants sent the defense trial argument was correct that he was inexperienced that he didn't have any foundation upon which to make these claims and the way they came about at sentencing was essentially defense counsel previewing the defendant was going to come in and say what seemed to need to be said under this court's precedent to rebut the presumption and the district court correctly noted at the outset that doesn't seem like it's going to be credible then heard the testimony nonetheless and made a credibility determination that in fact it wasn't credible because there was no no foundation and the expert report likewise doesn't speak to the defendant's knowledge it speaks to the industry's standard in general the judge ruled noted but no connection to this defendant's knowledge so in every regard the district court correctly determined it didn't clearly in its factual determination and therefore didn't abuse its discretion in finding that the presumption wasn't rebutted and the building was the correct amount for intended loss likewise the district court didn't abuse its discretion in applying the sophisticated means in a hansom and as judge martin lee noted the miry at a medical supply shell corporation was set up to make it more difficult to follow the money and the testimony at trial prove that because the way this fr went on for approximately twelve years and crowley the government's witness the former business partner only discovered it towards the very end and the way he discovered it was by following the money he became suspicious about the amount of money that he was receiving versus how much the defendant was making he looked into the billing records he saw that money was going to bank accounts that he didn't know of including the bank of the west account which is one of the counts that was funneled into through this myri medical shell account so that falls squarely within the case law approving of this enhanced me the wind if when counsel suggest that there was nothing to be hidden that's contrary to the evidence that was a deuce the trial because the defendant was hiding the proceeds of the fraud from his business partner in order to hide the fraud the whole point of having a separate account within the scheme of the fraud was to prevent the fraud from being discovered the other purpose was for defendant miranda as the f b i case agent testified and walk through the financial records the trial the other purpose was for defendant to use that money for his own purposes to invest in real estate around the country and to spend that money on his own personal living expenses now it's true that crowley was at times paid out of that account but as was clear at the trial crowley was not a particularly sophisticated business person and therefore the way that the defendant used myriad of medical was primarily to conceal the fraud from pallies and that's demonstrated best by the fact that exactly that is how crowley found out about the fraud by tracing the money and so this fake account this fake business and its bank account was used to hide the fraud and it worked to hide the fraud for a number of years and that's exactly the sort of case where this court and others have applied this  and found that there was no abuse of discretion and so with respect to any of the sentencing issues the district court was factual findings were not clearly erroneous and he didn't abuse discretion there's other issues that i'm happy to address if the court has any questions in the remaining minute otherwise the government submit on those issues on its brief thank you counsel thank you very much thank you i just want to address a couple of a couple of the points the government made just to clarify my earlier presentation just to be clear that the jury did not this is not a conspiracy case the jury did not find that eight point four million dollars was built the with the loss amount found by the jury or the counts resulting in a loss amount found by the jury were approximately ten thousand dollars so we went from ten thousand dollars at trial to eight point four calculation i think it's i think the last calculation is unclear for the reason cited in the in the expert report so we don't except that the last the loss in this case would have been three million dollars there are there  don't think so i think that it's clear that was the paid amount but i don't i would i don't think it reflects i don't think that all of that amount was fraudulent i guess is what i'm trying to say and i think the expert report makes clear and i see i see i'm almost out of town i'm over time but i think you know the court just dismissed the expert report saying it was inconsistent with the evidence that was produced that that was presented at trial which again we have the court looking everything and all of the sentencing issues through this trial prism and hernandez is very clear that the court cannot do that that those are separate that those are separate issues all right thank you