now we know miami traffic still recovering from weather related issues names when they're double names the first name is the father's usually the father surname in the second name is the mother surname and some people use both names and some people just use the father's name but everybody if they you only use one name it's always the father's name which would be the first of the last two martine the issues i we've raised on appeal are principally guideline interpretation issues and i want to go straight to the first issue which is the the pr adjustment because of this error is the district court believed as a lot to farty to grant acceptance that's the air yes your honor it should go back for him to evaluate whether or not he should get except end of responsibility is that what the remedy is exactly it's not to end m r correct he actually had passed a bunch of drug tests this was only one hundred tejada we are am i confusing that with another case you passed eighteen consecutive  anything can happen to a person is really the issue is whether the district court misapprehended said he didn't have authority and i think the record supports your argument just court site seems to me that under the rules to be tested positive that's a violation the law he loses exceptions and it's not a person a rule on the probation officer says that's correct he doesn't get it but the fact of the matter is i know from sentencing his discretion ery i mean  could not get it he could get it it's up to the judge to consider all the facts and circumstances so we'll ask the government i am wrong on that what is your next issue the next issue is whether in this this there are two count did constituted merited a vulnerable victim enhanced men in our position is that we in this case the government as to two separate series one their theory is that you can be a vulnerable victim if in a case in a context of somebody investigating why the medical care didn't work for you and you and you passed away why you could be considered a vulnerable victim if somebody obstructs that investigation and we don't see any support for that type of analysis in in the case law for the vulnerable victim and hanson or the vulnerable victim and well didn't he didn't mr martinez begin to alter records not it was the data interest that was the issue the are our position on that is that ordinarily there has to be a closer connection between a clearly has no intent to harm the patient here  been under the care of as far as the record shows completely adequate doctors and nurses in a completely adequate room for him at the time for two and a half hours at the time this happened in other words this is not something  doing at the time that it's when he's under control of the patient this is when two and a half hours of telemetry at another unit two and a half hours of monitoring at another unit so there is no indication he's doing it with an intent to harm the patient why did he explain why he did it it's the factual basis stipulates that he did it because oh my god they're going to look back at this and they're going to see i'm supposed to when when a patient's blood oxygen level fluctuates which is what the record shows it fluctuated i'm supposed to call the doctor and which was a cover up for his not being that doing his job is a cover up for him failing to fight i don't know beyond irrelevant conduct you can't well the we've relied in our briefs on on the we believe is a strict interpretation of the guideline language with regard to what is the offense and what is relevant conduct to the offense and that's our reply brief and and pages the record the government failed to show any we actually know i mean from the facts that were presented in the district where we actually know that it didn't do anything that dative that the way the system actually works is until that data that he's typing into his system is intentionally accessed by somebody else or until he sends it to somebody else it never has any effect and that data was never even sent to anybody else until after the until two days later and nobody asked for intellect to keep focusing on the data the relevant conduct is his substandard care for the pension and dereliction of his nursing duty this is clearly relevant conduct to the fossil record convictions and that is where the vulnerable victim to get to the other issue but my view of the case law on this and i think that there is some ambiguity it's because of the language in the guideline in the concept of relevant conduct my understanding of relevan refers to criminal conduct and so the government's argument that he's covering up that was and we say in our reply brief that's clear their argument he's trying to cover up his sub standard here but the purpose of that and the effect of that was not on the patient or to having  while it is a crime and he shouldn't do it and it hurts the government the you cannot go back into the relevant conduct guidelines and go back to the substandard care and say that if somebody is a victim of substandard care that then that is the  care they need and the and the scheme effectively deprives the person of that of the care they need then then that is a consequence of the actual criminal conduct but the criminal conduct here had no such purpose nor did it have any such effect has or are specially programmed have record it seems to me rather than having to reach the substantial number of records issue fabrication it says or i specially probably have record  recognize this court has said that there's no constitutional vagueness limit on guideline language but again when language like especially probative what the probative here would have been it would have been probative of the fact that