and in fact based upon comments that the district court has made as recently as a few weeks ago in motion for bail pending appeal it's i don't think we could say that there's any reasonable profit probability that the district court would give a lesser sentence or a lower sentence if he were able to exercise the discretion that he would now have in light of booker so we're asking i and i want to delimit my comments this morning i think we've covered our position well in the briefs but i did want to emphasize one point under the issue relating to the upward departure  a portion one of the circumstances or a couple of the circumstances that this report relied upon has to do with what he viewed as the unusually callous and extreme nature of the fraudulent conduct and i think it's sufficient simply to have their own to ask the court to look at the case of the government sites which i think when you compare the circumstances in those cases the five or six cases the government cites to support the notion that the conduct here was so extreme as to warrant an upward departure nothing that is in this case is really comparable to the extreme sort of circumstances you see in those cases and are basically going to simply it was before the district court and remains that fraud is always callous it's always harmful emotionally and psychologically to the victims of fraud and those kinds of harms have been taken into account by the sentencing commission when they have based the guidelines for primarily upon the amount of the loss and there is nothing in this case that mr bourne's conduct the part from that type of callousness and cruelty in this regard for others which is inherent in and which is part of the heartland of fraud offens would be consolidated for sentencing which had certain definite benefits for him in terms of the guidelines the second one was that he would be able to select which of the books would be applicable for the determination of the senses course now those are two significant agreements of parts of the agreement that he bargained for and that he relied upon and he was clearly banking on a guideline sentence when he entered into that agreement and now if you believe the nine hundred ninety seven version is the one that was applied in the district court based upon mr bing yes you  luck if it's correct and i really don't recall that the ninety five guideline was used for the and i don't think it would have made any difference whether it was the ninety five or the ninety seven guideline that was used for that one count agreement if he goes back and now there is simply an advisory guidelines in the court can can exercise its discretion there's no benefit to him of having had a concession from the government that he can select which of the right what's the appropriate range is what we are concerned about and we're concerned about the fact that the four point upward departure he made is not supported by by the case  that the main point i want to make on the upper departure it is that several of the circumstances that the district court relied upon number one that it was a multi year crime spree number two that he showed contempt for the criminal justice system and number three that there was harm to the casinos that was not counted in the bank fraud charges those are three factors that there's no support in the law for him to rely upon i mean certainly the fact that there that the that the crimes went over multiple years that's a very common factor in fraud the fences and there's nothing about that fact that should warrant an upward departure nor does the fact that he showed contempt for the criminal justice system that obviously is inherent in anybody that commits a fraud offense and the court also noted that some of th offenses were committed at a time when he knew he was under investigation but again there's nothing in the guidelines nor is there anything in logic that would support giving in a higher sense to somebody who's foolish enough to commit this crime where there's been a plea bargain for conduct that was not charged in the indictment and the district court cited three separate circumstances the harm to the casinos and we contend there was no harm to the c and in two thousand the sense in commission amended the guidelines to change the rule under the ninety seven guidelines under the circus law to say that whether or not there was a plea bargain the court could afford the court and in appropriate circumstances based on uncharged conduct but under the one nine hundred ninety seven guidelines under which mr bourne was being sentenced the law in the circuit under united states versus l had actually don't recall the springs were decision but i knew that you know that in effect of in two thousand the guidelines were amended to basically over and there were two there were two other state circumstances cited by the district court which the government brings to light in its brief and one was an incident where there was some evidence that in some earlier occasion mr born in his girlfriend had committed some currency violation when coming into the country and then there was some evidence somewhere in the record of an incident where thirty thousand dollars over and above the charge fraud was stolen from the to barry's his in laws and that had to do with hundred dollar bills that he took in allegedly did return and i say somewhere in the record because neither of those incidents was was actually the subject of any evidence during the course of the sentencing proceeding as was  case with the alleged harm to the casinos so we have at least three instances where the court in making the upper