that afternoon may please the court my name is more about clay and i represent the appellant thomas martha district court in this case committed procedural error by including in the last calculation six hundred and sixty thousand dollars that was connected to h g and individual the government alleged was a victim in the district court found to be a victim the result of including that six hundred and sixty thousand dollars its burden of demonstrating the loss by a preponderance of the evidence and then committing plain error in its factual findings really narrowing down the issue here that was argued below and raised on appeal is that the government didn't present evidence that focused on or centered on mr murtha's intent at the time the agreement was formed the government introduced evidence and the court relied on that evidence that were events or documents that occurred generated or occurred after the agreement and that evidence was st off the most obvious i think sort of hallmark of a breach is that no money was returned and there was i realize this is after the commencement of the arrangement but there is the response to the questionnaire from h g s lawyers that he had placed over eight million eight hundred thousand dollars of his own money at risk in the venture and that just wasn't true that's present just that money was lost there were false representations made during the course of their dealings with each other i actually had fo things that i was going to cite that was one of them thank you and if i may just cite the other two and then go back and discuss each one another consideration was mr murtha statement when it was the spring of two thousand and seventeen when he was four factor that the government raised in the court focused on was sort of i'm i'm putting this label on it because i think it's somewhat accurate is is an ammo you know mr murtha it mit's to defrauding all of these was yes your honor and what the court in the government focused on was putting off mr murtha event you know post agreement with with h g was putting off the lawyers and cited back to some of the things he had done in with the conduct that he admitted you know was part of the fraud going to the st the obvious you know sort of breaches that no money was returned to each day you know and we cite the countrywide case heavily because countrywide case points another point in the march th march two thousand and sixteen questionnaire that also under countrywide if an intent to you know distort or put some false answers on that questionnaire cropped up in march two thousand and sixteen it's a it's a subsequent intent it's not an intent necessarily that he had at the time the agreement was formed with h g additionally and i don't think his statement in two thousand and seventeen really showed smarts light on anything for the government other than he admits to the facts i'm not sure your whole proposition has any merit because even if he hadn't formed the intention to steal the six hundred and sixty at the time defraud not not valid even if it occurs after the money is coming is his possession he's has had any obligations with spector that money and he decides it instead of performing those obligations he's going to do fraud the defraud the owner of the money and your honor it's the intent at the time the agreement was made in the money was paid over that we believe is is is the focus here if i take your money and perfect intrusted to me for some purpose and i take it in perfect good faith but after getting it i decide i'm going to defraud you and me and and and and and keep the money converted to my own uses and tell you false things in order to keep the money that's fraud with respect to six million six hundred and sixty thousand dollars even if even if i got possession of it without intent for your honor and certainly you know i'm relying very heavily on the countrywide case and i believe the country right case takes a different view of it that at the time that agreement is formed at the time the money is paid over his work we're talking about w fraud here if the intent if the inducement i used the word pure it's probably not the best word to use in a criminal case but if the inducement to the facts given are omissions are and do that are made with a say i'm investing your money also going according to plan but in fact at the time you make that statement you intend to defraud b you may not have committed a fraud on the st day but you've now committed a fraud on the next week you know here your honor i don't think it was that quickly and it's an example that your honour's or a month or a year later there's no i mean if you make a representation to a party that if they were told the truth would say give me back my money you've defrauded them haven't you i think it depends on other facts including how much of the agreement was follow through even with that even on your theory that it had to be at the time when you look at your client's statement that what he did with the money was property other than that mortgaged in the mortgage that property news the money for personal benefit and he never shared any of the profits ok you look at that in light of his am in all of these other frauds that he committed which is this is exactly what he did used to tell people promise them all kinds of returns and in that circumstance why couldn't the district court make a finding that this scheme to was was a fraud scheme from the get go i mean the it only has to be found by a preponderance more likely than not and you have to persuade us that it was clear error to find it director are i the difference between what we're talking about with h g and the other frauds one big difference was frankly the fact facts reported as to when the agreement was for if you take the h g versus one of the other examples where mr murtha is handling funds and closing that the law is the notion that at the start it was a legitimate scheme and as i said then you put it together with the fact that this is how we use repeatedly operate i don't argue with me now about how it would be possible to find the find something favorable client why is it clear error for the