mr cox as you know was convicted after trial on seven i'm sorry eight counts of fraud thank god and in monetary transactions he was acquitted on seven counts that was a split verdict the fraud in this case concerns of element of real estate which involved unlike some cases a developer who actually was trying to improve the properties the record shows the recessed the money that he put his own money into developing them renovating them adding features to them to try to upgrade the real estate in the area so there was some value in the sentencing really demonstrates what can happen when fair process isn't followed in other words if without anything behind them appear to be proven so in this case the government offered this book the second submission is volume two of the joint appendix to probation  borrower lender the deed price first mortgage second mortgage total loons it looks comprehensive it's got a lot of information but what it doesn't have it doesn't have anything that would be necessary to determine whether any of these properties along here whether there was any fraud in this transaction who you know what were the misrepresentations that were made in that transaction to justify their inclusion here and the relevant conduct on charges transactions are interspersed with the convicted and the acquitted transactions there's no way in this chart to distinguish them unless you sit down with a list and look down some of the material that you're referring to  ten ten charged transactions real estate transactions unit sales that is to say there was some testimony about one or two of the other transactions but most of them there was no testimony about and the only information about those transaction volume three of the appendix this is the second sentencing submission that was submitted to probation after the defendant's objection period was over after the r was finalized after the last chart decided to include all of these transactions with the implicit concluding implicit statement that they qualified as relevant content that they can from fraud that the front was foreseeable  mr cox and that was committed by someone who was in joint criminal activity with him and that was part of the whole pattern in scheme of the this case of this material and this is two sided pages came it came in a much larger new book but this has the deeds the applications for loans in some cases but not all the interviews of the borrowers to show what are the facts stand that my contention and i think it's well borne out by the record is that nobody not probation not the court possibly not defense kind of says i'm clear nobody really looked at this and this is the basis of five point three conviction and not conduct it's not not so what it did was it calculated the guidelines accepting everything probation set except and all of these things as relevant conduct and then it said which the government itself has said this number is too high i'm not going to sentence based on this guidelines calculation but this is the guidelines calculation so it is the starting point and if it's wrong it's a procedural error the court then said i'll sentence you based on a lot of mouths that only comes out of the convicted transactions don't take out the gross receipts that were related to those transactions what it didn't take out though was the ten or more victims and handsome and so that's two points that did not come out so the guidelines that the court least with respect to loss amount the court was explicit in saying that it was working on you know lawsuits related to convictions correct i would agree with that if sentenced within guidelines range that corresponds to that loss amount that is correct and it is also true that the last amount is the biggest driving force behind the guidelines of the fry case but two more points would have made  first team evidence about tim plans actions so i understand that some of those transactions result quintals but because of the difference in the quantum of proof we can the district court could credit testimony that there was a victim based on the trial testimony even if the jury didn't reach a verdict that is correct but it didn't do that in other words no where in the sentencing proceedings did the court say who are the victims and how many are there in the convicted counts there were at least two transactions where the lender was the same lender so you have ten transactions nine lenders and it was only the lenders who that i'm following your argument but it sounds to me correct you were wrong as though you were saying that for purposes of the last calculation the district court said it was going to not not count acquitted or on charge conduct your argument had been if there wasn't proof of all of this loss that seems to not matter but as to the ten or more victims there was testimony and evidence so you don't have that argument is is the complaint that there wasn't a finding of ten or more victims ok let me go back yeah i don't agree that the court only considered the convicted transactions for the amount of the loss my contention is and i think the record makes very clear in calculating the guidelines the court considered all of the all of the transactions that probation put in the last chart the convicted transactions the acquitted transactions and the relevant conduct transactions without examining the record that in doing that or the result of that was the guidelines level that was so high in the g s r that was so high that the government agreed this is too high for sentencing the government recommended a variance sentence of one hundred eighteen months the guidelines were there to two hundred plus range so that wasn't going to be the sentence but that was still the guidelines calculation in this court is clearly said court didn't really do what it said it was going to do because it failed to would just pull the fat within me a few within ten victims but i don't read the record as indicating that there was any objection on that point if there was ever any challenge in the district poor to