knows we are here because the government asserts that there were a number of errors committed by the district court in sentencing the defendants mr formal and miss are now quite determined to impose low sentences on the defendants and we believe that in the it committed a number of procedural errors and that if these procedural errors are corrected they will point to much longer appropriate sentences the in our view the court did not comport with a number of very very clear precedents of this court now as the court's aware we've asserted a number of errors there i think five separate issues involving loss calculations to other enhancements want to jump over those of course i'll answer any questions the court has but i want to talk about the the variance versus departure because i think that really illustrates the problem that we have here this court has been explicit in memory of presidential decisions since poker in requiring specific procedural rules be followed in order to assure that the sentencing in is impose consistent with section thirty five fifty three and also to assure that this court is able to engage in effective appellate review and one of the more important things is for a court to what it does at sentencing to correctly calculate the guideline range and to identify whether there's a departure or a variance from the guideline range you actually had made quite a number of applications for departures or enhanced minutes well yes right now were case we don't know though the problem while first of all the government asked for an upward variance and the court did not address that at all that's one of the areas that we have asserted the quite contrary to this court's rule that any issue of potential legal merit needs to be addressed on the record the court did not address at all the government's request for an up or variance on a number of very compelling grounds with regard to what mr food and meds are now and that was after the court had the factions  endeavored to calculate the guideline range there was actually a hearing for both defendants about six days before the sentencing hearing for mr film in which the quite simply addressed the guideline calculations and then they came out with a two page order right after that saying here's what the guideline ranges are we have asserted a number of errors with regard to those guideline calculations that which are unexplained and really undefended as well what i'm talking about the initial guidelines exactly so those so the government and the probation officer advocated that mr foremost guideline range was in the range of twenty one to twenty seven years the court by lopping off a number of applicable guidelines enhancements said that his range was more in the range of ten years the moment the court did that which was several days before the sentencing hearing the government filed a motion for an upward variance saying that the guide my calculation now no longer took account of many significant aggravating factors that request was filed before the sentencing hearing it was argued at length at the sentencing hearing and the court never ruled on it nor did it address the aggravating factors themselves and with respect to the defense the defense move for a departure as part of the sentencing papers it asked for a departure on grounds one medical condition for mr foma and second his quote extraordinary public services they characterized the district quite explicitly denied that departure for medical condition and that's not before this court but then we have other repeatedly argued that the departure on the facts presented was impossible as a matter of law and that's something i'd like to address today if i have the time about the court did say it granted a departure after the hearing was over the defense filed a motion on a variety of issues but one of the things it said was to the district court you really should clarify that what you met was a variance the government was a little suspicious of this we said in our answer that they were trying to get a more favorable appellate posture even though we thought the departure w simply impermissible the dish required then in response to that said well yes i did grant a departure but it was more akin to a variance and that's where we get the confusion where we say to this court we're not sure what this court is reviewing and it's a significant reason that this sentence should be vacated if it had been a departure at that somewhere or about that point you would have gotten the final guidelines range exactly right fairly accurate that's correct your honor you never got a final guideline range we never did and what we did get from the district court this is page six hundred fifty three of the appendix it's a fundamental mistake with all respect to the district court the court said and i quote this is in a post sentencing ruling that the government c respond to quote the court never enunciated the guideline level to which it departed and in fact never reached the sentence it did by consulting any specific level on the guideline charge under the precedent of this court i could list ten presidential decisions that that is inconsistent with this court has made clear in the supreme court has made clear and rita that the court must find a guideline ranging keep it in my mind throughout the sentencing proceedings in order to comply with the mandate of section thirty five it sounds like a very and it's not it's a very confusing record we have a judgment a commitment order in which the districts are checked out everything departure variance and so we don't see how that can be reviewed and one thing i would like to ask i want to get what's lying underneath this is this concept of public service as a basis for either a departure or a variance and even though we think that vacating the sentence is essential based on what i've described so far it would be helpful to have guidance from this court as these prolonging proceedings perhaps continue impermissible as a matter of law this court said in sarah feeney that a person who has a public position and does the things that are part of that public position cannot receive a departure if it was a departure point but you can you can grant various on the basis of work you can and there our view is this is where we get to a later part of the appeal yes we recognize that a variance can be given on almost any ground but the variance has to the length or extent of the varian has to be justified by the fact we are considering and we think that to say public service justified the extreme variance in this case should we take should we take the judge at his word he did say it was a variance in what he said well well he did what he eventually said the procedure