of last week as a government agrees the abuse of discretion standard does apply we differ as to whether the guideline amendment is retroactive whether it's a clarifying amendment we believe it is but before turning more directly to that issue i think in this case a little bit of context is important when talking about sophisticated means and comparing it to the fraud conduct here it's our position not this was really  tude incarnate the fraud here even after the many months spent with the record and doing the briefs and preparing for argument i don't even know what they were selling i don't even know what the nature of this investment was i don't know how this could have are you suggesting that the application of the sophisticated means enhanced requires an intelligent defendant other words that sophisticated doesn't the quake does true that's certainly true but here there was nothing especially intricate there was nothing especially complex this was a bumbling effort to suggest that this was sophisticated means essentially any fraud of this nature would be sophisticated in addition looking directly at the conduct related to my client mr colbert there was certainly nothing sophisticated about what he did his few phone calls and that's where the clarifying amendment comes into play because what the commission did recently is is to instruct that the sophisticated means enhanced and shouldn't be applied based on the conduct writ large but rather based soley on the conduct of the defendant being sent to a massive subsidies to change that is not applied retroactively i would disagree i would just a clarification  amendment is not determinative in fact this court has held specifically and i'll quote we have held that an amendment clarifies an earlier guideline when the commission simply fail to make explicit that an amendment was a clarification that's a case called morgan and so the that that the word clarify is not in the amendment is not determinative and is that in the course of my research following this court's order th retroactive in a case called helmi which is nine fifty one second ninety eight what was the change in there the reason there was this amendment revises this guideline to better distinguish the more and less serious forms of commentary enter the actual guideline provision says this is amendment three thirty seven and it was a significant change to the wording of the guideline provision and in this and we have the same essential scenario here what the sentencing commission said about amendments seven ninety two which is the amendment at issue here is that that amendment is intended to narrow the narrow the focus and the reason that was necessary is because courts had been essentially getting it wrong the commission had intended for the sophisticated means enhanced meant to apply i based on the defendant's conduct but the language had been too broad to get that result that's what i was pointing to amendment three thirty seven where they said this and then it revises this guideline to revise it into narrow i think are synonyms in this context and the way i think about it your honor is if i if i move to a new location and i'm giving somebody directions and to my house and my purpose is to get them to my house but perhaps my directions are too broad or they're not exactly accurate and with a little bit more experience i can narrow those directions so they're more efficient now it's not a substantive change because my purpose has remained the same to get to my house it's a clarification i'm clarifying what it has that i had always intended and that's the same thing here with the sentencing commission that's strange rules i mean first of all the people on  as to whether the individual's tent matters or not another it's usually how the clarifying things come about is in some cases or cases someone argues that it applies to this and somebody else says no what applies to that and then there's a dispute about that in the courts just cited and the court the commission says all right we're going to clarify this right and that is exactly why you have the string citation your honor in amendment seven ninety two so looking at those cases it's  seven circuit cases and an eighth circuit case that the commission cites its green bishop and jenkins rot and in those cases at least in one of them i believe all three of them at least in one of them having reviewed them the defendant was arguing i didn't do anything sophisticated and the court said it doesn't matter what you did it's what the conduct as a whole was the sentencing commission has come in now and said that's wrong so while it's not a circuit split in the same way it is telling these court that's not what we meant all the cases appear to have the broad language you can see the language was broad all the cases seem to have found it applies across the board to whoever was involved in the criminal enterprise irrespective of whether that particular individual utilized sophisticated means so there is no other case that they were clarifying because all the courts were rejecting the argument that the one case you just cited was making nobody bought it well it's in the news but the sentencing commission said you that's not what we intended we wanted you brought the wrong argument respectfully court seven circuit a circuit all the arguments example why it needed to put that language in if if it had i can i think if we turn it around the other direction new my point is a little bit more clear if we turn it around and say the sentencing commission wouldn't have cited these cases they w amendment if they didn't need to clarify the intention because the courts would have been getting it right they would have bought the right argument but they've got the wrong argument so to distinguish this case from the idea of a circuit split i don't think that's a valid distinction because when there's a circuit split the sentencing commission comes in and says ninth circuit you are right a circuit you are wrong in this case they're just saying nobody had gotten it right so we're going to clarify it so that everybody gets it right i would say  that because the guidelines define relevant conduct broadly and we're not talking about the conviction we're talking about the century so i can't tell you anything you know that's not a so good for my position in all candor that's why we're doing that candor is good for you not relevant contact meaning his relevant it will relevant conduct will extend often within the guidelines to other actors in the offense we know that from all of the minor role litigation that we do in comparing so the relevant conduct is the court is allowed to consider the other relevant conduct but the sentencing commission doesn't want that to happen in the nature of in the context of sophisticated means and i see him over my time but your honour's if i could just have to make one last comment is that leaving the guidelines open in brief these amendments in exist and we argued that the sophisticated means was error because they liked this because they're not sophisticated because none of the things cited are sophisticated and that remains our position it's very interesting to argue about the good morning your honors may please the court calm hour on behalf of the united states i would like to pick up where the defendant attorney left off with the sophisticated means enhancement particularly whether it is retroactive of course we argue that it is not retroactive i would be interested in fresh why why these were sophisticated needs yes your honor as you know the district court found that the that the offense did involve sophisticated means the district court cited three factors particularly the first was that one of the coconspirators portrayed himself as an attorney the second falsify passports and anything to do with whether it was a law or and over the falsified passport was to further the fact that he he was portraying himself as the