[00:00:01] Speaker 03:
Chase number 22-30-68, United States of America versus Seleucidia glutamilla, also known as Seleucidia glutamilla, also known as Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutamilla, Seleucidia glutam

[00:00:30] Speaker 03:
Mr. Lutimilo was sentenced pursuant to guideline 2B1.1, which enhances the defendant's offense level based on the amount of quote loss.

[00:00:39] Speaker 03:
That term is undefined in the guidelines, but the guidelines commentary directs courts to apply the greater of quote intended loss or quote actual loss.

[00:00:48] Speaker 03:
That is what the district court did here when it used an intended loss figure of 610,000 in the 2B1.1 loss table calculation, rather than the amount that the victim actually lost

[00:01:03] Speaker 02:
who's been charged with a particular crime, the benefit of essentially collateral help when the money doesn't return to a certain extent, as opposed to what they intended to rob somebody of, or in this case, what they actually stole.

[00:01:20] Speaker 03:
So that back to the plain text of the word loss.

[00:01:24] Speaker 03:
And it's important to realize here that in 2B1.1 out of the 20 special offense characteristics,

[00:01:31] Speaker 03:
This is the only one that does not use the word the effects.

[00:01:34] Speaker 03:
It uses the word loss.

[00:01:35] Speaker 03:
It doesn't use the amount taken.

[00:01:37] Speaker 03:
Again, it uses the word loss.

[00:01:39] Speaker 03:
And loss, the plain meaning of that term, is the amount that the victim actually lost.

[00:01:45] Speaker 03:
And that comes from the dictionary definitions of the Third Circuit and the Sixth Circuit cited too.

[00:01:50] Speaker 03:
It also comes from what a reasonable person would understand from that term.

[00:01:56] Speaker 02:
And.

[00:02:01] Speaker 02:
I might lose my keys this morning.

[00:02:09] Speaker 02:
I might find them later in the day, but that doesn't change the fact that they're lost.

[00:02:16] Speaker 03:
Right, Your Honor.

[00:02:17] Speaker 03:
And again, we're asking the word loss at the time of sentencing.

[00:02:20] Speaker 03:
No one's asking that word, you know, at the time of

[00:02:24] Speaker 03:
Indictment when we're writing it when the PSR is being right and will be written by the probation officer or the where the judge is sitting down at To sentence the defendant.

[00:02:34] Speaker 02:
That's what we're asking the term Yes Years later

[00:02:54] Speaker 03:
Right, and we recognize when we assign this calculation to happen at the time of sentencing, we realize what we always realize about sentencing, which is that at the time when the judge has the most perfect information he is going to get, and he's able to account for relevant situational factors that are critical for implementing the guideline that's written.

[00:03:16] Speaker 02:
That's why, for example, if you have a probation officer potentially saying that you owe restitution,

[00:03:23] Speaker 02:
and many defendants will try to get that restitution paid before they come to court.

[00:03:27] Speaker 02:
So the defense counsel can be very strategic about when the sentencing actually occurs by asking for different conveniences, asking the ability to pay the restitution, and so their loss is lower.

[00:03:39] Speaker 03:
Right, your honor is correct.

[00:03:41] Speaker 03:
But that's where the sentencing judge has that discretion, for example, to bury outside

[00:03:50] Speaker 03:
you know, using the 3553 factors or, you know, to use his discretion to both implement the guideline as written, but then also use his ability to vary.

[00:04:02] Speaker 03:
And it's important to realize that this is the policy call that the commission made, right?

[00:04:07] Speaker 03:
To use loss and by using loss to make that calculation,

[00:04:12] Speaker 03:
incorporating any offsetting amounts, incorporating any recovered amounts at the time of sentencing.

[00:04:17] Speaker 03:
If the commission wished to make a different policy call, that policy call is their choice, and they can do that, but they can't do that in the commentary.

[00:04:25] Speaker 03:
They must do that in the guideline.

[00:04:27] Speaker 03:
And I wanted to also, yeah.

[00:04:29] Speaker 02:
So based on this line of argument, I'm not quite understanding why we care about the commentary for the fine reason that if you think that actual loss just means actual

[00:04:43] Speaker 02:
net loss at the time of sentencing.

[00:04:45] Speaker 02:
And that seems to me what you think the plain meaning of loss is.

[00:04:48] Speaker 02:
Then why do we care about the difference between actual loss and intended loss?

[00:04:53] Speaker 02:
Because intended loss just doesn't figure into it at all under that formula issue.

[00:04:57] Speaker 02:
It's just kind of, so the commentary that talks about the possibility of obtaining the greater of actual loss than intended loss is just beside that.

