the district court simply and clearly failed to make the fines required to impose the two point enhanced meant for substantial endangerment to the solvency of one hundred or more investors give you the names of any of officer then failed to provide a list of the one hundred qualifying victims instead what he did was submitted to the district court twenty nine victim impact statements the district court said well i read these twenty seven of the twenty nine showed complete financial disaster for those people and therefore i'm going to extract a late and say oh well there's enough evidence here that there were one hundred or more qualifying victims much much less what was in the for which he got six point but what was the nature of the what was the nature of the criminal activity is a ponzi scheme right and what but in particular what was going on here he was promising people returns rather astronomical returns he was giving the earlier investors money that he secured from later investor is there some i guess i'm asking is this inner something in the nature of this scheme which makes it more probable than not it will it will have remembered this doesn't it's a strange statute it talks about financial security being substantially endangered yes is there something in the nature of this scheme that makes it more or less probable that financial security will be now you get is the question i'm asking is there any evidence in this record about how many people were left holding the bag at the end of the  with your kind of cooperated it was a yes he was the operator he testified and believe me you're out of the trial lawyer and this had investigators looking at the records from here until doomsday trying to figure out what money went in what money won out impacts so i think that what they may have been some other evidence of that was the bulk of the evidence so we need to determine whether that was enough to show by preponderance that there were at least one hundred times so excerpts the record of page twenty four line eleven where the court ruled on this and it said for the record i'm overruling the objection and this makes clear that he was relying on probation soley i think based on the information that probation has even if we do look out the other materials the government is now saying support the enhancement what are the point to the point you sixteen victims the trial one who testified at sentencing ten of the victim impact statements that were read aloud by the prosecutor at the sentencing hearing at sentencing and so that adds up to twenty seven and then there were twenty seven letters that were sent and that the that twenty seven twenty seven equals fifty four so even if we go along with the idea that the court could look at more than just the twenty seven that the district court look at sentencing we have only twenty fifty four at that point right  fencing i'd like to say for amount of loss you can estimate it doesn't say anything about solvency so we don't have a rule one way or the other but could we say an estimate of the district court have the discretion to assess based on the evidence before it and to say that yes more likely than not a hundred people have their solvency and i think it's rather clear the guideline itself says one hundred or more financial insolvency or financial security has to be in danger i think that it's not an unreasonable burden to show which of the hundred of these instances in when the course talking about application no three the government relies on about amount of loss ok the united united states versus or our five sixty seven fed third page six ten ten circuit two thousand and nine case they explicitly say they found application note does not apply outside of the amount of one and there's a reason for that the amount of loss is very very complicated very tricky to determine amount of loss and fraud cases there are sixteen different levels under the amount of loss from under five thousand over four hundred million here we between seven million and i believe is twenty million but i think everyone agrees that for mr brown it was somewhat over so given given that your question that i knew the answer to given that the trial and the number of victims during the sentencing and this is from donald hong and it says the five thousand we lost came from our savings and was money that we planned to use for a vacation abroad we've never been able to take that vacation i have to worry about whether i can eat or does it mean i have to worry about whether i can live the way i had planned living before i entered into this ponzi scheme i think it's more the former and i think that in statutory construction you look at the words that are was just these questions sentence in case the judge operates gives the sentence under some assumptions which is that the end of day i think this is the right sentence and if we take one of the assumptions out does it mean we  circuit case but it goes very well with what happened here the government had the opportunity was a timely objection government had the opportunity probation have the opportunity present this evidence supplied to the district court didn't work there should be no you just very briefly on that the courts the government quite correctly gauge mr brown's culpability in light of his cooperation recommended a sense of eight years four months the court sentenced mr brown to almost twice  recommended by the government fifteen years and eight months and in fact substantially longer than the probation officer recommended without considering the cooperation of cents more than three years in addition to what the probation officer was comma i denied that it was a denial of the five k motion there was a conflation of rule of acceptance of responsibility in section three of the guidelines with five a procedural error joined in that argument we have a somewhat stronger argument in that the government is now conceded that there were less than two hundred fifty fifth