arguments and mr ancyl will be discussing his client's federalism argument this case is unusual due to the government's multiple concessions made on appeal the biggest of those being on count two where the government  that the only theory mentioned by the district court in its rule twenty nine decision is legally erroneous under cleveland versus united states and that is because titles registrations and license plates are not property for purposes of the mail fr of immigration offenses by the use of several meters and one of those means was undervalued vehicle purchase prices for terry importantly your in paragraph ten right after that it says that it alleges that all of those means were all in further of and all in an effort excuse me of the quote is all in an effort to obtain motor vehicle license plates registrations and titles so it does mention vehicle purchase prices and that was something that was mentioned at trial but that was never a separate conspiracy to undervalue vehicle purchase prices to defraud the state of indiana sales tax revenue which is what the government contends on appeal that was never the theory and the reason that you know that for sure is by looking at the district courts rule twenty nine decision because that is not mentioned at all in there again these were what the government alleged is that this was a conspiracy if you look at the government's closing argument this is a good example of kind of laying it all out this was a conspiracy to secure license plates also registration collectively all of you and you know it's certainly true that the jury instructions don't reflect the cleveland decision but it has been decided years before why don't the defendants bear some responsibility for that omission as well because this is the government's case your honor and they go i know that you're you're in a sense conceding that there might have been a period under which there would have been tangible evidence and that even that that theory is i will say emphasized that is reflected somewhere in the indictment and so if you move from ordinary review to something more like plain to review  then not sure why there are decent gross miscarriage of justice to just say that there's something going wrong well it's important to emphasize it here your honor another concession by the government and that is the government concedes that the instructions allow the jury to convict on an invalid cleveland theory and i don't i don't think that point can be emphasized enough for that reason the instructions were legally erroneous your honor and so the only question is whether that without objection though on that basis by by the the prosecutor in the defense to miss a point that has been established in zero eight hundred eighty nine which drew difficult orders yes your honor i agree with that but the the point is here that it was not it was not some sort of an intentional waiver this  not a strategy decision by the defendants and getting back to your honor's point we have the government conceding that the instructions allowed the jury to convict under the cleveland theory so the only question then is even assuming that this valid theory was presented to the jury which we the defendants contend it absolutely was not but even assuming that that theory was presented along with this invalid theory where the two theories coextensive such that any plane we or do we have a waiver this is forfeiture your honor this is forfeiture this was not a knowing intentionally forget about intent i'm just asking whether the defense stood up and said to the district judge this instruction is fine yes yes so we have a waiver now we don't hear on we don't the defense team the defense stood up and said i don't i don't think standing up and saying this instruction is fine is anything ever other than a waiver i disagree your honor well you can disagree from now until the cows come home but it's still a waiver and then the question is what happens if there's any iranians instruction that the defense has waived but which underlies but which it followed produces let us say a conviction of a non crime since match the result of cleveland that's a legal question follows from a waiver but again your honor we only get to the jury instruction question if you were to find that this other valid theory was presented to the jury it simply wasn't it was not and look at the district courts rule twenty nine decision it was not presented to the jury it's not an opening it's closing it's not an indictment and for that simple reason it was not defended by the defendant and not in some ways you're saying i mean maybe it is step earlier than the one judge easterbrook was just talking about that the whole prosecution words for a non crime so maybe it was a non crime after the waiver and it was a non crime for the waiver and you have to you know the question is really how far can a waiver go if it shouldn't have been brought a theory you know you've been indicted for wearing a gray suit today and it's fine to wear a brace suit so how can you be convicted for that that that's the kind of theory you're urging i think yes your honor that that is absolutely correct is that we're saying th theory was never presented was never before the jury the only theory that was presented the only jury that the the the only theory that the jurors could have convicted on was a legally invalid one and therefore the count two convictions need to be vacated with instructions to enter judgments of ahead the conspiracy to commit mail fraud so you have two counts of this indictment right so if we were to agree with you about count one what would happen to count two oh i'm sorry your honor come to was the mail fraud conspiracy right ok so now we're you would like to know if i guess right i look at you know so in the immigration offenses there was also many concessions made by the government here the government says that this is not a case about harboring the admitted that a trial this is not a case about encouragement or inducement to come to or enter the united states so we're down the shielding and we're down to encourage men to reside and in the united states right and here's my thought about encouraging to reside we live in a country which in my personal opinion has generally a pathetic system of public transportation most people need cars to be able to get to work and in fact even people who are convicted of driving under the influence of alcohol etc related offens begged the judges to give them some temporary kind of license and i understand that a license tags on a car are not absolutely essential in every case to work but it sure helps and it seems to me it's reasonable to think that there are plenty of people in this