united states versus sentencing areas that i do believe do require every man so it's remained for restitution in the sentencing let's go to the sentencing first the other is that i think a really clear here is th supervise what the people who speak to the consumers have to say yes that's the record i can't deny that because the records clear but i do believe based on the case law and i believe i cited a third circuit case from there that says given the impression that the folks that he was hiring were lawyers or were working on behalf of the firm would the would you agree that firmness would make that a position of trust i consumer and i would that matter if he directed others to make that representation he guidelines direct the activity to the individual the offender the defendant so that this is not a coconspirator something completely different in the conspiracy this is someone who is in better in the sense that he directed it's not simply that he assisted he directed the abuse of a position of trust and in that sense i would think that he says responsible under the guidelines as the person who execute well huron at that well may be and interpretation that the government gives the guidelines i just simply say that if you look at the guidelines that analysis just doesn't hold now maybe we need an amendment to the guidelines but what the god wants is specifically says and what our case law says it's a two prong analysis whether that offends and occupied a position of trust from the victim's perspective but it's the defendant that none of the people the witnesses at a minimum said that they even spoke to him knew of his name them the less that mean that no one except to the person who is on the telephone is responsible for impersonating lawyers when the entire scheme was designed to impersonate lawyers that's what was fraudulent about it but they didn't impersonate a lawyer as i understand it but essentially gave the impression that they were acting on behalf of what they gave the impression that they were reviewing files and that an attorney would be reviewing it and attorney didn't review wait for that purpose from the perspective of the victim i think we agreed the victim was  i would say that some of the witnesses testified but the scripts that were admitted into evidence would support that but that's what we don't dispute because we're not disputing the conviction that there were misrepresentations that misrepresentation was that they were reviewing them and then and it turned out that the person on the other end of the phone was the actual attorney but i did want to point out that in this is two prong and that there is case law that supports my position this would have to be brief a contention that this guy is on should not apply and talked about the row well if the role was a sales manager then i would suggest and that's when he talks about in his disagree because the sentencing memo mentions rope but i do also say that it is plain era and in fact the court makes no findings at all and that's part of the problem as i pointed out in my  not sufficient for the court to simply say i'm agreeing that it's level forty three the and saying that's only from cost retore purposes i'm not sure what that means from the court's point of view with a little ambiguity there but i also think that we know from our own case law that regardless of whether you are giving a variance there has to be some finding they didn't he didn't make any findings of the handsome it and he didn't make it up at the pre statements are just not clear and i think that that hinges this court's analysis of the correctness and even the lawyers i would say it was important you cannot just say that there i'm going to given a variance and i understand th inexactitude isn't necessary but in this case i think that it would because if we look at the difference for example a finding let's say that the court said well you know what maybe it was only three million but i'm not going to find because of the discrepancy but the scope is different and i suggest if it was a much lower advance of laws which i think that because he relied on unreliable information which i explained in my brief that it could have been much lower but i believe it would make sense based on his comments in sentencing that the sentence would be low and it is significant the distinction in even two points when you go back because he gave a bad  six to seven point variance if you go back two points less and then do a six to seven point variance what you know explicitly said the loss amount does not matter to me that is not what is important in the sentencing right that the distinction that was being argued to him as to what the amount really was as opposed to what the government said it was is something that he said well that doesn't really it would my sentence would be the same regardless of not paying attention to that so what why would we think that he would actually pay attention to it in such a way that if the guideline numbers were lower it he would have given a lower sentence than he did because in fact it's unreliable client's due process rights that the charts upon which he lied is what was the p s r he lied and therefore he lied were completely unreliable they were unreliable for restitution and they were unreliable that to me this week and i did receive it and even that shows i would suggest the unreliability of ask about the reliability well missing about the rest touche an issue here it is my understanding that restitution may only be awarded to identified victims in the amount of identified losses it's seems to me entirely appropriate for the judge to say to calculate the overall loss for the scheme for purposes of the guidelines in deciding what is the magnitude of the crime but that's different than wording restitution and what i'm wondering is this court exhibit one show any amount approaching eleven million dollars of know not harmed and the problem with this let's take it back to the very beginning is there was no objection to the rescue so you have plain error analysis