our fifth case for this morning is united states against rasheed minutes so district judge says a couple of things he first makes a rather confusing set of remarks but then as he moves on after he's considered the thirty five fifty three a factors he says this is a serious crime and as i said taking into account everything and even putting aside the technical calculation of the guidelines range i don't think anything less than nine and a half years would be sufficient to fulfill the purposes of thirty five fifty three a and he says some other things so so i'm wondering what effect his decisions about how to interpret substantial hardship really had on this case it significant effect your honor and fact in the city travel case it increased mr manassas sentence by sixteen to twenty one months that's his advisory guideline range but judge feinerman says he doesn't think anything less than nine and a half years which is what he gives him hundred fourteen months would be sufficient so i think why shouldn't we read that as saying hey the floor was nine and a half years now it's what i gave him regardless of whether the hardship additions advised one guideline range or another yes your honor because if we do the calculations if the district court judge would have really applied the substantial financial hardship are entitled to go above the advice there's no there's no question about bumping into a statutory maximum or anything like that in this case so they can go above and he makes this statement not to i completely understand i mean that you're not raising a bad argument at all this is something that did affect the advisory range but then the question then the next question is if the judge doesn't want to take the advice and the judge decides to go higher where are we now he also has this other somewhat statement that might make you think it's not clear that he would have sentenced to one hundred fifteen months one way or the other and i will say in terms of your standard of review i think as we often do we have two issues one what does the word what does the phrase substantial financial hardship mean you know how does it get interpreted i don't think that's to novo how's it applied deferential if hatchett he understands it to be a subjective standard yes your honor i will first address the first part of your question so if the judge did want to go beyond the guideline range statutory maximum in some cases that is appropriate but in this case it's certainly both inside the so you can't go beyond the statutory maximum but he's nowhere close to it in this yes but if the judge did that then it needs to still be supported by sufficient findings right which goes to the second part of your question regarding the standard review of course factual terminations are reviewed for clear error but the primary issue in this appeal is whether the district more properly applied the substantial financial hardship to the facts of today's case and the district court did not for two primary reasons the first reason is that the government failed to bring forth enough evidence to apply this enhanced met and the second reason is because with this lack of evidence the district court then extrapolated the victim's hardship to other individuals by aggregating the victims into a single group to infer hardship now this is what he does me i see what you're saying but he he does two things that i'm not sure that your argument fully takes into account one he listens to some people testify  looks at some submissions and he comes to the conclusion that this is in general a group of people of you know they're in their immigrants or they're largely pakistanis and others they are of modest financial circumstances particularly in the in the second the light star case you know there's a religious overtone it's hot so he takes that into account and he looks at the lives he's not just pulling out of the air he has kind of a financial cut off the below a certain amount he's not assuming a substantial financial hardship but about what he calls the mid fo figures in the one case and closer to five figures in the in the light star case he's going to say for these people that substantial wouldn't be substantial presumably for warren buffett but you know it is for these folks yes your honor that exact type of extrapolation is inappropriate here first because the nature of this and what's meant by that individual lies inquiry the purpose of this enhanced meant was to focus on the extent of harm that particularly victims suffered and not to and to lessen the focus of the cumulative impact of the amount of loss and the number of victims furthermore your honor so you think nothing less than individual testimonies say for the for the twenty five or more you can have to call in the twenty five people that's correct your honor the government needs to meet its burden and call forth the victims that they allege to have established that stanch will financial hardship in order for them to me that do so specifically in the lights are hodge occasion there was only a specific information for twelve victims yet the district court found that over twenty victims suffered substantial financial hardship but he does have the chart listing the victims and he knows how many people lost how much money he knows that the this these  all the hog trips so there's a religious significance to that yes your honor first with regard two the amount of loss that was already taken into effect or that was already taken into consideration  sentencing mr mann ha because the cumulative amount of lost was between five hundred thousand but less than one point five million right but the per victim loss he's not looking at every said jim he's looking at those sort of the highest  figures five figures lost so he's not saying all eighty two victims suffered substantial hardship that's only some of them right but that type of extra extrapolation is inappropriate here because again forty three forty one of the sentencing transcript the district court explains it's reasoning for this extrapolation which was that these victims were looking for discounted tickets and that they were looking for discounted tickets in pakistani american newspaper this is an inappropriate extrapolation because it necessarily infers that someone who wants a discounted ticket then if that person lost an amount in the mid four figures that would necessarily be substantial financial hardship and it also makes the interest will connection that if you are the type of demographic that would read the pakistani american newspaper then if you lost a mountain figures well then you would necessarily suffer substantial financial hardship those type of extra ons are inappropriate your honor and i see that i'm going into my rebuttal times i'd like to remain what you might laughter about that would be fine reliable information reasonable inferences drawn there prompt as well as a correct interpretation of the guideline so why should we assume that you know say five thousand or seven thousand dollars for pakistanis which runs troubling really close to making ethnic assumptions about people to the guidelines actually never sanctioned white why should we assume that just because it's that way for one person who testifies it's that way for others i think that is a complete misreading of the transcript and the judge's comments your honor i think what the judge was saying there was that did it he was basically echoing what a couple of the witnesses said which were that which was that the victims here many of the victims most of the victims were all from the same neighborhood they knew each other they were they were people who recognize one another in the case of the person who sometimes serves as an and was a designated the imaam for one of these trips that they knew each other well and because of this that the court was saying it's appropriate to extrapolate from not only the statements  or the testimony and the letters sent by individual victims but also the statements made