[00:05:06] Speaker 02:
It has nothing to do with this case at all.

[00:05:09] Speaker 03:
Well, the commentary, you're right that the laws, the plain meaning of the term loss is the amount that the victim actually suffered, and that will necessarily incorporate any recovered amounts in the offset.

[00:05:21] Speaker 02:
That may be right.

[00:05:22] Speaker 02:
I guess what I'm saying is, if we assume that that's your view, then what does the commentary about intended loss have to do with it?

[00:05:30] Speaker 02:
Because the language and the concept of intended loss, that doesn't have to do with the different

[00:05:40] Speaker 02:
intended loss just doesn't have to do with that.

[00:05:45] Speaker 03:
Intended loss or attempted loss, judges use that term to look at what the defendant originally intended.

[00:05:55] Speaker 03:
So in this case, for example, it's the $610,000.

[00:05:58] Speaker 03:
And that's obviously what is straightforward from the commentary and what judges typically apply in terms of calculating the guidelines range.

[00:06:06] Speaker 03:
Now here, actual loss in terms of what the victim actually suffered, if your honor is correct, that is the amount calculated at sentencing that incorporates any recovered amounts.

[00:06:15] Speaker 03:
You do not, I guess, need the commissary to arrive at that.

[00:06:19] Speaker 02:
That's your position.

[00:06:21] Speaker 02:
The last thing is, whatever right against wrong actual loss means, it could either be what was lost at the beginning or what was ultimately lost counting recovery by the time of sentence.

[00:06:32] Speaker 02:
That's the debate.

[00:06:33] Speaker 02:
But that debate just doesn't have anything to do with intended loss.

[00:06:38] Speaker 03:
It has to do with intended loss, only to the extent that intended loss was used by the judge, obviously, in this case, as the amount that he wished to implement into the guidelines range.

[00:06:51] Speaker 03:
Now, obviously, like... But it was, 16 was the actual loss.

[00:06:56] Speaker 03:
It was not the actual loss, I mean...

[00:06:59] Speaker 03:
It was the amount taken in this case, but it wasn't the actual loss, because again, we're asking that question that's set to say.

[00:07:04] Speaker 02:
Again, you're going to go with Chief Judge Schwartz, and you're kind of applying this based on your definition of actual loss, but there could be other perspectives.

[00:07:13] Speaker 03:
It's not my definition.

[00:07:15] Speaker 03:
It's the common sense understanding, the ordinary plain meaning of the term loss, which again, as the Third Circuit and the Sixth Circuit said, has nothing to do with what the defendant intended to take

[00:07:26] Speaker 03:
but it's actually what the victim actually lost.

[00:07:29] Speaker 02:
We've been sentencing for a long time.

[00:07:31] Speaker 02:
I know that myself and Judge Wilkins, because we were on the federal trial court, we've had lots of cases where it's intended loss.

[00:07:39] Speaker 02:
For example, I've had cases where you have a tax situation and you are the tax preparer and you're doing all these types of deductions or credits, et cetera, et cetera, to allow somebody to get a bigger return.

[00:07:55] Speaker 02:
That gets caught over in, let's say, our Center in Dallas or somewhere like that.

[00:08:01] Speaker 02:
And so the fact that it got stopped, it doesn't mean that you didn't intend for those people to get all their money back and intend to rob the IRS of those funds.

[00:08:11] Speaker 02:
It happens in government contracting schemes, too.

[00:08:14] Speaker 02:
If you overdo it and you try to get money in that regard, too, about what you've done over contracting,

[00:08:22] Speaker 02:
over subscribed to what you should actually get paid and things of that nature.

[00:08:27] Speaker 02:
So there's a reason for intended loss from the standpoint of what's your mental intention with respect to the crime.

[00:08:36] Speaker 02:
And so that's why those terms seem to be distinguished out, because you should not get credit.

[00:08:40] Speaker 02:
And that's what the district court wrestled with.

[00:08:42] Speaker 02:
You should not get credit from the fact that somebody else paid it, even if your mother paid your fine or your fee or whatever your probation or repitution loss was.

[00:08:52] Speaker 02:
that there seems to be at least some sense that you don't get credit for the crime.

[00:09:00] Speaker 03:
So, Your Honor, again, we're looking at the term loss as it's written in this guideline.

[00:09:05] Speaker 03:
And I'll just point out again that the specific offense characteristics that are used to hike up the defendant's offense level for this guideline use the word the offense every one of the 20 times that SOCs are used.

[00:09:21] Speaker 03:
But for this SOC, there's only, there's one word used and it's loss.