which you have a heavy burden you did not even reference this exhibit which  is is alluded to in the sentencing in the restitution order so you know i just don't see how you carry your burden you're telling us the court do it issued restitution without having victims in that amount we know from the rescue to sion order that it had a list of victims in amounts you didn't supply it with us and you're not challenged now are you telling us you know what the problem is the court order to live in million in restitution i want to show on a document that supports sixteen million and rescue me we are very very far removed from plain error as i see it on the record you've given us while you're out of that the fact of the matter news that he attorney but in addition it has to be questioned if the courtroom exhibit one or two i'm not sure which one but i victims as we know from the sworn testimony of the government's own witnesses they don't know and even her children so what we have is contradictory evidence over and over again that is good morning may it please the court at work in paris or for the government i've represented the government below in the district court both a trial and at sentencing and in this court on appeal the judgment of the district court should be affirmed in all respects the district court judge keenan properly calculated the loss amount and held in the alternative that the loss or not was immaterial to his sentence in any event the district court also properly applied and hansen's for breach of trust sophisticated means and role and properly held to defend it jointly and severally liable for restitution in the amount of eleven point nine million dollars but ask a question about the sophisticated means under the guideline it's quite explicit that the enhancement applies if there are sophisticated means and b if the defendant himself intentionally engaged in or caused the sophisticated means so what is the sophisticated part of what few manu did your honor as as this court has held this sophisticated means can be looked at and in the aggregate and you not be sophisticated one at a time but if you model himself engaged in a called the company flip it was the use of shell companies fictitious companies in order to disguise the company's existence and that was done as a cooperator testified in order to evade law enforcement if you model was the one who decided when to do the company flip and what to change the fictitious company name to so the guidelines themselves identify that factor in the police and security is concerned it is your honor and that is the defendant himself was doing that in addition to that there are other sophisticated means he of course is the one who is scripting the misrepresentations of the customers as the guidelines as recognized when they look at the call center is located in a place that well wait he's not orchestrating the remote location is he he was already set up that way when he joined this company it was your honor but he is making a mint he is the one who is authorizing the misrepresentations that are being made from the remote would that mean that every sales person is also in gauged in sophisticated means because he's working in a call center that is in a different place than the law firm well not necessarily but here it's that he's the one who is actually is actually script have been he's correcting the misrepresentations he's not scripting were it's unclear to me what he has to do with the buy location issue well you know that he knows that he's in one location well he had explicit discussions with a cooperating witness about the set up of this of the remote locations about the need to have them remotely as a buffer as your honorable recall he and guarino cooperating witness work together at a company called clear clear blue and that model was changed in order who's a let's even say a high level manager in this operation get sixteen years the two people and two hundred men who owned this took much more of the money created this scheme and recruited him to join it got much lower sentences because they cooperated they cooperate against somebody other than him they did other people below them in the scheme where is there some you know i don't think it's appropriate for me to ask you like give me names that we cooperate against but is there some of the sense that one gets from this trial which may be misleading is that these folks are all cooperating down essentially and implicating testify against in this case and describing what the other salesman did i don't know whether they were indicted or charged but that's not entirely accurate your honor so far so first of all with respect to linder man he was the he was the first cooperator signed up the government charged the case largely on the basis of his information his information was used to charge garri romano and few moto three coconspirators ab garri cooperated after he was charged his information helped the government proceeds the testimony that came in actually was that few mana was the highest earning person in the scheme he was recruited and was the only member of the scheme who had earned income based on the total volume of sales so the testimony doesn't come with something like a half million dollars it was your honor it was a rough what happened to the other eleven point nine million dollars it was i mean it was spent on sale i mean this was a large sale quote unquote sales force that was spent on commissions of other people will everyone else gets paid and there's also marketing expenses which were you know part and parcel here you get the the most that's correct and that was the evidence that came in at trial i also want to just briefly address dollars that is owed to the victims that's correct judgment i don't know that any money has been recovered but pivoting to restitution i want to just set the record straight on court exhibit one because there was a misrepresentation in the defendant's brief about this the government brought and the different types of records that were relied upon so the restitution records