i was given a custodial sentence of twenty months based on an intended loss amount of approximately three million six hundred thousand dollars as judge dennis noted in his dissent on my st appeal that intended was amount is the basis for a custodial sentence otherwise the guideline range would be seven and probation authorized sense i have in fact served a five year probation sense despite imposing discussed odio sentence the district court concluded that it is quote now the wall of the case that the as the record shows we withdrew our nd whatever report when the state objected to the district court in its order dismissed the state's claim for restitution because the state had failed to prove any loss as the district court stated in the order under review state did not actually incur and yet the sentence before you was based on that intended loss amount which did not actually occur when the state received our rd on a report on completion of the project the state itself in september of two thousand and twelve long before the indictment reinstated all credits released based on our st daughter report with full knowledge of the investigation and i mean reinstated as proper when granted in two thousand and nine not issue based on the  all assessed no actual or intended loss amount based on the rd audit report issued on completion of the project and when it was placed in service intended was a man an issue with us arises solely from the st thought a report which was reinstate d by the state and the nd law to report which was withdrawn as judged in a stated in his dissent expenditures listed in the st and nd letter reports were not made all of the time the reports were issued but we quote did ultimately make these expenditures and the district court say that if he was not bound by the methodology of the st p s r it would quote be persuaded regarding the government's failure to prove subjective intent concerning intended lost amid the actual completion of the project negates any suggestion or finding note three to that guideline itself and nelson requires that the government prove that the government grant was diverted to some other non approved purposes no such like this problematic why are you currently serving is whether or not we were required to file a notice appeal when the initial order was issued or whether that was stayed while we filed a motion for reconsideration there's three supreme court decisions that have said that when you file a notice reconsideration they feel a period doesn't continue until that ends this court so held and i believe greenfield case but the important thing for us when we were looking at this question because naturally we were concerned about it was that there had been another case issued by this court an unpublished opinion which said that if we filed a notice of appeal while a motion for reconsideration was ending that notice of appeal was defective so we had a hobson's choice we either had to file you know and feel they present in this court permits that in any event we were faced with this hobson's choice where we could not just simply appeal and protect our right for the motion to reconsider range they were inconsistent so that's why we believe it's timely and we believe any actual or intended lawsuit now in connection with the rd ought to report once the project was completed and there is it as a the court is indicating a a disconnect between the statute itself which permits fraud i think there was no fraud here but assuming that's decided then there's still the question under the guidelines of whether or not by the end of the day we meant to go ahead and spend and deliver what we have promised the state we would deliver and we think the backs of lir that we finish the building and put it service and that means there is no intended loss under the sentencing guidelines what we tried to emphasize were a similar case where when you have a government contract and you make a false statement in obtaining the contract because of minority ownership but nevertheless you complete the building and do your work and it's fine cases all say there's no intended lawsuit and that's particularly the case in government benefits where there's a special sentencing guideline that says if you have to use it for on and having none of that the court of appeal simply assume that there had been an assumption of the intended wassa matta been hurt but even if that were all true would be even if the mandate rule of law which we don't think it does because there  had to deal with this now i would agree there's no win can get lost it's hard to conceive of a more case of a manifest injustice sure overcome whatever of the mandate rule would apply although we again say it doesn't apply because we didn't wa we raised the issues we didn't have to re because we didn't raise the p o and no court lower or above despite our repeated objections to the ten laws amount as ever made a ruling including judge cost he just assumed it was by judge feldman and he even says that in a footnote say go ahead i think i think i basically covered it just one more thing there's a separate sentencing guideline that was also not taken into account and that is that you can get credit for the value you gave stories off against an intended loss of that no one has ever review that and if you review that it also would allow for a consideration of taking into account which was not done the actual completion putting building it serves another and that i'll reserve my time the balance of my time unless there is any other question from  and role for since the green would case was ruled the rule appellate procedure for was amended in two thousand and two to deal with this particular situation which is that rule thirty five dollars does not suspend the time for the filing of a notice of appeal and the advisory committee notes on that amendment it actually mentions this court's ruling in the ca the what i'm suggesting is now that we have a change in the and the rules some screen word about is something the court should take into consideration and as you have done in past cases when rules were changed that knowledge is a distinction between the rue and i would agree hard to the extent it deals with a motion that's not specific to a final judgment of sentencing which this court held in bridges is a final judgment and instead it's set differently than other motions other common law motions like under that it is a final sentence of a point and i believe that this court has has said particularly in the hankton case that district court can only do anything as long as it's a uncontroversial technical error within fourteen days but the new amended rule should rule for two thousand and two mehmet says that does not interrupt the fourteen days to file the appeal but yes judge to do it ray that other motions his co defendants submitted one billion three hundred and thirteen million dollars in expenses for that five million dollars home during the trial the government put on evidence that from the very get go mr hoffman intended some of those board examination that the government brought that to the jury's attention so you are correct in the fact that there is a building that was built there but the concern here is the extravagant u nsupported false expenditures that were submitted in order to pay always through tax credits and i'd like to point out something also to your honor that when the district court ruled on this in the it made a specific finding that mr hoffman deserved twenty years of time of imprisonment would have been reasonable and it made a specific finding because of his leadership position and his perseverance and scheme and that's consistent with what hoffman's conduct is indeed somewhat troubling the issue of the legal fees the conway fee and the conway fee was was a false a false payment to a consultant at the consultant f from the united kingdom to testify that he never received his relationship