down if we could it's easier to address it the questions let's start with the restitution which i think is you have some stronger arguments or your argument is essential e g that assessment of the amounts the court didn't accept at all but there was a disagreement of the amounts but if there was error there there that's a certain level of illegality but the question i have is interesting here is that we have that one statement from her and then we have the restitution order itself in which she dealing needed the restitution that are the last obvious on each of the various been now we buy into her idea that this should be calculated they saw the ill gotten gains and i don't accept that but if we did it has no or relation to what the government talked about with respect ill gotten gains with those transactions i want to draw your attention to one particular item that it's sort of hard to reverse engineer where these numbers came from but you know your claim is those numbers are incorrect and that sounds like kind of a standard legal claim about how to calculate loss that would be comprehended by the waiver i how does that help you it is a number don't make it look like the court did something other than just drop in restitution then just conflate forfeiture and restitution i don't know where these numbers came from but they didn't come from that exactly so what i look at try to justify that any way you can there's no way you can justify what happened here you know we've got the line between the court erred in substituting in conflating for and restitution the court made a mistake and the court acted without authority that's like a really fine line most legal mistakes could be talked about as a court not having the authority to do something you don't have the authority to make a mistake and i am just having trouble can you explain to me why this is not an ordinary legal error why we would think about this not as i mean in harvey we say it's an abuse of discretion if you calculate the amount of los by assuming that the amount of gain is a reasonable approximation that's an abuse of discretion you made a mistake but it doesn't say like you had no jurisdiction to do that you acted without authority just talks about it like it's a normal that no poor can do in any case we've got here i know we don't have that here we don't have that here it seems clear in this case that had the court said for instance i agree with the government's expert the amount of losses a one million dollars could have entered a one million dollars restitution agreement this isn't a case where there's an argument and i believe the defendant agreed to this in the plea agreement that restitution for these crimes was going to be owed to these identified victims this isn't a game i'm sorry guys you want one question that makes that does remind me of something and i don't know if anyone will be able to explain this but why does the plea agreement set seven thousand five hundred dollars as the minimum restitution amount because seven thousand five hundred dollars is i understand what's going on here that's the undisputed conceded minimum for the defendants again but a plea agreement itself uses the defendant's gain as the anchoring point for restitution which as you point out is supposed to be about law so it actually looks to me like a defendant could read this plea agreement and think for whatever reason it looks like we're going with again as the amount of loss oh what happened at the time of i ask you this just not to prolong this too far but how do you distinguish a review of an error under the restitution which would seem to be waived by the agreement district court applied this that to then correctly clear agreement wants to waive it looks like any issue relating to sentencing including restitution and other words you have agreed to the plea agreement and you agree the minimal amount of seven thousand five hundred but the court can determine the amount and you've waived any issue with respect to that now the question is it doesn't have an exception in there like you're talking about so the question no i'm asking you bill you where do you draw the line between an error that is outside the waiver agreement and there that is encompassed by the waiver so we make several challenges here and if you look at for example the fact that million dollars figure you have a case i think their argument would be that it was not based on the actual law to the statute the restitution statute require the government to prove and the court to now you're saying the just because the property went up two years later in value that that can't be measured is lost but they're the sorts to wouldn't have occurred and the pool to sort of see a wouldn't have occurred except for the scam  this case that took place so and wasn't that a a i mean you don't have any contrary evidence in this record that says that this methodology is on sounds that what it now you're to seems to me you're asking us to to speculate on what market conditions may have been and what he could have sold the property for they weren't involved in a  was sort of like well no judge can do this because you're not allowed to do it so no judge could have done this but that describes all legal errors judges aren't allowed to commit any legal error and so i'm i'm not and then it sounds like you would make the same argument had they had the district court judge entered the one million dollars order you would say well that's not based on actual laws either and under the statute it has to be based under actual law so you have exceeded your statutory authority and i'm just not finding i find this question very difficult i want to be honest but but i haven't heard you yet give us an answer for why this error falls on it is not just a regular error the kind of error that no judge can commit no judge can commit an error why if this if this is not covered by the waiver why any objection to the amount of restitution as not actually being the amount of loss would not also fall outside a plea waiver or maybe you think they all do fall good morning your honour's may it please the court let me jump right at the colloquy between the court and my friend on the other side which is what's the line and let me offer you the government's view of what the line