i follow which was perhaps more akin to that associated with variance then a down but then in judgment commitment order your honor it checked off that it granted a departure based on community service and good work confusion in the record because just before that he referred to it as a departure yes or no maybe the defense could help and also said that he didn't consider any particular guideline which is a fundamental error just by itself the with regard to the vari me makes very clear it reasserts what this court has said before that if you give a large variance there has to be a substantial justification and there has to be an explanation of how the basis of the v a part time legislator according to his constituents he delivered constituent service he took positions that many people agreed with that there's no explanation of how doing a good job as a like the public official on a less than full time basis can justify it extreme variance for stealing every single day from the public the you're performing that job as a public official and i view the explanation that the district court gave not only does not justify the extent of the variance it's fairly outrageous can you tell what the extent of the various was well not sure the now we have our guideline areas that i do have to get back to according to the district guiding range which one twenty one to one fifty one tomorrow i have  you have a guideline range which seem to be the advisory guideline range or much or but it seems to be at least a preliminary guideline and next thing i know the sentence was fifty five i don't know what the starting point was for the reduction to fifty five months can you tell me that yes the guideline range advocated by the pre sentence report was two hundred sixty two to three hundred twenty seven months now the district that included a two level up or departure that the government recommended based on mr food most perjury at trial sing a charitable organization for sophisticated means and by taking out numerous levels really without giving any explanation the court said for mr from zero that the range was reduced one twenty one to one fifty  in appropriately lowered the guideline range as well but the fifty five month since was it was dropped from that great mind range according to the district court the fifty five months was dropped from one twenty one to one fifty one so even on the district court as it was cut more than half it's excuse the fact that the guideline calculation is wrong the range here is not one twenty one one fifty one the government there was really no rebuttal and there still is not on appeal as we explained in our brief that led to the the last calculations that the government put forward there's no explanation for the judge ignoring a one hundred fifty thousand dollars part of the loss for the rueben contract just because he said it was too complicated to to address at the last minute i can go through that it would really was or was your problem with that  case and called three meager witnesses on this that didn't defeat the government's view that ruben to nowhere and i believe the reason for the judge's failure to not to move on that issue was what well he said it was because it raised complexities and the date of the attorney screw street property in other words that you had you to write the certain moscow collations and then one point said however i'm going to give you credit for an increase in the few market value of this property yes i've not heard of that kind of offset so maybe you can well we haven't we haven't either and we argue that it's iranian the defense asked for it now the final number the actual number of this credit six hundred something that thousand dollars interestingly the parties are in agreement that that number makes no sense it wasn't a now it's by the district court until after the sentencing was over when it issued its exact i'd like findings we asked for it at the sentencing hearing and the dish reports that it didn't have its papers where that we could respond to the exact number which both parties now agree was incorrect but it's your honor that giving any credit for the market value of this property is an incorrect definition of loss that the fraud here is the citizens alliance bought this building that every right to buy this building and use this building the fraud was is they gave substantial rent free use of the property to mr fumo built and gave him a free parking lot to use which had tremendous value like took care of all sorts of maintenance lavishly furnished the rooms that he used none of that has anything to do with market value and that's our main argument you have there a six hundred thousand dollars plus air even if it had anything to do with market now you can use market value to offset the loss calculation no and our secondary argument is that even if you could you can't give him credit for all of the market value without then taking into account what citizens alliance paid to obtain the property the pretense here was that this property which they said was what one point two million dollars which really wasn't but the pretense was that this isn't just a pier and mr a should get credit for it and then the court gave him credit in a strange mathematical way but they had a million dollars worth of expenses just an inquiry in improving it which would also change the guideline calculation by itself so the problem here it's the procedural requirements is making sure the have an accurate guideline range stating what it is and then fully considering it in deciding the sentence and vishal air of course is that the court has to consider any issue of legal merits presented by either  parties and here the government stressed crucial factors with regard to miss mr for moments are now there were never addressed his perjury trial the effect that this had a destroying citizens alliance the effect that this add on the public reputation of but the government is just presented as a examination of a sentencing that they cast as played by a number of procedural errors one where there was utter confusion in their words over one of the principal findings that was made your honour's we significantly disagree with that characterization of what judge buckwild or did here you don't disagree that the judge never arrived that if i know guideline range do yes your honor i do could disagree with that what what  the judge did here was two very i actually thought post sentencing you had made a rule thirty five motion to see it to inquire of the judge what the final guideline range was yes  we did make a rule thirty five motion as part of that motion we sought guidance from the court on whether it was a departure of or variance after that two significant