around the sentencing that sentence that mr jones received and whether or not the court the district court properly calculated his guidelines case was made clear as the first starting point to any sentencing a federal criminal case and whether or not the court properly applied the thirty five fifty three factors or whether it abused just discretion the rates re several arguments as to whether or not the guidelines were properly calculated the first one has to do with the leader organizer and handsome and whether or not the court properly looked at unwanted discrepancies between defendants as a whole and whether or not he ignored a defendant that was actually in the case one of the issues that was raised at the sentencing hearing is whether or not mr jones was one thing the judge said at the district court level is i'm not here to sentence mr jackson i'm here to consider mr jones mr jackson sentencing is down the future and i may consider mr jones a sentencing sentence when considering mr jackson it's that right there we believe is an abuse of discretion or thirty fifty thirty five fifty three a six the unwarranted discrepancies within sentences now this is not just an unwarranted discrepancy among sentences among the defendants were similar situated in which what the guidelines try to avoid this is actually an unwarranted discrepancy within the actual case itself you have two defendants the testimony at the sentencing clearly showed that these two people who are equally involved in the scheme to defraud yet mr mr jones received a four point hand spent for the organs or mr jackson who was found at least by the court statements to be equally as culpable only received a three point so we believe based on that the guidelines were is the court would even consider what was going to happen to mr mr jackson even though testimony was presented what the court specifically said in the sentencing is i'm not here to figure out what's happening to mr jackson and here regarding mr jones right there the court kind of states that it's not even considering discrepancy on all what the court is saying is mr jackson doesn't have a lawyer here to represent him i'll consider his status but i'm not going to actually sentence him to day in conjunction with your climb judge i understand that point but what i think that creates then is you're going to have defendants a multitude fending cases jockeying for position and when should they be sentenced to wait to see what happens to a person similarly situated and then play off that or is a better for us to get sentenced ahead of time i think what is happening by judge shader not taking into consideration a plea agreement where you have two equally culpable people not even taking into consideration what the government's recommending for mr jackson i think would be an abuse of discretion a under thirty five fifty three a six but also when it comes to calculating the guidelines i mean yes he may have caught a break in that mr you know judge shader may have given him a break based on a plea agreement mr jones blind played but  in minimum under thirty five fifty three a six unwarranted discrepancy should be taken into consideration except that refers only to unwarranted discrepancies across districts across judges it doesn't have to do with how you treat down there judge i believe i've been i know where the courthouse is actually you but you look at unwarranted scrivens if you look at it nationwide district wide district within the same state you're not supposed to have unwarranted discrepancy amongst offenders that was the whole instagram i agree with the judge they are goofy but judge if you're if the goal is to look at unwarranted discrepancies district wide nationwide why wouldn't you look at unwarranted discrepancies within the case it's right before you went to multiple defendants who are equally as so we believe judge shader by saying he's not even going to consider what's going to happen to another defendant where because he doesn't know what's going to happen to the other defend well so he hears that defense while judge the one thing that did happen though is the government decided to put on witnesses to testify as to what the roles of eat each of the parties were so i think at that point we brought out what he was facing at least in his plea agreement yes he had been sentenced and he wasn't being sense that actually with you on that but it before the court was what the government was recommending for someone who is similarly situated and the court basically said it's not going to take that into consideration which would cause and i don't want to discrepancy at some point i don't want to write inquire about him but one of the other eigenstates one being before this court is this court's made it clear in its its previous cases that a victim is defined as someone who may have been reimbursed and may not have actual loss at this time i'm asking this court to revisit that and follow some of its sister circu specifically the third fifth and sixth where the third fifth and sixth circuits if found that the actual bank is that they don't because the person who had his identity stolen or money lost out of his cow was reimbursed so the definition of what an actual loss or victim should be the banks not the individuals because they have been reimbursed no further questions at this time i'd like to save some time for about them so you're saying if somebody steals my identity correct and i have trouble with experian you know credit he just sees that it's the bank that's a victim and not me when i can't get credit drive to