the next matter on our calendar is united states versus hot sun c know would you do that thank you honor you may proceed they please the court i'm richard will statter and i'm here on behalf of hooks on a car on your honor's a court should not accept a guilty plea without ensuring that a defendant understands the crime to which he is pleading guilty and freely admits the factual basis for the plea as what we have here is that and entry of a plea of guilty to a violation of twenty four twenty two b and that offense was only read to the defendant by reading a copy or the words of the indictment no explanation of the elements of the offense was given to mr khan at the time he entered the plea of guilty no further explanation by the government about the nature of the offense and what the government would prove the case went to trial which is so often the case given in district courts in the united states was done here about his own statement the plea though his own statement  and we contend that his statements did not amount to a violation of twenty four twenty two b the reason that that is true is because the the government is sort of saying well even if he didn't admit to meet her well you can see that he believes that the crime here is a statutory rape essentially and he says when he in his letter to judge rakoff at page one o six that the purpose of his trip was both to backtrack backpack and to spend some time with and the person april two thousand and twelve i did in fact visit her in england and during our visit we had sexual intercourse that time she was the age of fifteen and i was twenty four right so he did but he doesn't say that he used the internet to induce her to commit the crime he says he went there and in fact the confusion that i referred to that's described in you know the question we have it to the extent you're saying that his guilty plea is factually insufficient gunnies just read to you is it mission and your your suggestion goes well it could be interpreted to mean that he only communicated with her about the backpack or what i mean if the communication in any way related to sending up the media given that the purpose of the meeting that was then their sexual relationship i don't know how you could say this is a fan say the perp he didn't say the purpose of the meeting was had anything to do with a sexual relationship he said his friendship became sexualized and then he said he planned he talked with her about going to england and that he went there and that while there and this is what he says when he wrote his letter i had no intention to commit anything illegal and he was caught in the moment that's a page a one zero six of the appendix and this is  you said the crime is not what happened to me and the crime is what one who used the internet in order to do it if i understand this now since he didn't intend sexual relations you're saying that the internet communications warrant sufficient that's correct he didn't say that i used a facility in interstate commerce to induce someone to engage in sex he didn't say that what's apparent from from his statement when he pleaded guilty and from his statement that he made at the sentencing and his statement that he wrote and it's a letter to judge ray cough is that he believes it's essentially a statutory rape case that he went to england and ultimately had sex with her not that he never said and the only thing was read to him was the count of the indictment which said that he induced her to send images of herself he never said he did any such thing the judge never made an inquiry as those was and it's it's really kind of a lever for a district judge to take a plea to expose a somebody to a guideline range of two hundred ninety two or to three hundred sixty five months with a ten year mandatory minimum with a ensuring the defendant really knows what he's doing and that's what the constitution of the united states and rule levon require and it's very clear as it was in that coffin case that i put in my twenty eight jail letter that the defendant was certainly confused as to the nature of the offense that's why he's writing about how he thinks the fact that he was caught in the moment and had sex with her when he was in england is the essence of the crime so yes i mean we agree with you that this was an error is that harmful or it is harmful or would he have not put ed if he had a chance yes yes the defendant did not understand the nature of the crime to which he's pleading guilty he never admitted that he was that he use the internet to induce this child to have sex with him even though she was fifteen years of age and he she still technically a child and right ok but she's fifteen this is not somebody who but ever admitted that he tried to induce this person to have sex with him in england using the internet and that was what the government is now saying that he did and he never said that he induced this child to send images of herself over the internet now i just wanted to point out that normally at a district judge will say under rule thirty to a thirteen year old because that's when this all  evidence but to the extent your clients admissions are viewed in the context of the materials he was provided with it's not like he was right or didn't realize that the government's theory was that the years of sending photographs that were you know depictions of knew to be and masturbation and everything such as that that that that is the context in which your client is talking about he's happy that he didn't make any admissions of that and what's more the government is relying on the p s r there was no rule thirty two discussion did you read the did you go over the the report with your lawyer there was no there was no discussion with the defendant as required by rule thirty two i one day that the defendant actually had understood what was in the presents report i went over with his trial counsel so the court disregarded rule levon and disregarded rule thirty two and went on to impose an extremely long sentence and to impose an order of restitution waiving any kind of right to have a hearing the half a million dollars twice the maximum fine without having any understand without going