disparity in sentence because judges are individuals and they come to different conclusions there's some us turkey case law that suggests that and it's not indeed it be kind of hard wood in the central district to find two more different judges still think he's a u s attorney and not a judge but there's nothing on this record indicate in fact he was kind of mad at the government for if you read the sentencing transcript for what they had for making the deal with the third a later time with the first sentence for comparison because you would never come up you couldn't tell them comparison but this is the only one i've seen in which at the reward the one with the most information so you would have had then you've probably seen plenty of drug cases where the person at the top of the pyramid gets a much lighter sentence than some of the people down on the street but yeah that's larger harm than harm him he can always say no he can't even and that is true he can i think the larger harm here is what i think the judge reinhart and yourself to talk and have touched on which is the fact that there's a subsequent event here that defendant is relying on it's a subsequent exercise of another district court judge's discretion under the sentencing guidelines and under volcker that the defendant is relying on and that is the lever that if that is right relying on to invalidate his sentence and so i think we need to think boss was going to get in the neighborhood of eighty right correct and in light of that with that sort of in front of him judge keller who was no softs and that sort of it all goes all the way down to forty eight months so that was right at the bottom wasn't out of the guideline range that was actually below the guideline range he actually went below an exercise discretion there and so i think but i think the difference here is kind of what's so funny isn't this just like sort of an animal on remained send it back and if he still thinks result at the end of the day i'm not comfortable with the fact that mr campbell got hired that's the way you want to start there isn't a sugar killer all right all right we're not going to better start because guess what you're going to get to do it every every court has looked at this every circuit that's talked to this has said it's a national disparity that you're looking for it's not defending to defend in the first the second the third the fourth seventh and the tenth every single one of them is that we don't look i'm the the government appealed that was to like a one year sentence and then the other person got a guideline sense right and so i think what we have here if you're going to draw analogies to that case what we have here is the person who got the two light sentence mr ab ok he's the two light sentence here and then you've got the person who got the guideline sentence which is mr campbell now when these circuit did there was that they said ok we're going to vacate both sentences and send them both back because we think th is you have a judge who in who queue to the guidelines and therefore kept mr campbell stands in line with national uniformity and then what he did and then what judge matsch did was he made it way out of whack with national  because that's that's true but the stink was true in lazenby and so i think that under the circumstance like an activist court to me well i wouldn't i am not i'm not inviting that when i am making the point is that what we need to do is we need to look at what the reasonable sentence what the most reasonable sentence was here in the most reasonable sense in from a disparity standpoint is mr campbell sense because that's that was in can't even that was in keeping with the national uniformity here m the sentence was not and i think that if we take a steps and we transform it into the only factor and i think that's what this appeal does is transform it into it transforms it into the only factor that matters and rever on that factor without looking at any other factors i think we're opening up a little bit of a pandora's box here but i'll move on sadistic you are alike that i would i would be happy to as well i've got ten more seconds here so unless as the sink as possible and get to the crux of my argument so we'll start with count seven which was the only count of wire fraud that mr abbas was convicted of the reason why this count cannot be sustained is because of one key element the elements of material reliance on the credit application there was no testimony as to that there was no representative from digitally the victim in that county as to whether they considered the credit application whether they relied on it in any way whether they checked other credit references whether they checked in bradstreet whether they checked the bank reference those there was only the testimony of agent nugent from the i r s who explained what was shown on the documents but that one element digital material really relied upon it and that is important because there were other representatives from victim companies that testified on the other wire fraud counts none of those counts resulted in a conviction  brought out the fact that they also rely on down in bradstreet they also relied on other credit references within the industry that also relied on the credit application itself and they also rely on thank cans so it's reasonable to  that the jury was paying attention when those victims testify in found out that there wasn't a material reliance on the credit applications in those cases so how they found a material reliance in this case when there was an absence of testimony on  element is really beyond me statements under section one thousand and one and that would be counts thirty and thirty one basically this is another issue of a lack of evidence as to the materiality of the statements that were made  agent nugent testified that when abbas was initially questioned he said that he had never gone to jan's residence and he had never picked up merchandise from japan a little bit later in the same day at a subsequent interview and i clarified that and said i thought you meant did i regularly pick up i said no i didn't but there was one occasion when i did go pick up merchandise i believe it was telephone equipment that owed to me and when i found out that team of john had left the country yes i did go to his residence twice to see if he was still there those statements initially that he hadn't had any contact accounts residence or business were made when the agents already had an investigation going they already knew about mr of acids involvement that's when they confronted him the second time is that what what if we found your fingerprints at jan's residence so those statements did not materially affect agent nugent's investigation he was already investigating mr abbas they didn't prevent him from continuing the investigation they didn't prevent him from going to abbas's business and conducting a further investigation