have been convicted considered a victim for sentencing purposes in the sense in the second would be the constitutionality of the timing of the remained for sentencing briefly this court has previously definition then the c v r a as to a victim but what the courts didn't comp consider is the distinct classes of whether or not somebody is a victim basically they said there's defendants and there's victims what the courts didn't consider is an unindicted coconspirator and in this particular case that would be what we would argue as to why and you would not be considered a victim and if i may just briefly to reiterate some of the things that the district court found  these are all cited within the brief that unlike the actual victims of the offense and you wish both highly knowledgeable and an integral part of the scheme he had previous experience with the real estate development and investments get a real estate license and agreed with the plan to begin offering hard money loans he and mr being called the equal partners in the investment entities and you had access to the checking accounts of the entities though he did claim not to be monitoring them yet h background was used as one of the selling points to lure investors in he was responsible for identifying the potential properties and customers who the loans were made and had ninety percent of thora to approve the deals additionally he was aware of the poor financial state of the entities as well as the various deceptions in a regularities he was in charge of the escrow accounts to contain the funds meant to pay for contractors in the rehab mr being colder did not have access to nor control of those accounts that were supposed to contain investors funds earmarked for the hard money loans would sometimes require infusions from other accounts there are a number of incidents indicating and use culpability and involvement in the conspiracy however m u has consistently sought immunity and victim status for his own personal benefit and the government did in fact grant him immunity that immunity though in and of itself does not entitle him to restitution in this particular case as  district court ruled on remain and from this court that leads me to the second point just like before we leave that point when you were cite the facts one of the things that the district judge indicated was that there was you know an actual failure to present the actual evidence at this hearing that instead you stood on its previous order the court's previous findings an order which had been vacated and that that point there's just no record from what your client can be entitled to the relief you seek why was the district court wrong on that point the district court had ruled prior to the hearing that he was in fact a victim and was not interested in entertaining evidence at that point during the remained the court had heard all the evidence this was prior to my involvement in the case and ruled that ammu was not a victim that was taken up by him and you want to read a mandamus to this court where this court that in fact ruled under the c v r a he was a victim but i don't believe that that's dispositive of whether or not he's a victim for sentencing purposes and this court didn't necessarily rule on that so your assertion is essentially that you were deprived of the opportunity to build the record and it was kind of unfair for the judge to come back and say well there was no evidence offered that is correct and that does lead me into my second point thank  you the second point there is very there's very little on this particular point the sentencing guidelines state that the ranges of punishment and the numbers of the in the guidelines are really there to reflect the mores of society for deterrence incapacitation just punishment things of that nature however u s code thirty seven forty two g one state specifically that the sentence to be carried out is what the guideline range is at the time of sentencing that under the u s code that's that section is what brings it back on a  that's a carved out exception which states that if it's on a remained than the original sentencing guidelines are what's to be considered by the court our position is this violates the fifth and fourteenth amendment of equal protection and due process and the only way i can illustrate that is by citing an example if you have defendants a being so a b and c who are otherwise all similarly situated identical defendant a and b plead guilty on the same date convicted or pled guilty they come up for sentencing on the exact same day maybe there piggybacked on one another if the guideline in fact changes like it did in this particular case those two for the exact same conduct would be facing different sentences the argument here is that defendant b should be given that consideration because that remained should in fact be his sentencing date and that would then promote the uniformity that is contemplated in the guidelines and it would also promote the mores of society on that particular day because those guidelines have in fact been changed court ruled as you are asking us to not that i could find your honor there is no guideline there is no guidance on this that i can find which is why i bring this to the court attention i just can't come up with a valid reason as to why a remained would come back and not be sentenced under the new guidelines but for the exception that is carved out in the us code thirty seven forty two g one again that would lead to in effect an absurd result defendant c in my example would get the benefits of the new guidelines whereas defendant b would not and again they could be sentenced on the same day back to back and i don't come up with a valid reason and that's why we are here and that's what i believe would be would violate the constitution specifically the fifth and fourteenth amendment wouldn't when they although the sentence on there they would all be sentence based on the book in effect on their original sentence date no well yes they would defendant a would be if he doesn't appeal it for whatever reason would be in every case that would be different so the remained comes back and i would argue that that becomes the original sentencing date and you're going to lead to in my opinion an unusual if not absurd