they've got the same last names on both sides of the hyphen so tragic i don't mean to be disrespectful i would never use a st name for argument but in this case if this will make it easier to distinguish and since there are some overlapping arguments i think that would be best if if everybody's should find that the order of restitution imposed against all three defendants was an abuse of discretion especially in relation to jane doe seven as all of the amounts are based on unsubstantiated estimates for example the government cannot provide any reasonable basis or documentary evidence for its estimate of fourteen months of a traffic be it an estimate of a fourteen month trafficking period in relation to jane doe seven so that it got there it seemed like there was evidence that it was yours there was at least some testimony and if this went on for several years so even a fourteen months even if there's no specific evidence of fourteen months is that an abuse of discretion to round down  so you are correct your honor there was a statement by stating that she took part in that traffic or that she was trafficked for a period of several years however the specificity of that determination was not based on anything actual the government arrived at the fourteen month period based on the victim's statement however under the law we typically use the plain meaning of the words and when you think of several you would say perhaps five years or electronic records there was no handwritten notes or a lot of that on it people don't exactly keep records when the trafficking women i mean it's not like it's not like it's solid you don't have credit cards and stuff like that this is four weeks as opposed to four three weeks which is what the accurate measurement well the number of days and or weeks in a month but so so to be critical of the court because it's because it's hard on the side of the of a lower number you want to o i mean seriously what are you supposed to do her recollection is suppressed evidence you've got so what do you do with that either say ok you should gets nothing or you go with the best evidence you have and it doesn't have to be exact just sack a nice opinion about that on a panel i was with it do the best you can i realize that you have a responsibility here and i'm not being critical of you professionally but at some point it's hard to say well it's the court's fault because  higher i was struck and you know that there is no attempt to calculate sort of pain and suffering no attempt to tackle a the costs related to mental health treatment if this august sent back i would imagine restitution could be a whole lot higher and the only reason it are starting this point because we want to address what higher defense counsel failed to do for example when it was just st brought up in the lower court counsel had an obligation to possibly challenge the rest were and again this just goes to the point that understandably how there were no records everything not everything but perhaps mostly everything did seem a little bit speculative which which does seem like a bit of a problem so i said let me just ask you are you covering ineffective assistance you're really just focused on the restitution i'm arguing restitution on behalf of all three get developed i imagine i don't know words but i imagine that as a defense lawyer might say we were going to go nude if he thought the more time spent on restitution the much more likely we were going to work that you know if we got into the been suffering we got into the need for mental health treatment maybe physical health treatment given the given the fact that things could have gotten a whole lot worse than what ended up being number so i think we've got the very least want to give up half an opportunity to commentary of the vulnerable victim guideline i sort of people have to say your view is that every time there is a host sentencing disagreement as to the guidelines calculation and appeal waiver is not that because mr martinez rojas did not specifically waive the application of the vulnerable victim and hence meant that he shouldn't be cliquey should not be precluded from challenging the enhancement on in this range he agrees to that he signs off or that you get the benefit of the act if you get sentence below that means but a number less gets to appeal because in now disagrees with the calculation that was in the that's the argument you're on the vulnerable victim section provides that it should only be applied when the defendant knows or should have known of the victim's unusual vulnerability and the government in this case admitted that it would not be able to establish every defendant's knowledge of every victim's particular vulnerabilities at the sentencing hearing by a preponderance of the evidence and so the government basically said to the court we  analyzed it and we find that a piece applies to these particular jane doe victims but not the other ones and the court should adopt that finding and the court adopted that finding based on the government's representation  that there was economic the desperation they were ripped away from their social network their home country and isolated and these these characteristics are unfortunately typical characteristics of men act victims and i say unfortunately because i'm not here saying that this is acceptable behavior by any means however the the app's the enhancement should only apply when there's something unusual and in this case there was nothing unusual the types of things that can be considered unusual are that for example the victim suffered from a mental or psychological condition or was upper limit for restitution is the full amount of armor that was caused to the victim's right but that is of course an unspecified number that is unspecified i mean we expect that before anybody can plead guilty there has to be a stipulation that it won't go higher than x well it's not on and it's quite simple for example that for the restitution that he caused and once it is not perceivable to him or he's not responsible for it then he's not liable but if it's if there are multiple people who are responsible then if they all can pay he only has to pay his team if none can pay us to pay one hundred percent but he doesn't try have to pay more than one hundred percent and he doesn't have to pay restitution acceptable to others that he wasn't involved here are just i think you're i'm just  the the games associated with illegal conduct as the basis for restitution i correct in other words the fact that this is a legal act that the minimum wage that  was forgone by being forced into working prostitution it is they basically games that a prostitute willing prostitute would have gained for the work hours and months spent in this the other advocates slightly garbled but but but understandable go ahead in any case repeat myself with  support a finding for that enhanced yes your honor in our sentencing memo prior to the sentencing hearing we had described that the basis for was among other things the fact that she was forced to get a tattoo against her well there was additional evidence that was discussed during the sentencing hearing regarding the size of the tattoo and the color of the tattoo in the placement of the tattoo there was no dispute that she had been forced to get the tattoo the only question that the court raised was whether or not it could take judicial notice of that path to causing extreme physical pain and that is what we saw we submitted the supplemental affidavit sentencing after the sentencing hearing but before the judgment there was a significant time that passed between the sentencing hearing and the actual judgment in part because as i would just note that the restitution was also imposed in person so before the final judgment he did come back but i think that what restitution is allowed to be imposed later and doesn't require you to come back transpired he did end up coming back in person again after the supplemental were submitted but i agree with the our people came back in just for restitution there was no additional discussion on the enhancement but there was no objection right exactly but i do agree with the way that the court has character characterize what occurred but i think that the evidence before it we have detail regarding the tattoo the size of the tattoo the color of the tattoo it did form enough of a basis for