things happened first there was the the response to our motion where the government government's argument was specifically accepted by the court that said i departed i didn't vary in the statement of reasons there was additional clarification that the judge intended to part but most importantly judge when taste miss our new was sentenced shortly thereafter and judge buchwald in that sentencing made it clear that miss our neighbor was getting a variance and not a departure in contrast to what mr for for my was awarded at every stage of this your hon that the court was very careful to clarify that it was in fact awarding a variance and not a departure well i i'm still a little confuse i have no problem in concluding that our now receive the final guideline ron that was the final guideline range for the final guideline range before the departure well but if you have a departure this and that change the final guideline it just it does your honor and what we look at if you look at the federal sentencing guidelines themselves the definition of departure as recognised by this court is that a departure is a change in the sentence it's cruel versus united states the supreme court taught us that departure is one of the most critical part of the overall federal sentencing guidelines structure  come from what range did that come from it was a reason determination by the judge your honor of considering all the information that was available to him from the sentence i think the the departure your honor was done in months not in ranges judge brack walter was very explicit about that and neither the guidelines nor the case law the circuit requires that a guideline departure be stated in terms of sentencing levels rather than months and in fact the definition of a departure itself is a change from the sentence and i'm of the guideline structure change in the sentence articulated in terms of months and not levels it would elevate form over substance as judge buchwald or himself recognized in his statement of reasons to say that a departure to a specified number of months without delineating the guideline range that the archer was to was not necessary the judge started with as he said appendix page twenty five i first determined what the applicable guideline range was he didn't say but that was a hundred twenty one two hundred fifty one months i next the term and whether there should be a departure from the guidelines announced at the sentencing hearing that there should be based on my finding extraordinary good works by the defendant unlike other cases before this court where there has been a lack of clarity the judge here found first what the guideline range was and second rule that i'm departing and gave a specific reason why i was the party now require that the sentencing judge consider all applications for departures an enhanced means and then arrive at a final guideline sentencing range isn't that what these cases stand for what i believe the case law stands for your honor is the well known three stage test decide what the guideline range is ruled on any motions for departure and then go to the thirty five fifty three a factors in determining whether there should be a variance from the ultimate guideline sentance what judge buchwald or did hear that may have been a bit unusual but was well within his discretion was to say i did the first stage i calculated the guideline range i did that's correct after you move on that you have a different guideline range do you not yes you have an ultimate guideline censure on or once the departure process is completed now it may have been preferable although i believe it's harmless error if it was there for judge buchwald or to about point to say i'm finished was stage two but we don't know what he departed from when he imposed a fifty five month sentence which i think is is is judge ecards question he entertain quite a large number of applications for enhancements that is to alter that guideline initial guideline range he got quite a few applications for departures as well and he made a variety of rules but we don't know where we ended up we don't know what his final high range is you know exactly so and that's why i'm confused by your argument particularly since there were a number of procedural number of enhancements that the government call for and i can't tell what happened with that judge garth the way you can tell what happened is to fall first to look at the statement of reasons and  opinion that the judge issued after the first day of the sentencing hearing when he addressed we had a full day of hearing and all that was addressed was guideline calculations at the end of that day of hearing the judge took it under advisement an issued a ruling on up or down what he was doing on every request for guideline enhancements guideline calculations and departure save one he said i'm going to wait until the sentencing hearing to make a determination of whether or not i'm going to grant the charitable works departures he also reserved with the agreement of the parties on the mitchell ruben item he then after sentencing issued at the point of the sentencing he announced this at the beginning of a sentence and as to some of these things he said my notes aren't in front of me so i'll tell you what i decided but i can't give you the exact occupations in his statement of reasons the memorandum that accompanied his statement of reasons for he answered every one of those caught questions and specified what his ruling was on every one of the requests for a guideline specific determinat about michel ruben ruben recede a one hundred and fifty thousand dollar contract which the government says was for no work at all and then the judge said well i'm not going to go on but if you had that would have changed the shower of the charitable organization which the government asked for and hansen and what about the fact that he did not explain his decision with respect to the sophisticated means by which he arrived at this i gotta understand how the fifty five months was arrived  me try to address each of those items but too good to address them overall in rita versus united states the supreme court analyzed the amount of discretion of the district court judge has under reasonable it's review and it held that that discretion is quite broad and that reviewing should look to the overall nature of the sentence and not require district court judges to write extensively about the statement of their reasons sophisticated means and misrepresentation of relationship with charitable organizations there was a full day's hearing it which there was extensive argument before the judge both sides presented their positions on that there was extended briefing both in the objections