mayor please the court my name is harry sand and i'm a partner at patterson down that weapon tyler i recommend represent dr stager on appeal i didn't represent him in the district court we're here asking for a limited rema two issues relating to the supervised release component of his sentence where the district court eric st the district court mistakenly imposed a four year sentence of supervised release where the statutory maximum is three years we're asking the court to remand or correct it here with respect to his supervised release component the district court imposed really a remarkable sentence of supervised release community service for essentially four thousand now that he did it didn't he in response to  recommended five hundred hours over five years as part of a probationary sentence so essentially one hundred hours a year or viewed weekly two hours a week and dr stagers lawyer said essentially you could add a one thousand hours to that if you felt that that would be an appropriate way to resolve this sentencing asking for a a a a significant amount of don't divide so good a one thousand hours would be how much are we sure a one thousand hours for a five year term would be would be two hundred hours each year and so if we then divided that by fifty it would be four hours so he was record probation recommended two hours his lawyer said even if you gave him four hours more for six hours he didn't frame it as six hours a week he framed as a one thousand hours but over a five excuse me your honor over a over a five year term of probation it would amount to essentially six hours total a week what he got was twenty hours a week essential when you factor in transportation the to take a lunch break three days a week of community service the district court also gave him the routine condition of supervised rel unreasonable we are not alone absolutely we are not arguing that he pled guilty and a stipulation agreement we honor the agreement it contained a range this was under the range although over what the probation office read of the lesson of your appeal then you know he's he's telling complex kaplan that he's on his he's children who he's got to take care of their old dollars and then on after what judge kaplan did the underlying conduct he's pled guilty to that he's acknowledged that it was wrong it was illegal and he's he took responsibility he waived indictment he entered into a plea agreement he did everything in that sense that a person could do was thirty to thirty seven months and the probation office recommended no incarceration judge kaplan came somewhere in between at a year and a day and he money long that was for money laundering he gave money to just this is all about money laundering that's right he was not not being involved in prostitution business it's just money that's right the charges were money laundering that's what the real question here i think is whether we should send it back for any plan or we sentencing on whether the sentencing should be limited you know and mind of judge parker's observations wasn't the sentence intertwined here th prison term and the community service and all of it and should we let the district judge decide whether he wants to unravel and do it again well the the answer is no you are the court has never as far as we can tell i don't think the government side of the case found a case where it has taken a supervised release condition and said that that essentially undoes the not of sentencing the presumption here in quincy area another question this case be the case i mean it i clear that that that judge kaplan factor all of that and given the new information regarding the the state court proceedings and given that harken is now guidance why should we just send it all back  resounds well because your honor what this court has said is that one reason not to do a plenary re sentencing is because where that would essentially create an undue risk of deterring others from subsequent challenges to the sentence nobody in dr stagers position could say in order to challenge for example the plainly illegal extreme year of supervised release that i'm going to go back to judge judge kaplan and give government then up another opportunity to argue again to send him to jail for a longer period of time essentially what that would be saying is that if you want to challenge a condition of release whether the judge tied it to the sense of imprisonment or not because here nothing judge kaplan said in his two and a half pages of explanation nothing ties the specific community service condition into the prison since it isn't the case like bone the fine case where the judge said i'm giving you  release issue again and burden and parkins where the government consented to remand never suggested that it had to go back for a plan or a rematch to give the district court an opportunity to impose more prison time  part of the decision about community service the reason why you can't do the trade off between supervised release and imprisonment the same way you can for a fine and imprisonment or imprisonment on one count and imprisonment on another is that supervised release is not supposed to be punishment for what he did the imprisonment and the two hundred and twenty thousand dollars or two hundred and ten thousand dollars of criminal forfeiture that's the punishment punishment is a reason to allow him to get out of jail early so he can do that for the benefit it's not of course the punishment it's a question of what's a just sentence for him and for society in that includes ok we'll let you out after year but we expect also for you