good morning your honor as i'm brett's white sir from federal defender's office representing mr right at this time i'd like to reserve three minutes of my time proving that request will be grand thank you your honors the dispute in the district court was whether a loss unhan is proper under the counterfeiting guideline probation department government the district court all said that was fine mr wright said no the the counterfeit guideline applies only a face value and hanson and if the district court sees this as a primarily a fraud case then it need that should be driven by loss calculation then it needs to sentence under to be one point one the fried fraud guideline in its entirety now the government on appeal in his really as it's been boiled down in the various is is that in fact what happened in this record and if so is there a problem that will assume assume for the sake of discussion that the record doesn't show that that happened that the record that the that the district court overruled the objection put forward by mr right and step one in calculating the guidelines applied the enhancement even though the face value of the money was four hundred dollars let's just for the sake of discussion say that that's how we read the record since this record said in the next breath this is what i'd be giving  alternative guideline range what that would be and then take a look at whether a departure would be justified and on the record justified departure from that alternative lower range and none of that has and the reason for asking a one let me put it this way what what would the district court say different if we sent this back i mean assuming that you're right and this was error procedural error what would we be asking the district court to do or say differently then he said when he expressed look this is really about the fraud piece of this not about the face value the money and so i'm going to look at what problem here the departures legally impermissible here and that's because the commission took a look at it for seventy two which is the can the fence a conviction here which is possession of counterfeit instruments with intent to basis of the last departure is that well you know the the guidelines here don't properly account for a loss in this case so i need to depart and that's just not true because the error here is that the guidelines say if the district judge looks at a case under four seventy two and decides this is really a fraud case not so much a counterfeit case that law should apply a loss calculation should be done it's to go to to be one point one and there are the basic fence hundred dollars then then the just record should have applied to be one point one should have calculated the bends the base offense level to be lower than nine and then applied an eight level on hansen and that would have led to a lower guideline range than was calculat without a motion i believe it could your honor sure they do it all the time yes well on the sure they do it all the time they vary but can a depart to a spot that without a motion i can't find a we've written on  that anywhere i think it's debatable i don't i don't know that there i mean certainly the better practice would be a notice requirement for that and and there may there may very well be one in reality here i think the absolutely was no departure in the district court and moreover there was you know even if the record could be read that way it's just plainly eroni it's under the one b one  sentence for seventy two case and the judge here reading the record the judge it's a fair reading of this record to say that the judge was stung by the fact that this wasn't really provision well the district court would have to choose a guideline between those two not ok as between the two guys we think the way this case was presented to the court was charged this was not charged as a wire fraud it was charge of the fourth seventy two the government or going to be five point one we think it would be proper to like to be five point one here and just not applying enhancement and what the judge doesn't step three that's another matter not before this court this point now there's certainly an argument that two people one point one ought to imply and said but if it does step two departure for loss would be improper why because the mechanism that the guidelines provide for accounting for fraud loss for for seventy two conviction is application in toto of the to be on you can always departed step to the ok i mean what does five k two mean if it doesn't mean that there are unidentified circumstances and that the district court decision is free to recognise him and to make a judgement about that the commission identified the circumstances in appendix a and it set up for seventy two case might be of a fraud type case might be a counterfeiting type case and if it's a fraud type case it's a mandatory requirement under statute and under  brief and saw that for for seventy two violations the commission recognized that there might be some cases that are that sound in fraud and for those cases you'll claim to be one we want you don't sort of take the the the most the the harshest elements of to be five point one namely the base offense level combine that with the harsh element to be one point one the loss in hits and put them together that there are no frankenstein islands here i mean you can't pick and choose and put together and the commission recognized in appendix a and i believe that's where the error started it was the court is another question morning may please the court roberts as more of a half of the government the to answer judge jordan's question specifically what with the court say differently if this were sent back the court would say the word depart which it did not say but what it did say very clearly on the record is it said i don't think there is any question that the sentencing commission never anticipated the situation that we have before us this is something new ok no respondent t something new the government has ignored and this and the judge just missed well it is different from what from anything that's in the guidelines and here's why it'll take me a couple minutes of playing this because it's technical with the courts indulgence the guidelines are set up there are two it does give a choice of two different guidelines to be five point one is addressed to counterfeit and to be one point one is ordinary fraud the commission has clearly made the decision the counterfeiting is worse it's an aggravating factor at any amount of money the guideline level for counterfeiting is two levels higher than for the same amount of money involved in an ordinary fraud so the commission says if you're involved with counterfeit altered forged currency that's an aggravating factor even though at bottom of course counterfeiting is a for it's an effort to pass something that isn't what it is to get merchandise or goods or services that you're not paying for but there's that aggravating factor that leads to a higher offense level now in this case what we have elements of both we have the use of altered currency in that mr right at his and his compatriots were using for altered united states know we we know the facts but the mr so it's waitressed point that would be true of every case wouldn't it in which the court if it's if he's accurate in asserting what appendix a says that the stat that the sentencing commission recognize that some cases involving counterfeiting actually sound in fraud and in those instances you should look to be one point one that is assertion about what's that's repents a means how can it be that this is something that the sentencing commission never thought of because here we've got a case it sounds in fraud it involves counterfeiting and they talk about that in appendix well it's simply wrong and reading way too much into appendix  to say that this represents a judgment regarding black money which i think we could all agree is a sort of novel fraud that the sensing invention wasn't directly addressing it does say to be one point wanted to be five point one but the notion that my friend posits that you cannot have a departure from appendix a is simply wrong the history of that is it actually started from a case in the third circuit there was a case in the late ninety's i think it was called santos but i can't tell you that