he had failed to alert a doctor that the the patient's oxygen was fluctuating and the question of whether that is really what the guidelines going after is that really what the investigation was about is that really what was what was being obstructed is that so especially probative and i don't think there's any case that would show that somebody who is part of an investigation and a lot of investigations happen this way we're starting investigation and you go off and looking looking at something else in the person's doing something else and they're trying to conceal something relating to them it may be especially probative to what they're concerned about but as the record shows in here it has zero probative value as to why this patient died zero and zero investigation of course for him to more than just why he died it was was the it was did he receive adequate care i understand that but in terms of especially probative verily you really see adverbs in these type of guidelines but i think it should be given some weight especially probative means something essential in the case law indicates both that something is actually completely damaged that really impedes the investigation into if there was no impeding the investigation here because his in if his futile attempt to do that didn't wipe out what was in the computer data he just tried to put a veneer of of of if you're just looking at me well it's not my fault i'm sorry the final issue mr clue is discussing that of the especially probative records mr blue states that by the record there was no reason to assume that mr martinez matthews conduct contributed to the death of the victim that's not true in his belied by the record on page two of the factual proffer it's clear we set out in this was a document signed by mr martinez matthews that the patients vital signs were fluctuating wildly through the entire course of september second which was the day that he was under his care and that the reason he transferred he made these changes in the record was because he knew that this was going to come back on him it was going to look like he was giving poor care because he was in fact giving porter that is also in the factual proffer also in the factual proffer is a statement not an equivocal statement but an unequivocal statement that had mr martinez matthews provided the appropriate level of care the patient would not have been transferred out of the surgical intensive care unit surgical intensive care unit the v a is the highest level of care available for patients that's where the sickest most needy patients are the ward that he was transferred to was not a telemetry ward as mr clue represented in the brief it was a standard step down post surgical ward a general ward that had telemetry capabilities anything on the record that indicates that his his todd up here contributed to most patient is death it does not your honor but i would submit that the death of the patient is not the only potential harm here it's not the only harm and that's not the only reason why the victim the patient is a victim the fact that his medical records were no longer accurate the fact that as mental wreck medical records did not fully encapsulate his entirety of care that is harm in and of itself when people's records particularly their medical records but their bank records for instance are harmed that is a harm to the person when your identity stolen that is a harm to a person not just if your identity is then later used to create a credit card account a fraudulent credit card account the fact that your identity is stolen in is is in itself a harm i'm not sure this is comparable to identity theft ok but even if you even if one were to forget that your honor what i just said the fact that he altered the record certainly impacts any potential future civil suits that the victim and his heirs and his estate might have against the v that is the reason why they have these post facto analyses of care to determine whether or not there was a liability to determine whether or not some specific person or practice was poorly done that's a little speculative in that you don't know without the record reflect anything that's happened post death the place yes your honor i'm not suggesting that it it is i'm saying that the potential there that is a potential harm and that certainly can be taken from the record mr martinez matthews but in his own admission in the factual proffer stated that the reason he committed these acts was because he knew that there was going to be a post death evaluation of his conduct that is why he did it and he chose viz specific documents because they were especially probative as to his level of care and that's why you think that enhancement should apply corn apply yes your honor that as well as the fact that there were a substantial number of records but that certainly as itself is in cash as a combination of the many different records the medical record has many different documents within it it would have the telemetry the blood oxygenation level the pulse whether and how his post surgical care x rays things like that you can alter many different documents within a single accordion file if you will the fact that it's on a computer program and it can all be accessed by inputting one patient id number shouldn't change the fact that there are many different alterations and i guess i think just go in that you couldn't alledge as this do id theft if someone were to steal social security number a phone number and address a name of a single person those are all different records even though they correlate to the same individual but common parlance i mean you're usually a patient you talk about one record in the patient has a medical record