is and then let me offer some examples that i think  the line is the line from florence barry the court has distinguished between claims of error that the court did something illegal which it defined as be under the authority of the district court to impose in all instances and something that was done in violation of law those are the two categories in our view your honour's for something to be illegal and therefore outside the scope of the appeal waiver it has to be illegal in all instances and fact pattern and the classic jury as a matter of law in all instances that kind of offense did not create a rd party victim so imposing restitution for that offense is unlawful in all instances so let me apply that to the facts here and i think it's very important to break apart two different species of error claims that my friends is making the st kind of error that my friend describes is a harvey error that is th permissibly substituted gain or loss yours the line i would draw your honor if the district court said it was doing that in that way i think it would be illegal and outside the scope of the appeal waiver but in order for that to be true i think the district court would had to have said something like i disagree with both the government and the defendant my view of this case is that the correct loss about zero but for reasons of fairness i don't like that so i'm going to substitute again for a loss under the restitution such as you can never do that in any case and if that's what the district court had done then i think i would be conceding that that was illegal and outside the scope of the appeal waiver but judge keenan the judge niemeyer i think your framing is exactly right what the district court was confronted here with was two different series of last one articulated by the defendant and his sentencing position paper and one  articulated by the government and the government's financial expert in their sentencing position paper and on our view the best reading of the record is that the district court didn't agree with the defendant's argument of loss was zero and for whatever reason discounted very far down from the government's one million dollars figure to a figure that matched the forfeiture figure once we're in that world we're just disagreeing about how the district court did what the restitution statutes are to do and once we're just having a disagreement about methodologically how you calculate loss it's a regular kind of error that's going to fall within the scope of the waiver and the best case i have for that proposition is blake which is a case that my friend on the other side mentioned a moment ago well it comes because of corporate ownership rules you could target embezzle your own money without actually harming anyone and it took three this court said in public notice this is not a clear error challenge to the district court's findings it's just a theory of loss and then at footnote twelve and this is where i think it's critical the court says we do not view the defendants theory of loss argument as in any way implicating our decision and brought in jones her human if there were not an appeal waver in this case i would have a very tough sledding on direct appeal because on direct appeal cases without waivers and i'd sort of read all of them the court is pretty specific about you need to explain how you got to last you need to explain why you made a profound spawning of loss and you need to do so in a way that's a minimal to or review want to heal so you have to explain what you were doing and so the gap between the one million dollars figure and the figure that was announced that it was going to go with the seven thousand five hundred dollars and a ton of the government in the moments trying to secure recovery for the victims and said well if you're going to go with again these two fr much more but then it page for four for the prosecutor made absolutely certain that there was no doubt on this record that the government was committing harpy error when the prosecutor says let's back up a nd your honor restitution is actual loss  the victims forfeiture is ill gotten gains they are two different things sometimes they overlap sometimes they don't and we have offered us theory of why the law says what we think it is a miss case and on that kind of record i just don't think my happened here is not that the district court use the restitution i'm sorry the used the forfeiture numbers and just dropped them in as the restitution numbers i have to think that what happened is that the district court started with a one million and work down and kind of by coincidence ended up with the same amount as for it is that what you're saying i don't think so your honor and the reason i say so is i don't think  so let me put it this way because i've sort of thought about it he says that i think would be really difficult for me a preparation imagine the defendant came forward in a case and said we think the law says x dollars and the government you board said we think it's ten but because your words were within the range offered by the parties i just don't think that kind of thing is a concern but what if in your example the this or court came in and said i don't like either of those i'm going to go with the same amount as what the court said in harvey was not i think the losses zero but that's ok i'm just going to go with the amount of gain that error in harvey is simply calculating loss based on gain and how did the district court do anything other than that here let me let me a judge here is i think that's right and let me rephrase and then offer an example that i think might clarify my position in order to be legal you have to be outside the scope of what the statute tells you to do so when i use the let me offer you an example of why i think an actual harby claim is going to be encompassed by the way via and this comes from personal experience but i think it's helpful i was litigated the case in front of a judge where my argument was your honor this is the kind of case where every dollar lost by the victim flowed into the pocket of the defendants so you are not committing harvey error by setting restitution on loss of the same figure the district court judge agreed me that was a case with an appeal waiver i don't think you could get