[00:09:28] Speaker 03:
It's not amount taken, it's not the offense, it's loss.

[00:09:32] Speaker 03:
And loss carries the plain meaning of the amount the victim actually suffered.

[00:09:36] Speaker 03:
And let me get you to think about it.

[00:09:38] Speaker 02:
You have a forfeiture problem.

[00:09:43] Speaker 02:
It's plain error.

[00:09:45] Speaker 02:
It's a defense of greed.

[00:09:48] Speaker 02:
I'm looking specifically at

[00:09:50] Speaker 02:
I didn't see anything at the same thing hearing that change that

[00:10:21] Speaker 02:
And as a district judge, the first thing you're supposed to do is calculate the guidelines and determine whether either side has an objection to the guidelines calculation.

[00:10:37] Speaker 02:
And then you resolve that objection, because then you have to deal with departures and all of that.

[00:10:43] Speaker 02:
And then you can want 2 to 35 to be a factor.

[00:10:49] Speaker 02:
We can't have a situation where the defense counsel says that the guidelines copulation is correct in the district court when it comes to the court of appeals and says no action was correct.

[00:11:06] Speaker 02:
And that seems like what we have here.

[00:11:08] Speaker 03:
Your Honor, that's not correct because on Joint Appendix 134, defense counsel stated specifically that

[00:11:18] Speaker 03:
What Mr. Luther may have left in our problem was the actual offense level calculation.

[00:11:24] Speaker 03:
It was not whether the court should vary, but whether- That's not the language that you want her for looking at.

[00:11:32] Speaker 03:
She said what should be measured is the actual loss, that's 76,069, and that's where we get the seven plus the six.

[00:11:41] Speaker 03:
So she identifies the six points as the enhancement from the loss table that

[00:11:51] Speaker 03:
That is an objection.

[00:11:53] Speaker 03:
She informed the court that she thinks that the court should be using six points as its enhancement for the 2 v 1.1 loss table.

[00:12:02] Speaker 03:
And that's what the court, that's what rule 51 requires, simply informing the court of the action that the defendant wishes the court to make.

[00:12:15] Speaker 02:
I'm sorry?

[00:12:17] Speaker 02:
That doesn't even compute because

[00:12:20] Speaker 02:
At 13, you don't get a guideline for 12 to 18 months.

[00:12:24] Speaker 02:
So it's 20 months of payments.

[00:12:27] Speaker 02:
And then the court later says, so everyone agrees that the timeline is 151 to 63 months, whatever it is.

[00:12:39] Speaker 02:
And there's no objection to that at all.

[00:12:42] Speaker 03:
Well, I think the objection is here.

[00:12:43] Speaker 03:
On 134, she identifies, again, she informs the court that she objects to the

[00:12:50] Speaker 03:
Well, she's clarifying, again, you don't have to use any particular words.

[00:12:56] Speaker 03:
That's what this court held.

[00:12:57] Speaker 03:
And what she's doing is she's informing the court of the action that she wishes the court to take, whether Mr. Ludemila wishes the court to take, which is to use the $76,000 figure in the lost table.

[00:13:10] Speaker 03:
And that would result in the quote seven plus the six.

[00:13:13] Speaker 03:
That's six points right there.

[00:13:14] Speaker 03:
That's the enhancement that she thinks

[00:13:17] Speaker 03:
that the court should arrive at by using the $76,000 figure in the loss table.

[00:13:21] Speaker 03:
And again, the threshold from ABNY is low.

[00:13:25] Speaker 03:
That's what this court said in Brock.

[00:13:27] Speaker 03:
It's a very low threshold.

[00:13:29] Speaker 03:
It's a straightforward.

[00:13:30] Speaker 02:
But this is a specific context of sentencing.

[00:13:34] Speaker 02:
In all of the Supreme Court cases, who has voted in ABNY, will say that guidelines aren't right.

[00:13:46] Speaker 02:
that our job on the appeal, our first job is to ensure that there's no procedural error.

[00:13:53] Speaker 02:
And it translates into, well, their job is to ensure that there's no procedural error in calculating the guidelines correctly.

[00:14:04] Speaker 02:
The judge here is a very experienced judge, former federal prosecutor.

[00:14:11] Speaker 02:
They didn't pick up that there was an objection to

[00:14:16] Speaker 02:
I would have.

[00:14:20] Speaker 02:
The whole point of the plain error rule is that we're supposed to, yes, we know our magic words, but we, especially if you have written that the guidelines calculation of the PSI is correct, you've got to at least bring up

[00:14:50] Speaker 03:
I think your honor is right that this is a very experienced judge.

