good morning your honor warning you please the court the rangoli roof on behalf of the couple of issues with that one of them is in light of honey cut i believe that money has nothing to do with money my argument your honor is that honey cut prohibited judges from imposing judicial that to put a ten percent monthly income to pay ten percent of someone's monthly income that is in the j o c that's the first thing that that i'm arguing on i think that if you say it's a reasonable i think it's permissible i think to put money judgment in a up until now what what is the problem because we actually see these kind of percentage income directions for payment quite well what do you think is the problem with well your honor i think the problem with that is that this is a forfeiture it's not restitution and it's not a fine out right because i have happy he does not have the money well he this never been determined below is the problem one of the you could get rid of it just by paying the money he well  isn't that correct no well that might have been the judge billows determination but that there was never a the proper the former property was never litigated so while i did agree to a money judgment in that case the in much of its decision that joint and several liability was i did just generally a judicially created remedy for forfeiture circumstance where the defendant was not the one who would  obtained the proceeds of the crime and his his liability under the joint and several was to was to pay money as forfeiture that was properly imposed on other people because they were the ones who had gotten the benefit decision was about forfeiture is discouraging property from someone the only alternative if you don't have property is to go to the substitute asset provision there is no provision in the forfeiture that says that money judgments are permissible there's nothing in there that says if you consent to money judgment yes you did your honor that was something else not only did your client consent to money judgment but your client used the obligation of the forfeit e as a bargaining chip to escape liability for a fine so having used it for his benefit is it appropriate for you now to come in and say we don't want to we're going to take back the  future even though we've gotten the benefit of it by negotiating to get us out of a phone your honor i do agree that during the sentencing i did argue that my client shouldn't have to pay additional money but at that mitigating factor for why he should have to pay your honor i am sorry i read my my the transcript and what i what i recall saying and i and i'm sorry if i stand corrected it was that he did have outstanding obligations one of them was a state find that was still for about a thousand dollars but i don't think i particularly pointed to restitution other than outstanding obligations that he had and i'm not doubting that there might have been some restitution some for honor i'm contest i'm arguing that money judgments should not be permitted for forfeiture i'm arguing that in light of honey cut anything that is not permitted in the forfeiture statute is  we're focused on the property and if property when you look at the property even the plain meaning they say they talk about the plain meaning the plain words that are used in the forfeiture statute and when we look at that we see property and property there's a substitute property provision without reading any their argument yes your honor i do also believe that the government did not comply with litigating the substitute assets a cash forfeiture and he agreed to the amount i don't know what is left feeling to argue thank you honor he did agree to the amount but he also agreed within the context of the consent order that was attached the plea agreement that the government would comply with rule thirty two point two as well as eight fifty three p in determining those substitute assets to that to fit into that financial obligation your honor that he agreed to thank you thank says the government's brief says on the bottom of page seventeen the zamost specifically relied on the money judgment in successfully arguing that a fine should not be imposed are you saying there you're saying they're wrong before you were saying my memory isn't that i that i expressly referred to the forfeiture and the second part of the question he is correct is it not that hunnicutt had been decided before the sentence in this case yes your honor if you had something to say in reliance on the cut the sentence was the time to say it otherwise you're subject to plain or yes your honor and i did not say it at sentencing i did file a rule thirty five motion following the sentencing to ask judge sullivan to correct that issue and my record your honor i have the transcript here your reference to other obligations when you reference them seems to me to be you know bit of an afterthought here be their obligation that the judge knew your client was consenting to was this right is that what we what was being conveyed as well as your honor what i know i believe was in the transcript was that there was an outstanding amount he had to pay in the state for twelve hundred dollars i think i specifically put that on the record quite different from the fifty nine thousand dollars that you get your me here and you know if you relied on this when we don't simply have a forfeiture view of any money cut argument or any  impose any further fine the waiver your honor at a minimum did not go to ten percent of his monthly income that every month he doesn't pay ten percent of that he is subject to a violation of a supervised government please the court my name is amanda kramer and i represent the united states in this appeal i also represented the united states in the proceedings below the entry of the money judgment in this case should be affirmed because the defendant express waived his right to appeal the imposition of the money judgment in two independent ways first he expressed slee waived in the plea agreement his right to appeal a forfeiture order in exactly the amount of the money judgment the judge sullivan imposed second he consented to the entry of the money judgment at both his plea hearing and his sentencing inviting the purported error that he now seeks to challenge me he's complaining about the ten percent monthly but his alternative is to pay it all right now right that is true your honor and there was an ample factual basis for judge sullivan to conclude that he did not have the money to pay it all at the time based on the defense counsel statements at the sentencing and what was otherwise in the record but as noted in our brief were consenting to a limited remained for the purpose of judge sullivan making findings under section eight fifty three p specifically which addresses the only arguable your honor the the the effect would likely be for the defendant to have the opportunity to argue more explicitly that the proceeds of the