by victims who talked about other victims these are people that they had a basis of knowledge here i think it's really unfair to suggest that the court was talking there about extrapolating on that basis alone the court made crystal clear and other asked parts of the transcript that's not at all what the court was doing but the court was doing was saying we've heard from witness after witness who basically presented the same type of financial situation and then we heard from witnesses who who spoke about other witnesses and as for other big dems and described the victims as being people regular people normal people people who live in the neighborhood people who don't how you know who aren't is as your honor put it warren buffett and so taking all of that into consideration i think with the court is talking about is that these for the most part these victims were all of the the same circumstances at least most of them were and that was sufficient to make the kind of determination that he was making in one case looking at the number five in another case looking at the number twenty five so let me ask you another question that troubles me about this this is a relatively new part of the guidelines and we need to understand what the guideline means when it talks about substantial hardship and so we have this application note which gives some of samples are not exclusive examples but to give some examples of what what this means and all of the examples i'll put three to one side for just a moment because that's when the judge looks at the other ones one two four and five all strike me as really drastic becoming insolvent filing for bankruptcy and making substantial changes to employment such as postponing retirement plans  relocating to a less expensive house a substantial harm to credit the those are all very significant problems and then we have suffering substantial loss of a retirement education or other savings or investment fund the district court seems to be quoted that to simply est and of losing a lot of money it understanding a lot to be one subjective notion of how much money counts as a lot and i wonder whether that's consistent with the theme of these other factors which all seem to be  a rather permanent impact on somebodies financial welfare i don't think it's quite right that the judge interpreted the general concept of hardship is just losing a lot of money i think what the judge did was two things one the judge focused on the amount of loss relative to the general economic circumstances of the defendants that that that's the primary thing that he stressed and i think that that is is absolutely consistent with the language of the guideline and it's also consistent with the number three that the provision number three  terms or which says suffering substantial loss of retirement education or other savings or investment fund a recurring theme among the victims in this case was that they had set aside money that they had if they had worked and strived over a period of years and one case eight years to save enough money to to make this very expensive trip they did it for religious reasons and the second in the second pride and the other in the case of the first friday they did it for either religious or generally family reasons these are not cruise vacation these are and even if they were i'm not sure that that would necessarily be that significant but they were not and these were people who had to to work and save over a long period of time in order to gather up the funds to do that that is a substantial loss of the saving several of the victims testified they didn't think they would ever be able to accomplish this again and it was  of the first one there were there were more than a hundred and eighty two people who lost more than a thousand dollars in that in the lifestar hyde's case there were forty five people who lost more than five thousand dollars thirty people who lost more than seven thousand dollars and eighteen people who lost more than five dollars so i'm just looking at the cumulative portion of this is opposed to each individual because if you do it earlier ask you you have to come up with twenty five people and of course it's subjective so each person is going to have a different level i guess of substantial financial hardship the person that barely making it and we all know people who live hand to mouth and there's no extra money coming in and so what so to say for this kind of a trip to go over there for religious or perhaps family reasons is could be a hardship in that for that person's words others may find that it's not a really hard thing to do but they do want to do for the film pilgrimage and you can get that or the wood so i guess when i looked at this when i saw substantial financial hardships and it's not really defined in specific driver and living closer to the bottom of this this pile i mean these were discretionary funds where we are not talking about necessarily people who are living completely and down but that's why i think the guideline is is flexible enough to cover you know any number of circumstances it might be bankruptcy if well and mechanistic about that it might be bankruptcy or something like losing your home to one set of victims or one court was not looking at things as a group the court was looking at it was making inferences about individuals based on the individuals that he had heard from or you know seen submissions and as far as you know that the details the if the defendant at one point has made the claim that that the defense was not made an opportunity to cross examine these witnesses that's not the defendant never made any request to cross examine the witnesses that were presented or to call any of the additional rapid witnesses course the government or the burden of presenting the evidence but it is it is unlikely that the guideline would be written in such a way as to require twenty five separate witnesses to come into work and testify in order for that guideline to be applied that that really is not a sensible interpretation of the guidelines the got the interpretation reached by the district court in this case was a sensible cases discretionary wasn't taken into a food out of the mouth or to going to the house or something didn't go to those other extremes so this is an exceptional thing obviously it meant a whole lot to those people for religious or family a but exceptional situation all i had to say or a response to your question was that we're not suggesting that these people were going to starve as a result of their b musician in this case that was that was the only point that i was making it is not required that the guideline nowhere even though there are a number of pretty serious financial problems listed in the in the examples of the not exhaustive list of examples provided by the guy by the guideline and nowhere suggests that a defendant has to be rendered destitute in word of or a victim needs to be rendered destitute in order to qualify to dependent for any help and for this that's not what that would be an unfair and reasonable interpretation of those guidelines and in the government your honor multiple times the government noted that the victims were all in the same neighborhood as a basis for the extrapolation that is an inappropriate extrapolation of court cannot judge where a person is from to extrapolate their financial conditions would be like for them are on or at the government confuses what is a material law between what is a substantial financial hardship as you noted the application notes and the factors that are  are quite harsh they include filing for bankruptcy becoming insolvent or relocating to a less expensive call a generalized conclusion that someone lost an amount in the mid four fakirs does not even rise to the level of the other factors furthermore your honor the guideline for substantial financial hardship is not meant to be cumulative it's a relevant and individualized inquiry that requires examining a person's personal circumstances and