i please the court terry curtis axel on the after the united states and with the court's permission i'd like to reserve approximately two minutes of my time i'll keep track of you thank you the government appeals the sentence of twelve months and days that the district court imposed on defendant quite a loop and tura where the court failed to resolve disputed issues a fact concerning guidelines determinations failed therefore to make an accurate guidelines determination rendered a sentence that was seventy nine percent below the sentence recommended by the guidelines and the sentence was unexplained the government appeals i two grounds first of all the district court failed to consider the guidelines recommended sentence by first the court addressed the issues and ultimately decided the issues after giving the government only defend an opportunity to present their side of the argument that is that i compliance with the requirements under the guidelines and isn't that what happened here i think there's two ways to view the record neither of which actually assist defendants here and both are reversible error the first way to view the record is that the district court did not in fact the question i'm i correct that the government of better than four hundred thousand dollars does not reflect actual losses incurred by the victim correct that's correct and that's what the guidelines expressly instruct the guidelines contemplate intended loss which is a totally separate calculation and directed to sion which should be actual law intended law system is supposed to measure the the scope of the defendant's conduct by trying to interpret what the defendant intended to cause by his or her course of conduct and i think the government followed certainly closely to the letter what the guidelines require and use the actual value of the check she possessed which comes to at least half of that last amount and then for every credit card number she possessed attributed five hundred dollars which is exactly again exactly what the guidelines require there was no other lost amount figure in in the in the record and so in when the court finally did reach the issue the court did thousand dollars right and at that point whether it's a dispute between the defendant in the government or the probation office in the government the court is required under certain rule thirty two to resolve that and it's legal error in fact the court should read review that to novo not to resolve that issue and make a finding getting to the court's prior question if in fact if you review that as a as a constructive interpretation that there is no loss then the government would submit that's clear error in the court should review that for clear error because any factual finding nothing that would support that so it's the if if it's your honour's interpretation of the record that in fact there was an explicit or implicit finding then still that is a clearly erroneous determination on this record that also should be reversed the government would also point out that it is the government's position that the court is required to consider the guidelines by first accurately coming up with a guy in my situation then of course the court now has a book or authority to exercise its discretion to do something else after but the court but the government believes that the procedure here is important and points the court to the the recent decision that the defense submitted in a twenty ha letter which is the merryweather decision many whether decision by this court and i think this court they are joins all of the sister circuits that we cited in our brief saying that in fact in order to consider the guidelines you have to begin first with an accurate guideline determination i would also point that if you could just come back i'm still trying to understand in this play of what's going on before judge hatter there's this engage discussion about both of these issues the prior with a criminal history and and that's my recollection is that there was a request by the way it was said if it was you or whomever about the prior criminal history and some statement and judge had or said it was overstated at least there's some indication of what his rationale was there now i'm looking at here are two thirty one and i'm he goes through the he's heard all the arguments and  doesn't make a specific statement exactly i would agree with that but he makes a ruling and there goes into the stands to lose the government have any obligation at that point to say your honor we request a specific finding under the guidelines as to the last amount i have not come across any such requirement your honor the rule thirty two says that if an issue is disputed as it clearly was on this record the court has an obligation to resolve it and the court also has an obligation under thirty five fifty three to explain the basis for its ruling in a sentence let me also point out that i think that the the question really was implicitly asked by by the government both by pointing out to the court that it was the government center potations that the court had to go through the guidelines calculation just as it always did and looking at two thirty one where your honor is just point in my attention to this is the page i was talking about where it's clear that the court begins by saying i recognize there's this issue i don't find the government's number realistic and instantly goes on at the bottom just to say i found a different criminal history category and while it incorporates by reference to the probation officer number of ten i would not characterize that as a finding when the court has previously said that it understands there's an issue out there  the problem because i notice you just said a minute ago that that wasn't the finding of the obvious thing was the right ideas but it didn't do it the right i think i'm trying to say something different which is i don't think that the court believes that it had to actually resolve this issue but getting on understand with this just help me i just if on page two thirty one the court's to as i've already indicated that i find that the advisory guideline rage is complicated by the fact that the criminal history category itself should be a two so the range should be well know the range is still a ten the range itself should be eight fourteen and the is recommending ten months i don't think that that covers the seriousness of this action at all i'm going to sentence you of what would be the top of the well no i'm going to make it a year and a day and you'll receive credit what is not resolved what two things the first point your honor would be that even if you enter interpreted that as a finding under the guidelines there would be no record support for it because there is nothing in this record that says  united states versus allen decision the court said where the district court calculates a range incorrectly that is self is an unreasonable sentence so that's the first thing i'd say but i think getting to what the court's question is about my confusion on the record is if you look at the paragraph where the court begins sentence the first thing the court says it is i know the government says that there is a fourteen point enhanced meant that should be applied and lock them out as calculated by the government nobody has disputed that this is the way the guidelines recognise this this l to be computed and but i just don't find that very realistic and so