case his us versus white please the court i'm here today on behalf of vance white the controversy in this case is pretty discreet as to whether there's any evidence in the record that my client was involved in the scheme to defraud prior to his release from prison and twenty eleven it's two parts one is that the government never produced that evidence that they've relied exclusively on reported admission but the other part is that in the government's version of the offense t now seeing hearing you list your rights lawyer mr graham state that quote it's possible that i was completely absent until two years which is page eight thirty three in the appendix as i understand trial counsels objection it was a failure failure of proof objection you know other words what mr y did made it to specifically plea agreement was a transaction and twenty and what had happened prior to sentencing was counsel submitted a sentencing memorandum that explained without contradiction that mr white had been in  custody for almost the entire time prior to two thousand and eleven that was alleged in the indictment and so it really was a there's no evidence that the government has submitted to prove that there was any involvement starting in two thousand nine that would make him responsible for all the loss amount from that date and the government didn't produce any evidence they said well mr white admitted this in the plea agreement i don't agree with that i think the case is instructive because what happened was the government placed into the plea agreement basically a verbatim recitation of the indictment and the indictment charge for people with the scheme to defraud and we know from the government's scheme beginning in two thousand and nine that that's a concession in the factual basis section of the plea agreement right and that's the crucial crucial issue the way that i read and my client reads that and how he understood it at least is that there was a scheme to defraud lasting began no later than two thousand and nine and lasted until two thousand and thirteen and he participated in that scheme to mean there's no there's no evidence of that right but i mean it is possible in a way it's possible but the problem is the government bears the burden of proving loss at sentencing and so the government failed to meet its burden there thrown or just the admission in the police records but the admission is only to the existence of the scheme between this time period and this time period it's not an admission to his participation during those particular times and in fact the the evidence that the government did submit shows that mr wife was not a member of this scheme at the beginning it started with deonte pernelle and i on armstrong  more died in two thousand and ten according to miss armstrong and that's when ms armstrong assumed his role walter high then joined the scheme and only after that my client joined the scheme so that's after two thousand and nine and in two thousand and nine he was out for forty five days the other the other piece of evidence i'd point to is the government prepared a comprehensive last bread sheet that's now for now part of the record and it details exactly what each participant was doing at what time and mr white's name pops up december twentieth that's when he really started to participate and this scheme there's just no evidence that that he would participating before the there's an educational process in the prison itself learning that this particular scheme might have come there but he was already pretty well down that road he was only he went down that road i guess which which mr henderson i guess leads me to one of my frequent questions in such sensing appeals is  i noted in particular the district judges lack of confidence that mr white was likely to go strange and one could look at this record and decide that there was an even greater need for what we politely call specific deterrence to protect the public from from mr white's future wrongdoing would you agree that if we were would go down this was already a below guideline sentence under thirty five fifty three but of course molina martina's as a that might have an effect in practical terms my client's due to be released in august and so practically please the court good afternoon everybody me on behalf of united states i your honour's the district court did not clearly error in finding that the defendant participate in the scheme from before the time that he was incarcerated in two thousand nine and also after the time that he got out and therefore that he should be held accountable for the and for the losses that were incurred or caused during the entire period that was charged in the indictment this court was entitled to rely on the defendant's admission which was made under oath and provided conclusive evidence of his participation in the scheme during that period and i would point out that not only did the storm of the clear agreement he signed the plea agreement that's correct and then at the change of plea hearing when asked when the prosecutor read through the factual basis provided in the signed plea agreement he was asked whether it was correct or incorrect he made a correction to one aspect of it but he did not make any correction to the time frame or say that i didn't say i only participated gearing up so would you would you construe that isn't it is a conclusive admission that in the two years he was in prison he was an active member of the scheme it it as a legal matter it doesn't matter whether he was an active member of the scheme during a period that's the that's the key piece this is a charge scheme that's the way you read this this that is an admission that while he was in prison he was a part of the scheme the scheme continued without him we are not we never said that we have evidence or that we've never presented the theory that he participate actively participated during the s i mean do you have any direct that you have any evidence that he was active in two thousand and nine yes we have we have evidence of what we don't but let me just make a clarification regarding that chart that chart was based on the  bank records and specific records we were able to obtain but here's what the what the district court was also looking at when it made its decision determination that he participated before and after that  information included a criminal history which included arrests for exactly the same kind of conduct forgery fake i d s return or obtaining merchandise paragraph sixty two sixty three sixty