the number of victims there certainly was it's in the us are jackson's the defendant filed and i believe the defendant actually named the victims that he contended were victims and i think they added up to six so that's in the p s r objections and it's very clear i also simply wanted to respond to the notion that it's harmless error whatever the guidelines calculation may have been as harmless error because the court sentenced on this lower guideline the court stated that it was varying downward and so if the starting point is wrong and your varying downward and you say in varying downward i'm coinciding with a different calculation which may or may not be lack merit in this quarter different sense i'd like to start by addressing a few things that were raised when the appellant was making her argument first of all at the outset there was little to no evidence that mr cox put money into these properties there was evidence that one of his partners did on one triple decker flip but there was little to no evidence that mr cox did in fact do that secondly there was a significant amount of trial testimony that helped directly prove up the relevant and acquitted conduct in this case is the government references in its brief testimony of rebecca sedwick mr cutts a coconspirator in the paralegal who closed his loans establish that she needed funds and also received fake check receipts from mr cox and certain properties in order to commit fraud and hide it from lenders that netting occurred as the government its sentencing exhibits on fifteen of the relevant conduct transactions in addition there was testimony at trial from various mcroy who owned elevated media group a company that we used by mr cox as a false employer for some of the loans in this case five of those relevant conduct loans used elevated median and we're proud of that fraud was proved out in conjunction with bank records submitted distancing exhibits relevant in the face of those specific objections what kind of obligation does it impose upon the district court to respond to those if it's going to resolve the dispute between the acquainted and relevant conduct in the government went into detail at sentencing hearing discussing why the specific acquitted conduct properties were part of the fraud and also why relevant conduct was part of the fraud as well and what the government did was it summarized in his argument the two pieces of trial testimony that proved up the fraud and also what was in exhibit miners that were submitted and with respect to those miners the government takes issue with the appellants characterization of d in that night or those were submitted prior to the final p s r and they were actually referenced in response to mr cox's affections on the loss and on the ten or more victims enhanced in the in the final e s r secondly with respect to the over three months prior to sentencing in the government's view it is obvious that the court considered in detail both of those submissions whether or not it specifically referenced them or went through piece by piece that the government's in its is not the district court's obligation but the district court's obligation to do here was to consider that evidence which it clearly did based on the record and based on the government's arguments with respect to specific facts  needs to engage in a guessing game at all in fact based on the record here the district court has all of the documentation necessary and all of the testimony that the court relied on in order to show and establish the relevant and the government sentencing hearing went into detail in its argument as to the reasons why acquitted conduct and relevant conduct had been proven up by the facts both before the judge of trial and before the judge at the sentencing hearing it can't be the case th john judge then needs to resuscitate that or engage in specific discussion down into the weeds when it comes to each and every property the government would submit that's not practice what the court did here was recognize the or after the government basically had provided its argument basically referencing that it is that noted and also referencing its argument later on in the statement of reasons and when i say referencing  were you saying that the court on the record adopted the government's arguments or endorse the government's position i believe are you merely saying that this record acknowledged that the government had made the aren't i believe it was a combination of both i don't believe that it was the court so explicit in saying that it was not going to use for purposes of calculating a loss amount of all of that problem conduct it was going to focus only on the convictions that first was an argument with respect to the actual guidelines calculation and findings and in that respect the court adopted the guidelines total offense level of thirty seven in the range of two hundred sixty two to three hundred twenty seven months that th y corresponded to that when it came to this sentencing hearing the court did rule law or any use that guidelines calculation as one of its section thirty five fifty three a factors one determined and with the government also argued that sentencing within that range was too high so it was not a factor that was extremely prominent in the thirty five fifty three alice's more prominent factors for seriousness of the offense and warrant sending is very general specific concerns when the court brought up that alternative guidelines range or honor it did so merely to explain the sentence for mr fox's benefit it did not rely on it at all it was merely to place in context his sentence and the amount of court had already had already adopted the one hundred twelve month very it was for his benefit it had no practical effect at all on the sense it was telling him this is where i find your sentence to fall within the range of reasonableness oh by the way it is corresponds to this guidelines range where the loss has much less but as far as the actual guidelines loss amounts the total offense level and the guideline