then he goes on and simply ignores the issue and i do think both rule thirty two and the sentencing reform act say that he cannot do he has to say there's either zero last amount or there's some other lost amount and the enhancement is otherwise twelve as we pointed out even if the last amount were only two hundred thousand it still would have been a twelve point enhanced image and so i think the context of what the court did here is i'm not sure it's clear that the court understood that it was still required to resolve that issue thank you for the i'm sorry request that was made was the one relating to criminal history and that was responded to by the district court judge the factual pattern of what took place in the district court contrary to what counsel just judge to discuss that that whole discussion came up after the government counsel had for oral argument made those points to the district court in response to that defense counsel specifically pointed out the problem with the theory of ascribing a five hundred dollar loss amount to every piece of paper that was mostly came up in the case now it's it seems to me that from that and that discussion begins on page twenty six of the government's excerpts of record and then the comments made by defense counsel specifically about the five hundred dollars begins on page two hundred twenty seven the court at the end of defense counsel's discussion then goes back to the government to give the government an opportunity to have any further comments that the government wants to make in response to defense counsel and that question is done a page a to twenty eight and government counsel response so coming in to page two thirty one the one that fits your honor noted it's clear that the district court had been presented with initially presents report they had the defendants the sentencing papers that related to issues raised in the pre sentence report the government sentencing position in writing which the district court of considered and the oral presentations by both counsel on a number of issues including the criminal history and including the issue with regard to how to look at the last it that's point in time after the district court has given every everybody an opportunity to say anything further that they want to do now the district court goes forward and as your honor noted what the just record does is he talks to the defendant in the district court basically then goes on to indicate number one it's a very serious case and they specifically says that apart from however it is that the government counts up the checks and other kinds of things i and i tend to agree with your lawyer about the methods that the government uses there i don't think it's very realistic and that would say giving five hundred dollars tonight central credit cards and credit cards are not been misused yet we'll use a guideline figure of assume it's five hundred dollars for each so it's just basically the government's feeling it's not just these credit card it's every credit card number and it is every check if the checks are not specifically written to somebody or not that's exactly the example that was used by defense counsel in the decision or specifically written to somebody yes in other words and if there is a the big trouble and in any event it's clear in that discussion it's clear that discussion that the district court judge had all of those matters in mind and then he went forward to indicate what he was doing and what he indicated that he was doing is after having been advised by these guidelines and also looking at the various factors pursuant to eighteen three five five three and then he goes forward to pronounce particular sentence that he wants to impose and as part of that he refers directly to the probation department report and in the pre sentence report there is an in depth discussion of the basis for the three five five three analysis that's probation department did it in that analysis what the probation department said is that the advice of the guard lines having been taken into consideration the general nature and characteristics of the offense after considering the factors set forth in three five five three a sentence of ten months is recommended is sufficient to serve the needs of punishment deterrence and the protection of society and then there's a subsequent paragraph where they go into the details in terms of the application of those analysts the government is saying is that the district court was required to do more than that the do is to quote was required to make a specific dollar determination of the losses involved give some dollar amount as to the last involved so that we can determine the basis for it and i i don't think there's any case it's etc and i don't think the government side in any case it says that that specifically what the district court has to do which is clear here is that the district court did in fact consider those issues and made a determination and that's clear from the record make a determination want that there was no basis for an specifically said he took into consideration the advisory to use his terms now having now after having been advised by these guidelines and also looking factors so he specifically acknowledged that he did consider that and does that in the sense that he acknowledges he's made the considerations of more than just what is disputed that which is undisputed as well and on the basis of that now factors in the factors which he said he did and then could use you have a case to cite the answers to friedman's question in your favor it says that the missing link here is that instead of saying it was just a very very serious crime i'm not sure i don't think the government's numbers is very real with lipstick but apart from any numbers or how the government goes about picking the numbers will agree it's a very very serious crime he had through in order to comply with the guidelines and his obligations under the rules do so and it isn't four hundred thousand it is x is that true there are clear authority in that regard yes i think there is but i think it's a combination of principles or i think there are numerous cases than me whether case is the most recent from the circuit but there are a number of sister circuits all who have all who say that you have to consider the guidelines first by making inaccurate guidelines determination and then there are also the principles of the sentencing reform act and rule thirty two which require the court to specifically resolve all factual issues and finally there's a number of cases outside the circuit that say that the degree of a court's explanation needs to vary with the degree of its departure from even even with the criminal history category departure of two your honor the range would have been fifty one to sixty three months and as we also pointed out even with half a last amount the guidelines range would have been starting at forty six months but i take it in response to  i think the guidelines say that if you look at the guidelines the guidelines do say that you have to find lost amount where it's appropriate and if that is an issue of law your honor that the court has to a fact both interpret and apply the guidelines and this court has said the application yes because neatly and the particular enhancements in the guidelines are given to particular amounts over two hundred thousand four hundred thousand twenty thousand example your honor gates thank you