[00:14:57] Speaker 03:
Judge Boasberg is extremely experienced, and I think he recognized that this, and he did, in fact, when he states later on that, you know, I don't agree that this is the number I should focus on, he recognizes that she is objecting to the guidelines range, and that's why he states that later on.

[00:15:17] Speaker 03:
Again, the actual glossary.

[00:15:22] Speaker 03:
I don't think, I mean, she said seven plus the six, which means she's looking directly at the guidelines range calculation, the events level calculation of her to be 1.1 loss, the loss table there.

[00:15:32] Speaker 03:
She's not looking, she's not making a variance.

[00:15:34] Speaker 02:
Seven plus six would be the guidelines would be 12, 18 months.

[00:15:41] Speaker 03:
So she did, she also said later on that I think I missed

[00:15:46] Speaker 03:
You know, I didn't add the levels for, the level I missed adding.

[00:15:51] Speaker 03:
She says that on 137.

[00:15:53] Speaker 03:
So she corrects her guidelines calculation there.

[00:15:57] Speaker 03:
But she, the point is here, she's saying that the offense, the enhancement from 2B1.1 should be the six.

[00:16:05] Speaker 03:
She is putting that on the record and she is informing the court that that is what the enhancement should be from the 2B1.1 loss table.

[00:16:12] Speaker 03:
And it shouldn't be that because of the $76,000 figure

[00:16:15] Speaker 03:
that should be used.

[00:16:16] Speaker 03:
And she identified that as actual loss.

[00:16:18] Speaker 03:
And again, the term actual loss only comes from the commentary.

[00:16:22] Speaker 03:
I mean, Judge Boasberg, again, very experienced judge, knows that actual loss comes from the commentary.

[00:16:28] Speaker 03:
And that's how the PSR got to the 610, because it's applying the greater 610,000 or $76,000.

[00:16:35] Speaker 02:
That's why we can't look to the commentary.

[00:16:39] Speaker 02:
I'm sorry.

[00:16:39] Speaker 02:
That's why we couldn't look to the commentary.

[00:16:42] Speaker 02:
Number one, it doesn't

[00:16:43] Speaker 02:
necessarily show that the district court did, because it's not mentioned specifically, like the word commentary.

[00:16:51] Speaker 02:
I'm looking at it and there's a definition.

[00:16:54] Speaker 02:
But even if they did, tell me what's your position about why they couldn't have done it.

[00:16:59] Speaker 03:
I'm not going to because the commentary conflicts with the plain meaning of the word box.

[00:17:04] Speaker 03:
So again, the plain meaning of the word lost is that the amount of the victim actually lost.

[00:17:08] Speaker 03:
And that must incorporate any offsets or recouped amounts until the time of sentence.

[00:17:13] Speaker 02:
And you're just relying on other circuit testing for that, nothing in this section of the Supreme Court.

[00:17:18] Speaker 03:
I'm relying on the Supreme Court's decision in Kyber, which means we have, which said we have to look directly at the plain text of the guidelines, of, you know, obviously a legislative rule, but by analogy, through Stinson, of the guidelines text.

[00:17:34] Speaker 02:
Should we also consider Stinson?

[00:17:38] Speaker 03:
Well, I clarified and narrowed Stinson, and it did so by saying we must start with the plain text.

[00:17:47] Speaker 03:
And if that text is unambiguous, as it is here, we don't need to go any further.

[00:17:51] Speaker 02:
But when you say loss, and then you have a commentary that says actual loss versus intended loss, how am I to believe that the text is clear?

[00:18:01] Speaker 02:
You seem to be defining it, and the definition is not there.

[00:18:06] Speaker 03:
So as the court knows, we apply the guidelines as written, and the term loss undefined.

[00:18:11] Speaker 03:
And the term loss, because it's undefined, we look typically to the dictionary definitions.

[00:18:15] Speaker 03:
Those definitions mean, unambiguously, that loss is the about loss.

[00:18:20] Speaker 03:
As Judge Murphy's... But 16 is well established.

[00:18:25] Speaker 02:
So you seem to be further giving it almost like a sub-definition.

[00:18:31] Speaker 03:
So the dictionary definitions come forth with what, and they reflect what a reasonable person would understand, what common sense would understand.

[00:18:38] Speaker 03:
And let me just give you an example that might kind of drive this home.

[00:18:42] Speaker 03:
Imagine that you're walking on the street with two $50 bills and a pickpocket takes

[00:18:47] Speaker 03:
both of those $50 bills.

