charges that that huggins ultimately faced then the government could easily have added those paragraphs in did superseding indictment that mr eddins was tried and chose not to and i think that they should have to face the consequences of  were in the indictment and the way the case was presented to the jury the way the government presented its case read the defense had no choice but to convince the jurors that mr  operations in west africa were real so whether or not the government had to prove that they didn't exist or did exist right in fact they took a sort of atheist atheist to prove and let me add judge that there's no real dispute that the the assets in west africa existed they existed i mean they were there the license who were there whether or not mr huggin assets existed and yet throughout the case in it every opportunity the prosecution ford school won and the idea that mr huggins owned mining rights in west africa at every opportunity they hit so that put the defendant in a position that before it could even attack or turn to or and against what the government will call the core of its case the misappropriation theory that your honor just reference the defense first had to prove right or convince the jury that there was something in west africa because if there wasn't who didn't believe every word that charles scoffed at the idea that huggins head anything at all and i mean they had been in the room with the official from sierra leone they did a deposition and his hope that agree and then when they got before the jury in summation they said that that official was somebody who killed himself or ordered to be a government official there's no dispute that he was a government official but by i forgot on those things they basically elevated the defenses bird so the defense could have been again come before the i've got one minute left i'd like to briefly move on to sentencing two things i'd like to get in my fifty seconds here first i made a mistake in the reply brief exhibit three eighty three was admitted to evidence it was at the tail s that that in many cases conflicted with previous letters that supposedly based that then became the driving force behind hawkins's sentence and for that reason alone whether it's a loss calculation was right and it is so there was there was one issue you should restudy about the about the calculation it was whether or not the judge could appropriately as he met time's up dollars in terms of a thirty five fifty three total culpability type analysis that was that was judge times statement and if anything it drives  to your honor's question that it's a plain error standard here because the defendant never made this argument below to judge stein and secondly the court doesn't need to consider this particular issue because judge stein made clear twice on the record asking is what is the meaning of derived from is this money that's derived from a financial institution under the point that resided at bank of america and the name of the company's money was simply withdrawn by huygens and his coconspirators and under the plain language is i'm sorry judgment or i don't understand your question but it's under this the banking system in this country volves fractional reserve banking under the f t i see regulations that interpret the federal reserve bank only three percent of  deposits are kept on hand by a bank banks limit the number of withdrawals that a customer can make in one month so when the money comes into the bank's coffers the bank has the ability to distribute it to alienate it to transfer it to others to loan it and invest it and so what that means is that this type of conduct this rapid withdrawal of significant sums of money has an effect certainly has an effect on the bank and it's it's money that is resulting from the offense  this is money that has come into the bank as a result of huggin not that may be true but that's not what this offense turns on it turns on whether the money is derived from the bank and as the as the ninth circuit interpreted in united states versus van all stein that means simply flowing from the bank and secondly that the defendant himself received the money received over a million dollars and that's what separates this from a situation in which the money would be used to mine if the money were actually used to mine done would potentially be the bank and it's not even if this court were to adopt stinson's reasoning we've met it here because if the bank is exercising dominion and control over the money that comes in i would also just know the court doesn't need to reach this issue because the judge signed made very clear at pages two thirty two and two forty two to forty three of the record that he was an imposing and he was imposing a sentence that was based on his application of the thirty five fifty three factors he said explicitly twice this guideline range weight overstates the seriousness of the offense this is not a case where the sentence imposed for any relationship was tied in any way to the guideline range which is to sixty two to three hundred twenty seven months impose  that when his statement doesn't relate directly to this particular guideline if he made that statement he made a statement like that in connection with laws right and he didn't make a specific statement about this that the guideline range is way overstates the seriousness of the offense and i think that's important here because the judge is looking at a guideline range that is more than is first of all that as we stated in our supplemental letter this court's opinion in river nighter forecloses the argument got affected the defense making here their number of factors that the defendant in river night or was was very similarly situated to huygens in at number one he functioned as something of an in an investment advisor for his victims and there are two particular victims here that i would draw the court's attention to annette mccain and it spells out the second factor is that if i could just summarize it for for good this court on july seventh issued an opinion in the case united states versus river niger and it is the case addressed the application of th breach of trust and any situation that is very analogous to huggins is conduct their individual perpetrated in investment of frauds fraud scheme in which he solicited investors and he made arguments that are very similar to the ones that huggins is making here specifically he's claiming number one he lacks discretionary authority and number two he's arguing essentially i didn't have that sort of trusted relationship with my victims  second he was not subject to any oversight or supervision within his organization and that's unquestionably true for huggins here he was the organizer and nobody knew what he was doing with the money outside of  and the third factor that the river night or for addressed the fact that this particular defendant a knack a set considerable discretion and unquestionably huygens had enormous just and in fact all discretion in terms of the representations he was came in through the clobbering witness and thomas and others was that the company had no real existence it had an existence on paper it had a bank account and so what huggins did was he gave in documents that stated they were investment contracts that essentially if you invest your money with me it will be used for mining they weren't given any shares in the company it was essentially a privately held company so that also goes to this issue because hud here wasn't affected by the number of mounted a loss strikes me as extremely unlikely the essence of the crime is how much money you managed to get from other people so in fraud that were right so we're back to where where i started i mean judged and looked at the guidelines range this is of course two thousand and fourteen before the fraud loss guidelines were revised so you know there's a lot of clamor about how they overstate seriousness of the crime he looked at and he cut him and in half there's no reason to believe that he wouldn't do the same thing if we went back to be sentenced and that and the presumptive guidelines range was half of what it is now that he wouldn't give about half of that new guidelines in terms of preservation if the court will look at d c s document i believe it is to be sixteen that is the sentencing submission submission pro forma which ties into our in effect it's three sixteen days on march twenty fifth i'm the third page the objection to the financial institution in hands mean is there  the it does your honor but but it were pointing out that these were second these were tourney's that came in a week before trial they stood in on sentencing because the main attorney had become ill and so i'm just pointing out that yes it wasn't jus yet but the fact of the matter is the supreme court is going in the opposite direction than the government is trying to push this panel i mean clearly the supreme court it seems guidelines errors at sentencing whether preserved or not to be know but i decided in my reply unless there's anything further thank you very much