and the fact that it has a lot of davey entries doesn't make it multiple or your honor i would i would argue that there are multiple records and in at a bank for instance or at a law firm a single client could have one record one file but within that file for instance you could have a deed a mortgage a loan application a tax return many different single records within a single file and that would is what this analogy i think more closely aligned to moving on your hon to the vulnerable victim again judge toler your point is very well taken this is a seventy six year old heart patient and the reason that he was the victim of this case is because his records were altered that is harm that's harm to a vulnerable victim it is relevant conduct even if you don't look specifically at this exact  fense it's certainly relevant con how is victim i mean how as patient as a harmed by the alteration of his record well it's harm or potential harm your honor doesn't the harm doesn't have to be manifest the potential harm is enough to secure the vulnerable victim unhandsome and and if you if you look at the eleventh circuit pattern guidelines for instance pattern instructions for this offense it talks about harm modification of records potential harm as harms to  and that's pretty clearly i think this exact case your honor a medical record is a document that the finds a person when you harm that record when you alter documents in that record in that file you are harming i'm sorry or what he's dad and he died i mean you could you could make a vulnerable victim and handsome an argument it seems to me if the records were altered after the patient had passed away or could you i think you could your  honor i because again this would go back to that other point that i made about you can have a victim who is no longer with us be a vulnerable victim under the guidelines yes your honor i would say that you could because of case law you have to support the proposition your honor there's a case out of the ninth circuit and said i have information about this kidnapping victims activities their last their whereabouts took the f b i on a chase throughout northern california before admitting he didn't actually have any he didn't actually have any information about that kidnapping victim now that was found to be harm to a vulnerable victim the volatile victim in that case was the family of the kidnapping victim here but the family of the kidnapping victim existed and here your honor and was alive yes you are in here the family of the victim exists so you've never argued that the family is a vulnerable victim you've argued that the patient a vulnerable victim while in the patient is a vulnerable victim and their status is transferred for the purposes of any sort of future civil lawsuit but not for guideline purposes well that would be the relevant conduct your honor and additionally going back to you can't keep expanding the notion of vulnerable victim down generations and relatives in a family you've got to pick and choose and go and i thought your i thought that in the district court your focus was on the patient and not the patient's family as a vulnerable victim it is your honor that i believe they part of the problem here and why the patient was the victim is he has the defendant has admitted that his vital signs and deteriorated but they were n showing up on the machine because he won monitoring at the been manually dact evaded the cables unplugged one of the two denim it which was on so this they weren't recorded and he didn't inform anybody of the admits that that there was a period of time no fog all sounds were entered in the computer and he didn't tell anybody about it and it was his only patient that day that he didn't have anybody else and he was assigned to this man from eight am to the transfer at five he told nobody nothing and he admits if everybody known about the deteriorating five he would have been transfer as all that is i'm reading from the factual  all that in the fact or proffer everything is in the factual proffer and the on objective facts in the right can we turn to the acceptance issue yes judge there's error right judge if that if the facts are that the judge asserted that he did not have discretion on us earlier i'm asking you your view of the record yesterday record is your error i believe there is not your honor i believe if you look at the bottom of seven of the transcripts this is th is is where the judge asked probation isn't that right relations said yes then the defense attorney made a full paragraph of argument saying that under certain circumstances you may you don't have to please we don't we want you not to at that point the judge said well all hold back on that so he never comes back to it but he does your honor later on on page nine of the sensing transcript he says if i remove acceptance of responsibility it's a condition it's not when i remove bill isn't it but that's only because he's talking about the guideline range certainly judge but he it is a conditional statement why didn't anybody correct the judge i mean that's this is standard long settled guideline law and the eleventh circuit law that this stuart of post arrest rug use can but is not always tantamount denial of acceptance of responsibility judge from the from the document itself i don't have an answer to for you from my presence in the courtroom based on what judge martinez said here all right i'll hold off on that it was clear to me at least that he was not decide he had decided yet he knew he had discretion based on that statement but i recognize your honor that if you disagree with that then it is certainly  flatly states that he seems to me that under the rules if he tested positive that's a