all right our fourth case for this morning is united states against patel you know you mr you learn how to pronounce your name you got a judge right if you learn the district court calculated manish patel sentencing guideline range of forty one to fifty one months before imposing a below guideline sentence of thirty eight we submit that that accurately the correct calculated guideline range is twenty seven to thirty three months and that a new sentencing hearing is necessary there are two guideline errors that make up for that for a level difference between the guideline ranges but i propose judge said and i found this you know almost a matter of common sense an awful lot of money moved through mr patel's hands and so even if there were other people who were the amount of money that passed through mr patel's hands is irrelevant to the minor role reduction analysis but i don't think it's dispositive of that analysis either and that commentary of the guidelines provides really three factors that i think are sal analysis in this type of case the first is where someone performs of a limited a function in the criminal activity the second specifically relates to a fraud case that says where defendant is accountable for a loss amount that greatly exceeds the defendant's own personal gain and then the third is really a sore defendant who had limited knowledge of the scope of the scheme and each of those describing managed to tell how can you say he performs limited function here when in addition to his judgment points out he moved a lot of money he also did so using over one hundred fake i d s he went through out the country to pick it up he was sending it to others correct but he was vital to having the scheme accomplish i don't disagree with that your honor and this court has repeatedly said that someone being essential for having an essential role a criminal conspiracy or a fraud scheme what again but i already writing in part on the commentary that says one of the factors of courtship look at is whether or not the defendant performed a limited role and compared to the average scheme participant or average participant in the criminal activity and in this fraud scheme it was somewhat it was structured in a way to insulate the courier the person who  picking up the funds at the end of the of the of the fraud from the the larger scope of this conspiracy this conspiracy involved people orchestrating locating the victims calling the victims but he are tremendous numbers i just don't see on the third branch what he knows it's not just some limited little thing well so as to the effect on takes he takes economic advantage of the fact that it's not a little thing because he stands to make a four percent commission on all the money he picks up after i've been driving around the united states and doing this to make the money grow time correct and the the the court has instructed of the mine is it's not purely a comparative exercise because if it were purely a comparative the exercise then in every single case involving you know three or more co defendants somebody would always wind up with a minor role adjustment but that's clearly not the way the system works there are i think the apps comparison in this case is is a  drug conspiracy and big picture of a courier who knowingly is transporting a very large amount of methamphetamine from minnesota wisconsin and  who did not get a minor role duction doesn't that limited specially because the guidelines and the minor role applies if you were last culpable than most of the other participants so comparing my codefendant he was more culpable than her but comparing my client to the average scheme participant my client was less culpable and another reason i think the comparison to the wife is significant is because her offense level was calculated using a lower loss so my client was held accountable for all the money that cost him his hands where the  there certainly as to the level of responsibility in terms of reasonably reasonable foreseeability you know i think that my client's wife was well aware of what was happening but the comparison to what the court did sound like oh obviously some of those outside the united states are unfortunately there dishonest people in the united states as well but mr patel said that he knew that the directors of the  in india so it didn't seem to me like was a close case on whether this was focused on a place outside the united states and that has all sorts of been foresman implications it means that the government may really not be able to get the ring leaders mr patel didn't say that the offense that the leaders of the offense occurred overseas there was a clear goal he admitted in his plea agreement patel knew where to pick up the money grams and which fraudulent driver's license to use speaks english he signed it and he admitted to it under oath well his admissions in the plea agreement relate to his conduct and it shows he knows that this isn't a new arrangement based in india he's getting his instructions from them so even the district judge may have been a little casual in how he put it given that by which i you know i don't see why that wouldn't be a permissible may please the court my name is zach corey and i represent the appellate united states this case presents three issues the first of which is whether the district court committed clear error when it held that the minor role reduction did not apply to the defendant managed to tell there was not clear error here because clear error only occurs when this court views quote the evidence and concludes with definite and firm conviction that a mistake has been committed regarding the standard of review this court has also stated  because the sentencing court is in the best position to evaluate the defendant's role in the criminal activity of this court will rarely reverse a determination under this part of the guidelines at the district court level mr patel bore the burden of showing by a preponderance of the evidence statement that i've been complaining about that the district court made when they're discussing the two being one point one b ten enhancement until the court says no reasonable person would come away from under a different prevention subsection c the sophisticated means provision and then made some commentary about it at the other provisions including substantially committed outside the united states applying as well yes your honor is clear language says sophisticated mean certainly applies and then turning to foreign scheme says maybe that applies but maybe not beyond a reasonable doubt and then goes on to make the comments that chief judge would said so he did find under both as did probation in the p s r so and as i point out in my brief that issue the specific needs was not raised in the opening brief so i was also waived can ask you to comment on the what you see is the procedural soundness of the sentence in the one thing that struck me about reading the sentencing transcript is the district court made very clear that its views of the offense conduct here and how  outrageous it thought the defense conduct was and the whole comment about wanting to send a shot across the bow and what have you but as defense counsel points out there wasn't much discussion at all of the need to avoid unwanted sentencing disparities low risk you re offending lack of a prior record you know all of the things that we think are attributes you set are attributes of a sound sentence procedurally under thirty five fifty three and consistent with the supreme court's decision to call and like you to comment on that sure your honor as as we took a shot or this court touched on in the earlier arguments regarding disparities properly calculator guidelines goes a long way to meeting those those requirements and there wasn't as much i agree with your characterization there wasn't as much comment as there was on that on those issues as there was the was there any the victim in that when i read the district judge very upset with the offense comment i totally understand that was there any discussion of the other factors i believe he commented i'm not totally sure whether to the extent he addressed it but he certainly did within the properly counted calculated guidelines and the category one no points on criminal history which showed that he talked about th deportation consequences as well afterwards so turning to the other third issue which was raised which is the topic in the reply brief about evidence in this case that the offense was committed or parts of the offense let alone a substantial part of the offense was committed from overseas just that matter given the sophisticated means alternatives a same guidelines so in the in the courts remarks judge tabular said that the two thirds of the three applications of to be one point one and judge tabular said two of them may arguably apply but subsection c definitely applies and then he went on to mention the remarks of the court the court referenced about no one would walk away from this unfortunate scheme with the fact anything other than the fact  was passionate perpetrated from for so i don't think judge dowd miller found there were sophisticated means but only finding that was made was that it was perpetrated from afar we'd ask the court to grant its all right thank you very much