good morning good morning your honor may it please the court elizabeth richardson royer on behalf of john the briefing in this case raised a number of issues and this morning i plan to focus on the above guideline one hundred  twenty month sentence which fall on both procedural and substantive grounds and mr boone was sentenced on the fraud guideline section to be one point one which among all the guidelines skews higher then the district court's sentences imposed around this country so fifty percent of fraud defendants receive below guideline sentences less than two percent receive sentences above the guideline range and of those two percent the median increase is just seventeen months so by comparison in this case mr b received a sentence that was more than fifty seven months above the top high end of the guideline range more than twice the middle of the range so his sentence was more than three times the median increase of the less than two percent of fraud defendants who receive above guideline sentence so just to begin with we're talking about a very substantial upward variance so let me ask you this though because you know some a lot of white collar criminals don't have prior records your client does and so would it be your position that your clients misconduct including his convictions are insufficient to support the district court's upper departure yes your honor  and so the guideline range in this case took into account to his prior criminal history and he had a criminal history category of three which led to the guideline range in this case so that's accounted for and this isn't a double counting argument but his conduct in most of those priors happened before nine hundred eighty nine when he was under the age of twenty six his conduct was not such that it took him outside the range of other fraud defendants who defrauded a similar number of victims with a similar loss amount with a similar criminal history there just isn't anything to take him outside the context of a of a typical fraud case you're not making a double counting argument if the only reason that the judge had given him the higher sentence was the amount of the loss would that be a double county if not necessarily your honor and you know it was a significant loss as well it was a significant loss as well which was what led to the guideline range and the problem here is twofold the problem is first of all that the district court did not get a sufficiently explain what led to this extraordinary sentence to allow for adequate appellate review the court said first and considering an above guideline sentence primarily because of mr boone's a counter claim against one of the victims later after back and forth as the court is aware mr boone executed the satisfaction of judgment in the district court said this basically puts that to rest and so the explanation that the court  steps towards the victim v a the district of no longer going to do the maximum so he did i guess he gave half of the maximum right so he did reduce it in conjunction with  e statements and the action correct your honor it was within i mean certainly well below the the back some of that was allowed the problem is that that was really the only reason that the district court  imposing an above guidelines until he gave a fairly extensive explanation of his concerns and deterrence and the long history and the like noted some of the three five three eight factors as well and so since the guidelines is only discretionary there would have to be something seriously wrong i mean i think we've we've held above line since it's substantively unreasonable just a handful maybe two or three cases y have a very extensive history of fraudulent activities i think the main problem here substantively and procedurally is that there was no recognition of the need to avoid unwarranted sentencing disparities and so when the court gave  explanation there the court didn't attempt to address that factor the court never explained what made this case atypical well just if ok i haven't you know of course we don't see the realm of all cases and you've given some statistics but it does seem to take a little bit of chutzpah to sue the victims of the products that you're charged with and then take a judgment against them and go and i think on the one hand the court was saying that that really bothers me i mean it's like you know you poke me in the eye but then you turned it to so can that be considered certainly it can be considered and perhaps it would have supported the high end sentence or even as the government who was no fan of mr burns was requesting an above guideline seventy five month sentence but this fact alone doesn't explain this extraordinary variance which is really outside the realm of normal sentence for fraud cases particularly given there's a question is it your position that there was probably an error in sentencing because who judge didn't set forth what the medium sentences for this type of fraud were and explain why he was departing from the review sentences yet because of my next question is going to be give me a case that requires the judge to give th done was simply not reflect the median and that were my argument i would say maybe that's not plain error but that isn't what happened here the plain error occurred when the court failed to provide any adequate explanation and then there's a disparity and then explain why the disparity of hers he must start at the guideline range and then explain the basis for the sentence and here the court started at the stat max it worked its way down so it never even considered the guideline range that we can tell from the record certainly fail to explain the upward variance of more than fifty seven months so in his mission is that it is plain error but if the court doesn't find pla procedural error the court can still find that the sentence was substantively unreasonable as an abuse of discretion because despite mr boone criminal his ancient criminal history mostly more recent misconduct there isn't anything that makes the take this case outside the realm of the typical fraud case such that this sentence is supportable you want to say for rebuttal thank you thank you good morning your honor anthony brown for the united states your honor sir i want to just correct a couple statements that the opposing counsel made correct i think i want to add context to them first of all the court required to evaluate the guideline range as a starting point for any sentencing in a criminal matter in the court did that on excerpts of record nine through eleven that was where the court started it's true that judge wright said he was contemplating a sentence at the  close of the statutory max i think he said just shy of the statutory max but he clearly looked at the guidelines and calculated the guidelines first in the first of the four hearings and then calculated them again in the fourth of the four hearings that were held here  as to the criminal history in this case the truth of the matter is that the criminal history calculation of three that judge wright determined did not actually capture the full criminal history of this particular defendant and that's because all of the while i think three of the four of his prior convictions did not receive any criminal history points and so that was one of the factors that the court considered when it was looking at the at the reasonableness of the sentence in this case defense counsel repeatedly in the briefing today has argued that judge wright did not provide an adequate record for the sentence here but judge wright actually provided a very adequate record for the senate's over and above the four hearings that were given to mr boone on excerpts of record one thousand and one nineteen judge wright ticked off the thirty five fifty three a factors and then provided a very thorough description of the factors that he was considering in varying upwards in the case that in q included the use of fabricated records to deceive victims into believing that the websites were generating income the use of several aliases to escape detection by law enforcement the five year span of the crime and this is not a factor that he calculated out on the record but it is something that he considered over the course of the five years the actual loss in this case equaled essentially a salary of two hundred fifty thousand