country and awfully who don't have a handy brother or friend who are willing to say here you know put my tags on your car and by the way it's a pain in the neck of somebody else has your car because you find out about all of their traffic offenses and parking tickets and everything else so which is all to say that i think getting a license plate on your car in fact facilitates the ability to work in the country and facilitates thus the ability to reside in the country i disagree your honor although this is this court's first opportunity to pass on a case under the prawn but other circuits have found that reside means facilitate the ability to live in the united states indefinitely right and so having a job where you can earn some money it seems to me pretty does precisely that but your honor the other pieces on under the reside crying have up held convictions and in your sister circuits for having false documentation false also security numbers all citizenship applications that were all used evidence was put forth in the trial that those documents were specifically for a job or for some sort of how did and i will quarrel with any of those cases but this is a different situation and i just don't understand why having a car that to the all outward appearances for the officers and for all i know for all the evil purposes is a legitimately licensed car doesn't similarly help somebody stay in the country indefinitely because they can work your own or reading kind of reading reside the word reside living indefinitely reading that out of the statute is is very dangerous ideas that get out of the statute i don't think people can stay for a long time without some source of income i would agree with that your honor but these documents were not used to acquire income there was not a shred of evidence that anyone used these documents which again this was not a driver's license this was not a social security card you know it was something that allowed you to drive your car around and i guess i'm i mean maybe it's a crazy theory that but it seems to me that that having a car that you can use to get from your home to a place of work is something that facilitates long term residence in the country well again i would say you honor what you're talking about at least this sounds to me a little bit more like transportation than it does a t m to reside in that don't forget that's a different subsection and i'm sure your honor hasn't forgotten that different subsection of the statute and we don't want to read reside to swallow that section either and of another point is just what the evidence showed at trial that again these documents were not used were not shown to be used to acquire work to acquire housing and they certainly in mr to burra again what your honor was referring to the only actual customer witness for the government testified that he didn't need these documents we happen to have a handy brother or whoever that you know relatives who said fine you know drive my are are things that in other contexts are not illegal providing housing for example you know there are cases it's not illegal to provide somebody housing but if you reside provided illegal aliens so they can have a place to live it might fall afoul of statute and don't forget your honor also that another one of our arguments is that all of our discussion has been assuming that the government actually proves that all of these all of the defendant's customers were illegal aliens and right please keep in mind our argument that even the district court acknowledge that the absence of a social security number does not equate to an illegal alien that's certainly true and i will pass the argument to m proper inclusion of for enhancement in this was not harmless error the government has conceded that these four enhancements were error and that they added ten or twelve levels to the defendant's offense levels but they argue that error was harmless the question is not whether the sentence is now reasonable under the newly calculated guidelines for the government the question is whether these ten or twelve levels affected the selection of sentence itself for the government to state that the significant decrease of ten or twelve levels amounts to harmless error is patently wrong the district court used the guideline range as an initial benson benchmark and starting point when when coming up with each of the defendant sentences they disc he discussed the thirty five fifty three a factors in conjunction with the guidelines and what the was only after he has a fairly lengthy discussion of the guidelines correct correct and if you refer to page twenty of our reply brief or we lay out the government's determination of what they believe the guideline range will be versus ours you can see that there's many factual disputes at play here and it's not clear where the where the district they just report in deciding that sentence depart hurt gave significantly very significant variances downward for each of the defendants ranging from the most part from sixty to too high seventy percent below the bottom of the guideline range this is not a case where where he gave sentences within the guidelines ranges and our position is that the selection of sentence clearly derives from the advisory guideline range  district court believed that it was correctly county elated this is not a case like abas or anderson where the district court recognized there were disputing guidelines and gave some sort of articulated response to the specific guidelines and how if they didn't apply or if it did apply to pending what the district court decided all right so but the government has put all its money on the card where the district judge says at the very end this is every single defendant there was no differences that for the district court to do that we believe that they have to articulate the specific guideline that they were there they are looking at for a district court to just say i would give the same sentence regardless really really doesn't fall in line with gall that you have to correctly calculate the guidelines the district court must understand what the guidelines recommends in the first instance before it can decide whether or not  downward or give a guideline sentence it's only after the correct calculation that the district court can take into account the thirty five fifty three day factors in virtually act this quote court who quoted a tenth circuit case and said it's hard for us to imagine a case where it be procedurally reasonable for the district court to announce that the same sentence would apply even if the correct guideline calculations are so substantially different without cogent explanation essentially questions whether the