over with the defendant that he was waiving his right to such a hearing and that the court would otherwise have to hold a hearing as to the amount of restitution for somebody who was in it at that point indigent so in the totality of the circumstances of this case the defendant's guilty plea should not be allowed to stand because the defendant was in the district court did not explain what the defendant would have to plead guilty to in order to expose as you know for these reasons we think the court should reverse this judgement and permit mr han to plead a new yes thank you may please the court my name is alex ross miller and i'm in assisting united states attorney in the southern district of new york the defendant's allocution to enticement of a minor to engage in sexual activity was supported by a sufficient factual basis for the district court to accept his plea in addition even had there been error in not requiring the defendant to allocute to certain activities described in the to wit clause of the charge to which he pled guilty and that information which there was not any such error did not affect the defendant's substantial rights because there is no evidence whatsoever that but for such error the defendant would not have entered the plea and i'd like to go very quickly if i can to the please remit which of course was before a judge or a cough in this case and the plea agreement specifically stated as as one of the enhancements that pursuant to united states sentencing guidelines to g two point one b six because the offense involved the use of a computer to coerce a minor to engage in sexually explicit conduct for the purpose of transmitting sexually explicit material live offense level is increased by two levels and that is specifically in at appendix thirty six that is just one of many facts that indicates that the defendant in fact knew what he was pleading to in fact knew that it included the solicitation of sexually explicit materials and the idea that because the defendant did not additionally allocute two portions of the two with clause simply lacks support in law and there is no support here to suggest that the defendant must in addition to allocute ing sufficient to the islands of the crime cover any number of other activities that were involved in the crime particularly those when looking at whether the allocution was sufficient particularly those that are described among other places in the plea agreement itself would have been useful if he allocute to more than he did wouldn't have it certainly would have your honor i think that that would have been useful but certainly was not necessary and in particular with the context of even more the court to assume and i don't want to jump past the question of sufficiency but even worth the court to assume that there was error the idea that the defendant would not have pled guilty if the court had simply said and by the way it is the rest of the two it clause also accurate as consistent with the ple just no evidence to support that whatsoever and in fact the court can look beyond the allocution and the the plea agreement to look at the p s r which was not objected to when it was when when the draft was submitted which was not objected to when it was accepted by the district court there was no argument about any of the facts included in that very long and detailed p s r and certainly no objection to anything that the government stated in its sentencing ar his cavalier before certainly an additional question i'm asking stupid questions you have any objections to the factual statements that are made in the pre sentence report was that ever asked of the defendant or his counsel yes your well i want to be very specific my recollection is that what was asked is there was a costly let me say that there was a colloquy where i believe judge said something like i understand there were some minor disputes but no material disagreements is that correct and the defense counsel said that that was in fact correct with i don't believe there were a material disagreement to have their correct mr greco said that's correct your honor that's what you're talking about that's exactly right your honor yes and so the s r which again mentioned multiple times was very lengthy very detailed included all of the conduct at issue here there was certainly no objection and not surprisingly because that conduct had been included in the plea agreement itself in charge that judge rakoff read to the defendant immediately prior to his pleading guilty and and conduct that was included in the plea agreement that the defendant did say he had reviewed with counsel and understood  and that is no you agreed to the five hundred thousand in the plea agreement and appeals waiver on that as well but usually you see some basis for the number i mean i didn't see anything i know that the victim talked about how this conduct had affected in her treatment and staying back in school and stuff so there's a basis for victim payments it seems like but the support for the five hundred thousand itself so we're on our end so that if i can in two parts the first is to say that it is often the case that restitution is heavily litigated and that there are briefing papers back and forth and that it's discussed and that there is a debate over what would ground the restitution under the victim and witness protection act eighteen us c three sixty three  makes clear that a court may order restitution in a criminal case to the extent agreed to by the parties in a plea agreement so here where you have is a situation where both parties including the defendant both parties were able to avoid that sort of protracted potentially expensive potentially very damaging litigation over the restitution so in the first instance i just like to respond by saying that that sort of analysis isn't required in a case such as this where it's agreed to  also say as a second part there is no nothing in the record about the amount of money but this court has found that it is acceptable to include future losses and restitution and so it's it is very easy to imagine for example and every other week therapy session for four hundred dollars going that you know for the next twenty