my client was convicted i have a guilty plea of making some faults or causing some false statements to made by virtue of a press release and a couple of website releases which touted the stock in his company the facts which he did that are professor of economics at the pace university in new york and he a former sociate dean of economics at fordham they both found the last figure professor fall out of how the last figure to be at the most a million three professor warner found the last figure to be somewhere under a million dollars his best estimate act three hundred sixty five thousand dollars vastly different from the court's finding of a loss in excess of four this kind of evaluation does not meet the clearing convincing evidence test required and in view of the evidence which was before the court which this circuit has indicated must be by clear and convincing evidence in the united states versus jordan problem and he indicated her bank the trial court physician was basically that because there were so many transactions it's a logical that we must have at least fifty victims here so that the four level  more than fifty victims and has meant would indeed come into play professor warner noted in the materials i filed with the court that although this kind of argument does appeal to him to intuition it could be refuted by a detailed account of all those who traded the stock and other words and what i argue to the court was if you have someone who purchased the stock during the fraud period who appears to be a victim and therefore purchased inflated stock i mean you need to have some kind of showing that this person didn't sell also during the fraud creating a fact make a profit on the stock or sell it some time later run after the fraud period and make a profit on the stock before he can become a victim within the guidelines definition which is a person who would sustain any part of the last that burden is not upon a defendant the government has to pay and it has an evidence or burden with that regard we didn't have to make that none was made only thing was submitted to the court with a list of restitution list which is the normal practice in this in this district in the summer district indicating what the victim should receive what in terms of restitution because he couldn't face the money and materials the government had figure out who if any of the government has a burden by clear and convincing evidence under the jordan case since the software level has for above to show that the enhancement applies and when you have a situation where it may or may not apply but it looks like it might i don't think that meets the  government's burden and if you're going to tell me that it does then i guess i'm stuck with that but there's absolutely no proof in the record to support this in hasnat which may or may not be appropriate in this case the blast  relationship with with the so called victim these arm's length of these commercial type transactions don't count most of the cases they cited or the relationship here between your client and the victim whoever that that to might be isn't really arm's length and you're your client is the c e o of a company that's made public statements about itself the victim is the purchasers of shares in that company but is not purchasing from the company's perching somebody else at the market and so it may be true that this isn't an existing shareholder although some may be acquiring more shares not an existing shareholder that could be said to have a current at that moment position relationship of trust but you don't buy shares in a company unless you  have a level of trust in the company's management and that's what your client was the company's management but the but that's not the kind of trust that the cases talk about is the problem i mean that's that's essentially the argument that the government has made and so it's odd as to how the cases are over different i mean there is a relationship of trust there isn't there yet whatever you have that everyone every one of these cases even in my school is facing in which the government realized involved a situation where the so called victim  as i said the application talks about professional and managers managerial discretion and dealing with those kind of situations he was the c e o there's no question about it if you never met or even spoke to one of these people that bought on the public  equity position of stock or worse in a company by inflating stock so in his own and running off with all the money leaving the company with nothing enhancement it's not even discussed the issue in this case and half what was not based on the sale of case was my impression that my thesis the seller was not himself the issuer of the source of information about the securities in question correct and that's right that's why i added in the statement of the court that they said this this analysis would apply even if the person occupied a position of trust within the corporation so it's telling you that it doesn't differentiate because it was the attorney rather than the somebody who actually was on the board of directors or c p r of the company the key is the relationship to the public or the person in the public making the transaction buying the stock if there is no special relationship then that situation nation it's not that it's not covered by the guidelines it's just it's just covered by the the regular price of the trading of shares during the period of trial and subtract what happened to the shares placing the average price after the disclosure of profit come up with a calculation to determine what the appropriate amount of l presented evidence in both those papers and exhibits that had virtually minimal start on the trading price of the connection in those two days of trading and the district court consider that evidence and cited evidence in terms of rejecting experts including that there were that it is for the district court to now make the guideline calculation under the guidelines and those calculations are then advisory and in this case if this were really mandated the court could affirms previous guys i calculate and then make to the amount of loss that was actually discussing the certainty transcript in the state of the record and the parties to the could come up with an agreement at that point the parties were seated as if we're going to trial but then the defendant decided at the last minute to plead guilty open briefly what i'm asking this court to do is to find as a matter while based on the record the two views of trust and has for it doesn't apply here that the fifty victim in a half minute was was clearly not i'd i'm going to hedge a little bit because i don't know how to interpret some of the court's language i have a fiduciary relationship clearly clearly works but the cases don't talk always in terms of abuse or relationships they often use advantage otherwise it's no different than any other fraud where i misrepresent something about my car and sell it to someone to say that it's the same kind of basic fraud it's the same kind of loss calculation at the end of the day without a special relationship you just don't  because it in essence it's an arm's length transaction in the market place them the people the marketplace have an opportunity to find out more things before they do the investment in this particular case there was nothing on any of these releases that indicated that thomas hughes was responsible for them so nobody in this marketplace that bought the stock knew that this was because of some action by thomas hughes in fact it was but none of the purchasing public knew that so there's no way und yeah but they weren't relying on any relationship with mr hughes they didn't know that these came from mr hughes they were just you know press releases the came out of companies like you know come out they've had no indication who the author was or who caused them to be offered  and to release them to the public so you can have it really any kind of relationship with the public that and that circumstance much less a special or quite as your event but if you're the mother efficient responsible for you're responsible for the fraud and that's e and booker except without a jury finding that she lost must be exactly what i said four million six hundred thousand dollars but i'm doing this within my discretion because they're the guidelines are advisory but i'm using the guidelines as an advisory tool pursuant to the section thirty five fifty three analysis which indicates that should be one of the factors so what's the government is saying that they should do what's what the trial court should do w had to look at it so i think that's the government's got a basis for saying that i understand the concern you raise but i think booker part to sort of tell the district court you can't disregard the you know look at them and then you're free to do  upheld or that it can be reduced and if a judge says i'm relying on these factors and here is sentenced and this court tells them that that one or two of those factors may be inappropriate i can only reasonably assume that the