district court genuinely considered the correct guideline calculation and in this case despite the district court statement there's no way that they genuinely consider a correct a guideline there was nothing in the record that shows that the district court even remotely contemplated that ten or twelve levels could be reduced from the advisory guideline range that it calculated and if you look to say for example mr omar duran if you look at even what initially he his sentencing range was two thirty five to two ninety three he received eighty four months even if you accept what the government says to be true which of course we do not but his guideline range would be reduced to ninety seven to one hundred and twenty one months he received a sixty five percent reduction from the bottom of the original range for that for the government to put all its weight on the fact that the district court said it would give the same sentence it's kind of unbelievable your honor especially given the district court intended to depart or very downward on these cases  and completely expressed his desire to do so furthermore if the district court wants to insulate the sentence or to help this court understand that if it goes back we're going to get the same sentence what it should do i is it should articulate the specific section that it's referring to explain why they would arrive at the same sentence whether that would be discretion thirty five fifty three a factors however months in order to give this court the understanding it needs to say that it that this section did not affect the selection of sentence there is you're you're not arguing i take it that when there's a mistake and calculation of the guidelines that gets the process going in the wrong direction that it's never possible for the district judge to say but i have now considered everything and this is going to be my sentence no matter what or are you arguing no we're not arguing that what we're to dismiss what the government argued in response in the sense of the motion dismiss was even if you were even if we had met or even if you did we concede that yet they help these people get register their vehicles and get totals for the vehicles that's still not enough to prove harboring concealing shielding but your argument ignores the fact that this is just the use of a state of sense as a predicate to a federal criminal prosecution and i can't even imagine the number of federal statutes that your argument would throw out the window if that's not possible anymore it happens with the hobbs act it happens with it's certainly possible to judge but it's written into the statute in this instance it's not written in the statute when you have is not a state  law but a state agency who wants that matter mean if the mechanism for violating the immigration laws in any particular case to me or not even worrying about the facts of this case happens to be some violation of state law why isn't that something that congress can choose to criminalize congress can choose to criminalize it but they didn't choose to criminalize it this is something that was unanticipated by congress majority i don't understand so suppose somebody one of you as precise and then argued suppose a person gets a phony indiana driver's license and there are cases that say examples of political though because there was no violation of indiana law in this instance what was a pilot was the expectations of the b m v they decided to disallow anyone who doesn't have a social security number that from your own argument that's not a federalism argument that's just an argument was there anything going on here that was illegal that as i said i don't think that finishes the discussion because there are legal things that could also allow somebody to violate  thirteen twenty four i think the federalism argument is clear if you take the example of something like getting a library card let's say that the local library district decided that you needed so security number to get a library card and there was a perhaps a nonprofit that helped illegal immigrants and their children to be able to access the services of the library and to then criminalize that effort would be an expansion of the statute it would be an unprecedented i think an unprecedented interpretation of the statute but we want to say that i skew to with federalism i understand an argument that there was no violation of federal law but your constitutional argument is that even if there was a violation of federal law congress lacks the power to prescribe this even with respect aliens i don't think i mean i don't see how that argument can be reconciled with an solace against rage i agree with you but i don't think i'm making that argument because congress didn't specifically say state that congress set out these parameters of whereby one could violate the law by inducing or encouraging  happens is inducement is suddenly created out of a situation that's born of a state agency policy decision that your library card example might not fit that whereas driver's licenses or you know what other things and so now we have to decide what this odd situation of indiana law whether making yourself into an l l c and then getting a license plate in the name of your company is is a problem it's certainly legal under state law i don't know of any anything anything in corporate law that makes those indiana decides that it wants to acquire cement for its highways by collusive bidding and the national government then file suit under the a trust was saying collusion is a violation of federal wall and he problem i don't really understand that example just that's perfectly standard application of the sherman act ok i think this is maybe more akin to in violence to try to force acceptance of the collective bargaining act they could charge that into the hobbs act and the supreme court agreed that the dish with the district court's dismissal that that was beyond the scope of the hobbs act that the definition of extortion did not immigration policy decision so any state agency could suddenly condition services about social security number and then efforts to circumvent that even efforts that are legal under state law would then the issues in history however i'm worried about how far your argument went through thirteen twenty four goes suppose somebody shows up at the office of his physician and says i have high blood pressure i need probably can provide medical service because i don't think that that's going to fall under the provision first of all i think that any different from providing title plates for a vehicle if the physician said no no physically i can't and no physician in the united states can provide medical service you have to