dollars a year now judge wright did note during the sentencing hearing that this was not an aberrational event for mr boone this was not i think he said in particular it wasn't as if he had to make payments on his mortgage this is something that mr boone did over five years the judge also mentioned that the loss in this case didn't capture the full scope of the fraud if the court looks at the p s r you'll note that  the restitution amount here was about one point two five million the intended loss was calculated very conservatively it was calculated at one point nine million based on contracts that were signed by both parties but if the court calculates the discussions of the amount of fraud that mr boone had or i'm sorry that the full contract amounts that mr boone talked about with the victims they go i'm close to four million so calculating even the intended l here somehow manages to capture the full scope of the fraud that mr boone was contemplating over those five years the court also mentioned his prior convictions for thraw fraud theft and perjury the fact that he had a pending theft fraud and embezzlement charge against him that was filed in santa clara county court and that was filed during the time that he was on pretrial release the court mention the fact that during pretrial release the court had to revoke his bond and detain him because mr boone lied repeatedly to pretrial services and when he mentioned at least you can give the satisfaction of judgment boone came up with a says fraction of judgment and then the judge said well that's not enough so isn't isn't there some basic element of the unfairness of moving the target here no your honor in fact that's not exactly what happened that the judge did say mr boone i want you to do something about this and what happened over the course of the next three hearings is that ways that mr boone could rectify the fraudulent lee obtained judgment that he well in fact it wasn't a judgment let me go back to saying earlier which is the parties realized during the third sentencing hearing that in fact no judgment had actually been entered in the state court action and so although judge wright had suggested that mr brown get a statement a decision i'm sorry a satisfaction a judgment what they were really contending with was a statement of decision that had not been converted into a judgment in the case so at that point what mr boone suggested to the court was that he would file or fill out and hand to the victim a statement a decision which is in fact what happened and then judge wright said well that takes care of that victim and then as judge a could have pointed out earlier judge wright actually you know sentence mr boone to significantly less than he had contemplated or talked about at the beginning of the sentencing hearings so what he did was a declaration that said that in the event that any judgment was entered he would never seek satisfaction of that judgment and i think that satisfied judge right at that point but you're saying judge wright started out as if i'm understanding your argument you're saying he was started out in a sort of talking aloud to the defendant and said hey i'm thinking about giving you the max of twenty years right now and i'm really bothered you know if you want to help yourself one of the things you can do to help yourself to move me off that mark is you know don't you know get rid of this that you know don't additionally harass this victim that's already lost money and now you have a judgment against the victim and all of the implications so that there are some it gets continued in their efforts that to kind of breach that and so then it goes down from twenty to ten right that's correct and so i think you know the court has to look at what happened over the course of four hearings here sentencings are occasionally and actually frequently fluid matters because issues come up that have to be dealt with on the on the fly sometimes claims are made and it's not entirely clear what the factual basis for those claims are this is a perfect example of the flu of the senate thing that happens in a criminal matter when he kind of talked out loud he said this really bothers me i think he and he's right to do that it's one of the factors that he has to consider under thirty five fifty three a the history in characteristics of the defendant and judge wright was talking out loud he clearly indicated to mr boone that this was a factor that disturbed him and he gave mr boone an opportunity to correct it in the end defense counsel is claiming that the judge bull mr boone into giving up that claim in fact i think what happened is judge wright gave him a choice he said we can move forward you don't have to take care of that but it's certainly going to help you out if you do and that's perfectly legitimate under thirty five fifty three and it's perfectly legitimate under due process or however else his claim is is for him to make it back to the substantive and reasonable this issue you are going through some of the things that a stroke or considered but to the extent those were captured in the guidelines of criminal history and the like you still end up with the sensing commission's recommendation as is the the guideline range and the supreme court has made clear that the further you are over or outside of the guidelines range the more explanation of why it's different that what the guidelines what the commission was thinking a court needs to do what where did the district court indicate why this of fans was different than what the guidelines was was capturing what was it any of the things you went through earlier over they had already captured in the guidelines range some of the factors were captured others were not as i mentioned earlier much from mr boone's criminal history was not captured in the guidelines because it was too it was too old so it didn't he didn't receive criminal history points for that but rightly so even so under thirty five fifty three the court can take that into kids in should take that into consideration especially where as here mr boone has shown a pattern of crimes that involve fraud forgery embezzlement and dishonesty so that was one of the factors that judge wright noted another factor that he talked about was the scope of the fraud and i talked about that earlier how the guideline range actually was calculated very conservatively in this case the repeated what other factors that he mentioned that are not captured in the guidelines involve the repeated violations of his pretrial release and the nature of those violations he was dishonest with pretrial services both about his use i see my time is out should i think you're both about his use of the internet and about the fact that he had his turn his employment had been terminated and  then finally the court did not impose a sophisticated means enhanced but in this case but talked about factors that could have supported in this sophisticated means enhanced it including the use of multiple bank accounts and aliases thank you honors i want to touch briefly upon the judicial interference and sentencing claim only to explain the judge really wasn't satisfied and he said you know go ahead do it your way it's a lovely piece of paper i wanted to have it vacated looks like once again the onus falls on the victim if that's as much as she's going to get fine i mean over and over again he indicated that what he had wanted was for mr green to file a motion to set aside this is the statement of decision which didn't happen so he wasn't happy with the result and that is one of the factors that this court and gonzales melk or you know explain was the the reason the judges shouldn't participate in sentencing was the risk that a judge will want something to happen will ask for something to happen and then that the ill will toward the defendant will arise when the defendant is unable to perform which is what happened in this case and then i just wanted to before i run out of time certainly mr boone's convictions were older some of them were not assigned criminal history points but what i think maybe  that although he had a prior criminal history he had never served any time so it wasn't a case where you know some cases the judge says a five year sentence wasn't enough to deter you in the past so i'm going to give you more this is a person who had never done any