morning they please in court ever since the supreme court decided that the sentencing guidelines were no longer mandatory the supreme court in this court have consistently sa that a critical aspect of a federal sentencing hearing and determination is to deter is the good of the accurate determination of the correct sentencing range under the guidelines that's largely what this appeal is about in this case the district court came up with a sentencing range of seventy to eighty seven months by recreating the meaning of tax loss as it as it was  to it include despite the language an application note one the court in allowed penalties and interest to be included even though this case there was no  twenty six u s c seven two or one or seven two zero three charge in this case and three it the tax loss that the it that the i arrested come up with was clearly incorrect on its face because as i point out in my briefs there was double counting of income there was the inclusion of a trust that had nothing to do with what mr black was doing and so even without looking at the act adduction says some of which were filed this part of these trust returns what we had as a tax last of one of no higher than one point three million under the guideline calculations for the four counts counts one to four and five that would have left an offensive and offense level of twenty two with another two for the count that was grouped separately leading to a guideline range of fifty three to sixty one months excuse me fi fifty one to sixty three months so it's a good bet that the guidelines should have been the guideline range should have been no higher than that by in judge i'm troubled by the the idea that that the underlying lie a tax liability should be opened up for dispute in the context of sentencing for this attempt to defraud your ass with these phony checks and bills of exchange whatever they are i don't understand why there are methods by which somebody in mr black's position could challenge guideline range is dictated by the the tax loss amount to allow the wrong amount to be used is it is to take this out of the morning but the problem is included if they can be shown to have been legitimate here some of the deductions were raised some of the errors in calculating the tax amount and the tax loss are just clearly one again you have the double inclusion of of money i came up with a million dollars thats just wong on its face application notes seven and that has to do with the cut the situations that the scribe in the six circuits made decision in which the taxpayer owed taxes as a result of this corporate taxes and also owed personal income taxes and in that case the court said aggregation was appropriate salta let me come at this from a slightly different angle i think i understand your textual arguments under two t one point one as to both the aggravation and the interest and penalties and those are strong arguments at the same time i think i understand the district judges in states to say wait a minute that doesn't really capture what was going on here it let me ask were there are separate counts judge the one given to that there's there's three five fourteen a counts that are that do not include the three hundred i think twenty six thousand dollar guidance from other aspects of the guidelines like to be one point one fraud general fraud guideline that would apply to five fourteen a counts and say you know i'd i think this is worse than just sending one check not you couldn't do this without a variance you have to say here that here the guidelines under two to one point one but i don't think that's offici captures the offense is there any reason why the district judge couldn't do that if we agree with you and remained i don't think while the parties all agreed that two t one point one was the guideline judge there is the obstruction of justice guidelines it's just it's too j one point two that could have been used this is like just these things are just bad checks right i mean this is that's a that's a to be one point one kind of offense no matter what the debt is that you're trying to to get out from under right i'm not sure judge and jury in terms of the penalty interest the district court found them black willfully fail cases under twenty six u s c seven two zero want to wall for a fairy to pay cases under twenty six seven two or three as i said in my briefs it doesn't say set such as or including but not limited to so the  good morning your honor smith please the court my name is sean franz while i represent the united states the defendant presented the i r s with six different fictitious obligations each time he did so he committed a separate offense and the object of e was to deprive the i r s of the full face value of the instrument he presented those are the key factual findings made by the district court they are not clearly erroneous and that is why tax loss in this case is based on the obligations that the defendant presented to the i r s not the fees and interest that he owed the i r s the actual loss and not the underlying i r s audit the district court's opinion was based on the face value of the fictitious obligations only of the defendant's argument is premised on this faulty idea of the tax loss under two to one point one cannot exceed actual loss to the i r s that is wrong on several different levels generally it ignores this court clear precedent that says tax loss is attempted or intended loss not actual loss of the government that's united states versus hassock rock united states versus chavez but here's the key point here is the specific point we need to hone in on it's important to draw a distinction under two to one point one c one everyone agrees that that's a plot that applies as the case involves submission of false documents we're looking at the object of the offense we need to distinguish between what's what motivates someone to commit offense and the actual criminal acts that they commit the difference between why they're doing something and what they did it may very well be that the defendant in this case first of all is really no evidence of this but it may be that all he was trying to do was avoid an underlying tax debt of five point seven million dollars but that doesn't change the fact that on six different occasions he presented the i r s with a fictitious obligation and each time he did so his object was to inflict a separate financial loss that is what we look to we look to the criminal acts not his motivation for doing them and there is simply no other way to look at the object of the presentation of a fictitious financial obligation and to deprive the recipient of the full face value if there were perceiving under to be one point one i had to agree with you completely i have a little trouble since the since interest and penalties are not included for example you are make two two points the district court decided to go with two to one point one over to the one point one the parties all told him that was what he should do interact ok and that was based on this court's decision in united states versus brisson it may have been an over reading of that  i would argue that it's harmless error because the defendant is actually much worse off under to be one point one he starts at the base offense level of twenty seven and he'd probably get a two point hit after violating a court's injunctive order which would have taken him up to a total offense level twenty nine and be facing a much higher guideline range so if anything