go whole if the physician provides medical service that encourages the alien to remain in the united states and i think you can see where i'm going the alien goes to his grocery and says i need food if you provide food to an illegal alien you encourage him to remain in the united states your your argument seems to say that it is a felony for anyone to provide goods or services to any illegal alien and i wonder whether that can possibly be true no that's not true your honor and well then why is titling of a card different than medical service it's much more important to be able to get medical care and food to remain in the u s than it is to get a license plates for a car i think it's important to realize or are that the argument in this case is following on the in john argument where the eleventh circuit held properly titled car than to have food so if you really want to say that anything that encourages an alien to remain in the united states i think you have to say it's a crime to sell food  to give me a stopping point that doesn't get there well i think that the court has tried to read the statute in a way that it criminalizes some conduct so there has to be some level at the top right it can't be read to the to the extent to say that nothing one can do can do that and so the courts have many courts have already read this to say providing illegal social security numbers providing other illegal documents to aliens that encourages them as well to actually reside there's nothing illegal that indiana provided violate state long don't violate any federal law other than your theory about thirteen twenty four and that's why i gave you things like food and medical care because those are the legal well and if you want by the way my follow up question my follow up question is going to be the state of california now makes it perfectly legal for no illegal aliens to get driver's licenses vehicle titles license plates on your theory  every single employee of the california department of motor vehicles committing a federal felony no it is obviously not here why not because in those instances your honor it is legal to provide those services and yes was able to provide these services in indiana well it's illegal that it's illegal to form a corporation for no purpose that is legal and in this instance these corporations the purpose of owning a car is legal lots of lawyers incorporate for no purpose other than to run the business of war but nothing here showed that they were involved in the trappings of any sort of business if iran is running a business and then is using a car through that business ok that's a  decision of an indiana court saying that it is a violation of indiana law to form an l l c for no purpose other than to own your car no your honor is there any statute you rely on for the proposition that liability company may be organized for any lawful purpose and owning a car is a lawful purpose what's the problem well in this instance that it is not lawful for an illegal alien to own a car in indiana so if the  use an l l c or a corporation well the taxpayer identification numbers are not i'm i must say i'm totally from a small you whine that thirteen twenty four makes the federal crime contingent on a violation of state more first i don't see the violation of state law but there is nothing in thirteen twenty four which makes the federal crime contingent on a violation of state law he just says it's illegal to encourage aliens to remain in the united states period and i recognize that your honor but the statute that i own the encouragement and inducement pran you have to encourage or induce an alien to reside in the united states so what the courts have said is that it is that if you are substantially helping to facilitate alien's ability to live here indefinitely you're violating the statute so then doesn't think they answer my question about food and medical care by saying that's a crime if you have to answer my question about california by saying every employee grocery i buy there every week i tell them i'm an illegal alien and if if a grocery store advertised to be illegal immigrant community in mexico and said come here and you can get free or reduced price groceries and already in india just like our defendants dealt with people who are already in india there's no suggestion they're paying smugglers to get them across the border person comes and says i don't get your service or something like that all obviously have to leave i need your service i need to eat you need medical care you need a car your position is that if the statement is i need a car and the services provided that's a federal crime but it's not a federal crime if the services food or medicine and i don't comprehend why that would be understanding or i understand your position that the arguments that we have made the bent for relying on the long term effects one and the advertising and the encouragement to that's what we've relied on the court feels that that's insufficient take away advertisers it says you have a need for groceries we all supply well  general advertisement we're talking about specific advertisements that were targeted specifically to the immigrant community both to the in the to the spanish speaking community actually which might not even be the immigrant community a safe place but said to the spanish language newspaper a couple of jumps in  reasoning the government engaged in a swimming that everybody who speaks spanish must be an immigrant be assuming that everybody who's an immigrant must be illegal and we of course all know that neither of those is true that's correct your honor there are there are jumps that were made in this case those other cases you cite on the shielding and encouraging none of those cases are like our situation and you can't give us anything to distinguish i provided what i did the best that i can you know the great judge williams and so if i jail around was that any or judge would said you know look transit systems bad lot of people need a car to go to work but in cities like chicago you can go to work on the subway on the  the statute i get looks like your your theory of eight hundred twenty four covers this prosecution and nothing else similar to what in the world and that can't be an intellectually sound would order stand that structure i agree that is not  not present themselves personally to the transit authority had done them all the names of some faceless you know seven circuit l l c companies so that nobody can detect and find those aliens you know i hope that the court will not use this case to state something so broadly that it sweeps out the government's ability to do anything in those sorts of cases well occurring and of course that