it's not i don't see that so much as punishment is being given back to society what he's taken from which he promised he did it he would do in which he said he wanted to do and now you're coming in muswell he didn't really wanted them much well let's let's let's not get down well you aren't we're not saying that he didn't want to that much or that he won't do it he obviously hill will do the sentence that he sends to what we're saying is that the waiver argument that the government is making that we waive the right to challenge twenty hours a week of supervised release because we asked for six hours that would be like in a case involving imprisonment to say that a defendant who said a year and a day would be appropriate and he got twenty  with our client to decide whether he wants to do that i mean as much as he feels and we feel that a for your sense of supervised release is plainly illegal the idea of going back to the district court and exposing yourself to another year of jail in order to reduce these other commitments no defendant would ever appeal a condition of supervised release and all the time this court reverses conditions of supervised release computer usage alcohol rules all sorts of things and they have this court has never as far as we  was was sympathetic and now you know what are we to make of it doesn't look like much of that looks like cause stachel part of that you're simply wasn't true your honor we don't agree with that and let me tell you why please do because at the time of the sentencing none of that was known to trial counsel or to the probation office who interviewed my client's estranged wife none of the things that were in the order of protection were known to be true we also have we also have opposed the government's money she's issues discussing our conversation she had with him that he had with her about his consorting with prostitutes yes your honor but what i'm saying is that the nature of the order of protection which we've argued is not appropriately part of judicial notice it's a way to funnel hearsay evidence before the court that  the court order however is an ex parte order obtained while dr stager was in custody he hasn't litigated the order and some of the things that mrs stager said are different from what she said to the probation office this court having to do is to be a huge yes your honor all of the defendants charged in this case were charged with money laundering because of their use of the proceeds of prostitution to further the prostitution business including through advertising there was no trafficking here but there are some defendants were charged with travel act and men act crimes but this defendant in particular provided money to the brothels in order to further question is why wasn't he charged with trafficking something was the most severe federal crime or able to charge we did not satisfy all the elements of sex trafficking or i'd like to pick up on this point about plenary three mandan that is absolutely appropriate here this is not an ordinary case this is a case where the defendant invited the outcome in two important respects st by asking for an enormous amount of community service and that request was not limited to one statement about being able to do an additional one thousand hours the entire sentencing transcript is replete with references to his ability to do an enormous amount of work to be put to work every day and also he invited the outcome by saying there are alternatives to incarceration specifically community service and that's what indicates that this is one not of a sentence and that you can't undo one part without sending the entire thing back the concern here is not deterring future claims it's potential gamesmanship gamesmanship which is what is going on here the defendant wants a heads i win tails you lose scenario where he got the benefit of his request for a lower jail sentence and more community service and now wants to retain that benefit of a lower jail sentence while also reducing the community service component that is cited authority in our brief for why that's not necessary there's authority for the fact that if the defendant is appealing the sentence the government can we give the defense time to think of absolutely your honor this court is not in the business of issuing advisory opinions and that is what that request is the defendant has been on notice that we are seeking plenary re sentencing he has the opportunity to withdraw his appeal now between now and when the court issues an opinion but giving him time to withdraw the appeal reinforces the gamesmanship that's at play here and the attempt by this defend and yes your honor the variety of requests that the defendant is making in his brief indicate that he would not like this sentence to go back before judge kaplan precisely because they understand that modifying only one tiny part of the sentence would undermine what judge kaplan is trying to do with his sentence here and so you have a request for a limited remain and you have a request for the court to modify the judgment without sending it back to judge kaplan there is no authority for modifying a judgment in this type of substantive way and it's clearly an effort to prevent judge kaplan from being able to impose sentence he intended to impose and to achieve the deterrent rehabilitate and punitive effects that he correct your honor in addition it is true that community service should not serve a punitive purpose but here the defendant is arguing precisely that he has made the argument that the sentence was on reasonable because judge kaplan imposed community