were drawn from what are called payment processor accounts there are there are these intermediaries between the company and the bank that takes the customers information and typically bill their credit card that information contains the customers names addresses and dollar amounts that was the basis for the restitution with respect to the money flow and this is a point we've made in our brief the last amount is actually quite conservative figure because it already slices off the top money that's being retained by the new york law office so the flow of the money is this the victims pay the new york law s millions of dollars of that amount roughly eleven point nine million dollars is diverted to california to the so called marketing company to pay very expenses that eleven point nine million dollars was the basis of the restitution judge keenan clearly as as i think judge reggie highlighted could have awarded more in restitution this was a conservative figure but i think that the salient and i was allowed to play the powerball lottery during the sixteen years the prison in this and is successful in doing  as as the judge launches questions highlighted this is a plain error standard these arguments were never made to the district court on a preponderance standard the evidence amply supported the application of the enhance fourth circuit case united states versus more on which the defendant relies is easily distinguishable because in that case the misrepresentations that were the foundation of the recent breach of trust and handsome and were entirely those of a co r and the fourth circuit also held that the enhancement didn't take into account relative culpability here by contrast not only is the defendant directing his coconspirators to make these statements he's literally scripting them and of course to accept the defendant's argument would lead to the absurd result that someone like the defendant who's and a high level of culpability could somehow insulate himself from the application of this enhanced man simply by having a minion utter the words into the phone that makes no sense and it's inconsistent with this court's precedent in cases like right and hussey and others there's there's also a tenth circuit case which is actually you know here united states versus  thank you very much your honor first of all the evidence i would suggest it is not exactly as the government has proposed the evidence as to the amount of salaries is something i bring up in my million two hundred dollars that's just for two thousand and twelve and there is nowhere in the religion charts that we can account for that or the two hundred thousand dollars that justin raimondo says that he stole misrepresentations i'm having trouble understanding why every dollar that came into this operation was not appropriately considered a loss well because i disagree with the analysis and respectful way that it's did they didn't need i don't really need to travel and maybe some people would say i don't need an attorney to file a well right to draft the will a simple well i can do that myself but in fact people pay a lot of money for services that arguably they don't need the courts have recognized that in a context like this where you basically giving someone something on fraudulent representations that the assumption is that the entire transaction is fraudulent well you're right when we begin with the dock preppie say that united states versus bin day which is only two years ago that the misrepresentation to induce a victim to enter into a transaction without relevant facts to make an economic decision results in the victim sustaining so that's you know we're not we're we're concerned here with the fact that your client obtained money from these people on these representations i understand that they were false representation but with respect to the dock the evidence is that they were told they don't need an attorney which and that they can do it themselves and what they got was a pile they compiled all the documents with the forms yes they could have done it online but i don't think that's material to whether or not that's part of a fraud because doing it yourself or the preparation i also want to point out something about clear blue because the government relies upon this through it in clear blue but there is no evidence that my client was involved the fraud created it to what void the problems that existed there is not one statement not one testimony from abba garri that he did it to a vade lauren foresman that's the government's interpretation of his testimony which is easily just as easily to say we did this to avoid the problems of not having an attorney so we created a marketing firm says the district court in the light most favorable to the government now and and as you've said that testimony is subject to understanding that basically it was when fear money came in and november of two thousand and eleven and doesn't go to the new up firm intil february of two fast and twelve that he was aware when he entered the firm that they were doing some it's one thing about cooperation and getting a lower sentence we all understand that that's not in dispute but there is a major difference here when my client gets sixteen years which is six times higher than the owner of the firm the for the operation he dodged and did not go to trial i mean these things are we see this repeatedly in cases and this is a matter of whether we think the district court exceeded its discretion not would have done the same thing ourselves that's correct but your honor six times higher i would suggest has the chilling effect on the exercise of the sixth amendment right to trial because it's not only a member clinton and does not testify and when the men get i think twenty four months so sixteen years twenty four months it's true he may have you know cooperate important other sixteen years as compared to probation twenty four months thirty one months you have a disparity here that's so great that the meaning within the guidelines of the statute which has the test to be considered