two theories that were put forth in support of the increase want to call the last home theory and the other i call the last the last feet feehery i'll start with the last home theory because i think that was really what t record relied on or at least that's what she seemed to rely on there are two main problems with the last home of the last home theory the st is that the government did not produce evidence that twenty five victims lost their homes  so that can on its own satisfy the six level increase the nd problem with the theory is that i think the government now concedes that they have to show at least but for causation under this right under the supreme court's burrage test and there were no finding there's there's been no evidence to show that the few victims who did lose their homes lost them as a result or it was a their scheme was a but for cause of them losing their homes and we gave some examples in the briefs of some of these victims who did lose homes they were already well behind on their mortgage payments the homes were underwater they were their income did not even meet the the monthly payments there was no way these people were going to keep their homes no matter what so the last home theories got those two fundamental flaws so i don't think that can support the six level increase the other theory that the government has espoused on appeal financial hardship once again i think we have a causation problem no evidence that's been presented that the loss of this relatively minimal fee is what caused substantial financial hardship i mean you say the the fee is relatively minimal and maybe to some people it would be a bit of an end of the victims of the scheme or people who were already having trouble making their mortgage payments and to someone in that situation  things like there's a direct causal link between the fees that the fraudulent scheme collected from these people and their loss of the fees that they paid well the st i mean the st argument and why based on causation is that i think what your hon that these people already suffering substantial financial hardship i mean that the scheme didn't cause the problem they were already behind on their mortgage payments they couldn't afford to stay in the homes and yes it did one thousand five hundred dollars fielitz they would have been something that any of us would have wanted to maintain but it's just not what caused the substantial financial hardship for the victims but you know i'm so is it your view that if if someone is already financially struggling or that means that they're experiencing hardship and therefore no matter what you steal from them you're not causing hardship because they were already in her trip i mean that seems like a lot of rule i do believe that that's the way the guidelines to find it i mean the commentary to the guideline discusses how going to change your retirement plans let's say or having to change your living situation because of the loss and these people are to have to change their living situation i don't think generally someone is not going to change their retirement plans over a one thousand five hundred dollars loss  and you have to also remember that these victims were victims that took on more huge is worth hundreds of thousands of dollars and mean they a one dollar to three thousand dollars loss for a homeowner i mean that standard the roof the roof is needs is leaking that's one dollar to three thousand dollars probably much more you need to fix the fans the air conditioner goes out the hot water heater you need a new hot water heater i mean all these are are songs that would be well beyond one to three thousand dollars that any homeowner should be expected to undertake and that's what these people did so they think that the fee this relatively minor fee is what causes substantial financial hardship i don't think the government showed that they certainly going to come up with proof that individual said well this one dollar to three thousand dollars put me in so much more of a worse  i already was in and i mean there was no proof of that in addition the guideline itself i mean the guidelines have six thousand five hundred dollars is sort of a base level of what is a type of loss that would trigger an increase i mean these losses are less than half of what the minimal six thousand five hundred dollars loss that's required on the guidelines to trigger any type of increase at all i mean even if we were to agree with you as an original matter i mean  doesn't necessarily follow that it was an impermissible exercise of the district court's discretion here after looking at all of the facts to reach that conclusion and so what i mean how do you get to be able to say that it was an abus think the court to have adequate exercise of discretion would have to set forth a twenty five dollars victims that suffered to substantially financial hardship with some explanation as to causation and we just have a general a general sort of on the books finding that there was substantial financial hardship and there was causation without any articulation i mean i'm swinging at a moving target in the general target i don't even know which victims we're discussing so whether the courts looking at it under abuse of discretion or did obo i think that exercise its discretion appropriately based on whatever findings it had made and this court really can't do that based on these findings so for that reason i think the last few theory both theories don't don't hold water and if there are no other questions also of the remaining time very well good morning your honour's may please the courts erin catchall for the united states the district court did not error in finding that twenty five or more victims suffered a substantial financial hardship when the government presented evidence of such hardship for at least thirty seven individuals moreover this fraud scheme was unique in that steam that targeted over four thousand nine hundred dollars individuals was deliberately designed to cause a substantial financial hardship for its victims the court did not err in making those factual findings which we contend is reviewable on a clear error standard did not error in imposing the correct guideline enhancement and did not err in imposing a within guidelines sentence no would the government agree though some of these individuals were harmed to different degrees sec cracked certainly your honor and so when you say there were what you say thirty seven that qualified as substantial harm over thirty seven specific victims who were identified and presented to the court that we contend identified that suffered substantial financial harm is there a district court finding that you know number thirty seven who ever suffered the least amount of harm that that actually was serious financial harm i don't think the court articulated went victim by victim to identify which victims suffered which harm and no circuit has required a district court to enumerate the specific victims that it was reviewing in considering that well but wouldn't it mean to the police at the baseline and that's the concern is if if i mean because presumably the government or we could uphold the sentence if we found that you know we don't think that th seven were substantially there was serious financial arm but you know as long as it was twenty five and i'm wondering if there's actually an ability to do that or what the district court did to say hey three thousand is the cutoff two thousand is the  cutoff five thousand is the cutoff i don't think the court needed to set such a cut off your honor and i think what the court did here was find that the the losses suffered by the victims far exceeded the standard in men haas the th circuit opinion the court identified defined substantial in this context as a very wide range of harm ranging from non minimal non trivial loss all the way to catastrophic loss such as losing a home here given that the  evidence presented the st century bought lists of individuals who are facing foreclosure and those were the people they targeted as victims in this case these were people on the brink of losing their homes not individuals who could afford to repair the roof repair their fence these were people who were desperately trying to hold on to their homes and st century went to those individuals and told them stop paying your mortgage pay us instead and we'll take care of you they did that and by not paying their mortgages they either and what the district