[00:18:48] Speaker 03:
And that means running away and you're running after him, he drops one and you put that $50 back in your pocket.

[00:18:54] Speaker 03:
If your friend asks you what's the loss, any reasonable person would say $50.

[00:18:59] Speaker 03:
No one would say $100, right?

[00:19:01] Speaker 03:
And that is what's happening here.

[00:19:04] Speaker 03:
The victim got $533,000 back, the loss by plain meaning of the word gives him $76,000.

[00:19:14] Speaker 03:
And that, again, it comes from the dictionary definitions, but also from common sense.

[00:19:19] Speaker 03:
And that's what the Sixth Circuit has recognized straight from the dictionary in Riccardi and in Smith.

[00:19:28] Speaker 03:
And it said that there's nothing in the dictionary definitions that's even close to intended loss.

[00:19:32] Speaker 03:
It's also what the Third Circuit recognized in Banks.

[00:19:35] Speaker 02:
When we, when loss is calculated, what does case law say?

[00:19:44] Speaker 02:
and interest.

[00:19:46] Speaker 02:
If you had interest, so that if a million dollars was stolen three years ago, that had been invested in stock market, and it could be $25 million or something, you wouldn't be arguing that definitely look at loss as the time says, and you would be arguing your client

[00:20:17] Speaker 03:
No, I mean, so the again, we're saying this is a calculation that must happen at the time of sentencing and like any actual loss calculation that can be appropriate, various factors they could incorporate.

[00:20:33] Speaker 03:
an opportunity cost.

[00:20:35] Speaker 03:
That type of calculation is a rigorous calculation, and we know this in the restitution context where we, again, do an actual loss calculation at the time of sentencing.

[00:20:45] Speaker 03:
It could incorporate different factors.

[00:20:47] Speaker 03:
Here, obviously, it was very straightforward.

[00:20:49] Speaker 03:
The actual loss here was $76,069.

[00:20:56] Speaker 03:
That was straightforward because that is the amount, you know, 610,000 minus the $533,000 that was, that was recouped.

[00:21:06] Speaker 03:
Now, so it's straightforward in this case, and that's what we think, you know, this court should, the district court should have used is that $76,000, $76,000.

[00:21:16] Speaker 02:
Let me make sure my colleagues don't have any questions for you at this time.

[00:21:25] Speaker 02:
Thank you.

[00:21:40] Speaker 01:
Good morning, Your Honors.

[00:21:40] Speaker 01:
May it please the court, Katherine Kelly on behalf of the United States.

[00:21:44] Speaker 01:
Your Honors, in this case, first of all, Mr. Ludumilo has waived his claim that the district court committed procedural error in calculating the loss amount under 2B1.1.

[00:21:55] Speaker 01:
He didn't just fail to raise this challenge in the district court, he specifically agreed in his sentencing memo

[00:22:02] Speaker 01:
And I quote, as set forth in the PSR, the applicable sentencing guidelines range is 51 to 63 months based on zero criminal history points and the offense level of criminal force, which included a 14-level increase in this case for a $610,000 loss amount.

[00:22:17] Speaker 01:
For that reason, we don't believe the court should even address this case.

[00:22:23] Speaker 01:
If the court is to address it, however, we have plain error.

[00:22:26] Speaker 02:
Do you think the way vapor and plain error intersect

[00:22:38] Speaker 02:
Just say, and let's assume for our new purposes that you're going to prevail on it in Plain Air, just so I can understand the concept of the opposite together.

[00:22:49] Speaker 02:
Is the government's perspective that because you just sort of wavered because there's a back or round for potential fine waiver, that we have to decide whether there's a waiver or not?

[00:22:57] Speaker 02:
Or does the court have the ability to just assume away the waiver question and engage in Plain Air?

[00:23:04] Speaker 01:
It's my understanding the court could, in its discretion still,

[00:23:09] Speaker 01:
to entertain a claim?

[00:23:12] Speaker 02:
Even for waiving?

[00:23:13] Speaker 01:
We would say do not, but in my experience it has been, I've seen courts say if it's waived you can still use our disfriction and review this question at least under the plain error review standard.

[00:23:28] Speaker 01:
We would still say, though, in this case, that it is an actual waiver because it wasn't just a matter of forfeiting a claim.

[00:23:36] Speaker 01:
Here, the defense counsel actually said in its sentencing memo, we agree that the calculation of the loss amount is correct because they were saying that the sentencing range was calculated.