result when you have defendant see for whatever reason maybe he was incapacitated in couldn't go to or maybe he went to trial so his sentencing and his plea are delayed so the answer to your question is yes but i would argue the alternative should be true that you defendant should get the benefit of the doubt and should get the benefit of that sentence that the guidelines are in place at the time of his sentence whether or not it's on remand thank you very much  taking out mr short two points i like to first address the status of m u i think a little bit of context is necessary in the original case what i'll call referred to as being called or one prior to the remand mr m refer to as being called or one where this court sent remanded to the district court that the district court make a finding of whether or not and you was a victim for purposes of the sentencing guidelines upholding th process of making those separate determinations determination for a victim for purposes of c v r ray for restitution purposes and for purposes of the sentencing guidelines the court went through that process and in its memorandum an order of i believe may seventeenth it stated the district court stated judge white found that the evidence presented led him to lead the district found that the evidence presented and you did not have knowledge of mr being color scheme that he was not complicit in that scheme and that applying that to the sentencing guidelines definition of what a victim is that ammu is therefore a victim under the sentencing guidelines is based on our e mail and should that have been the end of the inquiry for the district or well i mean one with the language of the remain and is and determine whether any was a victim for purposes of sentencing and then if necessary proceed to resets and then if that point was there anything more for the district were to do that's a great good question i don't think so i think based on the remained from this court the instructions from the court once the court found that m u was in fact a victim in those two points should have been added into the guidelines calculation and the offense level was thirty one i think it could have stopped and  am you was not of should not be considered a victim could have called them you again if they wanted to could have put forth additional evidence or were documents terry evidence or whatever mr been called or felt necessary to try to convince judge white that his fine him reconsider his finding that did not take place so he had the opportunity to do that and and didn't do that and as a result mr i'm sorry the district court then found that using his suggest that following the direction of this court and being called or won the district court needed to make a finding to determine whether or not m knew was in fact a victim it looked at the evidence from the original hearing the evidence presented by and himself and also the evidence presented by special agent carrie carlson which i think is a very important piece of evidence in this case not only did m you testify that day but the special agent who conducted the three year extensive investigation testified in testified that she could find no evidence at any time during the course of her investigation that would lead her to believe that any us complicit or had knowledge of mr bin caller's activities and i think some of the facts are important there judges are these the same the very same facts that the district court considered when it determined it and knew it was not a victim the first time yes judge and so the question then that it not to jump ahead but then the question is why the change why the change and i think and i can't speak for the district court but what i think occurred between the date of his original order and the date of the order  a pre sentence report that was created that had certain facts and other things involved that were set forth in the pre sentence report that were not objected to or not evidence wasn't presented to contradict there was statements heard from other victims at the sentencing who described interactions with mr ben coulter and never mentioned mr arm i'm sorry i think that's an important fact to consider there was statements from mr being colder himself there elapsed and the district court was able to go back and review the transcript in that which was submitted i think it's excuse me i think it it makes sense that the district cord looking at that from a more removed point of view could very easily read that transcript in and see things maybe that were missed on the first go around and see the testimony of the special agent and put that together with the sentencing hearing in the  you know in changes might i think and reconsider i think judges district court judges do that all the time so the district court then making that determination applied those facts to  actual loss the district court said he had no knowledge of what was taking place and i suggest i would suggest that i think the facts back that up in the original hearing mr banker m u testified that he dealt with the escrow accounts related to the properties the actual dirt of the properties cutting the grass doing all sorts of things related to the properties and he was involved with the finance in the capital and bringing the money in to the hard money lending program he dealt with the actual properties and he said that at his testimony and that was the documentarian evidence that was submitted and also the special agent testified the same way that that was her understanding of how she found no evidence of mr that m you was taking money out of this out of the hard money lending program for personal use or that she found any evidence that he was complicit in any way looking at those excuse me related to the constitutionality of the due process of of this statute i think it's important to remember that this is a rational the screw the level of scrutiny here is rational  legitimate government purpose there's a number of legitimate government purposes for having the sentencing paradigm this way i would suggest that this rule is a procedural rule to carry out that set and those sends in direct sentencing guidelines would change to their favor in order to make sure that defendants similarly situated at their originally