thems it should be that you mr adding and that the number of victims for mr adams for guideline purposes is one hundred fifty nine so that even if you could estimate of strap a light which i agree mr porter you can't see but even if you could you would have to find for mr eddings approximately two thirds of the victims same thing as the ones he have submitted to the court is it is that evidence enough to to now we have seventy nine i don't know how they relate to your clients victims as opposed to your co counsels crimes victims but we can figure that out all related to your clients victims would that be enough i would say no for the same reasons mr porter said that in terms of number of victims he should show one hundred victims and i think second to that the probation officer is just flipping through this and giving his general sense and i don't think that's really sufficient evidence even by preponderance of you have a six term tell me how this would work in a trial according to the way you see it should work what would what would the what would math seventy thousand dollars is that enough to say look that's a that's a that's a big enough number yes and i can find it i would say absolutely not because that all the victims lost entirely different amounts in some victims if you lose the government say we have an average loss here of seventy thousand dollars or eighty thousand dollars and for the average person that would affect their financial security so that's enough for us to meet our or propounder escapes i don't think that even hundred fifty financial statements of the victims will be brought in and and while they were presumably presumably you get to say well they have two million bucks or they lost fifty thousand that's not enough  in my brief time remaining i think i'm going to switch to one of my sentencing is she's which is that aggravating role and handsome and i think that the judge erred here because mcconnell that and it wasn't clear what he was doing or what how mr adams was supervising him but that the courts seem to think that was very important when the court the court said that i couldn't tell mr mcconnell was the one person that the government presented it as an employee or someone that he might have supervised and the carts in the excerpt of record there accept the record that they cite you don't really show that mister eddings supervised mr mcconnell and then also when it was presented to the court and i cited this in my reply brief the court said i can't really tell whether or not it's mr adding supervise mr mcconnell i think it's clear from his findings in his record that he participants or anyone that's involved in the scheme what he's doing is he's in recruiting investors where that's my question is recruiting investors in this one for an existing scheme enough for the organization enhancement i would  court michael anderson a bath united states and in some brown created a scheme where they tried to get every dollar they could from every single victim that they could bring in and that is part of what the court considered when the court applied the hundred or more victims that had their financial security substantially endangered enhanced was the nature of the scheme and the class of the victims which were supported by the other evidence before the court  access to some people trying to figure out whether there's some some of it in this record that suggests who the victims were other than what there's the testimony from the victims about who they were but there's also the way  that program was being pitched to these individuals so they had mack mcconnell and discussed another issue but his role in part was to help people get mortgages on their house to plaque what he in order to invest in the scheme so there's evidence on the record in so that's not supported by the record not unclear not is not not in not in a clear way what happened is somehow probation indicated that to the court but you're correct it's not it's not explicit on the because there's a list of victims talking about how much each victim put into the scheme there's the calculated loss there's also evidence of which of victims and for the prince i believe it was just her what's that who bore the brunt of the of the losses and we know who it was it was eddings victims and the reason we know what settings the victims is because the trial testimony showed that its victims came in last in the scheme their money was being taken in order to make ponzi payments not just to that class of victims that hundred and approximately hundred  fifty people but also to the earlier victims of brown they were bearing the brunt of all the ponzi payments at the end that's the conspirators were running out of money but i'm not sure i agree with the notion of the earlier people who got paid to the front end of the ponzi scheme didn't have their record in the trial testimony that that one point nine wasn't million wasn't just going back to those hundred and forty five or so victims that was money going to all of the victims in the scheme so there's no way that that a large number of victims are made substantially whole based on the amount of money that was going back or what do we know about the financial situation of those victims or is that a requirement of proof well the guidelines substantially nature it's an inherently subjective measure and i think that's why it's also estimation that's done for a loss so if you have at some point the court is going to have to make estimates of what substantially endangered means and in this case the court had reliable information since you that it had the testimony the nature of the scheme the types of h it was it was not a particularly sophisticated organization but it wasn't targeted for that it was people that they were running into through the community getting referrals it wasn't they didn't have access to anybody wealthy or anything you see one of the difficulties in this case is i don't have any doubt that