to the p s r and the sentencing memorandum of the order dressing that if the judge ruled and said on the record and in a statement of reasons i am adopting the defense position and rejecting the argument that either of those enhanced ones apply under rita the judge had done a lot more than merely take the party's position and say i agree with one side or the other is that you think that's enough you think the judge can just see how i'll take the government's position i'll accept that or i'll take the defense position on except that it depends on the state of the record judge twenty's if we didn't have the kind of detailed record that we have here with thousands of of materials appearing before the judge a full day of hearing clear argument by the parties questioning by the judge under read or we can go back and look at that and discern what the judge did if we had what was probably the intent to use it as a way of concealing his scheme or of executing the scheme by using it as part of it the record for the court which is titled the deferential review indicated that eastern leasing was set up for a legitimate business purpose and that would generate a business purpose was to hold from why ability the ownership of the vehicle eastern leasing had one and only one function which is to purchase in these cars from  i didn't your own and only to suggest that it did and i think any other corporation that has subsidiaries doesn't necessarily populate those subsidiaries with either full or part time employees they are special purpose vehicles well known in the corporate world it seemed to me that easter leasing was nothing but a show company that was merely set up so it wouldn't have to report its conduct because it was a private company but your out of the question is was it evidence of the use of sophisticated means in the commission of the offense and was the intent in establishing the eastern leasing to use it for that purpose and i submit that it was not i would like to answer that question but i have a minute and a half left and i have not addressed our direct appeal indicating that mr frewen will have been the subject of a prior prosecution for political corruption that he had been convicted by a jury and that that conviction have been set aside a second thing was made known to that juror and cooperated in in their fraud that became known to the district court judge after it was reported through an affidavit of defense counsel reporting on conversations with a respected philadelphia reporter you know the problem one problem i had with that is you have to develop eighth on the asian or basis in order to get a hearing to inquire into these things but what's presented to the judge was a mistaken is a statement by an attorney that a reporter said that somebody else said you think that's reliable  inquirer subjected to independent fact checking by the enquirer and that this is the way that information is most likely to come to the tension of the court a juror speaks with another party indicates that that juror was exposed to an extraneous influence juror spoke to a reporter who spoke to an attorney who then allowed that attorney to make an affidavit of the the sufficiently reliable it's officially reliable your honor to allow for a hearing a minimum that juror should have been brought into the courthouse and questioned about whether or not the acts that were alleged had occurred and in fact your honor one of the things that was done here was that the judge assumed that the facts present affidavit were accurate and then made a finding that if they were presumed to be true that there would be no potential prejudiced arising from that kind of taint of the jury evidence that had been specifically excluded trial was permitted to come before the jury in the form of a third party contact this deprive mr from zero of his right to an impartial jury as of my time has run out i'm happy to answer any of the questions the panel may out now for the going on behalf of ruth are no in light of the court's many questions i'd like to start by pointing out why returning it was entirely different in this case and her situation and her sentencing were entirely different than the sentencing of mr she'd actually got what i would call the final guideline range should she absolutely receive a final guideline range and your honor she did in the absolute received a variance from that final guideline range and therefore all th court needs to consider in this case is whether or not the judge did these propre of things in imposing the sentence based upon that variance and what judge buckwalter saw in this case and think about this a lot of trial trial judges judge a book author sat through a five month trial during that five month trial he was able to observe all of the evidence and see the role of mr nail in this case he was also able to see the interplay between mazhar nail and and the government comes today and they stand before the court and they say at least in their briefs they didn't talk about this are now much in there in argument but in their brief they essentially say they're not before the court arguing that the sentence was improper they're here before the court arguing that the judge  adequately explain the sentence and if your honour's look at the record on behalf of miss our nato at her sentencing it was clear the judge buckwild her adequately and a properly addressed all the thirty five fifty three a factors and gave many on both in the case itself and in cases around the country and i'll tell you why because what the guidelines speak about is unwarranted disparity and what papper of the most recently instructed us and what the supreme court has repeatedly said since book er came down is that the court is supposed to look at it in the vigil lies sentence at the person that's before them not just the crime and in this particular case you have ms are nao and the government in this brief a survey says well anybody who comes in and steals a million dollars would be subject to this range she's not anybody who came in and stole a million dollars in the first case the court has seen that ms are nail got very little of the benefit of this million dollars a small percentage and second place she's a person who went to work every day and because the guideline level that you're discussing with mr phone does not in the stars mitchell reuben in the senate matters does not apply to ms are nail the guideline range that applied to ms are now i believe is just below a million dollars  as i think i was part of the government's briefing which they said a million dollars was just below a million dollars and the only impact that the government's arguments make on her guideline range from a loss calculation factor is