court found was not that they had to lose their homes what the district court noted in the long colloquy that it had in this argument was that st century required people to stop paying their mortgages as part of the fraud scheme and not paying their mortgages certainly had an impact at the very least on their credit which is a actor that's numerated under comment for to be won so you think is the government's position the impact on the credit in and of itself is substantial enough substantial pozo decision out of the th circuit that substantial harm the court found involved stealing money orders for amounts less than a one thousand dollars of victims who were near the time of them paying rent so what the courts have found is that the court the district court needs to look at the individual circumstances of the victims here and what this court and other circuits have held routinely is that the district may also infer the number of victims based on that class of victims that were affected particular victims but can use a sort of statistical inference i take it out the closet what case most clearly supports that proposition a few your honor laurie empty out of this circuit is a case that says that the court me and for los amount from made for loss amount in addition to pham decision which we cite in our brief suggested that the court could infer the number of victims and then and then the that's also nice or case and then in min haas the th circuit said quote making an inference about an individual victim by virtue of his membership in a particular group is not necessarily problematic so long as a district court has reason to believe that the victims are in similar economic circumstances here the class of victims was clearly defined it was lists of people who are on the brink of foreclosure which were those lists were bought in order to target those individuals all of the victims who testified during a five week trial were presented similar distressed financial situations the district court made a particular finding at sentencing that the scheme quote affected thousands most of them already in danger of losing their residences including retired person worked for decades lacked formal education and whose only asset was the house that they had acquired and lived in for decades the district court made specific findings with regard to the class of the similarly situated class of victims as well as the the the scripts that the company used to target those victims inherently require the victims to suffer a substantial financial harm in this situation but the court does not have to reach that finding given that the government here presented the court with thirty spouses is that correct that's correct your honor no were did they all lose three thousand dollars because my understanding some of them lost less than that and i think that's what i'm getting at is you know i understand your if we went to the route where you could take classes of individuals and probably enough but if if you start requiring individual evidence is there a cut off and that's what i'm troubled with is what if we say three thousand dollars o think that's enough in these circumstances but some of these individuals may have you know written a check and it did didn't you know balanced and so they didn't actually lose much money i mean is ten dollars enough in this circumstance i'm not sure i'm not sure the court should set a bright line dollar amount for what can qualify as a substantial financial hardship but if the if the defendant steals the last money out of a victim's bank account because of insufficient funds so that is the last dollars out of the victim's account and so to the extent that those are slow or dollar amounts it's certainly supported by the th circuit decision cost in jeda and the evidence here articulated that these were people on the brink of financial distress and could not afford to lose a single dollar in addition as i think number of you have indicated this should be reviewed on with some deference the district court in making those findings we contend that it is a clear error standard because it is such a broad spectrum of harm that the district court is evaluating here and every circuit that is considered five other circuits ever viewed substantial financial harm under a clear separately i mean i can i guess i can see the logic of doing that in a community property state but in another state that follows a rule of separate property if one spouse loses money why is the other spouse automatically a victim your honor we point to the plain language of the guidelines refers to persons and not group of victims so under the plain language of the statute of the guidelines we believe that individuals should be counted individually and we also cite the four other circuits that have adopted harmed but is there are there circumstances where only one spouse would have been harmed but not the other spouse in this situation your honor looking at the reports of interview that the district court had these were people who were cohabitate ing who were both on the brink of losing their joint home that they were there's been several new theories that continue to be articulated which i think is part of the problem here the spouse theory was never argued below st time it came up was in the government's brief on appeal the arguments been waved in of course there are no findings below because the argument was never even made below so that's why this court has no findings about was it a community property state how is the spouse harmed because it was never argued before but they did district court found thirty four individuals who were harmed or a fish record never said anything about any number it just said it was ok so the government just presented the evidence of thirty four dollars and then the district court relied upon that well the government presented it was twenty five dollars reports of memoranda that was all they did now on appeal they've said they're an additional three victims that testif at trial so now they're saying it's twenty and then if you add seven spouses or whatever it is you get to thirty five dollars or whatever it is they're saying now none of this was ever discussed below the credited credit impact on credit again never raised before never even raise appeal st time it's mentioned is today you won't find a single report where you where you see a victim who says my credit was eight hundred after this it went down to four hundred dollars there's nothing about the credit score this argument is totally made for the st time an oral argument it's been waived and this is the problem they're coming up with new arguments because what was done before was not sufficient the government mentioned that what the district court found is that this was the only asset that these people had and they lost it the assets were worthless they were underwater the assets were not worth anything there is no evidence that somebody had a substantial amount of equity in the home and that because of this scheme they lost a home and lost all that equity these were people that were underwater the assets had were worthless they were behind on the mortgage payment this scheme is not what caused them the loss to lose a substantial asset what they lost was a one dollar to three thousand dollars fee that fee we think could it expedited the loss and isn't there a difference between someone who could've dragged it out and stayed in their home you know another eight months and instead now they can only stay in you know five or six again where have popped the size and there are no findings that any victim could have stayed another six months three months eight months if it wasn't for this scheme i mean it  seem at least a little counterintuitive to say that i mean you could you resist the application of a sudden sing and handsome and on the ground that the people you target and who were your client targeted were particularly vulnerable i mean like right i mean it's a little odd to say you know the people i was going after you know had so very little you know what i stole from them you shouldn't really count well there are two responses one is there's a separate guidelines and has meant for a vulnerable victim that's a two level increase not  six level increase so what they want is they want the big one they want the six level increase and the six level increase is specifically for causing being the but for cause a substantial financial hardship that's what the commission