sentence well above the seventy eight to ninety seven month guideline range was procedurally and substantively on reasonable there's no getting around the fact that mr yarra meo committed a serious crime he was caught he pled guilty plea pursuant to a plea agreement the plea agreement contemplated guidelines that included an accurate as i understand of the case amount of loss of approximately one to one point two million dollars and handsome and for sophisticated means and handsome and for  number of victims and a four month for level in hand sma and for having been a commodities trader at the time of the offense so that seventy eight to ninety seven on sentence was not a sweetheart deal did not ignore any of the the relevant fact in any way he did plead guilty quickly and received credit as he should have if we are to agree with you we have to agree there was plain error because you actually what took place at the sentencing was not what was with this with respect to substantive reasonableness of course the argument was that the sentence should be within the guidelines the government argued for a sunday or those arguments all the time why is outrageous shock conscience well the degree to which exceeded the guidelines it is quite substantial here nearly double the low end of the guidelines and about foreigners when she impose recite all of the things that she was taking into consideration what she did  more serious of the three same judges that i had a particular as as is usual my great recollection of saying but it seemed to me there were some things that the district court did  and that also sort of misstated or misunderstood the record i'm not certainly not claiming that to be the case you don't know right i mean it seemed to me that may well have been a factor in the court's decision ultimately however the holding did stay the greater the upward variance in the greater the reason it should be and the the reasons stated by the district court judge here were completely covered in the agreement in the guidelines and in the the submissions by the parties and by the in the probation report and what rule do we pr this and you should limited to doing this what do we say to the district courts when they are imposing sanctions in a case like this which seems to me based on what the district worker cited was pretty outrageous the there has to be some degree of similarity between the degree of upward variance and the fact that warrant that upward variance which i do believe is obvious in the government itself was arguing that there should be a within guidelines sentence and use the case united states versus wells a case in which involved a greater loss amount  i believe more victims and the defendant there received a sentence of a proximately a hundred months lower than mr yar meal received about three times three times life i don't know how much money was lost in that case or what percentage of people's net worth was taken from the findings here is you had twenty six people who you know  immigrants work work for a living and they were stripped of all their assets in a predatory way and then they ended up with nothing and some of them had family members who were  support the judge said it was it was it had a devastating impact and and that it was basically it was a disgusting thing to do an unusual and usually to praise because i'm not going to argue with most of what you just said your honor which obviously does reflect the record however there's no doubt that it will often true in fraud cases as we all know but regardless the guidelines here are of the tongue twister guideline to be one point one b two b yes i had to write that one down expressly includes the degree of harm it discusses things like whether the victims have to work more years how this affects their life savings these are all things that are expressly contemplated in that guideline which added four levels to the guideline sentence and was discussed in both the  both the pre sentence report the the plea agreement and the government's letter and in fact if a district court imposing sentence on a person who commits fraud were doing this i pathetically looks at those factors that are covered in the guidelines then look at the facts before her and says but this is particularly egregious this this is those factors plus the district court is precluded from ratcheting up i can only go by what i read in saying that the court must never the less consider the degree to which those factors truly exceed what the guidelines say and i just don't see it in the probation department saw those very things it included those statements from those very very same victims you know strong emotionally wrenching statements were included in both the pre sentence report and the government's sentencing letter the probation department recommended the low end of the guidelines seventy eight months and the government recommend good morning may it please the court my name is andrea goes wild i represent the government here on appeal and i represented the government in the district court proceedings before judge swain judge swain did not commit plain error or abuse her discretion when she imposed t sentence in this case after conducting over the course of two days a sentencing hearing during which she heard from twenty six victims and then she articulated in grave detail exactly why she imposed the sentence she did starting was necessary she didn't not more than was necessary she didn't use the words the parsimony clause but what she did do was she point into the particular aggravating factors which are not accounted for in the guidelines range here as the reason why she imposed the sentence that she did so very particularly she pointed to the nonfinancial harm to the victims in this case the psychological and emotional harm that is not something that is accounted for in the guidelines to respond to a point that your honor made the the enhancement for the victims here was for five or more victims who had experienced significant financial harm at sentencing she heard from more than twenty six victims not a vulnerable  guidelines in this case the vulnerable victim and hansen is incorporated within the change to the guidelines that accounts for six victims who have experience significant financial harm so it was accounted for in that in that way but it was only five victims you're allowed to include that enhanced meant so my point is that she heard the the guidelines range of seventy eight to ninety seven months accounted for or with respect to victim related adjustment recommend  the unhandsome and under the guidelines that was applied for victims here was a four point enhancement in the guidelines which was in the plea agreement and was also reflected in the p s r there was no additional adjustment that was either  recommended in the p s r by the parties in this case i don't think there's an additional adjustment that could have been incorporated in the guidelines that were applied at sentencing here so what the my point was was that the non the factors that were not counted for in the guidelines here are the specific aggravating factors that judge brinn pointed to in imposing the sentence here she also pointed specifically to the depravity of the conduct when looking at the offense conduct here and she looked at and to distinguish this from the well's case which was also a case that i handled in the wells case the defendant did start out to steal money from victims as in many cases of ponzi schemes he started out in earnest trading and then took a wrong turn and the conduct from there was deplorable but judge sweeney