with the contractor leo do or do so judge feldman did fine during the st sentencing and that made specific findings in the nd sentencing  support that he feels that mr often went above and beyond and i think that your concerns judge demist with the the actual loss of the victim what the victim lost in this case clearly judge the district court considered that and downward departing one hundred and forty eight months he took that into consideration long with this court's mandate and made his own individual finding mr hoffman's leadership role and his perseverance  length the opinion that was written mr hoffman briefed in his reply brief most of the the objections to the sentencing that he did the st time that was before this court so all the issues regarding sentencing in the sentencing guidelines were front and center before this court and the court does take the limits of mandate the court recognized that mr hoffman's in its opinion recognized that mr hoffman's guidelines a conviction that reinstated instituted against him would require guidelines would go up but it specifically said mr hoffman's guidelines wouldn't change because and it mandated a recess and does probation was a step are gives the defendants credit for money that we could actually show that they expend for instance with the in the st article or if you have some credit for the actual purchase price of built it gives him credit for the money we could show that the contractor actually received so that was taken into consideration in the end where the guidelines ended up that we he was given credit for money that we could actually show that people had expended but the people that took the stand and said they never received a dollar that would fall into intended law so it was a purely fraudulent claim for an expenditure of light to this kind of goes hand in hand with rule for to some extent but the district court correctly in cases like hank where it has to be an uncontroversial error a technical arithmetic arithmetic error that can be changed and so that's where the judge  it up dismissing the really dismissing mr hoffman's motion for reconsideration however there's another reason it was the ruling was passed fourteen days and this court's case was very clear that after fourteen days there can be no th circuit case that believe he was referring to his oral argument that's more recent case it does talk about in that case but it's a different different situation than what we have here the barry case it's completely so it recognized judge jolly what you were saying is that starting to greenwood that there are some situations where greenwood says will told the period that you have to file your notice of appeal that's just not the case when it's a two issues that mr hoffman brings up and his and his appeal is st of all the discretion for the evidentiary hearings before this before this court and just briefly to walk you through everything that went on prior to  mr hoffman during the st was given an opportunity there or a thing in this case has been extraordinarily long we brief the issues before the st sentence he was given a chance to object to the b s are  came on appeal a government noticed its appeal or in the st set during the st sentencing the government challenged substantive reasonable size of case the sentence of the probation summons in part based on the high guidelines mr hoffman was aware of that we brought the case we noticed a sentence of his appeal notice an appeal of his sentence to this court he was aware of that we had then our main arguments and the with this court considered were the sentencing in replied to then we got to the nd three sentencing the judge ordered watts of briefing for that point being your hours is that mr hoffman received tremendous due process and bringing his objections before the court and the court correctly ruled when it did it didn't need to give an evidentiary hearing it sat through all this briefing on on the facts and the issues of this case stepped through a two week trial sat through five hundred exhibits that were that were presented during this trial and what's interesting is that although mr hoffman asked for an evidentiary hearing before the nd resentencing he didn't ask for an evidentiary hearing before the st so that wasn't when we when we went into this well partially because we had just come through a lengthy trial and brief but that's was that's when we get to the nd resounds i mean the judge was just he did not abuse his discretion and not wanting to hear a rehash of everything that he had been briefed and witnessed  or anybody has any other questions for me i'd like to briefly conclude the mandate in this case was very limited and it was limited from mr hoffman to be recessions to a term of probation and computer court correctly following bet may and the u s district court correctly dismissed this under rule thirty five although dismissed motion under rule of thirty five although it could up it's also is was should have been dismissed because it was untime itself does not suggest that any of those amounts were intended lost if we exactly the amounts that were used to obtain federal historic rehabilitation credits which were fully allow and never challenge so when he says there's only a quote five million dollars building in quote that statement is not supported by the record that assumes that the value of the real estate and all the costs associated with converting it to a post production somehow don't count be including the interest they had that were properly charged so the statement that there's only five million and everything over that was somehow fraudulent is fully unsupported by the wreck again the government continues to make statements that there were false statements about what was d there is never been a hearing despite repeated requests including at the st pre sentence report on whether or not the government met its burden as required by the cases  by the mandate rule so therefore all of our briefing and all of the things we said were irrelevant so that you can't walk around the never to enter hearing you have to then address the mandate rule and that's false because no one has ever considered it i have never had a chance to force the governments to which prove on the intended loss amount that it was an intentional causal and this judge feldman said and he clearly believes based on the evidence there was no intent loss barry barry was a case where a notice of appeal was considered untimely when a motion for reconsideration was ended government seems to suggest because that motion free can and their opinion was well founded that therefore it shouldn't apply in my case where it assumes i'm saying that my motion for reconsideration was also without merit among the merits in mind was the simple error that judge film need to get two more years of probation when that violated the five year probation rule to say nothing of the new facts from the coronavirus effect so my motion for reconsideration was based on those limit the grounds permitted by a common one motion for reconsideration it was not saying oh gee your honor we think you miss apprehended the various enhancements or other aspects of the sentence so please rethink your sense that what we were asking to do even if there was such a limited exception this was a common law a motion for reconsideration as i said in the briefs there is really no way to try to manage down that to some of you know cases where it's only for the rich for the sense even in the case in the th circuit if you throw out that a case and give it a new trial it's obviously going to sense so let me see if there's anything else all of this goes to the question of whether or not because we did what we told the government we would do we completed the building as judge feldman has recognized and as in the state itself record and i believe that it is my time thank you your honor for your attention thank you you