attorney who he said he was he also gave himself up and alias and so the falsified  name but once it didn't prove up that he was a lawyer that's correct a passport would not indicate whether he's a lawyer but it does work in tandem with the fact that he portrayed himself as a lawyer does the record tell us who falsified  shell corporation in perpetrating this scheme the registration and is also of the corporation to mr tolbert name is also in the record i thought the registration that was her well before the cd story that's correct your honor the corporation was registered corporation and that the the corporation itself was you know going to be involved in the purported investment and so by portraying that he was you know involved with a legitimate corporation in a way that any potential victim could look up on the secretary of state's web site it could lend credence to his to his claims that he was a legitimate business person the problem is and maybe this is the next candidate for unconstitutional vagueness i don't know what sophisticated means are it's it's completely amorphous well your honor of course the commission does not i least looking at all the other cases that exist about sophisticated means this is probably if it is sophisticated means is probably the least necessarily we might have to go there does it cross the threshold of sophistication that's a question how do we know what does cross the threshold of sophistication your honor i would say that the district judge found that it crossed the threshold but if you know what standards apply and he doesn't know and i don't know why he applied three factors that you've outlined in that supported in the record correct combination of these here's the question sufficient to support the application of the enhanced and let me tell you frankly usually i think you somewhat acknowledge this many most found in a published opinion to meet the sophisticated means threshold was that the tax cheats were using a separate account that they simply labeled on the name of one of their vendors and that was so that they could pay themselves out of that account rather and so that the i r s wouldn't notice that now that mere labeling account and account as the name of the vendor doesn't appear to be particularly sophisticated especially in the context of what types of tax cases are prosecuted and in fact this court in its opinion noted that that that one single factor wasn't particularly that in order to have a fraud there has to be fraud so therefore you have to just something that is fraudulent in this instance apparently they did that that was fraudulent among other things was to have somebody who wasn't a lawyer say it was a lawyer and to use a passport that in some fashion we have no idea that having seen the passport we don't know whether it was skillfully fraudulent or stupidly foreign but it was just phony but out whether it would actually fool to anybody who knows your honor i would argue that this scheme could be considered more sophisticated then than your average fraud scheme of that nature as you're describing take for example the simplest form of fraud i send a single e mail to a potential victim saying i've got a great investment opportunity for you victim then responds to that e mail with no further conduct by sending me money if i was misrepresenting the means by which i was going to perform that's a simple fraud that could be charged clearly not sophisticated whereas here we've got several conspirators acting together they have multiple phone calls with the agent they're pitching the investment they're falsifying their ip identities they're portraying themselves one of them is portraying himself as an attorney in order to further that ruse they then falsify a passport which they sent to the agent so they've taken multiple steps in order to lure the agent into believing that their fraud is true you've seen several of the transcripts these calls last for days it's a constant persuasive effort and the means that were cited or are merely steps in furthering that ruse which is particularly more complicated than say just your basic simple fraud and again  in terms of the government's position it's abuse of discretion standard yes sure we agree so what's the significance of that standard for the germination judge then question could be what ought as a matter of law to decide right correct and we believe under jennings that the rule that is still in place is that the scheme need not be particularly sophisticated or the most sophisticated so under that rule it is still sophisticated i see that my but i'm sorry i do actually not it is not a racist wrong light i have a question for you  if we were to find a good reason to re man this case to the district court for some error upon re man the district court could apply the retroactive a member correct i believe that would be correct and if the court applied t retroactive amendment under the facts of this case the enhancement would not apply to this defendant i believe that that would be a question the district court could grapple with i think we grapple with it on the record that we have and give the  answer i suppose you could but if you were to find that the amendment is not retroactive the better practice would be to remand to the district court for the fact finding in the first place but you know again we do not believe that the amendment is retroactive because it has not met any of the three factors outlined in this case this court cases in christianson and morgan specifically under the first factor the amendment was not listed as a retroactive amendment under the second factor which your honour's discussed the language already that the commission didn't indicate that it was retroactive moreover the commission had said that it was that it was different and as you can tell from the addition of the language that it applies to the defendant it's clearly not retroactive moreover the cases that are cited in the commission's amendment as your honor pointed out earlier none of them sound that the sophisticated means and has been appl only to an individual defendant's conduct rather than to the conduct of the scheme as a whole these are the only cases cited by the commission so no divergence in the law has been noted by the commission and particularly importantly a circuit split was not cited in the amendment whereas circuit splits had been cited in prior amendments where this court has found retroactivity specifically in christianson in christianson the court examine the third factor noted that the commission itself noted a circuit split and remanded for that reason because it considered particularly important here in the language of amendment seven ninety two a circuit split is not noted so under all three factors and for the reasons described the amendments not retroactive so your honor i mean i don't believe that the district court need are you going to give us directions your house no five get off the government response your question the government suggested drawing a line at jennings i think that is a great place to draw the line i am very happy to draw the line  jennings starting because jennings is the bottom of the sophistication we are so far below jennings as it would be not different in degree it would be different in kind in defend in jennings i just folded up the did the two defendants purported that they possessed a technology that could separate oil from dirt they raised sixteen million dollars they hired vendors and opened up bank accounts with mock names to fit vendor names and then siphoned off money in different directions where they were actually money was taken from sophisticated parties sophistication and sophisticated means has to mean something you have to have sophisticated parties or does the defendant have to be sophisticated for sophisticated means i think it would be a defendant centric test and under that test certainly mr tolbert and this motley crew do not qualif