misconstrued the term intended loss as it's used in the sentencing guidelines and failed to make any findings in the decision re loss amount that showed that the court did in fact properly construe that term using the subjective standard that's required under the case law now an additional fourteen points were added to the backers offense levels based on the court's conclusion that there was an intended loss in the amount of eight hundred fifty thousand dollars and this and hansen essentially double mistruth as to how he got two hundred fifty thousand dollars well it wasn't mr dietrich saying who who came to the eight hundred fifty thousand dollar amount what happened was the government almost a year and a half after the backers were finished with their work in august of two thousand and fourteen had their own people come in and do testing of the five are off to cables in december two thousand and fifteen in january twenty sixth seen now teacher and later analyze results and concluded that eight of the ten cable sections had to be redone the government than basically put out a request for information using that that analysis and received a bid from a third the basis for the fix i think there was definitely conflicting evidence on that issue but that's for the trial courts to assess the credibility but mark through is no no we don't object to it so but for purposes of argument is  the relevant inquiry is not whether they were actually any such deficiencies but rather the extent to which that that hers were subjectively aware of the deficiencies identified in that report at the time that they meet that bribes if they were is not that the court erred in making that determination it but rather that the decision regarding the loss amount is not there are no findings on that issue so the court jumps from saying you know the work was deficient and the backers intended for the government to accept that work but i think that asking that you're asking us to say that we have to accept that the backers thought there were sixty thousand dollars worth of a problem and so that was their subjectively intended loss amount as opposed to the district court being able to consider what their intended loss amount was as opposed to something that went out to bat that works for eight hundred  fifty thousand dollars and that that doesn't involve credibility and the courts have to accept the sixty what so i think what i'm arguing here is that the court's order itself when you l doesn't really make clear whether the court properly applied the subjective standard that's required so the court goes from saying that the work was sorely deficient the backers intended for the government to accept that work however i think that the court kind of skipped a step because the court did not find what the court did not find is that the backers knew that the work would essentially have to be the job would have to be completely rewired which is  well the purpose behind this guy the guideline on loss amount is to make sure that there's a loss amount that corresponds with the defendant's level of culpability so if the defendants truly believed that you know we are aware of there there are some deficiencies but we believe that it's because there's faulty testing equipment and we're getting these bogus you know readings and if we just came out retested it we're confident that it would be ok which is what was said during these recordings if that was true if that was their sure understanding is that these are really minor issues these are quick fix issues as the government's witness himself said during the syrup to record a conversation then it's our position that the court the intended loss amount on that subjective intent but the problem here is not look we understand that there's evidence that could go either way in this case there's evidence that they maybe they were aware that these issues were more  comprehensive than they let on during these recorded conversations but ok so you have the intended loss in there but the district court concluded that the backers intended for the government to accept a t s deficient work if the sunder stood the ways in which the work was deficient why isn't objective lily why isn't the objectively determine cost of that deficiency the intended loss i again i think that the court saying that  the backers intended for the government to accept the deficient work i don't think that that really shows that the court was applying a subjective standard because again if the backers believed that these were truly not very big issues that  having issues with the testing equipment then that that subject of the ten is what has to be considered in assessing the loss of now and i'd like to point to the court to the third circuit case that cited in the opening brief diyala where  again it was a case where it could have gone either way there was evidence on both sides regarding the defendant's intent and not case involves credit card fraud where he was using counterfeit and stolen credit cards and he had already spent a certain amount on these credit cards and calculating the intended loss the the court basically said well it's the credit limit that you could've you could've you know maxed out and you were continuing to use these cards so let the third court is the third circuit said was you can't send tended loss on a worst case potential scenario and that the court has to do a deeper analysis but from the court statement in that order on intended loss the the pellet court said that they would be speculating as to what evidence the court had relied on release date is that the end of next month and herschel back or the release date is they believe april of next year thank you please the court counsel under is doing for the united states the central issue on appeal here in this public corruption case is whether the backers by their bribes of an air force official intended to pass on the costs of their shoddy work of their sorely deficient work as the court found to the government district court judge gleason answered that in the affirmative her finding is to be reviewed for an abuse of discretion very helpfully in ruiz which  was issued by this court several months after the appellant initial brief the court set out that the standard for applying guideline provisions to the facts of this case is to be viewed  the judge had imposed sixty thousand dollars would you be in a position to contest that could the judge have accepted that yes your honor that would that's a factual determination and that the  opponents argument about specific intent in this case is wrong both legally and factually the government is never bound to proof of a defendant's intent by what they explicitly admit the record in this case as in any case has lots of factors an indicator showing that the defendant doesn't get to control that the defendant doesn't get to say i think that it would cost one dollar are correct in this case i don't as but on the other hand if the court heard they thought it was sixty thousand and then also then you set it up for band and it's eight hundred fifty thousand if the court on this record had said well i think they thought it was sixty thousand and i'm going to do that could you appeal for out your honor i think is a fact this if it question it would have to be determined for clear air and so we could we could appeal it but it would be unclear because that is it's a factual determination or you'd be pushing the same lock up help that they're pushing up right now correct your honor and this is exactly what gus the earlies was cautioning that the district court is in the best position to make these kind of findings that depend on the significance of the case specific details over which the district court has the institutional advantage so the court sat through three days of testimony and evidence in the trial and then a lengthy two day evidentiary hearing prior to sentencing taking all of