[00:23:52] Speaker 01:
And it's very clear that the argument that defense counsel was making in its sentencing memo is that, fine, the guidelines range is correct here, but we would like you to vary from that guidelines range, vary downward to a sentence of 12 months in one day, based on the fact that in the sentencing memo, she was claiming that she wanted their parents mainly in light of Mr. Ludmila's history and characteristics and his family needs.

[00:24:22] Speaker 01:
She went on to explain, and this is what's different between our argument and the defense argument, Mr. Ludmila at the sentencing hearing did not, in fact, then create a new issue and say, no, in fact, I do think that the loss amount calculation that set the back lines range is wrong and it should be lower.

[00:24:44] Speaker 01:
What the defense counsel said there was that, first of all,

[00:24:51] Speaker 01:
guidelines.

[00:24:54] Speaker 01:
And then she actually said that she wanted to explain her request for a 12 month and one day sentence.

[00:25:05] Speaker 01:
And that's when defense counsel got into the argument that really the amount that should be measured here is what she was calling the actual loss.

[00:25:16] Speaker 01:
And she was saying that that was the $76,000.

[00:25:19] Speaker 01:
And then she analogized to that being a 12 to 18 month range, if you looked at the applicable to be 1.1 loss table.

[00:25:32] Speaker 01:
Yes, the base offense level on page 134.

[00:25:40] Speaker 01:
She said that that's a seven and then she added six additional levels for

[00:25:45] Speaker 02:
an amount that would correspond on the law table to $76,000.

[00:26:01] Speaker 01:
It is an application of the loss table and to be 1.1.

[00:26:06] Speaker 01:
However, defense counsel started that point in her argument saying, I realized that I didn't lay out my sentencing memo,

[00:26:15] Speaker 01:
why or how we got to the 12 month and one day request, which was of course a variance request in the plain language of her sentencing memo.

[00:26:23] Speaker 01:
So essentially what counsel was doing was saying that the court should vary to a lower sentence to put the defendant in a place that he would be had he actually only stolen $76,000.

[00:26:39] Speaker 01:
But that's not what happened here.

[00:26:40] Speaker 01:
Everybody agreed, and I believe we still agree today,

[00:26:43] Speaker 01:
that Mr Ludemila, in fact, stole $610,000.

[00:26:46] Speaker 01:
And he should not be given a windfall from the fact that through no help from him, by the time of sentencing, the credit union, with help from E-Trade, was able to recoup approximately $533,000 of that money.

[00:27:02] Speaker 02:
What's your response to the

[00:27:05] Speaker 02:
the argument that was before earlier to the effect that if a pick-pocket takes two, $50 bill and then drops one.

[00:27:11] Speaker 02:
Not about stolen, but I think you're right, everybody does agree that stolen is part of, as you can see on that, but in terms of a loss.

[00:27:21] Speaker 01:
The loss is the loss to the victim, which is, in fact, unless the victim picks that right up off the sidewalk, he has still lost $100.

[00:27:29] Speaker 01:
Whether or not the defendant ends up holding onto both $50 bills is not really the issue.

[00:27:35] Speaker 01:
And it's certainly not the issue in any realm, how much the victim got back by the time the defendant was sentenced.

[00:27:46] Speaker 01:
We pointed out the Merriman case in our brief in particular, and that that case makes clear that the purpose of a loss calculation under the sentencing guidelines is to

[00:27:56] Speaker 01:
in the fraud situation, whether it should be 1.1, is to measure the magnitude of a crime at the time the offense happens, which is what the court was doing here by saying the offense level is the extra 14 levels based on $610,000.

[00:28:13] Speaker 01:
That's correct.

[00:28:14] Speaker 01:
And Merriman then went on to say the fact that a victim's recovered part of the money they lost by the time of sentencing doesn't have any bearing on

[00:28:24] Speaker 01:
a 2B1.1 calculation because it doesn't diminish the defendant's culpability in any way.

[00:28:30] Speaker 01:
Of course, the court would be free to look at the guidelines commentary here and that fits exactly into note 3E of the commentary, which does in some very narrow circumstances give a defendant credits towards the loss amount, but those don't fit here.

[00:28:49] Speaker 01:
It only gives credit to a defendant for

[00:28:52] Speaker 01:
the victim recouping some loss amount if, first of all, the defendant had some hand in returning that money.

[00:28:59] Speaker 01:
That did not happen here.

[00:29:00] Speaker 01:
IDB and Detroit did this completely on their own, not all for Mr. Ludmila.

[00:29:05] Speaker 01:
And if that money is recouped by the victim at some point before the crime is discovered, what we have here is Mr. Ludmila stealing $610,000 by, in full, January of 2019.