original sentencing day are treated the same way that a person that goes up on appeal and comes back for remand for new sentencing isn't treated any differently than a person that he was sentenced with originally the first time mr bankroller argues mr schwartz argues that the line should be drawn to back then they should be sentenced the same way as the original the other person that they piggybacked on the first time in other words judge if you have a and be sentenced on the same day then a and b should be sends the same if he goes up and comes back it wouldn't be fair to say to have him be the person left out to have him be sentenced under a different guideline structure then b and c i think it's interesting one thing that struck me was the court's decision and dandridge a quote from there that i cited in my brief is that a classification does not fail rational basis review because it's made with mathematics it's not made with mathematical nicety or because in practice it results in some inequality drawing lines by nature is going to create some classification there's going to be some different treatment the question then is is that treat different treatment rationally related to a legitimate government purpose and did you find it one way or the other on this particular issue heard that it raised no judge i found cases where almost all and i cited in my brief i can remember has all the courts of appeal or most of the course of appeal including the circuit has directed that this statute be followed and has not said we have problems with this or we believe it's unconstitutional thirty seven thirty seven forty two g a two was reviewed and found to be unconstitutional by the supreme court but the six circuit in pepper said that it didn't read thirty seven forty two g want to be unconstitutional and thirty seven forty two g one was found to satisfy the ex post facto clause of the constitution but on the equal protection charge there hasn't been any court that explicitly said it satisfies equal protection it just has  this is what needs to be done and this is way out and then it needs to be followed and this court and the walker decision specifically in the walker decision and the ted well decision has said that this needs to be followed i would also close by suggesting that if the guidelines sentence if the guidelines the guideline punishment in this case the amended amendment you know lessened the punishment if it went the other way and it made the punishment harsher i think it's fair to say that mr bin holder's argument would be very different he would want to be sentenced under the original guidelines of the more favorable guidelines and so i think that underscores the arbitrariness of the line drawn that the defendant wants the best possible paradigm set out and that's fair if i was defended i want the best possible paradigm set out but as a certain point you have to have uniform rules so that everybody knows how what sentencing paradigm they're going to be under and how to proceed and that's what this does it's a procedural rule to say this is the paradigm that you're going to be sentenced under this is the paradigm that the courts and the probation the p s r writers need to use once again out there how to write the piece are and how should they be defended should be sen's and that's our going to proceed and the majority of courts of appeal have said this is how we're going to proceed  conclusion i will state that the district court properly affirmed properly determined that i am you was a victim for purposes of the sentencing guidelines and that thirty seven forty two g one does not violate equal protection thank you guidelines get harsher the defendant in every case seeks the benefit of the original guidelines that were in place at the time that the crime was in fact committed whatever their crime may be however the fifth amendment enshrines equal protection and equal protection requires people similarly situated to be treated alike my belief has always been that the guidelines statutes in place while the public does have an interest in this and there is some interest in uniformity these are there to benefit the individual and when the sentence changed the mores the beliefs of society have changed as to what just punishment is and again i agree with what mr casey said regarding defendants a and b if defendant a is sentenced on a particular date and defendant b appeals and there is a room and i would argue to the court that there was some fundamental flaw as to the  is there certainly are frivolous appeals but i don't believe that by the change in the guidelines that's going to promote frivolous appeals because nothing on a frivolous appeal is going to come back for re sentencing using my earlier example defendant c in that example who would clearly under thirty seven forty two i'm sorry under the sentencing guidelines get the benefit of that new guideline range i can't come up with any reason why defendant beyond remained given my example that he sentence on the same day would not get the benefit of that other than the fact that sort of thirty seven forty two g one says  thirty seven forty two g two has been ruled unconstitutional i don't understand why thirty seven forty two g one would not also be unconstitutional the government has argued that uniformity in sentences is what is important here that similar situated individuals be treated the same there is certainly an argument and i can't disagree with mr cases argument that defendants a and b should be treated with some sort of human uniformity however coupled with the fact that the guidelines in fact change what has become just punishment in the eyes of the court has changed you combine that with the fact that in my example let's say there's five defendant and there's not just defendant see who's going to be sen her son's on the same day of the remained for defendant b to sit until defendant b that you don't deserve the same sentence as he said the three individuals for the exact same crime with the exact same prior convictions your similarly situated to me that's what the uniformity is and that's what society is interested in and that's why we're here and that's what i would ask the court to take a long hard look at thank you very much and if there's any questions i'