departure purports to rely upon con death that under united states versus lawton the court could not rely raise the objection under the two thousand and three investments to section five k two point zero at the district court level therefore the upper departure should be analyzed of plain error standard and the government's position is that you just record did not plainly air  briefs that it that these are not clarifying amendments that would be retroactive so the government does take that position but again perspective to the actual factors used by the district court the government believes that they were authorized under the ninety seven edition of the guidelines that were used in this case to calculate the defendant sentence and i will actually get to first of all with respect to the crime spree factor the defense has made arguments in its  is somehow an end around upward departure based on criminal history the district courts simply rejected the government's request for an up or departure based on criminal history instead the district court made a quantitative  d really a qualitative assessment of the defendant's conduct over really the six year period that the defendant committed the offense is here charged in the twenty seven counts contained in these three separate indictments and with respect because under the orlan decision as was required this case was originally calculated under two guideline manuals last week three the ninety five for the tax count the ninety seven book for the securities fraud obstruction case and for the bank fraud case and the two thousand and one both for the investor fraud money laundering case the defendant's guidelines for calculating now under agreement between the parties after over a year of sensing hearing defendant ultimately requested that the bulk of the charges be sentenced under the ninety seven book however the groupings were not read he shuffled and recruit under one book as would be appropriate instead the sentences remained in the original groupings that were put together under the two forth which essentially resulted in the defendant ovoid ing the vulnerable victim enhanced for mis chalky that should have been kept on top of the bank fraud securities fraud calculation a multiple count multiple victim two level adjustment that also should have been kept on top of the bank fraud securities fraud calculation as well as the multiple count adjustment and this is because the mail fraud wire fraud charges in the third indictment would have should have been grouped with the securities fraud the bank fraud charges and therefore based on that alone that's four levels that the defendant avoided based on the way this case was sentence and this is an argument that the government did make at the district court level in requesting the upward part so that's just one factor with respect to the extreme conduct  most concerned with and that was miss chalky the defense suggests that in some way the defendants treatment of this chalky wasn't similar to the case law cited by the government and the government just agrees this chalky was a widow the defendant knew that ms chalky son was defendant's employee the defendant knew that during the time period of the defendants conduct into frogging of this chalky the defendant took the hundred thousand dollars refused to return the money even after his in laws his relatives the type berries the grandparents of his children as well as the defendants treatment of the wali who are the grandparents of the defendant's coconspirator on the investor fraud case as to it the treatment of fact that defense and real treatment of these victims wasn't reflected in this guidelines calculation and find a third factor really that was relied upon by the district court in the upper departure was the treatment or the lost cause  the unaccounted for harms to the casino the defendant alleges that under a lot and this was one charge and this was inappropriate that's not true the indictment specifically indicated that the defendant's conduct was for the purpose of causing the casinos to negotiate to reduce down the defendant's gambling losses it was charged now the casino wasn't i guess a legal victim of the charge because the charges were bank fraud and ten force the casinos to negotiate down his gambling losses included in the defendant's excerpts of record is a declaration of the defendant where he admits that he settled with the hilton casino for eight hundred thousand dollars which itself was two hundred thousand dollars less than the one million dollars bank check that was deposited with the casino and of the defendant fries only stop payment on so all of this goes towards fact that the defendant knew that the casino was identifi this court's decision in mccormick in arriving at that decision and the reason really stem from the fact that the defense claim is that the indemnification clause that the defendant signed in order to obtain the replacement of one million dollar bank check was in some way evidence of his lack of intent to cause harm to the bank that he was good for the money and he was somehow going to pay it back the government takes a different view is that because here what we had was the defendant gave the bank one million dollars for what a one million dollars bank check the defendant stop payment on that and received a second million dollar check so the bank issued two one million  dollars checks under the uniform commercial code the bank was obligated on both of those checks regardless of the stop payment the start payment was simply the bank agreeing to the silicate the defendant's request that the bank not honor its