specifically noted the depravity here that the defendant set out and beginning to not conduct any trading to just take money from these vulnerable victims and that is not something that is accounted an office maintained on wall street it was often word of mouth he would get one victim of give you a great example some arista meth trial she was one of the victims who testified at the sentencing hearing he found her at a community center that he had another individual go and he would wait where people would come to get free meals this is not something that fact i just gave you that's in the record but what is in the record is that he targeted peruvians and other individuals from central america that he said to them i know how to trade and i've been able to make money for individuals and i'm going to hope you you're peruvian i'm peruvian that is something that is in the record here there are for example the victim karasu cohen appendix one of six he gain my honor he does have to have contact but he knew people he was part of the masonry guilt and this is also something that's reflected in the statements that were made by the victims and he would recruit people who were other masons so some of the victims in this case were actually construction workers manual laborers from peru and from other latin american countries who had earned their money in that regard and so he had one victim who was a member of the masonry guild who then threw that he would gain access to other victims so i think the record based on the statements made by the victims demonstrates the type of reach and access that he was able to get into this vulnerable immigrant community based on saying i'm also proven and i'm going to help you so she made a very clear record over the course of these two days explaining why she was focusing on these aggravating factors many of which were not accounted for in the guidelines in imposing her sentence and we don't think that that could possibly be plain air turning to substantive reasonable less i want to respond particularly to the point about the size of the variance having to be accounted for not just the fact of a variance the cases are clear and i want to get specifically to the singh case that so long as the aggravating factors that are pointed to can carry the weight of then it's not for the appellate court or the government to think about what they would give to those factors it's to consider can those factors she pointed to carry the increased weight in the sink case judge force committed procedural error in that she found that there are the defendant had two prior convictions for illegal reentry prior the one that brought him before her and then in stating that a sentence three times the guidelines was appropriate she specifically pointed to the concern about  going to come right back so the impact the factor that she pointed to to aggravate and enhance the sentence could not carry the weight of that increase because it was not in fact correct here the factors that judge swain pointed on the record the vulnerable nature of the victims that was not accounted for in the guidelines the depravity of the conduct here on the other factors that i've already gone through can bear the weight of the increased factor as set forth one other point that i would like to make is that the government's sentencing recommendation in our memo was put in prior to the two day the hearing that occurred over two days where the nature of the impact to the victims as well as the defendant's lack of remorse had not yet been laid bare before the court and the impact i think the judge swing had in her decision in fashioning the appropriate sentence and in figuring out what weight to give the impact to the defect victims and the defendant's lack of remorse that had not come fully to bear at the time that that recommendation was made nor is it the same to say that the sentence that the government might suggest is the same as whether or not judge sweeney abused her significant discretion in figuring out where with gleaned the information about the impact on a number of these folks which came to light me hearing had not been made available to that coordinator no your honor i don't want to leave that impression at all i mean this was a case about the victims the government had met with many of the victims they had put in letters i think if you compare in the p s r of references in less than a dozen letters what i'm saying it's a matter of degree more victims came they told more specific specific stories more specific anecdotes about how they had been ensnared and the impact people lost marriages they lost homes that it had on them and what i'm saying is at the sentencing hearing the true impact of that went beyond what the government was aware of when they made their sentencing recommendation  and that was the point i was trying to make thank you just with respect to that last point i mean there's a fairly thin line between what was discussed in pretty good detail in both the pre sentence report and in the government sons in letter and watched what was heard at sentencing itself of course the judge had the opportunity to see and hear these people and i'm not suggesting that that can be a factor obviously it can i think suggest  your honor is that it was too much of a factor here that the judge was swayed to to an overwhelming degree by those statements you know to to an reasonable degree  that motivated the sentence in terms of lack of remorse i mean frankly i just don't believe that's fair the defendant stated repeatedly his remorse he didn't try to minimize his con conduct blame than anybody else for it he we've seen cases i mean it's rare thankfully where you know a judge will reprimand a defendant on the spot you know i see you smirking here he you know you're laughing  there was nothing like that here the judge said you sat here stone faced attorneys routinely advise their clients don't react this is a serious proceeding he didn't react he sat there with a serious expression on his face i don't think that can carry the weight of you know in the face of his repeated statements that i am sorry for what i did but by the way this is a man in his late forty's  had no criminal history he obviously committed a wrong and he's paying for it he was ready to pay for it but i don't think it's reasonable to conclude just by his facial expression that he was not remarks full here just one last thing if i may your honour's defense counsel did a reasonable job here up until sentencing at the point where the judge said i am seriously considering going above the guidelines on the sentence do you want to change and do you want to add anything as a result of that you know enormous red flag at that point the government took full advantage of the opportunity at that point counsel basically abdicated and said no we're just going to rely on what we've said already there are many things he could have said differently explain to the judge  why within guidelines sends the that everybody had stipulated to and had been recommended was the appropriate one asking us to make an ineffective assistance determined i know this court's position on that argument being raised here but it does color the ultimate sentence here things could have been different here by the way counsel the very same counsel didn't even bother to file a notice of appeal in this case and the defendant had to file one pro se and knew counsel had to be assigned so it appears at that point he had basically just moved on and i believe that the court can and should take that in consideration when weighing the ultimate sons that was