conspiracy to commit conspiracy to commit you know frauds who were convicted but your this matter involves a recent and seeing hearing however that turned out exactly like your original sentencing nearly a decade before despite overcome the original decision the district court clarified that night of a cheat offense nor cheat offender or change the sentence in this case this decision turns on a couple of technical and perhaps hyper technical legal distinctions starting with procedural versus state of the reasonable classification is most important here because it affects the standard of review whether there is more of a legal analysis in th sense as to failure to consider or a more deferential abuse of discretion standard used more toward factual considerations in this case it's a significant overlap between the two because the court w mitigation against the original decision so with the law of the circuit being basically unclear on this point there is no clear delineation between  awkward to have occasionally have trouble trying to categorize history woman's there's not going to be a bright line test or distinction that the court can pull out of this case in fact i don't think just because it is more in line with a ven diagram than it is to block side by side there is an approach where you look at what the district court said and you look at the sentencing hearing transcript and there is the now is the yes i do argument requires the district court to do the district court as you know ignalina judge that he had yet that it spending time in prison had changed and looked at all the factors and decided to impose the same sentence you just said something that i want to make sure i understand even it sounds like you say that if that fact is recognized there must be some mitigation so are you saying it is there that the district court would be obligated to reduce the senate if there's in this particular case with these particular fact i do believe that is what the district court would have wind up doing to avoid rising to a quote unquote vindictive sentence for north carolina years and if not of the  is in our normal usage you know there wasn't any meanness or mean spiritedness but the idea is that with a different set of offense there weren't even the same number of offenses criminal conduct was different and the offender himself was different from the person who appears and in fact set himself up to leave before he came back or in years that's not the same person they are now so in a balancing test those still through all this process when he allocute and when he spoke to the to the sentencing court the sentencing court itself said that this was clearly not the same individual the answer is almost limitless and explain correct was pointed out however where they explain correctly that they chose not to include a particular steps for exactly in this case the post beyond a reasonable doubt so there's an issue there that has to be addressed by the supreme court if it's ever to be addressed but that issue also feeds and it illustrates how the sentencing didn't change no matter what the jury did and it where the issue of of money laundering convictions was not raised with the idea of the same sentence will be rendered in the trial or whether there were dropped their money laundering convictions or nah the ca effect of assistance of counsel was found it was sent back to the district court three money laundering charges disappeared and then nothing more to say so from that will lessen the opinion that are with the paradox of a sion that morning your honor and may it please the court federal sentencing law as this court knows is almost entirely permissive and even a cursory examination of the sentencing transcript shows that the district court's fully considered and assess the defendant arguments before rejecting them the district court's decision to reimpose the same forty five year sentence on remand should be affirmed and i'll begin with where i believe mr hurd was hurst was going towards the end of his argument i understood him to be saying in response to your honor's question that a court must consider evidence of post sentencing rehabilitation in it in fashioning a sentence under eighteen u s c thirty five  fifty three a and i agree with judge floyd that pepper authorizes a court the opportunity to consider it a district court may consider it but here even if we accept mr h of argument that a court must consider it we have evidence before us that the district court did in fact consider the limited evidence of mr on the dingers post sentencing rehabilitation and that limited evidence mr st represented that the defendant was in fact a changed man as a result of his current time in prison and none of that is is one would hope that mr allman singer was a different man after spending seven years in prison provided in two inches of victim impact statements before the district court upon resentencing establish the crushing effect that this conspiracy had on many people's lives that in addition to what mr hurst has alluded to it's  rehabilitation evidence that mr ohman singer presented and that is the court's prerogative and that is lawful under the law for that reason your honor i will say that the evidence before this court is that mr ahmed singers was sentence with procedurally and substantively reasonable as i indicated the court gauged and banter extensively with mr hurst about the factors that was considering what mr hurst was arguing whether it was a departure whether it was a was reduced from one thousand five hundred months to seven hundred and eighty months still an enormous sentence and the court imposed a sentence below the seven hundred and eighty month to a sentence simply unreasonable due to its length that was discounted by another panel of this court in two thousand and thirteen that a forty five year sentence for a crime of this nature is not outside of the of the realm of possibility for sentencing there was live testimony and much of it was supported in the victim impact statement well let me start there and then i'll back up the victims who testified many of whom were elderly they were near retirement age and they were on their way to retirement and you know had a centrally decimated their retirement account also during trial the court heard evidence that a deliberately marketed their products and suitable for retirement funds and at that time in the market the returns were not great and so as a practical matter a large part of the victims of a you know were folks on the cusp of retirement who at the last minute put their funds or their teenage kids college funds into a a no and then lost it all evidence put before them that are that is of sufficient reliability and trustworthy so to the extent of the courts being distinguished between what they may consider must consider if there is a noun frivolous argument courts must consider that the trial court to the extent that we put on evidence that the court itself found was a change of character the closing of the hearing the trial court said that i do accept he is somewhat remorseful now this is that j j to thirty two so he's more remorseful now than he was eight years ago i'm certainly not the same person who structured the plan of practice are rated his wife's account was ready to flee so the court the trial court itself distinguished this is a different human being the big one that was before the court the st time  something i wrote i've raised at the hearing if i recall correctly but it's not something we discussed also so you could you concede that the court didn't have to consider that no i didn't know i've often seen that  graded to my recollection of the here and itself i didn't press very very hard because we were working on the other issues of bounce you know the defense rehabilitation and the you know as the sentencing hearing progressed obviously for other sentencing purpose i hope that answered the question i'm sensing it might not have