mockery here are likely yes yes good morning mr lucky whenever you're ready sir very good your owners please the court i would i represent jonathan kirsner in this case and i would like to reserve two minutes for all right go ahead thank you investigation that span the number of months i think the government proved up three or four transactions which led to a an actual loss calculation of a bit north of fourteen thousand dollars so mr lockwood you were familiar with the facts i think you'd be in everybody's best interest if you focused on the last calculation yes what you addressed that or human st and what issues you take sure the the the last calculation really in this case depends upon the the so called intended had many many points in his collection and some of them if they were genuine would have been in the stratosphere of a value of a counterfeit coin the course soon that he would at some point in the future attempt to sell all of those coins and further then he would attempt to sell them for a value approximating what the government expert at the sentencing hearing justified and that's really made that made an assumption a further assumption that mr kirschner knew what those values would be those are all assumptions that the record really does not justify fining mr kirschner never attempted to sell anything beyond these very low priced coins that he marketed and the actual transactions we know about the pre sentence report said that there were records found in search of his house that suggested a much larger number of sales but the average value on those sales into the government's calculation was ninety dollars  r and when we have that as the factual background of what mr person actually did there's really no basis to take the leap from his actual the actual losses he attempted to or that he actually inflict and to a point where we go up to thirty five million dollars and even north of thirty five million dollars to suggest that that was his purposeful subjective intent you suggesting that the law should be kept as if the amount of fourteen thousand six hundred dollars well what what i think i have to suggest given the presentation that the defense council made at sentencing is that they they had their own expert reports where they came up with what that experts thought were some reasonable from it it seems a great leap from that inference that the expert came up with some kind of a reasonable view based on his decades of experience in the numismatics field that that somehow would be within the consciousness and within the awareness within the intention of mr person and what we're trying to do here is to penalize wrongful intent and penalize it to a sensible and reasonable maximum perhaps but how to translate that expert's view of the of these particular points i think there are probably twelve points really an issue here the nine points that were two million dollars apiece according to the expert of three there were eight million apiece how to translate that into an actual the judge accepted those calculations he said those calculations of the i will point out that the defense counsel i think in a very able way showed that it was an unrealistic kind of assumptions that the expert was making for reasonable in rejecting your contention that he intended to sell these replicas and the district court was not clearly erroneous in finding he intended to sell them as real coins the all only evidence you tendered was how much they would sell for his authorize replicas so if we remain and we say a twenty three percent haircut is not a reasonable methodology how can the district court figure out a number on remained if the not taking your number in the report they're not taking the government's twenty three percent haircut house district are supposed to figure out how much selling these coins as genuine how much that last figure would be and i think it's a very difficult errand for the district court and it's i think the in the exceedingly high guideline range that came from this thirty five million dollar figure when there's really nothing but speculation for people to engage in terms of what would be the purpose  conscious object of the defendant in all these circumstances i think this record allows that kind of calculation is not after all the government has the burden of proof and there i think one of our cases says that the defense in these cases may have some burden of coming forward but in the end the government to raise issues in the end the government has a burden of persuasion that does not go away and you see us now you have the government has made it i don't know i think i think the evidence that they not a crime to buy these counterfeits it's not a crime to have them it's a crime to mark them he never did he never offered them to anybody and so we're essentially analyzing him for something that he never even attempted to do and remember this is to is the requirement that the government show it absolute conscious purposeful object to inflict this particular level of security or loss even though the infant did not succeed in doing so it seems to me that think up to two million dollars in the writing of banks and the check kiting scheme basically in the end he attempted withdrawals of four hundred thousand he succeeded to the tune of one hundred and sixty thousand dollars and that sensing there was a contest about what ought to be the intended loss if you will and the court said well we're going to we're going to two million dollars because that's a level of checks that's the amount of the checks he wrote he wrote those checks and he deposited them in the banks he took these affirmative steps with respect to those items that would add to that figure mr kirschner never took any affirmative steps with respect to these counterfeit coins where the genuine variety was in the millions of dollars worth that's with those but certainly true that his bail was revoked for taking all further steps for but i mean isn't it true that his bail d was revoked for violating the terms of the supervised release it was tethered to going to reading it was a violation and my recollection of that is that he engaged in some kind of activity either trying to make another sale or at least gathering some materials to do something yes i