explain why i'm going to these charges on my account judge what i'm saying is what the actual loss which is the financial loss to the victim the victim let's say you're the person whose credit card was used to buy a new brand new t v at target you've been reimbursed  there's some you have got for the first fifty bucks i'm responsible for the most microwave that i should have you talk to my bank because i don't have that problem but but what happens is the funds get returned to you so you are a quote unquote what i would look at a temporal or temporary victim you at the end of the day have no actual loss because the bank has reimbursed you and that's the reason the third fifth and sixth circuit is because you have been reimbursed by your bank you don't have an actual loss the actual loss would be the banks in this case there were nine days so less than ten which is what the guideline here is but then bumps you up to two points address the defendant's last argument regarding the number of victims and i think your honour's quite right that in cases involving identity theft there is a very different type of harm aside from acute area loss and the other thing i'll point out is as there was in this case the decision in united states versus panas did not involve means of identification therefore the court did i analyze application of forty with regard to the fence argument with the that there has been a sensing disparity the district court did not abuse its discretion in opposing more severe sense of the defendant as this court is repeatedly held the best way to avoid sensing disparities is to impose a guideline sentence and that's exactly what happened in this case moreover under the facts of this case there are a number of reasons why a warrant disparity was warranted the first of which the defendant continued to engage in fraud while he was on bond the just report s noted that the defendant's conduct on bond constituted quote a very troubling factor at the defendant sensing hearing the you compare that with his codefendant mr jackson who cooperated with the government he cooperated early he testified against the defendant and his sensing hearing he when he was on pretrial release went to the government and told the government that mr johns was continuing to engage in fraud and the district court  mr jackson sensing even noted that comparing the two he won't even begin to can compare them because of the that is both because of the cooperation because of the deference that i've heard about about i have observed with mr jackson so we can actually look at mr jackson sensing hearing and see that he actually compare these two individuals and found that because of the deference and the cooperation they were just apples and oranges regarding the extent of this parity that the defendant received that was an issue that was solely within the discretion of district court he was able to view the two defendants use able to hear testimony with regard to the defendant's argument that he should not have received the leadership enhanced meant the district court stated after reviewing the p s r that it seems claimed from the description referring to the p s r that mr jones was indeed the leader organizer of the criminal that the defendant recruited her and she was in fact responsible for the vast majority of fraud that was committed her testimony was again that she the defendant recruited trained to talk to the quote writers how to cas checks he provided the writers with the fake i d s and secondary information he decided which targets to hit which banks to hit which victims to be trying to access or accounts and when foster was caught trying to perpetrate the scheme and in pittsburgh she testified that he provided her with a lawyer he also provided her with funds in her commissary cow as a result this report did not hear in applying for up on the judges going back to what was talked about regarding the discrepancy issue we're not arguing that he doesn't that mr jackson doesn't get a better sentence because he cooperated like things like that the issue that we have raises whether or not the court created in unwarranted discrepancy by not taking into consideration what mr jackson which has nothing to do with his cooperations basic guideline calculation or whether or not he's a leader organizer or not and if you look at what judge shater says after the government put o two witnesses we're spending a lot of time on an issue so what what it what it seems here is there both have the same role that's when he goes into i'm not sentencing mr jackson at this time i'm sensing mr joe so the other wanted to describe since he starts off with basic guide li calculation we have two people who do identical acts and which the testimony supports because the government called miss eileen foster mr jackson to the stand and the outcome after their testimony is joe shater saying ok you have two people who conducted the same type of conduct within the scheme yet mr jones then gets a four level enhanced mitt and the government and p a s i and the court give mr jackson only a three point and then judge going listen any of the questions regarding the i don't want to discrepancy as to that issue i'd like to just discuss the definition of a victim again going back to what a victim in compass especially under to be one point one it's where is the actual loss the actual loss in this case as in the third circuit the fifth circuit in six circuit was actually to the bank because the bank is the person who reimbursed the underlying people who lost money on their credit cards and things like that