raises the point that your opponents have mentioned that to the extent you're worrying about concealing or harboring which is apparently not th case because a very bad case for concealing harboring when people are putting down their own names for the l l c in their own addresses and are doing you know taking advantage of this particular form look your people are arguing  the corner i mean i looked at the indictment and the the problem is the indictment doesn't ever say that the point of this game was just throughout the state of indiana of some tax revenue we don't know you know how many out of this whole number involved understatements of a value this group of people who are probably dying fairly both value vehicles anyway and  i'm worried about the notice frankly for the defendants to realize what exactly they were supposed to be defending against because if this group of people were all supposed to just out of spite against the government of indiana deprive it's of some tax revenue that's one morning of those ways all but one one one out of three well i would say they're essentially were three ways that were three lies that were told to the b m v there were the lies about who actually was buying the car there were the lies about the insurance and the really the lies about the sales tax fraud and we presented those three defendants had defrauded the state out of the things a debt of five body instructions which doting catch well money i mean it's says to fraud out of money or property you know in the first in the first point that you're on or talk about is whether this is a rule twenty nine situation or whether it's a new trial that's understood your honor and if those are the options we believe it is a new trial situation there is there was evidence presented throughout the case all of the of the witnesses two of the four witnesses who were involved in transactions told them what the purchase price was and they were told to lie about it two of them the issue was never mentioned and the purchase price of one hundred or two hundred dollars written in on the transaction there were signs at the defense business a seven percent sales tax the head of the organization said don't worry about that don't put it down this was a part of the case was that the focus of the case bill what it was in the case and it was offered as a theory you know essentially that as a minimum you know we the jury was told in closing argument page seventy one go through the purchase price you're going to see a whole bunch of one hundred two hundred obvious misrepresentations of numbers this was a theory in the case this was one way that the jury was told you can get to a fraud conviction and it is a valid theory so on sufficiency of the evidence question on a question of was there sufficient evidence which the jury could find that these defendants conspired to commit man for off the answer is yes there was and there was also a whole bunch of invalid stuff and if the court does not believe does not accept our waiver argument then the court should remand for a new trial on the mail fraud counts that would be the proper course of action in this case there was shady ness and there was fraud and there was the evidence that suggested at sentencing there was four hundred thousand dollars of tax fraud lost in the state of indiana whatever errors and whatever mistakes the government made in this case that is a loss and the the punishment for the government for its prosecution this case that was not well thought out should not be that the defendants walk free on crimes that they are guilty  i can if i don't know that there's much point in discussing the sentencing organs but i'm happy to your honor the only thing that i would say on the sentencing arguments is that if just in terms of future cases if one looks at here is it should not be the the size of the difference between the error and the end sentence that determines this court's application of promise there but if somebody we can't completely get away from that my concern with your theory is it would simply be an instruction to every district court judge always simply to say at the end of the sentencing this is my sentence i believe this is reasonable i don't care how i got there and if discussion and you would erase the entire structure of the sentencing guidelines if the supreme court constructed since booker under which there is review the accuracy of the sentencing guideline calculation and there's a sense of how to the thirty five fifty three a factors discount that frankly this looks to me like the district judge was very uncomfortable with the conviction as a whole the way down the sentence has some vague sense something's going wrong but that's not what you're supposed to do and the court has emphasized that the guidelines are really even in the ex post facto situation the guidelines that he was trying to protect against a higher got high range not a not a lower one in terms of the blanket statement that he made i don't i don't read the sentencing that way judge was if the court does then it would not be left with a firm conviction  would need to remain in the sentence but i do think that if a court says this is a sixteen level enhanced man and i've looked at it and i think it applies but whether it applies or not i'm going to impose this sentence that's maybe higher than the zero and above the sixteen in those instances the court didn't say was a sixteen not one has been this is this is too high if the court has firmly said what it means and i think if you look here court was saying this doesn't really fit well under the guidelines structure and  trying to come back and say well if you go under the guideline analysis that we do you leave out any any fact that there was tax loss to the state of indiana where you leave out any anything that shows that there were twenty five hundred eight lanes that were involved in this offense we had there's no reason to play leads were don't think that there's you've conceded that there are a lot of people who are a allianz and you know perfectly lawful allianz you don't have social security numbers this was targeted at people who had item numbers and the vast majority of people are going to be illegal aliens this was targeted toward only that is not your common sense or from reading the new york times how do we know how many i believe it at least at the sentencing stage back to the district court was able to find that information by preponderance of the evidence that b that category could get a visa and you could work out how many aliens in the united states was wholly can't get s s s and then you have to compare that with the number of the illegal aliens who put that information in the record