think that's correct so st of all i think given your honour's questions and it's him it's important st to state what the appropriate standard of review is here and that is as some of your your hono previous question suggested clear error this is a factual determination and this court's prior cases are quite clear that the determination of an intended loss amount is a factual there's a problem with that also supporting sophisticated means enhanced meant which requires the end defendant intentionally engaged in the conduct but he didn't create this package in himself so so maybe that helps evaluation but that cost some problems for this if it's the basis for the sophisticated means enhanced well certainly your honor all that he can create the package and he used it and he used it in his fraud and to use it to do you think dems additionally he did evidence of the record that he thought he could get a twenty three percent discount even as the market value increased a thousandfold well your honor what we have is only his past conduct and what we have from his own invoices and from the sales that he actually conducted with what i'll call the mine was that he took approximately twenty three percent off the fair market value and taken as an a case now we have these kaiser deference issues how is it that intended law is a reasonable interpretation of laws so your honor i don't wish to sidestep that question but what i do want to say is  with respect to been a senior question about a conflict between the application notes versus the text of the guideline as your honor may be awareness here came out well after briefing why not well that several weeks after briefing w argue that it was a reasonable interpretation of loss so i am your honor i would i would argue that it's reasonable but what i would request is that we be given an opportunity for supplemental briefing on that issue as it is and your answer was well that's what he called his previous coins or the twenty three percent discount but can you explain how it's reasonable to just carry over that twenty three percent discount from one hundred dollars coins to multi million dollar did was reasonable given the evidence that the district court had in front of it at the time and the arguments that were made to the district court at the time and what did you say court had was as your honor noted a burden shifting analysis the government came forward with the crew especially the evidence to prove by a preponderance of the evidence what this intended loss amount was and i think it was i'm not sure i did the deeper analysis here but maybe you can help so what i will say is that the record before the district court we didn't have as my a court and points out and  as judge b this points out in auction we didn't have a completed attempt were a mere attempt to sell the very most valuable of the coins so we had to do that and the district court had to extrapolate from the sales in the parking lot of a costco literally selling out of his car and folks who meet him in a box store was it a reasonable extrapolation and the generic and the judge is i don't remember the record said the that established a pattern of sales is it reasonable from that pattern of sales in a box store to extrapolate that this individual had the ability intent whatever to sell coins the saudi royals so your honor faced with a situation where although it might have been really impossible for her and mr kirschner to sell coins for eight million dollars we have a situation where can just because it's impossible for him to get it doesn't mean he's not going to try to get as much as he possibly can supplemented by the commentary that if we disagree that the twenty three percent haircut is reasonable what would you do on remand to establish a more realistic salutation well i think that the record what may have to be supplemented if your are disagree is with the mechanics of the calculation i mean i think that leaves us in quite a difficult pickle ronna and that these types of mechanical evaluations really are the domain of the district court with all of the evidence before it and you know if we want to come up with some other method of calculation or some other type of calculation i'm not sure we're able to do that on the record as it currently exists and that was the record before the district court and since what we're doing here is evaluating what whether what the district court did was reasonable i think were  it's my job here on appeal to attempt to uphold what the district court did here and i think given the expert evaluations i mean i'm not sure what has or what other recourse the district court had here unless you wanted to just simply exclude those extremely valuable coins altogether and that didn't seem appropriate in that there was every indication from the record that this defendant intended to sell each and every of his coins he  honor your rebuttal to my friend thank you very much i just want to comment on this impassibility issue has raised in the application of the fact that there might be some impossibility aspects to a record does not solve the initial problem of what the actual subjective intent of the defendant was and i think if you look at the two examples that the sense of commission puts in the application now which one of us i think can agree in the wake of nasser we need to look carefully at the wording both of of the agency regulation guideline and the application and apply the doctrine of when and when we should but if you look at the two examples that they give one is sting operation where there's no question for the defendant to be found guilty or to plead guilty he has to agree that he said that to a particular plan to steal a particular song it's a mythical fictional amount  existed it would be impossible for them to actually impose that loss but he was he signed onto a plan to do that i mean in the same kind of way that you can say about mr gave he signed on to a maximum face value of all the checks  dollars it turns out he has only a two hundred one thousand dollars policy and wants to argue that the maximum he could have imposed as a last minute you have two thousand and the court says no we have we have the evidence of your intent right here this is what you meant you filled out insurance