may please the court counsel daniel helis for the federal public defender's office and this time for julius peterson he raises but two issues and the first is the sophisticated means enhanced man while the facts are reviewed for clear air application of the guideline is review didn't overall and so we take issue with the government's assertion the standard of review being for clear air it is not we've traced through the courts history on this subject and i hope that it's been convincing to the court that the government's position is wrong in light of the cases we cited and also to say how do we have one guideline that's reviewed for clear air and all the other guidelines a legal matter a review that disconnect cannot be possible under the guidelines under the whole framework that we have in guideline jurisprudence so the standard of review i'm a legal question is do novo i'm to the  with its kind why isn't that man we are a strong person was used to issue the cashier's check and the identity of that person was next represented its being an sounds pretty sophisticated to me well you got out riposte with the government's brief where it says a page twenty that it doesn't dispute the defendant might calmly provide a buyer's downpayment and pay a kickback in mortgage fraud schemes so this seems like the garden variety fraud the government says that the way that this was done makes it more atypical but there are judicial determinations to show one fraud being garden variety the other fraud being notably more intricate we only have the government's interpretation and its assertions through its pleadings we don't have findings by the district court which are of course essential for a correct application of the guideline enhancement so i think that's a fundamental problem roger if there had been findings if there had been a statement by the judge this is the typical fraud this is how it's done here's this case this is notably more intricate for the following reasons than we would be in a different position we may not be making this argument but that's not what happened and the p s r essentially just adopted the government's version of the  that doesn't get us very far either by way of making the necessary determinations to correctly apply the enhancement here so those are the central problems about it the government views this is sophisticated that's fine but it need to prove that and then the district court needed to make the necessary findings because that didn't happen for remained is required here and again this is a single transaction two it's not sh corporations it's not an ongoing thing that we're looking at so this is a fraud but it's not the sort that we're seeing in other cases and even when they point to the fifth circuit case they do i think it's the right case i think right use the wrong standard because right as i recall it said that the defendants conduct made it more difficult to detect that's fine but that doesn't mean it's notably more intricate than the garden variety offense so i don't think that right is a correct statement of the law and it would not be something that conditions i know the government file the twenty a j letter we file the twenty a j letter of the court has it had a chance to review those but what i'd like to say on this is that circuit precedent such as thompson statutory authority such as thirty five fifty three  require the district court to state open court reasons for a sentence that didn't happen here supervised release conditions are part of sentence since the district court never stated reasons for the supervised release conditions an open court we can look to thom fifteen sixteen and we say that the judge not provide any justification for the conditions of page sixteen and we had previously cited the governing authority so it was only when the government took issue with th read the peers are even there the substance to of those challenge conditions you know we're taking a global approach because the lack of stated reasons that was required by thirty five fifty three c to say they are all invalid no matter what they are they were listed in the judgment and i didn't go into detail with them because again we're taking a global position about the lack of necessary explanation by way of statute in per this case this court's thompson case  only when the government took specific issue in its response brief did we then address some of the particular conditions but the argument that we have does remain that asks the court by not stating the necessary reasons didn't comply with the statute and didn't comply so there's a complete ban on drinking for instance every sentence should be adequately explained reasons given so this court can engage in meaningful appellate review when you summarily adopt boilerplate language from a p s are a list of conditions that somebody can go back into prison for if they violate we think that's a problem so state them with the reasons are and then when you have the statement reasons you can then look and say why is this condition necessary in this case and look at something like the alcohol condition and the alcohol condition is there but there's nothing to say my client was under the influence when he committed any bad accident made any bad decisions or that i don't even think he has a drinking problem so why does he have this limitation why should he be able to freely travel why do we have all these things some judges are paring down the us some are not in this case the judge did not but more problematically he didn't give reasons for any of the conditions and so that's the harm i'd like my clients to live freely without the conditions they live better lives that way they don't risk going to prison for his many things and if we have this resorting back to this case is the two thousand and fourteen two thousand and thirteen well this was summarily done we made a lot of progress we don't want to give that up now and return to what we think was a faulty procedure once upon a time answer your question are may please the court good morning your honors my name is jason yon and i'm appearing today on behalf of the united states i'd like to start with the first issue the defendant raised in his brief and that is the sophisticated means issue the just report correctly applied to offenses that have elaborate efforts to avoid detection and that is exactly what this case was the defendant's actions made it harder to detect the true source of the buyers downpayment the fact that the defendant himself was the true source of the buyer down payment not the buyer as you noted and as you note in our brief the defendant recruited a third party his friend funneled money through that third party to make it appear that the third party his friend was giving a gift to the buyer for her down payment when that was not true when the defendant received the proceeds in this transaction he paid back his friend and he also paid a kickback to the buyer but he didn't pay that kick back to the buyer individually he made it to a corporation that the buyer controlled and that check was the posited into an account that had little activity in it which suggested that this was not a company that operated in the normal course business those facts were more than enough for the district court to impose the incident in this case it established that this was more sophisticated your garden variety acts now in response the council's argument that the district court didn't make sufficient findings the district court said exactly what it needed to say heard the argument that it needed to hear it heard from both sides argument on both sides this case compared to it that's not what's required of this report out of this court case law turning to the issue of supervise release the district court committed no procedural error at the sentencing would impose the eleven discretionary conditions the defendant was given in advance conditions here i mean how can the road annotation or adoption i should say of the p s r which contains merely boilerplate language unconnected to the specific discretionary conditions and who's the end nuff to provide an explanation of the sentence well but there's all sorts of other issues in a case that the judge doesn't necessarily rule on at the time of sentencing lessen subjected to and let me give you the example of the last amount the defendant did object to the loss not of the sentencing to just report adopted the p s r and the loss amount that was contained in the sentencing or was it just report was addressing the issues that was being presented to it both in the sentencing filings and at the course of the sense of hearing and the district court at the sentencing asked afterward made a finding as to sophisticated means is there anything else that you object to and the defense counsel said no they didn't object to anything else so at that point absent any objection to just record adopted the p s r including the eleven proposed conditions that were contained in there he doctor the reasons for those conditions and that was a sufficient procedure for the district court to follow in this case when it was never objected to at any point either before or at the sentencing hearing so unless the court has eyes further questions i end by asking you to affirm the defense sense in this case i think we'd be on thin ice if we were to try to argue that we didn't have a waiver problem if after the district court said to us of supervised release conditions anything else you want to dish an explanation about why i am giving the condition supervised release much like the judge took a moment to do at the sentencing and sophisticated means then we'd have a problem but what did the district court do by parallel to show i've given an explanation it's adequately or inadequate would you like further amplification of my reasons nothing and then the judge gave no reasons as we said and the government didn't give an explanation of how what happened here satisfies thirty five fifty three c and that of course is the root issue on the supervised release challenge that's the argument in the government hasn't shown us how the judge satisfied that or why thirty five fifty three c somehow doesn't apply and sentencings for the statement of reasons necessary in open court to justify the sentence given including the conditions supervision and then last y the judge does have to make a statement about what findings he's made what facts support the enhanced meant and how it is different from the garden variety offense in order for this court to engage in meaningful review have to be judicial determinations the guidelines require findings to support the enhancement that wasn't done it wasn't done adequately and we have again nothing that we can cite to by way of judicial determination is to support the enhancement that makes