he got a break with the two to one point one but i think it was a correct interpretation of the one point want to treated to treat intended last the exact same way as under to be one point one because here we have a case that involved the submission of fraudulent documents it is the affirmative attempt to draw i guess what i have trouble with let's go back to the interest and penalties sure where the text seems to just writer it goes back to your point that even if the i r s audit was incorrect and included interest and penalties he then responded by committing a criminal act against the i r s that's what we're holding him accountable and that's why tucci one point one is such a lousy fit for this rather unusual to have offense but that's that's what you all decided to do and i'm so i frankly have a lot of sympathy for judge holderman here i just don't know but i think he could he could impose this sentence if we're sent it back he could impose the same sentence he might even be able to go higher but but it's a little hard to interpret to t one point one for example to include interest and penalties when you don't have a charge under the relevant under the old seventy two a wonder seventy two or three and again your honor the tax loss calculation under seventy two a one and willful figure to pay cases under seventy two or three this is not one of those how hard is this and i have hundred percent agree with you and that's why interest and penalties did not inform the district court's calculation of tax loss he looked at the face value of the fake checks that were sent and how that may have informed the number that the defendant put down but that that he doesn't get saved because he included interest and penalties in the fraudulent amount he tried to pay off and we don't we don't know that that's what not your honor is your business want to charge like you see one point one i'm not aware of such a case but that didn't happen here again what the last amount was based on was not on the i r s audit not any inclusion of interest and penalties it was the defendant defraud the government and the amounts that he put on the space value of the fictitious obligations we don't know that that included penalties and interest he never tried to settle his full debt what he was trying to do was discharged the liens that were put in place to secure  the debt he never wrote a check for the full tax loss amount he was just trying to on an income or his property and to disrupt the i r s attempt to secure the debt let me ask so it's completely speculative to say that that's what he was trying to do let me ask his why shouldn't mr black be able to present documents that is the crime that is the nature of the act that was charged here and the guidelines say under two to one point one c one which is what the district court settled on as the proper measuring stick for tax loss and the appellant doesn't dispute that that's because that is the nature of the case if the offense involve tax evasion or fraudulent or false statement or other document the tax loss is the total amount of loss that was the object of the offense if the object of the affair this was simply to evade his taxes you'd be absolutely right and i can see there right now but that was not the offense that was charged the offense that was charged was the affirmative submission of fraudulent documents that will soak in then that's why because all of those all those checks total for two point six million even though tax loss at least the taxes that the government of the i r s calculated were five point three five he should have to pay that additional nine million dollars because he submitted those instruments no you are he's not pay concern in the district court right because that translates into sentencing correct and but you still have to calculate the guidelines correctly and if that gives you a number that the district court judge feels overstates the severity of the offense that's just where you start you still have the thirty five fifty three factors and we encourage the district court judge to look at the nature and circumstances of the offense and see that in the backdrop there was only a five point seven million actual os the i r s and that's why he urged him to depart downward now ultimately he decided not to do we have any indication from judge holderman along the lines the following lines what two to one point one doesn't fit this very well to be one point one doesn't fit all that well you guys can debate these issues about penalties and interest all accounts come home about it under the text of the guidelines but i really but that my answer to that question simply is not going to drive my exercise of discretion under thirty five fifty three yet did he make any kind of statement like that you are i'm i'm not sure i totally understand the question if you're asked what the question is we have many cases that tell district essence you don't have to sweat the details of very difficult questions under the guidelines if you are using your discretion soundly under thirty five fifty three eight and make clear that's what you're doing and th one point one maybe one which says look to the object of the offense he made a factual finding that the object of the offense was to to bark deprive the full face value of the fictitious obligation presented then he aggregated those values as he was required  to under the relevant conduct and grouping provisions if he felt that overstated the severity offense he could have departed under thirty five fifty three a day he decided not to he stated clearly on the record why he decided not to it was not an abuse of discretion submitting those documents i mean the instruments he submitted to that amount you know was over the amount to but i guess we've gone over that so that would just be repetitive i mean do you do i and you got us have absolutely every time he submitted a check to the i r s he put those funds in jeopardy we don't know there's no evidence on the record that he was he would have stopped if he had been you know successful once he failed  going who knows what he would have done if he had been successful all we know is that he submitted six different fictitious obligations each time he did so his object was to deprive the i r s of the face value of that object we look to the criminal acts not what's assume that he would have given back if he had been overpaid i mean it's just entirely speculative all we know is the as the criminal acts that he committed and the district court you know interpreted the object of those offenses and he was not clearly erroneous in doing so a guideline that this is to address some of the questions a guideline that focuses on tax loss as it did there's the driving force in it in the sentencing range has got to got to be about  judge hamilton you raised the point that all the that i want to address the text to t one point one should have been followed did the court then have the right on up the thirty five fifty three a factors that include things like reflect the seriousness of the the the the offense to look at the whole picture and decide well this didn't we didn't just have one check set i can't argue that the court didn't have the right to proceed in that way there were certainly some positive things that i tried to point out that that mr black pointed out in his allocution that  cut another way but that could that could well have happened but that's not what happened here to t one point one has to be about tax was it