service for a punitive reason if you accept that argument that necessarily means that this is one entire knot of sentencing and so the defendant's argument is attention with itself if you accept that it was then necessarily the entire thing has to go back if you don't accept that it was punitive then that goes to the fact that this was not an unreasonable sentence and i'd also like to turn to park and switch which counsel has raised numerous times we are not remotely in the world that was before the court in perkins there the court was evaluating a community service condition against the baseline a four hundred hours that is in the sentencing guidelines however you understand the invited outcome by dr stacey or here at the very least he took the court to a floor of one thousand five hundred hours of community service which is well beyond the ceiling that is in the sentencing guidelines and so this case cannot be compared to parkins where what we're looking at as the very minimum baseline is one thousand five hundred hours of community service which is not what was before the court and parkins moreover and park as the as the circuit pointed out the defendant there was fairly ordinary his crime was fairly ordinary the facts and circumstances identified by the court were fairly ordinary and fail to explain why going above four hundred hours would be appropriate we're in a very different situation here where for one of the defendant requested an enormous amount of community service but to judge kaplan noted that this defendant was extraordinary compared to the defendants that had a way we are not in an ordinary case we're in a case that's extremely unusual given the privilege circumstances of this defendant and given that he put forward to the court that he was in a unique position to give back to the community by performing hours of work a day which is well beyond six hours a week in addition  going back to the plenary are limited remain and i want to address specifically this issue of three versus four years of supervised release we've conceded that that was an error but even if the court decides there was no other error in the sentence we still believe it needs to go back for a plenary re sentencing because in evaluating the appropriate sentence judge kaplan clearly considered that there would be four hours of community service performed if that is reduced by twenty five percent that's reducing the overall rehabilitative or deterrent effect of his sentence which may affect how he thinks about the prison term he imposed and also about the other conditions of supervised release that he impos and i just want to emphasize that here the policy concern is not deterring defendants from raising meritorious claims i think the overriding policy concern that animates this case is gamesmanship and that's both the gamesmanship of the district court level which was to seek a lower jail sentence by making representations about an ability to do an inordinate amount of community service which is exactly what judge kaplan then did and now here are quest to have this court tanker with  you just on a couple of issues on the subject of the ability to withdraw an appeal that that request is not something that i came up with this court has done that in other similar circumstances yes i'm not sure i do i think it's a matter of some dispute whether you can simply say well i don't think the argument went to well now we're going to throw the only work i feel your honor is if i've seen in in even in published opinions the court giving defendants the opportunity where a victory turned out not and victory and and and we're we're asking for that here because you walk why should we give you well your honor the reason why is because the particularly the four versus three years of the sentence is that is just a plain error by the district court there is no purpose served by allowing that aspect of the illegal sentence to stand but if the price of challenging that is that he can face an additional year of jail time in order to correct the supervised release sentence it just doesn't seem like that's something excuse more games hospital for a post medical school training and he is financing prostitution rings and we all know who is exploited in that context and what the a motion all half of that is it's read he went to prostitutes and he gave money to the people for the women he knew and worked and he was telling her that well if you sleep with me more let me sleep with you and see where you're bleeding i'm not defending and and and then that was tied into saying is that the supervised release component should be based not on punishment but on other factors of sentencing and that the four years versus three years is just in obvious mistake i don't think judge kaplan meant to go in excess of the statutory maximum for supervised release but if the price of that is a is a total reset and saying i don't think anyone would challenge a even an excessive year most of your brief was devoted to the for the length of community service yes you but you've backed away from that no i'm not backing away from that it's a tremendous amount of community service it's far in excess of what he asked for the waiver argument works if he got six or eight hours a week he got twenty it's range the government did not elect to cross appeal that as a separate matter i do i would asked the courts allowing him to decide if he wants to withdraw this appeal not because of the hostility of the of the reception of the argument as has been suggested and you said he didn't know because of even if just because of the possibility