[00:29:21] Speaker 01:
IDB, the credit union, discovered this loss in April of 2019 when they hired a new CFO.

[00:29:27] Speaker 01:
And it was after that, that they were able to recoup the $533,000.

[00:29:33] Speaker 01:
So that's, again, no help from the defendant and after it was discovered.

[00:29:40] Speaker 01:
So even if we do look at the guidelines commentary, it just doesn't fit here.

[00:29:44] Speaker 01:
I think it's quite clear though that loss, since everybody agrees it's not defined in the text, this is not a situation where the term loss is unambiguous.

[00:29:55] Speaker 01:
The defendant hasn't cited any cases where loss is the amount of money a victim has recovered.

[00:30:03] Speaker 01:
It takes out rather the amount of money that a victim has recovered at the time of sentencing.

[00:30:08] Speaker 01:
There's simply no case law that supports that.

[00:30:12] Speaker 01:
And vector isn't any case law,

[00:30:19] Speaker 01:
what that amount was at the time of the sentencing.

[00:30:21] Speaker 02:
Are you taking the illusion that the guideline, or is that the contrary, that the guideline unambiguously favors the government on whether it be taken into account recovery by the time of the sentencing?

[00:30:34] Speaker 02:
Or are you saying it's ambiguous to look at the commentary, and the commentary makes clear there's only going to be defendants that should recover?

[00:30:41] Speaker 01:
I'm just saying that the term loss is ambiguous in the text of the text.

[00:30:48] Speaker 02:
The term loss in the guideline,

[00:30:49] Speaker 01:
I would say first of all that the loss is not defined as defendant agrees by the text.

[00:31:07] Speaker 01:
It just says the word loss, no definition whatsoever.

[00:31:10] Speaker 01:
I would say that there is no correlation between what the defense counsel is saying is the plain meaning

[00:31:17] Speaker 01:
So my understanding as defense counsel is arguing that the term actual loss means the amount of money the victims still had not recouped by the time of sentencing.

[00:31:28] Speaker 01:
And there's no support for that definition either in the text of the guideline or in the commentary for the guideline.

[00:31:35] Speaker 01:
And then if the court were to look at the commentary of the guideline, it's completely unsupported by that commentary, particularly number three that I've just mentioned.

[00:31:48] Speaker 01:
But I think one of the main things, and again, getting back to the plain error point though, is that certainly the court was not understanding any of this to be an argument about the loss calculation in the sentencing guidelines range being correct.

[00:32:01] Speaker 01:
Because it said after defense argument and after Mr. Ludmila spoke, the first thing the court said was, so everybody agrees that the sentencing range is 51 to 63 months.

[00:32:11] Speaker 01:
So there is no exercise being done by the court here that is indicating that the

[00:32:17] Speaker 01:
court is accepting the theory put forward by the defense.

[00:32:23] Speaker 01:
There's no information in record or in the court's ruling that shows that the court was thinking of intended loss here at all.

[00:32:30] Speaker 01:
So that argument simply does not fit.

[00:32:33] Speaker 01:
The court didn't use the word intended loss.

[00:32:37] Speaker 01:
In ruling on that very narrow variance of explanation that defense counsel made at the time of the sentencing hearing, the court said,

[00:32:45] Speaker 01:
I don't agree that the $76,000 is the right amount because that would equate somebody who stole a lot of money with, and was fortunately caught with somebody who stole a lesser amount of money.

[00:32:59] Speaker 01:
So he's really talking about how much was stolen and was correctly focused on what the offense conduct was, not what the victim covered by the time of sentencing.

[00:33:10] Speaker 01:
And we believe the court should affirm

[00:33:12] Speaker 02:
And how does Kaiser fit into your framing?

[00:33:14] Speaker 02:
Because it suggests that what's been used traditionally as a construction to dissolve that code.

[00:33:22] Speaker 02:
But I just want to know if we should be commenting on that particular analysis.

[00:33:29] Speaker 01:
I don't believe you need to get to Kaiser here.

[00:33:30] Speaker 01:
Because first of all, it's not clear that the court was looking at the commentary.

[00:33:34] Speaker 01:
The court didn't say anything about the commentary and its ruling.

[00:33:38] Speaker 01:
I think, frankly, it's just making a very common sense

[00:33:41] Speaker 01:
advocate decision that you look at the offense that has occurred, you don't look at what the victim's position is at the time of sentencing in ruling that the $76,000 was not the number that it should examine in determining the sentence here.

[00:33:59] Speaker 01:
Or frankly, in accepting the argument, the variance argument that the defendants

[00:34:05] Speaker 01:
sentence should be set downward to 12 months and a day.

