i'd like to focus on two of them today one at the front end of the sentencing involved the selection of the general broad guideline rather than the more specific piece of fraud guideline as the applicable guideline for the mail fraud count conviction the nd at the back and then the issues i'm going to start with is the district court's failure to calculate the what the guidelines called the total punishment applicable to both cases which resulted essentially them mentioned as you can see in the sentencing transcript they jumped straight to well this is i've looked in the appendix this goes to the fraud guideline now we believe that we've made an argument for why this court review maybe didn't know because as the court among court explained it gaskell released the selection of the guideline is the selection of the legal standard that governs here there are multiple counts but least governs that aspect of the  offense level calculation under the fraud guideline is significantly higher than under the visa fraud guideline the fraud guideline as i'm sure this court knows is driven in large part of their number of it hasn't been a large part by los level of eleven and it doesn't go by last amount because as this court mentioned in the lead which we believe is the case that makes this plain error and the th circuit discussed in the cuckoo case k u k u m  monetary amounts and there was no effort to do that here therefore the district court turned to the alternative measure again which the guidelines say only to use if there is a loss but it can't be determined now that doesn't usually come up in this sort of situation and because here the loss appeared to be to the u s but the gain was not really commensurate with that loss and are you convinced that the district court would have really done anything because these counts were group that and the fog island was the highest by far of all of them that sort of drove the rest of the sentencing including on the nd case and i think it does in one sense go hand in hand with the other error which is the consecutive sentencing because by being much higher at a level twenty nine dollars or thirty one dollars depending on whose view you take as opposed to level twenty say  not occur i don't believe will be consecutive so i'm not saying the district court couldn't arrive at the place where it got which was one hundred and fourteen months and i think it's significant that it never said my sentence is one hundred and fourteen months but the statements a reason show it understood itself to be imposing a below guideline sentence from eighty seven dollars to one hundred and eight that is the pre departure the pre six level range realized no actually i just impose a sense of one hundred and fourteen months rather than fifty seven and fifty seven i think given the supreme court statements that the guidelines while advisory are still the anchor are the starting point the benchmark it's very important to the district court to know that no this is actually an above guideline sentence not as it conceived of it as a of the low guideline really just a growth in effect almost surprised that show by finding next day and separately the nd case is relatively minor compared to the st case i think it was agreed if that case had been sentence on its own which would have been permissible to do but you don't group them the range for that case would have been going to fourteen  st thing as if you do is figure out what is the total punishment so here it never said the total punishment is one hundred and fourteen dollars though that is the total punishment imposed in both cases so either you can group them and go you know sentence them together or you could split them apart and then consider the st case and the nd case separately i thought that the way that provision worked though is that let's say the court really did think court says actually i want to sentence is under the statute isn't that sixty months and then it goes back to fifty seven months so there is some allusion to that problem by i don't think it  dealt with head on and i think it's clear and i don't think the government said otherwise that the district court did not calculate the total punishment and i think that in this case the strong was prejudiced by given the recommendations both of the parties and probation that had the district court realized both that leaving aside even the guidelines lection that this range applies to both counts all counts in both cases not all counts in each case of just general construction that many of our colleagues in the audience will have dealt with and that is that the specific controls the general in this case the text of to be one point one c three is more broad and i say that if that's true wouldn't that be even more important to go to the pacific it seems like this specific recommendation referred to in the commentary was designed applied to the narrow set of not victims though of the visa fraud fans right there are the beneficiaries to some extent of the fraud that was perpetrated on the us government well i think i would respectfully disagree in point run and i say that these fraud you know were compared to the number of fraudulent uses that produces a range that's totally inadequate to you know to punish the defendant here precisely because this is not the rule of the mill piece of rock and so therefore i'm going to depart up great understanding of what your honor i would say that's not necessarily it's more given the nature of this particular case the nature and and i pointed out the the numerous offenses counts that construction of the guidelines depends on the fact rather than what they intended to cross reference to do reference doesn't seem to tion to what the facts are and in the sense that you have a really serious case i don't i don't think there's assassin and i guess that's that's that's something your honor i mean you bring up a good point but it's the government's position that if the language of the cross reference is arguably bro guidelines don't apply but i did the court ever determine the total punishment we said that the government's position is the court did your honor but ok but if the court was then going to say as i was posing as your opponent that i think the total punishment should be one hundred grant up or departure of i don't even know how many levels it would take to get to one hundred and fourteen and it is that i just don't remember any analysis framed in those terms of what is it seems to me what the guidelines would require it's i think your time's up  sentencing guidelines in general in one b one point two as confirmed by this court's decision the mchenry when you were selecting a guidelines you always look at the offense conduct charge in the indictment you don't look at relevant conduct and there are certain other circumstances in this case that in this report may well could not have found aggravating but when you're making that initial selection of the legal standard it goes by the indictment and here the indictment a