five years which sounds like a long time but is in fact a fraction of this victim's life expectancy to be half the amount of five hundred thousand dollars and for the other have to be for example ten thousand dollars a year of lost wages over the course of twenty five years for a person who was a straight a student who went from a straight a student who wanted to be a doctor to a high school dropout as is cell isn't it correct that the condition that the real restitution be paid in full and not let it not later than three months prior to the terminations of the term of supervision was  appended to the written agreement and was not pronounced orally it was a clarification to the oral pronouncement of sentence and certainly if anything it redounds in the benefit of the defendant who otherwise would have had to pay it immediately had no other clarification been issued it would have had to been made immediately and i want to add that there is this allegation that the defendant is is somehow indigent at this point which i am not sure what support of the news or clarification though of because restitution can survive the expiration of supervised release period right yes your honor but i say it's a clarification only because it is a timing clarify cation with respect to the schedule as opposed to an additional burden right the restitution was what it was going to be restitution within the time specified so if i could just he doesn't he will not have his medical license we assume presumably hopefully your honor but to go back to the issue that he is indigent or would be unable to make this first of all there's plenty of law that says that we that we that courts look at what is appropriate in the idea that the defendant may not have the money to go to that i question that this was and did in the written version and wasn't pronounced orally ordinarily that requires that the sentence be sent back to the district judge to either pronounce it orally in front of the defended or remove this condition is that correct as a general matter i think that's correct your honor but here this is i think a fairly standard  is that correct yes or no the time that yes of course the timing was was an addition is supposed to say it in front of the defendant art show he is supposed to say all the terms of the sentence yes your honor as a general matter but there are certainly permissible clarification subsequently and we submit that this is one of those and with respect to the question of the defendant's ability to pay which is which i take it has some relevance to the court this defendant had retained counsel below has retained counsel here and posted against a five million dollars bond posted one million dollars in cash and property so there's every reason to believe that the defendant would be able to make this payment to morrow let alone down the road a counsel you keep saying as a general matter this was an error of the district court not to pronounce this term with the defendant in front of him is not that correct i saw now i don't believe that it was error not to pronounce the timing of the payment of arrest and sometimes it addressed i think in the papers that we believe that this type of clarification is acceptable that it's permissible that it is not an additional burden upon the defendant and in fact we decide that under so your honor and we submit our position but certainly i just do want to note that  that had the had the order at sentencing remained in place the defendant would have had to pay that amount immediately and so we think that's significant here subject to any other questions of course i'm happy to rest on our submissions thank you count so want to start by quoting from the restitution order at page two zero two of the appendix that was written by the government and which says the defendant shall make restitution payments in monthly installments of fifteen percent of his monthly income to commence thirty days after the release of the defendant from custody this was the document that was handed up at the sentencing was prepared by mr rossmiller and it doesn't say anything about the defendant having to immediately pay this so what you heard from the government a minute ago but the at the sentencing this is what the what the judge indoors i think he's suggesting that but for  judgment now or he's defending the judgment where the us tell us my understanding was your main concern about the restitution order was that you thought your client hadn't been aware of it when he pleaded guilty are you now arguing that even if we find even if we reject that argument you have another are the challenge totally separate argument of course knowing that so the argument with with respect to this is that this isn't a burden some addition to the punishment that was already imposed that is not permitted under the rules and so i think that that's a very simple matter with respect to the restitution in general in order to it's a such a serious matter that it requires the court to say to a non lawyer you know i would normally decide what the restitution is and i would have to find proximate cause under  case but i would have to find that there are some proximate proximate cause between the injury and so forth and that there were actual losses but by signing this and agreeing to this you are waiving that has to be a knowing and intelligent waiver of johnson versus waiver let me just finally say that the p s o show shows the defendant was not able to pay a fine had two hundred forty thousand dollars in debt for student loans and the fact that the defend its mother and father helped him retain counsel is not the same as the defendant has the money i was asking you a different question if we are not persuaded that the plea respect to the knowing waive her and the restitution they are what is your objection to the six twenty four to sixteen zero order i mean you mean want to go back to the judge judge or a cough would order something other than fifteen percent of gross monthly income you said that the defendant must pay the entire thing within the ten years and that is not what the court said when the defend it was sentenced right that is that you want that haas to be vacated ok