district court to say i think it's more likely than not that from the ge this was a fraud scheme and i go back to the fact that i don't think the evidence that the government put forth reflected an intent to defraud at the time that agreement was made in those wires with the other acts of fraud it was clear cut you had a duty most of them i'm referring mostly to the ones where he was a a lawyer he had acting as as a lawyer he had a duty to pay over funds again whether it was a personal injury matter or whether it was a real estate case here you had a nebulous agreement to begin with this one is different this is so it involves a what at the beginning seem to be a business relationship the others  you may be right that the parameters of the relationship are not as clearly spelled out as if they'd had a written contract but this is a preponderance of the evidence standard and and i don't think you're arguing correct me if i'm wrong that all the evidence that the district court relied on and that we're alluding to this morning can't be considered you can look at the record misrepresentations made after the relationship began you can look at the course of dealing with the others that he's committing fraud against others in a similar time and make inferences from that about maybe he's looking for money and you can look at the speed with which he did not comply with the arrangement to buy particular properties but went off in a different direction all that can support that from the beginning going back to your principle case there was a fraudulent scheme at least up to a preponderance i agree with that your hon r i i think that the differences i don't think it adds to a preponderance particularly here where that beginning the beginning of the agreement at the beginning is unclear the witness appears to be unreliable from the government's own agent as the district courts decide let me ask you this the whole point here is a sentencing challenge and the district court considering this last together with all the other loss even if it wasn't fraud isn't a loss caused by unlawful conversion your honor and i mean otherwise you're saying to us what a district court judge should have done is consider certain frauds but not consider this at all in trying to decide what to sentence him for for the crime of conviction and house how seriously to view his misconduct and how much the court thought he needed deterrence and all this sounds whether it's called fraud or a lawful conversion why isn't this properly considered by the district court in sentencing well your st i mean there was no alternative argument yes but we can't review for on any basis supported by the record there's no doubt this is criminal conduct if you want to talk about what label to put on it but his criminal conduct resulted in a six hundred and sixty thousand dollars loss the reason why it's so critical here is because of the fact that it's considered relevant conduct for the guidelines i don't know under some other theory where whether it would have actually met you know the requirements to be included in the guideline calculations so that's the starting point is that it impacted the guidelines are lawful taking of money whether you do it by fraud by conversion by holding a gun on somebody it's if this man repeatedly engages in conduct that unlawfully takes people's money your honor i don't think it amounts to relevant conduct if it's by the theory that we have is that it started out as a legitimate agreement that went wrong down the line and certainly you may have done things you know that were dishonest at a later point i don't think that rises to the level of sort of going back and making it some kind of a fraud i'm very much out of time if appropriate i may address the harm issue on the bottle thank you drew permissible on reasonable inference that mr murtha had fraudulent intent when he induced h g to invest six hundred and sixty thousand dollars cash a properly relied on multiple sources to make that finding including h q statements to law enforcement a document that mr murtha provided to counsel to memorialize their earlier agreement mr murtha statements to the f b i and also the fact that mr  with respect to it was consistent with conduct that mr murtha engaged in with respect to other victims there's also no dispute the mr murtha did not give back a dime to each of this investment in light of the careful record the judge made which was adequately supported by the evidence before him there was no procedural error at mr murtha sentencing if the court has any questions i'm happy to entertain them otherwise the the government didn't address the harm issue i do believe briefly i should address it the district court i think the best way to describe it is try to preemptively address the very clearly was responsible for the lesser amount that would subject him to a fifty one to sixty three month guideline range you know what are we what are you saying about sort of the fairness in sentencing if we give that person the same sentence  seventy eight month sentence that mr murtha has received so i i think just in terms of in principle and in fairness i think it's a concerning thing when a district court says i would have done the same thing anyhow and i know he offers explanations and certainly st blush i think they make sense but essentially the district court goes through the three thousand five hundred and fifty three objectives particularly to reflect the seriousness of the offense when a lawyer does what mr murtha did we want to send a very strong message and i think we can all appreciate that but he gave them the top of the guidelines after finding after a vigorous vigorous  and gave him that seventy eight months i find it very hard to believe that that six hundred and sixty thousand of the evidence and all of the information that we went through to get there did not impact that sentence and then i'm not just talking about the guidelines the other point i want to make within the guidelines is that loss as we know in the guidelines is a reflection of culpability and here it's hard to imagine if that loss had been reduced that culpability reduced by six