four sixty five and sixty eight of us are less convictions in january and february of two thousand and seven and then the arrest for which he was picked up in in two thousand and nine which was september eighteenth and the same sex marriage yeah yeah i mean what we what we charge in the indictment was beginning no later than two thousand and nine but the evidence strongly suggested that it began quite a bit before that and for example mr armstrong in his grand jury said just a statement which you know there's there are some inconsistency is in terms of the dates and between what he said and and the times in which we know that that the defendant was incarcerated so we're not we're not trying to adopt all of that but he said that the consistency was after the conspiracy was ongoing when he joined in two thousand and eight and that's completely consistent what we see in the defendant's record here they were engaging in the same conduct together plus they is so in addition to the criminal history so d involved the same people in addition to mr boyd those are those are limited to his but me i continue just for something else in the p s r the church because it all kind of hangs together and the district court had all this before it when it made its determination in the p s r the defendant paragraph ninety two the p s r defendant admitted to the probation officer and his discussion with the probation officer that he joined the bar room scene after his discharge from a group home when he was eighteen which is approximately two thousand and four and there is where he learned is part of that scene is is how he learned to to commit check fraud and he also stated that in paragraph one eleven that he had relied on income from that instant offense and other criminal conduct for his financial support during the period two thousand seven or two through two thousand and twelve now obviously during that period there were portions in which he was being sustained by the government right because he was imprisoned by the point being that there's no there's no such evidence whatsoever that he held a job at any of those times and basically when answering that question you said well here's how i keep myself alive and i was taught to do this by these people that i hooked up with when i was released from the group  o it there is evidence in the record to support the contention that that that not only did the scheme begins prior to the charging date you know the charging date is often and was in this case based on the date upon which we have specific bank records that begin to show you know that kind of information but that's why the longer the indictment was no later than because it was understood from the beginning that this had was an ongoing accountable for the periods for the losses that were caused three areas in which he was incarcerated and then he made that one statement in fact it's possible that he was absent for the first two years of the period charged in the indictment and i mean that that really is i defragged been saying he didn't start before if you got an eleven and so i would say that if the records it's not as developed as it might be which it's not as developed as it might be had the had a different argument or a so i mean i'm not saying that they're completely different but obviously if the argument had been made in the way that it's going in i feel it's possible it's probable that the record would be more developed than it is on this particular issue but in any event when you take all that into account i think it's perfectly legitimate for the court to rely on the defendant's admission looking for all these other more specific indications you're talking about going to mean going back to two thousand and four two thousand and seven the prior so here we are  here's why i don't think that it's inconsistent with pallette are you ready to hear it i don't think it's inconsistent with pallette because polit is talking about the fact of a guilty plea the argument that was made in that case was that the guilty plea itself plead to the count that fact alone was sufficient to bind the defendant in that case the defendant did not agree to the facts provided in a plea agreement as a factual basis he pled guilty but he did not agree or admit specific facts that's very different from the case here where a factual basis was read into the record the defendant was asked whether it was correct and with a limited  piece here he made a correction to something else but if that's correct if your understanding of that is correct then he was also conclusively admitting he was a participant in the scheme during the two years he was in prison doesn't that same theory that to me judge that's a legal question because what he's saying is i was a member of the scheme during this period not i was an active participant in the scheme during this period so you read you read that account  saying everybody was a participant over the entire time that's an unusual way to read i don't labor i don't think that when the defendant it met stan i mean i don't think the defendant is admitting when he does that that or when he says i participate in the scheme i don't think the defendant is admitting that he has knowledge of every other participant and you know that he is aware of every single thing that happened in  make your honor is that it's it is not the same as him admitting that he was actively participating in the government never said he was the government said he is legally responsible for that because there is no withdraw from the scheme and he again demonstrating for sure that he picked up where he left off i mean that is that in self the circumstantial evidence that he was picking up where he left office opposed to just starting something brand new for the first time in two thousand and eleven how far back does the charge the fence reach in this case mean what is our first evidence of it and under under your theory how far back can you reach with the  or i'm very troubled by the more general approach you are taking to the this this kind of a factual basis that describes the whole scope of the scheme and i can see that i can see that point and what we did here is not in the in in the realm of problematic because what we did here was always charged at beginning you know beginning to later than two thousand and nine and then we held him accountable for conduct and putting to one side there's this twenty five twenty three thousand dollars issue so i put that to the side and are briefly specifically set that aside