that serious bodily injury and hand spent and that is one of the reasons why we argue that there's no prejudice based on the way that the procedure occurred i do think that  it was heavily argued and let a gaited in person the his counsel raise a number of arguments why he did not believe that it should qualify why he did not believe that the removal process should qualify and i think quite frankly the evidence before the court was sufficient for the permanent bodily injury and handsome and because it was permanently on her body unless she tried to remove it but the court and in abundance of caution did ask for affidavit describing the subjective level of pain and we did provide those afterwards and counsel did not object to those but i don't think that i think that the decision not to object to the procedure and not to object to the after actual affidavit was reasonable because there was no legitimate basis to argue that there was not extreme physical pain caused by this tattoo and so any objection to that procedure or any objection to those affidavit ultimately did would not have read resulted in a different conclusion and the defendant wasn't prejudiced by that so looking at the strickland prongs i don't think that the defense can satisfy either one based on the procedure by which to serious bodily injury and handsome and was implemented and the supplemental evidence your view is the only way we get to this argument is rude but this is the sort that that's correct your honor but you've nonetheless  understand i think that you can go obviously either way would be appropriate but i think that the record in front of the court is sufficient enough to find that as to both this argument as well as the rest ineffective assistance of counsel claim because two of them also have the restitution challenge within and ineffective assistance of counsel that neither defendant has a stablished either the strickland prongs and therefore that claim can be dealt with by the court and one of the reasons that i think that on the restitution aspect and effective assistance of claim argument cannot stablish either the strickland prongs goes to responding to also the argument raised by mr rojas and and otoh on as to this there are substantive challenges to the restitution order and i will turn to address that unless the court would has more questions on the serious bodily injury well i think that at you know as as the court mentioned in some of its questions i think the record is clear that there was abundant evidence to support this very conservative estimate estimate of restitution order with respect to your question for ourselves and while there isn't a published decision in the nd circuit i think that there is an unpublished decision as well there's other case law that suggests that restitution is appropriate calculated be based on earnings even when it's illegal proceeds and as you also noted that's really not been disputed by either party and in the district court proceedings the government's formula was not disputed and not surprisingly so because it really was quite a conservative formula and the real question that's being raised here is focused on jane doe seven and whether or not the time period that the government utilized was specific enough to support the restitution and i believe that the judge wesley really touched on one of the main concerns in these cases and that there are going to be clear and obvious records of every moment when this victim was forced against her will into trafficking and the government had an affidavit which again we were not required to provide sworn affidavits of each of the victims but we had them from the extradition we provided an affidavit in which jane doe seven said she was forced to work in prostitution almost every single day for years we've then used a shorter time period of fourteen months which correlates to the time period charged in the indictment as judge ralph wesley also noted our calculation only used four weeks as opposed to four dollars weeks so there was an additional amount of days off that were built in there despite the fact as she said was forced to work every day for months then when she was on her period our calculation assumed a day off every single week and the fact that she can't provide exact specific dates when she started when she was hit and she was kicked and she was whipped with a cord does not mean that she should not be entitled to restitution our calculation as to her as well as to all of the victims was based on an abundance of evidence we did our best to provide a conservative estimate supported by the evidence that would attempt to do justice by the victims although as dr silva noted there is mental health pain and suffering that is not included in we did have access to them and in fact many of them submitted written victim impact statements in connection with the sentencing and three of them also appeared either in video or in person at the sentencing i think that calculating the mental health and the pain of suffering we we could have added that on top of that what we tried to do was have a very concrete specific formula with the understanding also you know that it would be a significant amount of money if we could actually get that calculation so it was basically our assessment of the best way to provide a specific formula supported by the evidence although we understand that that your honor is correct that we could of and perhaps we should have thought even more and then as you also saw from the proceedings despite how conservative our formula was the district court significantly limited the restitution request as to almost every single one of our victims reduced it by for some eighty to one one hundred thousand dollars for others eight thousand dollars and so that and a result of these restitution orders really there can be no dispute that they're supported by the evidence and that they were properly issued by the district court and they should be affirm the full amount of the victim's losses were going to be the restitution the joint and several at best makes it less than he thought that he was going to and there is certainly no case law or language in rule eleven that suggests that he had to or was required to be given more notice than he already was and the plea hearing makes clear that he has read it that he understood the rights and that he would knowingly and waive willingly and training into that plea agreement you have you have you know it is recorded it is recorded a catch up so sacked you have any additional questions of musically it would be it would be wildly inappropriate for me to be asked questions having missed the last ten minutes of argument with thank you  defendants are in a very disadvantaged situation in these types of any type of prosecution but this one in particular where there's there's so much at stake and the potential for incarceration is you know life reason i would argue that the extending the supreme court case that the guidelines must be properly considered and corrected should apply to even to waiver cases where the that they do but like i said the bargaining power is significantly limited where the stakes are so high in terms of imprisonment of your is that it would depend on what the exposure is  crimes that have a life i don't see that would be much of any major drug crimes crimes like this crimes involving violence the clear waivers will not be with be treated differently well only that the court should exercise its authority to examine the guidelines calculation so that the defendants and the government are held to the government is held to its task of establishing the elements but he's articulate to restitution other arguments do you mean or just persecution well his his arguments relate to restitution judge of course we did also and as is typical the other arguments of the parties be what cause serious bodily injury is a disagreement about that but there's not a disagreement about the tattoo i government says and then he splits the defendant the victim's around and there's no objection to the fact nobody says that he didn't slit his throat you're saying a judge can't rely on that front of the judge needs just allow made it to apologize to council for having disappeared and for a while i'll catch up on it i think a higher digital power is telling us it's time for the pandemic to be over but thank you for bearing with me