this appeal is from a sentence of one hundred twenty one months based upon a determination of the political guideline range it's interesting that an imposition of sentencing judge by slate initially said one hundred twenty much which would be an even ten years but the degree to which he relied upon the guidelines in determining what you probably sense should be is underscored by the fact that he then we first himself or rather corrected himself and said it would be one hundred twenty one months what was determined to be the bottom end of the political guideline range and considering a theme for this morning's argument what i kept coming back to where the terms ross and reasonable that and the want to thought about it i think that the thing that i want to leave the panel with this morning is really what we're talking about is justice that's what we want the court to consider and that's why we think that  fashioning an appropriate sentence for this latest scheme to defraud that she had engaged in your honor i would agree with you in all except two respects first off the use of the term resort of this  just engages in a continuing course of fraud and you can put whatever label you want on it but we've got somebody who has a long history of engaging in project one activity and as i read the transcript of the sentencing hearing it seemed to me the judge by sign was looking at this pattern of behavior which repeated itself sort of the same general theme but different victims and different methods of defrauding people and he arrived at the sentence of one hundred twenty one month basically to reflect the seriousness of the conduct that he was looking at over a long period of time there's i think that that's an appropriate approach to the sentence in this case i think that  booker isn't that what he's supposed to do now that the guidelines are advisory and not mandatory isn't the ultimate question that we're really looking at here whether one hundred twenty one months was a reasonable sentence for all of the behavior that you really don't challenge in that in the pre sentence report which you pledge everything but one count and a jury found her guilty on that one so it's so it seems to me this for everything was up for grabs here in terms of the fashioning an appropriate so i think that there's another aspect of looking at this that is important for the court to for the panel to be aware of and that is that sentence was in large part determined by what judge that and i do want to address that and my quick response to that is by this court departing from the precedent which applies ex post facto consideration to the sentencing guidelines  is that two thousand and one was the year that this but the miss hunter committed count twenty one that she went to trial on the one that the court determined was responsible for a one point seven five million dollars loss over total two million dollars l but instead of being sons of the two thousand and one guidelines as everybody else who committed that crime in that year she's being sentenced under two thousand and three guideline book only because of those last three counts which the remedy in or when the court was going to and i think that resolves a lot of the issues here and if i can explain in my brief i said kind of burger in ortley and were completely inconsistent but they're not they addressed something different cut and paste document she created in some of the fake trans union credit reports and other ones she created a fake wire transfer in other ones she would call the or let's back off from it whatever it the i think that it would matter and if i could explain in two thousand and three if you if it was if the whole scheme wasn't relevant conduct and you applied the one point eight seven five alone you're right you would be between one million and two hundred fifty thousand you would be on that issue alone but there are also things like there were four to point out of times there were eight point adams and all of those were considered together and if you were that at this point i understand it was in the past aren't but it's the way he decided to case it didn't matter so he didn't have to deal with it let me go back to the issue of i think you're if i and i mean given that you're asking me now to look at the these two what was the guideline that applied on the other i think there are four other boats that apply and then  this case we were talking apples and oranges the driving was the one point seven five million dollars applied for a loan which was never funded occurred in two thousand and one january of two thousand  know has to be obviously well i think when you look at the conduct from those last three counts it's much much different than the conduct of count twenty the count of conviction judged by this line was going by the jury verdict that said this is the amount of