out from underneath that appeal waiver on appeal by challenging that methodology well this is the question i was going to ask you seems to me in most economic situations let's take a person uses a counterfeit twenty dollars bill to buy a widget the loss to the merchant is twenty dollars because it was counterfeit and the money was no good the gain to the defendant is twenty dollars because he got the benefit of a twenty dollars purchase so the gain on the last are the flip side of a transaction where they're the same now it doesn't always have to happen that way in this case may be a good example where it transaction the gain does measure the loss i agree judge newmar the nd circuit in a case holds and garri sort of has articulated a whole line of precedent about this exact issue and i think that's exactly right let me turn if i can to the other species of clam my friend also argues because the restitution statutes only permit restitution orders for loss if i come in on appeal and say the shrew loss amount was zero i'm necessarily outside the scope of the appeal of we think that's wrong for a number of reasons the easiest explanation perhaps is this court's opinion and roger day in two thousand and twelve that you sort of and it deep level relies on the idea that a the maximum sentence for purposes of restitution is like a step wise function where there's five hundred dollars of loss the maximum sentence is five hundred dollars but if there's a one thousand dollars of loss the maximum sentence is a one thousand dollars and if that were true restitution would be subject to a pr rules and this court said today it's not the court said flatly the maximum amount of restitution is always indeterminate that's why for the doesn't apply so that species of argument just doesn't have any traction and then we're left kind of where we were in the colloquy while my friend on the other side was giving our opening argument which is all of these short sale scenarios and mortgage fraud type scenarios are always to be extremely fast specific and are going to be a mythical two different theories of supports gives district courts a fair amount of latitude under the abuse of discretion standard to adopt out the last calculation methodology as it sees fit and in all of you that sort of the best reading of what happened here is that the district court  perhaps not explaining itself to any great degree was calculating last off of the two different methodologies presented by the parties in circumstances where the government made absolutely certain to put on the record you know restitution and forfeiture surgical purposes so at least the are sometimes just choices to be fission for other purposes to have their books read this way or that way and it depends on how you calculate losses when you turn over a property and forego the deficiency judgment in one manner or another could be defining the loss and i think it's a very complex problem whether the gang and the last are going to match they're probably not going to match simply because the banks has totally different motives and needs for with respect to its books but you would have to a you would have to the point i'm a beginning point for the bank to decide what a loss was and so one account could start with the notion that the full repayment of the loan is the beginning point and then you could argue well it took less than the  value of the note was that because of the prawer or was that because of the market or was that a combination of both now you have expert opinions coming in and trying to find those things i think it's even more complex than that in this case because of the banking regulations and how they book these things the short sales so i'm simply suggesting to you just using the word gain to determine last doesn't get you very far in my judgment because i think gain can measure  loss so long as you understand what you're doing but normally you want to call it last because you're looking from the bank's point of view it's hard to put these other cases as a direct match and what i come down to is here we had evidence from an expert who said the loss was a one million dollars you had a judge that's that i'm going to reduce that to a quarter one million now the question is the judge did have the judge any reason or basis to reduce it from a one million to a quarter one million and the answer probably is no but getting back to judge jean is original question why isn't that absolutely harmless  put in a one million and a way that gets into some of the scotians and i think you and i could go on for quite a while exchanging ideas on this and on the losses but we also have to understand the banks books and the banks what foreclosure and it would also then have to carry the loan as a babble and all of those things had value and so the question is now when the bank chooses to do this being induced by fraud   dozens in areas that could be positive and in this type of case where the defendant was manipulating the economics and playing the market it's very difficult to decide whether money and it all went to the gold i met his colleague ran off with it is something else but that's a little bit like taking home the old gotten gains he takes a quarter one million dollars home and puts it on his chest in the dining room and  he got that money it just he never was used you never used it yet total access to it as much control as the other men that the other man ran off with it but the fact is it was his money and it was put in there i don't know how james and personally it seems the proceeds whether the are or sell the drugs directly to the college student or the farmer uses the college student he hired to sell the drugs to the how the students the college students pay that  he actually benefited from that account because it went to the benefit of the family which was a member so he actually got a personal benefit from that joint bank account my client did not benefit to me and the government can see that argument he also conceded not only defendant does agree to forfeit all interest in any fraud related asset that the defendant owns or over which the defendant exercises control directly or indirectly so if i thought the bank account fell into that would it matter anymore whether it was a teen within the meaning of