[00:34:13] Speaker 01:
So there's really no reason to look at Kaiser here.

[00:34:16] Speaker 01:
If the court were to look at Kaiser here, it's just important to note that Kaiser does not hold that the court has to ignore the guidelines commentary.

[00:34:24] Speaker 01:
It only says that you look to see whether or not a particular guideline should receive our deference.

[00:34:34] Speaker 01:
And in doing that, the first thing you do is to say, do you get out of deference?

[00:34:38] Speaker 01:
The first thing the court would look at is to say, is this particular guideline ambiguous?

[00:34:43] Speaker 01:
We would say the term loss, since it's undefined as everybody agrees, it's ambiguous insofar as it is not clearly creating the definition of defense counsel would like it to have today.

[00:35:04] Speaker 02:
questions for you.

[00:35:07] Speaker 01:
Thank you, Your Honor.

[00:35:08] Speaker 02:
I respectfully request a two-part judgment.

[00:35:20] Speaker 03:
So I want to start with what the government is saying about the definition being ambiguous.

[00:35:27] Speaker 03:
That is simply not the case.

[00:35:29] Speaker 03:
The definition of loss is clearly

[00:35:33] Speaker 03:
unambiguous, and that follows from common sense.

[00:35:37] Speaker 03:
The government seems to live in some kind of parallel universe where the amount taken is a definition of loss, and that is not the case.

[00:35:46] Speaker 03:
That follows, again, from the dictionary definition, which defines loss as the amount, which is actually lost.

[00:35:52] Speaker 03:
It's not the same as the amount taken.

[00:35:54] Speaker 03:
And the other point is, again,

[00:35:56] Speaker 03:
The guidelines themselves use the word the offense in all 20 of the SOCs except this one.

[00:36:01] Speaker 03:
This one uses the word loss.

[00:36:04] Speaker 03:
And I don't think the government has come to grips with that.

[00:36:07] Speaker 03:
The government is citing over and over.

[00:36:12] Speaker 03:
We have to look at the offense itself.

[00:36:13] Speaker 03:
That's not what this loss table is asking the district court to do.

[00:36:18] Speaker 03:
It's asking the district court to look at the term, at the word loss and what that means is the amount of the victim actually lost.

[00:36:26] Speaker 03:
The other point is, under Kaiser, you can't look to purpose and can't look to commentary to create ambiguity in a guideline that's otherwise unambiguous.

[00:36:34] Speaker 03:
And that's, again, what the government's seeking to do by looking at No.

[00:36:37] Speaker 03:
3E.

[00:36:39] Speaker 03:
It's also looking at the purpose statement in the background.

[00:36:45] Speaker 03:
That is not permissible under Kaiser.

[00:36:48] Speaker 03:
The government also claimed that there's no case law that says that you look to the net detriment of the victim.

[00:36:54] Speaker 03:
There's actually a line of cases.

[00:36:55] Speaker 03:
that say very clearly that in situations dealing with fortuitous recovery, the net detriment of the victim is estimated at the time of sentencing.

[00:37:06] Speaker 03:
And that's the amount of victim actually lost.

[00:37:09] Speaker 03:
So that's the United States to be jumped from 16 after 166 from the Seventh Circuit.

[00:37:14] Speaker 03:
There's also cases under that case sites in the Third Circuit and the Ninth Circuit as well.

[00:37:23] Speaker 03:
And as for the preservation argument, obviously this was not exactly the most powerful objection, but clearly it was not waived, it was not even forfeited because the district court actually considered the argument and passed on the argument.

[00:37:37] Speaker 03:
And there's nothing in this court's precedent that says that you can't raise an objection at sentencing or even clarify what you said in the sentencing memorandum.

[00:37:46] Speaker 03:
That is what the defense counsel did here.

[00:37:48] Speaker 03:
And lastly, I'd point out that the sentencing guidelines

[00:37:52] Speaker 03:
do look at intended loss in the tax guidelines, routine 1.1.

[00:37:58] Speaker 03:
So clearly, the guidelines is capable of looking and directing courts to intended loss where they need to.

[00:38:07] Speaker 03:
And certainly, the commission is able to clean up the guidelines and make a policy call.

[00:38:15] Speaker 03:
But it can't do that in the commentary.

[00:38:16] Speaker 03:
It has to do that in the guidelines.

[00:38:18] Speaker 03:
So yes, part two, making the sentence and revamp hers.

[00:38:22] Speaker 02:
Thank you, Nassau.

[00:38:23] Speaker 02:
Thank you to both of you, Nassau, and a little bit of this game under so much.