the starting at the beginning just a brief argument when in a situation like this is a ninth circuit step in situation and i cited that case to the court when there is a great disparity  sentence because one charge of conduct the court looks to clear and convincing evidence that's the standard the judge judge right at the sentencing hearing even though we briefed that issue clearly knowledge actually at the bail hearing what i asked for bail out appeal and that is echoed in the pre sentence report and i cited part of it to the court where the probation officer said they have and i'm quoting the probation officer has no way to establish which if any of the submissions were legitimate and not part as a probation officer indicator has to be it has to be based on you don't have to try every case i'm not asking for that every claim but there has to be a reasonable basis for doing it for considering this is some of the if if i'm right if i'm right if our position is right in the sense of someplace between probation it could be as little as as little as  probation the the judge with and without really any basis assume that every one hundred percent of the bills were were inappropriate there was just no basis for that and we had judge wright even said that intended losses to medicare of at least two point five million dollars and despite the just records apparent misgivings during the bond hearing two months later or three months later there is no basis to alter the district identities and provider numbers were stolen but that would be that there's a very fine correct me if i'm wrong the difference between the getting it over two point five million is about what twenty five thousand dollars in other words if we want them forty one thousand you're out of my locker because a mathematician says that's about eight or eight of these wheelchairs so it's very very also and his mathematical way said that that would mean that something like half the show the nineteenth seven percent of all the wheelchairs were were fraudulent and i believe that the government did that by overwhelming and when there was there was a significant for joel and scheme but we're dealing with we're dealing with these guidelines i advise areas they may be that that turn in this particular case where or where a minor error i mean the difference between us a much more harsh sentence and a much more lenient sentence this becomes sort of troubling well your honor this court held in prepared to bring in beneficiaries for whom the wheelchairs were medically necessary and yet he put on no evidence at sentencing that any of the this there was this box of documents which he said he delivered box of boxes and i remember you had pursuant to your subpoena on the first day of trial did you ever look into those documents would they will they be any value in trying to to get a more precise amount your honor there were hundreds of beneficiary files that were missing during the search in fact i believe seventy one percent of the files that should have been at colonial pursuant to medicare regulations were not present of here at least he's running some additional files but there's nothing in those files they could have proven whether or not thought he said you know to look at those files it's my understanding and i was natural counsel it says on the record that they were not examined well and might have i mean that's troubling am i'm sympathetic when he didn't keep records i mean there's a may not technically you didn't look in the box well your honor the files that were present during the search had been altered there were photocopied signatures there were six hundred seventy photocopied signatures there were white outs there were altered dates  mediately upon conviction and so there was time to look at those documents if there's an issue as to the amount and probation that's basically saying we can't we can't be sure and you're talking about forty one thousand dollars difference between between a higher and a lower guy i'm on guidelines and she'll have plenty of time to look at those documents to see whether they were useful to you again your honor but the burden is on him to show which sentencing purposes if not rebutted the evidence shall constitute sufficient evidence to establish the intent did last by a preponderance of evidence however the parties may introduce additional evidence to support arguments that the in response to defense counsel's arguments that state was the standard and that we had approved by clear and convincing evidence judge wright said and these are quotes i'm fairly convinced that was it of records pig sixty i'm fairly well convinced that certainly over two point five million of the three point three million that was billed was fraudulent that's a page sixty one he also said based on what i've seen the intended was greater than two point five million dollars everything i saw during the course of the trial they're away convinced me that that is what is appropriate and those were all comments in response to defense counsel saying that we had bond hearing where he seemed to be second guessing his earlier decision his comments were i think there was ample and overwhelming evidence that mr graham berry and was in the business of defrauding the government fraudulent he failed at home assessments when he never even went into the person's residence the fact that he purchased serial numbers of wheelchair or you're when you're saying is that absolutely clear that that every single wheelchair that he that he sold was was illegitimate and as the court recognized we don't have to come in with three hundred beneficiaries though i understand that but but we only forty one thousand just to get it up to their god no actually the probation department in this case asked for a lower and handsome and they asked for the one between one and two point five so the judge was not just going along with what probation said as he said i was present in trial i'm not suffering from the same disability that they were suffering from as how you're defining legitimate when that would be medically necessary for the beneficiary and since that is how did you prove that they were medically necessary the beneficiaries came in and said that they did not need the wheelchairs the prescription how many and said that there were four beneficiaries who testified but we also showed that there were is dr johnson testified that he wrote prescriptions without ever seeing people he sell them to them the other trial counsel is no longer with the justice department but from justice not from the local ses office we have a health care fraud task force that's located within los angeles they work for department  justice in washington but they were physically based in los angeles they live here has had a similar case recently that involved in actually very identical case there's a lot of parents here right right now unless the court has any additional questions i thought that that the had i thought that the health department cleaned that up there has been there has been one improvement medicare no longer reimburse is for the entire cost of the wheelchair all at once i believe since january of two thousand and eleven the a man is now billed over a thirteen month period so some of these companies had been operating for six or eight months then closing and reopening under another name and that can't happen anymore where like they'll get the entire first minimum so medicare has improved this situation do you think