but in this case we we specifically limited  bounce to that period to the charge period now there were some there were i think i think the number is close to twenty five thousand i'm sorry i'm not pulling the exact number i may have but there that was included and it goes back to like says before you know it or a no later than and these things are part of it and it's not distinguishable in the district court felt that that was properly included but it seems to me that the argument there i will say that's a twenty three thousand right and that was the intention of the theater and that was the intention of the way that it was presented as these two additional things got added and the prosecutor i mean i don't know this but the record reads as though the prosecutor was surprised by this by not at the time but at the based on the presenting submissions was a little surprised or taken aback by action being taken that there was trying to car time out of the scheme because he had as he noted in the set at the sentencing hearing he noted that they had had a big discussion about the time frame for the facts that the government indicated orally you know for taken from the indictment itself that was asked by the district court and that and the prosecutor said right then and there you know we mean the fall generally judge an october september october i mean august september october i think is the month that he provided but the the point the point being that the the government in this case did not attempt to go way back in time  telephones that either legally or illegally they can still participate in a conspiracy you can but this this being a scheme rather than a conspiracy the rules are are even more onerous for the defendant because you can't withdraw and so right that that language wishy washy language of the indictment beginning no later than is is being used to tack on years and years and years of higher kind of you know that was going to be my question to you what difference does it make in real life whether he started in two thousand and eleven or two thousand and nine is there any difference here well there's no difference with respect ution amount is the same so there is that difference the the point being here though that the defendant the defendant admitted that he was part of the scheme he was a participant in the scheme during the entire period charging the indictment that was not an unfair or unreasonable or or crazy admission given what we know and what the district court correctly found which was that he was participating before he was a cursory did and again after he had in fact he seemed to have been participating pretty much you know from at least  two thousand just looking at the criminal history reports from two thousand and seven january of two thousand and seven onwards and that's consistent with the statements that he made to the probation officer so it was sent back let's just say it was sent back and the hearing was held he could be liable for two thousand and seven two thousand and eight well the court the court could make that finding or the court could simply take off the twenty five twenty three whatever thousand dollars and say you know what that wasn't what we intended that wasn't what what you what prosecutors said at the time of sentencing and so that's just a mistake i don't think it was a mistake the issue was raised and the district court determined that it was proper to include those other two i don't know that there were more than two events that comprise that amount i'm not sure  could you and mr henderson go to a back room and say let's just forget this twenty three thousand dollars well i don't so i read the government's proof well position that it was unfair or that the district court erred but rather that the government the government statement early on in the case could be seen as as you know a representation that we were not going to hold to defend accountable that we were not asking for it so that that is actually the reason that i proposed that but i do think that if there is a case in which the language beginning no later than it needs to have limits to accuse where the court has to say there need to be limits this is in that case because this is not a case where we had where there was an attempt to expand the defendant's liability far beyond what he was actually responsible for i want to ask you what correct he did not admit that he participated throughout the entire there he admitted there was a scheme to defraud and that the scheme to defraud to the best of his knowledge he had nothing to contest that it operated between two thousand nine but he did not admit that he personally participated all four years and that's judge hamilton's point i think is what should we do with the prior convictions for similar conduct  i mean those those are going to years there's a lot of speculation about what exactly those were certainly they weren't charged as part of this scheme they weren't considered relevant conduct as part of the scheme i don't have any details beyond what the p s r tells us and i don't think the p s r tells us much about what happened in those i would address what the government brings up about sort of getting to know certain people  who are engaged in this type of behavior but that's exactly what the application note warns against in the last month jack lation is even if you know that people are engaged in a scheme to defraud you are not liable for their losses until you actually participate yourself until you actually join that scheme and so there's just no evidence in this case in this record that mr whyte joined the scheme prior to tw one last thing the government thinks well he got out and he just started doing this again and again the last calculations fred she had mr white got out in august of two thousand and eleven and the first transaction he's involved with is four months later in december of two thousand so this isn't a i'm out on the street i'm going to immediately jump back into something well the day you get planning and other things also are part of that can be a part of the conspiracy as opposed to just call using the phone or going to whatever they did no it absolutely but it it's all of that those facts are speculative there's nothing in the record to suggest that he was planning this that he was calling people that that's really the core of this case is there is no evidence there might be evidence somewhere but it wasn't presented to the district court and for that reason it did hurt so we'd ask that the court