for sure but involved the money laundering guide and this court held that the district court had discretion to look for the right guideline regardless of what it said in appendix a and they sense a commission promptly amended the guidelines to essentially reject what this court and other courts have he and say no you always start with appendix that you must calculate the guy find that stated in appendix a and then if there's something different about the case of course the normal departure provision applies in the exact circumstances judge savage it's something the commission just in a contemplate so it reads far too much into appendix a to say that it's a mandatory provision from which there cannot be a departure that's simply wrong under the history of the guidelines and how this is all come about acknowledging that the government's position here lacked the clarity that we would like it to have but what we're here to do is review what the district court did and what the district court said was i don't think there's any question that the commission never anticipated  submission to this court i agree it's not the clearest record i don't want to oversell this to the court that my submission is that if i were to stop any criminal law practitioner or a judge on the street and say pop quiz judge said here's a question that the sen commission never anticipated what's the judge talking about the answer is departure that that defines a departure simply without using the word will in wouldn't with the district court judge have had  fact held the objection and part that would make for a clear record those are the words that are absent from the record what the effect of what the judge did we submit is very clear steal one hundred thousand dollars from people they were trying to do this our post booker jurisprudence allow for us to uphold this sentence were the word the porter wasn't used  is in fact what happened here fall into the realm of procedural and reasonable no i think that this court could up hold that this case is on the line obviously as i've acknowledged but this court seven cooper and a number of other cases that it's not going to hold  district court to specific exact language this court has recognized that sensing decisions like any district court decision take place on the fly and they want to always be the same precision of language that one would find in a written opinion and i think case if you would smally because in effect what you're telling us is this is harmless or right i mean when you say this record isn't that clear the problem i'm having is i think it's pretty darn clear it's pretty clear that stuff one he said this is what i'm doing and you're not supposed to read it stuff want so for all your effort to say well what he really meant was aren't you really saying it's an error but it's harmless well that's not the argument i've been trying to make if that's where i've left with your honor then and that's where i am but but no i think that the court used the exact terminology of a departure and simply didn't mention the label that's our position if if the question then is can this be harmless again they answer would have to be yes given that it's so clear what what the judge said smally is different and smally we actually agree with the with the defense view and it speaks to another issue which is later on in the sentencing proceeding the judge says and by the way i give the exact same sentence regardless of the state level agrees smalley's speaks directly to that and we acknowledge that it rejects that the court would have to go through the three step process as to the alternate sentence without the a level enhancement so if we if we disagreed with you about the import of the record and we saw it as the district judge doing it step one something he was required to do it step two you'd  certainly if this court believes that it's best to do this again and then we will do that again the i also want to address church sister's question about whether a court can depart suicide the answer is yes that the court is required to give notice and so that would be based on the position i have given to the court that is another aspect of error here which the defense has not raised the court is required to give advance notice of a departure it's in will thirty two it is not required to give advance notice of a variance which the supreme court has has directly hell and so there could be an objection here that the court did not depart it would be subject to review for play there and there is no play in there because what the judge did in giving this exact level of handsome was certainly well aware everyone everybody was where nobody came into this hearing unaware of what what what was it issue and so i don't i perhaps understand why the defense is not argue that but that to be completely open and honest that is i think the the answer to your honor's question but again i want to get back to my most important point with the minutes i have left which is that this case does not involve only altered currency and it does not involve only fraud it involves both and that's what makes it unique that's what why the district judge was right when he said the commission hasn't addressed this if all the defendants did was come in with a box of black paper and say here's one hundred thousand dollars of u s currency would you like to buy it from that would be only fraud they did more than that they came in with altered us bills and played around with these hundred dollar bills to try to perpetrate their fraud that's where  be five point one comes and says you are going to get that extra bomb that because of the aggravating factor of using an altering united states currency that so that's why when you just look at appendix a it doesn't get you to this case appendix a perhaps suggests that it used to be one point one where she's just a fraud involving fake doc used to be five point one where it just involves counterfeiting but what do you do when it involves both and that's where the district judge here said i don't think the sentencing commission has addressed this but if they had it's pretty obvious what they would do they would apply the bar from two p five point one because we have altered currency and they would use the last table because of the fraud that's fact the fact is these gentleman tried to rip people off one hundred thousand dollars and we can't imagine that the district judge based on what it said or anything else is going to say it's going to sentence this is if it were for other cases it's not unless the court has for the thank your others this isn't a four hundred dollar case but that doesn't mean you monkey around with the guidelines calculation is the court was perfectly is perfectly well suited on appeal to look at this case and say i'm going to you know apply to be five point one and i'm going to tell for some unusual circumstances here and step three and then we'll see what happens there the court could also say and i and appropriately probably the to the one point one applies and i'm going to  properly but we shouldn't be mistaken here this is not a situation where mr right is trying to come in and play fast and loose and find a crack in the guidelines so that he doesn't get a guideline sentence that the district this particular facts doesn't come up to mendis lee amount there's probably half a dozen cases reported on it but really the issue is you know is it so unusual for a counterfeiting type activity to be sentenced under the fraud timeline not at all if this court were to look at thirteen forty one the classic fraud we offer on statute that statute for him it's expressly counterfeiting frauds when you repassed money or property all the language everyone's the there is a an aggravating aspect whenever counterfeiting is and that's why you've got the specific counterfeiting guideline and that's why it's appropriate to start from that base level this is something that  but that's doesn't mean that you get to sort of pull together different pieces of guidelines and apply a range that just doesn't exist now as to the harmless error i think your honor the court has held since booker that a error in the guidelines range sends the case back i'm regardless of whether that where the sentence is below or above in the middle and it would require a lot of a lot of overturning to find