this very highly technical information and taking  the comments and statements of the appellant in this case and coming to the conclusion that the backers by their bribes intended to pass on the cost of their deficient work to the government and that is what  guidelines require a guideline requires that the court find a cure narry harm purposely sought to inflict by the defendant and that was the finding that judge gleason made in this case so it is this kind of really fact intensive inquiry that judge gleeson undertook that it is best suited for the discretion of the court and i had to she did not abuse her discretion and making these findings i think a particular note in the record that appellant points to a lack of findings and specificity of findings by the district court really relevant to in the district court findings it expert a record sixty through sixty three she notes that her conclusions on these matters relies heavily on information regarding the fourteen ninety and if you review all of the trial transcript and all of that evidence cherry harry transcripts the fourteen ninety becomes very relevant because of the three required wavelengths that they meet the specifications for in these contracts that is the one that is going to carry the air force into the next twenty years and that is the one that on a recording herschel becker admits to their first official we've done that initial testing we're failing on all projects and we're just not going to meet the specifications for fourteen ninety and that's across all projects and that's and supplemental excerpt of record sixty through supplemental excess record sixty and when eighteen herschel never says i know you could get anal about the four hundred ninety and then we got another three weeks here to test and then he's goes on to say we can if you can make it go easy for us we're never going to fix that four hundred ninety so he's at his second bride he is no he's already paid one hundred sixty thousand to do work that didn't fix the problem he is now still failing across all projects on the fourteen ninety and now he is bribing to get out of further testing he's not even bribing to get out of the fix you driving he says our initial tests are showing us that we're not going to pass and i don't want to stay here three more weeks to figure out what the full scope of my problem is i just want to get out of here so on these facts it's clear that judge gleason was well founded in finding that his intent the backers intent in offering these bribes to an air force official was to pass on the total costs to the what what can you direct me to in the record that shows pacifically that judge gleason considered the backers subjective intent is that that or what what would you yeah how do we know for sure yes i think her reference an excerpt a record sixty where she said that that the testimony of the engineer was persuasive as to the extent of the failures of the cable installation job undertaken by defendants particularly at the fourteen ninety wave length when you link that up with the record of what the statements were by herschel becker that judge place and took in evidence that that was the crucial thing that was not going to be fixed that was the thing that was going to they may could skate by in the short term on the other two wavelengths but for the long term future of this project on this basis for the next twenty years that's fourteen ninety was not going to pass and herschel becker admitted on a recorded statement and it was played in evidence at the trial incorporated that in her findings and so the court asked her resisted that as long as the court district court has identified the correct provision in this case to see one point one and two b one point one and has applied it they will review deferentially and it doesn't have to be explicit that those terms are used that that the culinary harm purposely sought to inflict is the terms in the guideline there's no necessity for the district court to use those specific terms but her by her finding that the that the intendant the intention of that there's was to cause this loss to the government she was making that finding one is that for deterrence purposes in this kind of public corruption case that the punishment should be commensurate with the gain sought by the payer or the recipient of the bribe whichever is greater and in this case it was in fact the payer of the bride that was going to receive the benefits different than in this court case and gillum where it was actually the recipient of the bribe only received fifty or sixty thousand dollars in bribes argued that they should only be held for fifty or sixty thousand dollars worth of their sentencing levels but in that case the ninth circuit said the benefit to me can go under i did one hundred getting the bigger benefit in this case the company that was offering the bribe received the bigger benefit and that's what the recipient of bribes should be held to so even in gillum where the defendant didn't actually accrue the benefit the total benefit that he was sentenced to he was held accountable for that incenting this case the defendants were actually accruing the benefit from the bribe which was to get out of this eight hundred fifty thousand dollars worth of work before understand what just policeman was finding it was that the government was deprived of the benefit of the bargain in other words the value of the work actually provided and the value of the work that was intended i mean she says that just the fenice intend to cause a loss of the government the mouth of the equal the difference between the value of the work as required  contract and the value of the work that was actually provided i mean that's that's one more i take than the second step is how much what's the calculation and then you get into the third circuit case and others which say you can't you can't  case they're all credit cards loans convenient checks there's no indication and record of any of those cases that there was any effort by those defendants to take advantage of the full credit limit shall we say in any of those cases here the defendants very squarely wanted to take advantage of they didn't want to know the scope of the problem they didn't want the government to know the scope of the problem they wanted to get out of town before they even had to do any further testing to figure out what the scope of the problem was the to see one point one this is exactly what the bribery guideline is trying to get at is that that they're held accountable for the whole the whole scope of the costs that they're trying to to get out of so that their punishment is commensurate with the received would not be the same as the loss amount in this case because if he had redone the work itself then that could've been done for less than a third party who is bidding that work and expecting to make some kind of profit on the job the next point i'd like to discuss is the government statement that we've basically taken the position that the governor or that the defendant has to admit that he intended to inflict so that he knew that you know that the work was so deficient that the whole redone that's not our position our position is that the court that there was evidence either way that the courts will order is silent on this issue so we weren't sure whether you know the court whether the court made that finding in applied that that that these deficiencies were not actually as extensive as the government later lead to look the government think the risk right well but i think what's missing from the order is a finding that you know we know understand that the defendants have taken the position that these were minor issues but we don't find that to be credible if there had been those findings in the order i think this would be a different case lastly the standard of review we believe is to novo because we're really arguing that there's been in i