more than a hundred people had their financial security endangered question is what burden of proof do you have to put that in the record you know you could have you could have waited until the probation officer had gone through his hundred statements and he could say they're also saying show the same and i think that would be fine for me but i'm trying to every case but on the specific facts here yes based on the trial testimony based on the nature of the victim impact statements based on the fact that they're overwhelmingly in one direction and that the probation officer was saying well they're all substantially the same so there questions right was that was the court going to give mr brown credit for having cooperated which would be the five k motion and was the court going to give mr brown what the government was asking for which was one hundred month sentence rather than one hundred eighty because the court had heard the trial testimony heard from mr brown heard from the victims both in trial and from the victim impact statements and the court had the ability to determine what an appropriate five k was the court disagreed with the government i entitled to do that and has a lot of discretion to do it the government doesn't always like that but that's the reality is that sometimes they are sort of five k motion for a second just forget about forget about two or three fifty five three five three far far free factors the judge did the judge said you know five k for you and all this other bad stuff so what why wasn't that i think what happened is the judge did effectively grant a five k the judge was very clear that he was going to join up or departure but he didn't he wasn't going to do the upper departure because of the cooperation but what the judge said was because it's a guideline sentence so there's no downward departure in the sense of we're not going outside the guidelines right he said it's a wash i'm giving you th or is that correct no your honor the court did distinguish it from acceptance of responsibility and granted the acceptance of responsibility credit under the guidelines but then was talking about what the impact of the cooperation versus the the court would otherwise have imposed in this case which would have been an upward bearing the court wanted to go but the guidelines range on only the cooperation that's mr brown from getting a higher sentence that he thought so that you saying affectively the judge granted the motion because he said but for your cooperation i would have gone higher yes and i think it he does use the words and i know he said it on but it's denying that it's i'm denying what the government is asking for i'm denying what you're asking for mr brown i'm not giving you eighteen months or a hundred you got your position that that's that's our second position i think the first position is he really did actually grant the special care so i'm still tell i'm still not clear why we shouldn't put the government through the burden in a case like this   if you can't get this if you want it how much loss each one went through or something go get the victim impact statements give us a record to to review why why should we put you to that burden well here you're on your reviewing for well it's not a lack of evidence there was a challenge by the defense and the government presented victim impact statements i don't think that there's no requirement that one hundred victims come in or that there be a declaration from each of the hundred victims  over one hundred victims who all put in substantial amounts of money into the ponzi scheme we had evidence regarding the general financial condition of the victims in the scheme and then what the victim said that was the evidence before the court was just for preponderance or other facts that were in the record there's numerous parts where eddings as browne's partner at c r sixty three ninety nine one seventy one seventy eight among others have exclusive control over assets once why the wise account was opened s c r one twelve one fifteen one seventeen to one twenty which is a factor in application no three that's important headings managed to refer to he had various people that were working for him who were then recruiting victims people working for him and is then a necessary thing for there to be evidence of the application that suggests that it's not not supplication no three however in this case there was evidence that was supportive of that which would be for example one of the together and then there's also the chart which was a chart that was an internal document from the scheme showing that eddings was the manager of what they called investments that were brought in by other people including mr mcconnell who was one of the based on that record your honor although it's admittedly more difficult less than some of the other guidelines and has france the court didn't clearly error in finding that your honor none of the other issues of an address by defense counsel but i'm happy to answer any that was not done this was an unfair sensing those twenty nine victim impact statements were not even put into the record this court cannot look at the record the way it is and affirm the sentence the people who talk about extrapolation of people testified at trial the people who took the time to put those victim impact statements together are presumed to be the most damaged they are not representative there is no evidence that they represent fact the evidence is country that they are not representative of the larger of the trial court when you have the specific number of seventy nine taking place just two pages before that was in fact another procedural layer and not a basis for affirming this decision and finally on the five k what the judge says is this is just what human beings should do cooperate and testify against their well i don't know what world that is but that's clearly a legal error and a basis for remained in the sense and so finally we asked under