a two level difference and a two level difference based upon the variance that the judge gave which was clearly based on thirty five fifty three a factors and not on the guidelines which nelson has taught us the guidelines are not presented lee reasonable the supreme court has stated that the got the it is clear that the sentence that he imposed was based on a variance and was not based on a departure it is clear to him posed that based upon the five factors that he himself stated on the record he imposed them and the government he may not be explicit but the government and the government has alleged that he didn't state these things but you look at the record they're all their history and characteristics person of servant relationship to role in the offense the judge says he was a rationally devoted to them oh he talks at length about her sly story could be a book the remorse and accepted she wrote a letter accepting responsibility prior to sentencing that was made part of the record it was attached to the present investigative report indeed she withdrew her plea her appeal in this court is for other evidence of that and  charitable activities that she engaged in not as part of her job but on the weekends doing things for people who had nothing to do with citizens alliance so his honor judge blackwater a former prosecutor with twenty years of experience on this bench looked at five month long trial where he saw the defendants role in that trial looked at all of these factors considered them all and sentenced her to what he thought was appropriate and under the case law that we have based upon the supreme court precedent that is appropriate i'd also like briefly address the growth is the amount of time this is not a grown judge but water sent a fifty five year old mother and grandmother who worked all her life to jail she did not get probation she went to jail it's a very serious sentence so her situation is entirely different from the senators and it would be entirely appropriate for this court to deny the government's appeal and affirm the sentence and chemistry thank you very much the sense in terms of the factors he's listing the closest he came was in talking about her remarkable story as a teenage mother thirty years earlier all this about subservience all that never linked to the sentence and that's why this is no groaning the groaning as report went through factors but this court explained it never justified the extreme variance based on anything it discussed at the hearing and we believe it's a reply you also of course have the guideline there as with most are now it's not just two levels as my friend m said it's a four because sophisticated means which i may talk about a minute applies to her as well but she wasn't given four levels this court has said over and over in langford for example that a correct guideline calculation is crucial to that so the sentence in this court can't really go much further without it i know judge and i got with on the panel and in langford i don't just want to pick on that because i think every member of this circuit has been on decisions that have articulated these basic principles and so her sentence unreasonable procedurally but because of the guidelines there and because there's really no explanation given of this enormous variance for someone who was a mature person and was made the executive director of a charity and help steal over a million dollars some of which went into her pocket along with the public official she worked for who guided her in all of this second with regard to this departure issue going back to mr bush well the judge by the father made it clear at our nails sentencing that what he had done with it was a then the district court can say the rule thirty five motion that the defense presented on july twenty third and then issued this confusing set of judgment and commitment order and attachments leaving everything completely up in the air what's really remarkable here and we comment on this in our reply pre is we have the defense asking for a departure then going back to the district judge and saying no we'd like you to call it a variance getting the rulings that they received and then coming that this court and saying it's a departure  record the problem here with the enhancements for sophisticated means charitable work is that the court said it was relying on the defense arguments and there was no defense argument that would justify denial of these things you just heard  charitable work clearly mr from zero sought funds from the go on behalf of a charity and then go for it some for himself and that guideline squarely applied in the defense has never answered that sophisticated means you just heard the defense view what mr phone just is not supported in the record at all he said it's all about intent and that eastern leasing did lease other vehicles and and cars were put into eastern leasing his name he said quote for legitimate business purposes there is not one iota of evidence in the record supporting those statements he eastern leasing took four vehicles in its name a town and country van that was mr for most luxury van at the shore a navigator so his drivers would have an additional luxury vehicle to drive him around in  philadelphia and escalate the replaced the i think the navigator replaced the escalate and a jeep which was missed our nails take from this the cheetah that's it they did it in a concealed way so that nobody could find it it's very easy now to say well it's not sophisticated all they did with bike something put in their name it was sophisticated because it was completely hidden along with all the other transactions in this case and it took an extraordinary investigative effort through tens of thousands of pieces of paper to find these transactions and find what was so carefully hidden from the auditors from the state from the i r s and that's just what that was and all the sophisticated means we explain in our brief the number of other shell and cities that were used for the task or expenditures for the parking lot for the political polling in that that's the thing in this case it just goes on and on and on that's what this report never addressed that's what the defense never replied it and finally if i could just take one second and talk about the issue on the juror we will agree with with your honor's suggestion i know it's not willing but the suggestion that there was never a sufficient basis here this that the juror issue is all about this court's decision and gillson this quite said very clearly in gillson and we are highly reluctant to bring back jurors after their service is concluded it poses difficult we will take it under advisement and we will advises expeditiously as possible