of the change documents of questioning him further they didn't mislead him in any way and there was no testimony from the agent on direct nine action because the court below didn't see that materiality had been demonstrated in the people's case in chief and i believe it was error to let these two counsel go to the jury and i believe since they didn't go to the jury there wasn't any evidence regarding question is whether there is an adequate record before the court to even rule on this because generally speaking it's done by reviews corpus it's a clatter looks back you have an expanded record where perhaps the defense attorney can explain what his strategy was or wasn't i believe in this case you do have a nothing in front of you on direct appeal to determine whether there was ineffective assistance of counsel in this particular case and not just because counsel stipulated to all of their government's exhibits coming in more importantly because he didn't object at all during the cross examination of agent  believe that he was frustrated the trial court to the extent where he called counsel sidebar and said you've missed at least one hundred objections where it isn't fair to make your objections for you you're letting the prosecution i believe  danced all over the landscape that's not a strategic decision that is spilling to do your job in making objections and preserving them for the record and i think that is why the court has enough so i looked through a brief just a second ago just make sure i had missed it but this is a new argument is being presented at oral argument which is that the government failed to prove materiality as to that count now we did we prove materiality by calling numerous different  in companies who all testified that they relied heavily on these credit references i thought her point putting aside for the moment whether it's rate in the briefs or not and will determine by reading the various but i thought her point on that was that no in the credit reference and also from the fact that we called in five different victim companies we didn't call in all forty seven we would have been there for quite some time we called in five example victim companies to testify as to what they typically rely on and i think that that's sufficient a jury certainly sufficient for a rational trier of fact to find that all of these other companies rely on credit references in making their determination as to whether to extend credit to this bust out company same development i'm sorry is this an element of the offense the one camp if i'm trying to one count as to digitally i think i'm still in the same place which is there's a reason when friends to be to be taken from the credit reference and the fact that it is rife with lies that it was actually those lies were actually material because they go accurate just on its own you don't have to put on a witness for a company extending credit to say they relied on it i think that's i think that's correct i think that is correct and so as to materiality i think we're well over the hump because when we're when i don't think we are in that situation we did have numerous other companies and i think and that's why we did it that way was we didn't want to call in every single company of forty seven companies that were involved in the frauds we called in a targeted group of companies  noted appellate councils argument repeatedly saying it did not affect his investigation he did not testify that it actually affected his investigation well we don't have to show that this court has held again and again and again that you don't actually have to prove actual influence on the agency all you have to prove is propensity to influence the agency or that something is calculated to influence the agency and there's no question that his lies about he's putting distance between him and the other fraudster mr jahn and he's lowering you to sleep and so you all you had to do is prove that it was calculated and we didn't need and you don't need testimony from the agent because it's an objective t of the agent testifies yet affected my investigation or could have that doesn't get you there because the united states resist got in the supreme court said that question is a mixed legal quite legal and fact question and that the agent was still learning about this offense and those lies distancing himself mr abbas distancing himself from g m could lead need certainly were calculated to leave the agent to believe that there was distance between them and therefore mr boss didn't really was going on and so i think that is that there was plenty of evidence for the jury to conclude that these statements were false finally in effect is this council i don't think the record is is ready yet and here's why  i think it's a little misleading when what happened here was appellate counsel said that agent the judgment stopped the trial during agent nugent's testimony he did not he stopped the testimony stops the trial during jan's testimony and he said i've got a problem with the fact that you're not objecting to foundations to the lack of foundation as to mr jan and that happened much later in the trial yes much later in the trial as to mr nugent the judge of question how concerned about how the questioning was going and about whether counsel was being effective in his representation during egypt nugent's testimony and so i but just to make it clear first of all we don't have a clear precise indication of precisely the ways in which ineffective and second of all we don't have counsel explanation we have one line from him in which he says i don't want to be obstructionist but i think that in order to make the record here that a record that this court can really make its decisions on we need a thank you very very briefly my arguments with regard to the wire fraud account shows up in my reply brief on pages six and seven where the issue of materiality is right and discussed and i did blue brief your honor my emphasis and the initial brief was on whether it was actually fact or could have been mailed but then i realize that really the stuff that should be on them that question of was immaterial so thank you your hon with regard to whether the the failure to object and the cross examination was ineffective i don't think it matters whether it was during agent nugent's testimony or during the team or jan's testimony if counsel fell below the standard during anybody's testimony it would constitute ineffective assistance of counsel and with regard to the false statements those false statements have negatively affected agent nugent's investigation and then i don't it doesn't follow that then he would have had a subsequent interview with the defendant the very same day and follow up investigation and pointed out to him what if we found your fingerprints isn't it true that you were really there so it really didn't affect his investigation at all it wasn't material to his investigation