gambling scheme had had not been transferred to a third party or otherwise dissipated or diminished in value and for the district court to express lee find that one of the provisions under eight fifty three p had been satisfied that is implicit in the sentencing record why did you hurry to remain because of the fact that  there was no specific finding made at the sentencing under section eight fifty three p as is normally the case and attendant with that so you would defer the ten percent order saying there are no other substitute assets to go after what the defendant could say oh yes before the district court at sentencing do you not anticipate that there will be a successful challenge by the defendant on the basis that he has other assets to pay or that yes absolutely your hon yes i think your honor because fifty three is fifty three p is the typical procedure and mechanism by which substitute assets are obtained the fact that that wasn't unable to pay you propose two thousand dollars fine so is your position that a defendant can come in received substantial gambling assets who says well i i spent it all you know on whatever  items he spent it on and they're no longer recoverable and he has claimed that he should be required to make any forfeiture not at all if that is the impression that i have conveyed then let me correct mechanism by which the additional assets the substitute assets are authorized to be collected and because that technically wasn't discussed by the district court that is the basis for the limited remain and substantively that it will not change anything the defendant said in to probation and represented at the district court that he had no ability to even pay a two thousand dollars fine i'm not changing anything why should we gauge this exercise in futility to give judge reggie question the proposition of of an asset diminished in value does not on its face seem to represent money that has been spent on beer i mean it seems to me that would be appropriate if if you had you had for example coconspirators in a unit and legal venture that made profits and they divided up the profits in a certain way where this defendant got a valuable painting or a house or something like that as his part of the proceeds and that object was worth a million dollars at the time that they divided it up  subsequently it's gone way down so now it's worth only half of what it was originally were that's an asset that's diminished in value money that's been gotten and spent ordinarily is not considered an asset that has diminished in value  absolutely correct your honor that's what it does what does the statute that you're referring to have to do with the proposition we're talking about which is money that was received as proceeds of unlawful activity that has just been spent on beer so a fifty three peat provides that if the if the property to be forfeited not only has diminished in value there are other ways that it triggers the substitute assets one which may be more apt in this case is that it has been transferred or deposited with a third party or has been placed beyond the jurisdiction of the court so it eight fifty three p does cover in a different ending it is placing it beyond the jurisdiction of the court yes or transferring it to a third party i mean what a defendant pays a forfeiture and when a friend who's who's gotten a million dollars in profits and pays that as a  that's that has always been that that always involves substitute assets it's not the same money that gets paid it's it's new and different money no one no one traces the money to see whether the money he pays is the money that is the dollar that the defendant got through your honor i think that the difference here perhaps and why why the district court making a finding under eight fifty three p is something that perhaps makes sense is that it is not just that he owes this in the future but that is specific property in the form of his future wages was ordered to be paid which makes it more like a true substitute asset that would flow from an order entered by the district court under section eight fifty three pay so if you could trace for us what are the different options the different possibilities of what will happen in this case in similar cases where there is going to be a substitute outside order there would be notice the the judge parties would not have to brief it but if they if if the defendant had some argument to make to be made could and the judge would then enter an order under section eight fifty three p requiring the specific property of ten percent of the defendant's future wages to be paid i see that my time has expired your honor  so so the judge with an issue in order to be specific is ok what will happen in this case yes and on what the judge does on the various hypotheses of what the judge i think so the judge there would be notice the judge would hear from the parties either in writing or orally and then the product of that litigation would result in an order that the judge issues a different possibilities of waters that the judge would make so the order would explicitly say that under section eight fifty three p the defendant must pay ten percent of his wages towards forfeiture which that order van allows the government if it's not paid to take other action to seek that money so  it's a little bit cleaner to understand in the text of of real property for example but but an order under eight fifty three p saying that the house that the defendant has recently purchased is a substitute asset  and and is to be forfeited allows the government to then take that order and get a lien on that property it's slightly different here but it you know i don't know what the procedures are for getting a garnishment order for a percentage of wage or wages but it would be that order that would allow the government to put into greater effect the judge's intent that the defendant's wages be garnished like you're consenting to this remain and in order to put the government in a better position to move against the defendants i think that would be want to fact potentially benefit you and then if at the government that maybe you want to fact your honor i wouldn't say that that is the reason for the government was going to utilize thirty two point two and eight fifty three p and determined whether there were substitute assets that were like we're sorry fifty nine thousand five thought i thought it was representing proceeds traceable to the offense is that right yes your honor in a money judgment now what point the point how much he has to forfeit doesn't have to be litigated because you've agreed that there's that much that's fruits of the crime how it's paid is entirely up to your client in the sense that we started with  if he wants to without the government hearing where it comes from but to the extent he doesn't have the assets to satisfy this judgment the courts letting him it do it at ten percent of his paycheck which s