violation of the law and loses his example and the responsibility then you turn to the probation officer in the office says that's correct your honor yes judge but then he that's on page six of the transcript and he comes back and holds off so so that would be i think an answer to that if there are no further questions your honour's thank you your honor turning to the reference on page seven what the judge says is it only says he said basically and i can announce the ruling and i don't see how that can change anything all that the defense attorney is doing is trying to convince him that he has discretion he never changes his position and then he just doesn't doesn't give them acceptance and so it's it's fairly clear that every man is appropriate no matter even even under the government's view of it i think it's still have a remain because it's still it's left in a position of where you can't rely on have confidence in in the in the districts understanding of the going the the the question  of the difficult to deal with from a different from anybody standpoint in this case is that there was substandard of care and we rely on so many of these i guess that terms first responders are medical people so much that we really depend on them g absolutely the question then becomes ok so he it meant it that they said the machines don't record the deteriorating vital signs is that what happened there they say two ways but fluctuating is what they really say and then is the patient's order to be transferred out of the unit before this this nurse comes on duty he comes on duty after the doctors that i'm trying to go to the fact proffer yes actually it made it even he admits that the oxygen levels were fluctuating that some of the readings did not come in not all of the readings the the record doesn't show it but that the readings from about from about two thirty on where they are the records show record shows the reasonable reading of the record and the actual facts is one of the that's the problem the problem is that the showing the government says today oh it's a general unit that's i disagree strongly about that certainly nothing the record to support that the records show the is going to talk about extra record stuff the record shows that you r client said they were deteriorating he was and he was tearing that day and he tell nobody he told nobody but he turns the patient over at five o'clock in the afternoon from five o'clock until for the next ten hours he's monitored he's got doctors there's there's reading us now i'm not saying has to cause the death i'm trying to say is there any injury as none yeah the unit the person isn't the government hasn't even said that the person had a better chance of anything that cou get a better code blue that there's more anything it's there's there's just names attached to things is is it and that's and they didn't the reason why they didn't want to is because he had it had nothing to do with it as soon as he gets to the to limit room and he goes to immediately they know oxygen level is there's no mystery anymore that's the problem with the record in this case and why they used the term speculative to me in this case is very important the analysis the government uses throughout the use of conclusory factual proffer that doesn't address actually address harm the only thing we know for sure is that the government stipulated that there is no showing that anything this paper this doctor this nurse did caused any harm to this patient at all that's the only thing we know for sure in this record the rest is speculation how can you not cause harm to a patient by not recording deteriorating vital signs again that part of i want to correct one part of the factual property theirs it was not a stipulation that he did something to prevent these from happening the vital signs were were shown there's a window where the file shines pop off and there's no showing this patient is not ambulatory or whatever there's two ways that it could happen the cables could come out they could not come out but there's no consistent showing if he turns off the monitor and keeps it from showing i didn't i didn't suggest that how can there not be harm for a patient who is in a post surgical i c u unit if you don't record vital signs well i mean they talk every day of the many you go into a doctor's office your vital signs are taken whether you're there for that sort of a procedure or not you get your temperature taken you the doctor makes rounds at three thirty but the doctor to transfer him at seven thirty is there again at three thirty she's there she asks martinez how's he doing says he's not eating well so it's not as if he's ignoring him he just isn't dealing with the things the doctor has every and you're caught stipulate to that it's ok that's right you go on to whatever you want to argue that he gets there at five o'clock immediately take his blockage and they know right then what is what oxygen is there's a massive record here it wasn't presented the facts were not presented what is what it what was presented was a conclusory view but if you're going to operate on a conclusory if you conclusory factual proffered make sure it ties all the loose ends is all i'm saying otherwise you've got to rely on the facts the facts are he had nothing to do with the patient dying nothing to transfer had nothing to do with patient on the facts in terms of the record show that the government has not even argued those things so that what you have is an an  interesting but ultimately irrelevant to the the death of the patient fact and that's what we are arguing that the the law simply does not allow him to get these extra punishments for his failures as a nurse for which he lost his licen