hundred and sixty thousand dollars that mr murtha still would have received seventy eight months couple of quick point also isn't it also reflective of the need for deterrence because this goes back to our earlier discussion whether it's fraud whether it's conversion whatever else another scheme that your client category which you're saying it's not appropriately considered because he didn't have the fraudulent intent when he st induced h g to give them the money but the district court is saying i wouldn't ignore the fact that he ultimately stole this money and so i'm not sure that i agree that we have no idea why there's no plausible reason why the judge would not have considered this was saying i would have given him seventy eight months his focus was on this is very serious i don't think he should do after a good time less than five years i i think it was more about that so i think even if he had found the six  a purely innocent act on mr murtha's part the impression i get when i have is that that's that's beyond reason right i mean you're you're not arguing it you know i'm trying to i'm just trying to make the point that whether that six sixty existed or not it appeared from there it appears from the record that the judge wanted a particular sentence seventy eight months the problem is the judge doesn't distinguish if when he does that three emptive you know makes that preemptive statement the judge doesn't distinguish well if he had if mr murtha had been in the guideline range that we had advocated what with the variance specifically have been what with the upper departure specifically have been because all of the things that the district court articulate as distinguishing are included as enhanced mit's if you look at the plea agreement and the guidelines abuse of trust vulnerable victim  you know extreme financial hardship i think there's six points in total so i think it's very difficult i i don't think the judge certainly don't believe he was insincere and what he stated but i think it's not  the six hundred and sixty thousand dollars i'm going to sentence a same way regardless of whether there was any culpability with you like to six hundred and sixty thousand dollars i think even if you can establish that because of some precedent  ridiculously established by the court of appeals in some case that shouldn't have been counted as to to go into the next category i still think of these facts seventy eight months is the appropriate sentence  seems to me that it's fairly black and white by judge found by the guidelines you know he's not correct i know that and and when you say it's not articulated yourself and acknowledge this is not conduct that's not violative of the law there may be some argument you can make as to what law but i mean it's not like we don't know why the judge would have thought a seventy eight month sentence was necessary or that your client would know why what i'm saying is not articulated is judge saying there would be some alternative consideration of the six sixty even if it wasn't technically included in the los when judge justifies i would have given him seventy eight months if i hadn't included the six hundred and sixty in the last he doesn't say because you know what what you did later even though countrywide her something might absolve you what you did later with regard to that money was you know conversion or horrible whatever he might want to say about that the court didn't say that the court said i would have given him seventy eight months i'm not arguing that he couldn't give a seventy eight month sentence i'm arguing that when he made that distinction or trying to make a distinction and said i would give you seventy eight months even if the guideline range was fifty one to sixty three months i had to give specific reasons why an upward variance would have been justified for us to understand that his decision making was not arbitrary or for his that our president  we don't we don't require incredible detail where the record makes it apparent doing what he's doing i think it runs into trouble with arbitrariness or or at least just fairness when you go to the think your honor going back to the lawyer who committed fraud with a range of fifty one to sixty three months who has all of the same characteristics of mr murtha that lawyer would receive seventy eight months under the court's analysis asked if mr murtha and there's got to be some leveling off there that that would be an unfair is old enough to have been involved in criminal law before nine hundred and eighty seven dollars when the guidelines went into effect what you're saying more of us than you'd like to know if we'd like to admit it back in those days judges fashion sentence based on what they thought was just when the guidelines came in everything was numerical six there's two hundred and twenty thousand dollars to two hundred and forty thousand is up and you young people think that everything has to be linked to amounts and different but it would be perfectly logical for a judge to have two defendants before him who are co defendants in exactly the same conduct and one of them was responsible for seven hundred thousand dollars the other was responsible for fifty for a one million five hundred thousand dollars and the judge would say you to your sentences are seventy eight months because that's the appropriate sentence for what you've done there's nothing illogical about that if your mind hasn't been warped by the guidelines into thinking that everything is numerically ratcheted in criminals nancy your honor what you did what you did is is something that deserves seventy eight months and doesn't matter whether you did it with respect to seven hundred thousand dollars or one million and five dollars your honor i thank you for lumping me in with young people i do preach that i was actually practicing law when the guidelines for several years before the guidelines became advisory so they are all i know i will love to say that your honor i i think here the problem is this there has to be clearly articulated reasons why that sentence would have been different and you know in the briefs i don't think we have that here