and sixty three big a little a sub two it also aired when it suits pandey raised mr williams as offense level to twenty mr williams requests this court to remain on this matter back to the district court for re sentencing on mathis davis law foreign leader call all these cases out of united states supreme court have been vindicated that when congress uses the phrase involved as an element or includes as an element it is understanding that the courts will then use a categorical approach to determining if the predicate offense triggers some sort of restitution in this matter or a crime of violence or something like that those cases do not turn on whether it's under the a c c a or if it's under an immigration context instead as the government's case this collins case on the th circuit emphasizes there is a premium placed on the wording in the language in fact collins itself says but just because you have elements or just because you don't have elements it's not dispositive involving as an element that language in the statute but we definitely understand that th harmed by a defendant's conduct now the reason this is important is because it creates a whole new universe of alleged victims but only if they have been affected or suffered losses by a scheme a pattern or conspiracy i e a larger course of conduct or some sort of broader multiple steps that would affect these victims the st cause of the m p r a obviously has direct and proximate conservation restitution but then all in all to limit that by stating which crimes have to occur before those victims can get restitution it's them are the primary victim here is not entitled restitution the primary victim is web bank and they are entitled to restitution yes and really are your primary argument here as i understood it was the amount of restitution you know exceeded the discussing who is a victim eligible for restitution an argument is wells fargo does not fall into that category and those who who are eligible for a situation it will get an adequate i mean a lower as a as a finding of causation but for our purposes in our argument here it's as a categorical matter wells fargo is not eligible for restitution under the why and why should we accept the government's argument that  cited in our briefs in our opinion speak to this your honor they say that if a court orders restitution that is not allowed by law i e wells fargo is not an old bull victim under the saying there's perceval reversal plainer these restitution cases is that an accurate interpretation of your position yes or if this case where amanda and the district court works to just eliminate wells fargo from their analysis and want the full amount to web bank and then let those two that he's determined who's going to paint what back would you have any issue with that because that last wives cause to web bank right you've said you've said that i think yes so if i understand correctly your honor if this reminded to the district court and the f award the full amount went back and that's what that's what actually happened in this case is wells fargo entered into a civil settlement agreement where bank sued wells fargo the district court i don't know i don't think this court knows what to that yes but what happened was that then the court says bank and wells fargo gets paid back if our argument is that wells fargo it's basically a windfall for  would potentially if we bake gets a portion of the proceeds and then also wells fargo does mr williams says no understanding was involved because not there's nothing in the record as to why bank and wells fargo agreed to settle civil settlement so the question then is if they have been if wells fargo has already been excuse me cordoned where extra restitution is heaped on a defendant the correct amount of restitution was ordered it's just a portion that you care about i think that at the end it could be seen that way but our position is that it it's not just about abortion it's about who gets eligible restitution under the embury if we are correct then there is never an a portion that or a payment to wells fargo because they are not a victim under are arguing your honor response to that is that we looked at the speaker in case where our position would be that there is not a finding at the district court level as to cause a ship and that would be i'm not sure if i'm understanding the questions i apologize your honor but the errors that the district court exceeded its authority in the injury to mr williams is that he should not have to pay for the civil settlement between wells fargo and w morning please the court was before malani for the united states i want to go straight into the discussion about amount st who can receive the restitution if this case is not about what the affected on behalf of defendant because he agreed to pay the particular amount it's just going to a different party and if in fact this is remains of below with all the money to go to west bank then one bank can just a portion on its own so i think that  speakman case i believe us what opposing counsel was talking about in that case there was harm to merrill lynch from the defendant's behavior he had forged checks and taken on offer as money but the losses that occurred later in the course of the law an arbitration award afterward there was no basis in the record to conclude that they were connected to defendants conduct not so here and that's the big distinguishing point the p s r states from what thing and wells fargo there are two different documents back at the end of the p s are other that states that they settled this lawsuit based on defendants depositing a fraudulent checks and they say that they're there harm flowed from those deposits now those deposits occurred during the course of the scheme we know that from the p s r statements in the indictment timeframe so i think that this is that distinguishes speakman and i want to point out that the katie's rejected a claim that a financial loss must occur during the temporal limits of the scheme and explained that certain types of criminal conduct could result in delayed or continuing financial losses and i think awful right i don't agree with that your honor so i think that i think that under the appellate waiver framework the cases that have had a pretty reflective of this faustian because they say any error is invited or any error is waived so in that case depending on which way for argument you're taking would result in whether or not you have to resolve that claim but just on a straight way were invited error setting aside the plea the plea appellate waiver i think that this case you don't need to look at it at all the the reason that this case is different from those cited  agreement but that said yes this number was no surprise in terms of it was in every edition of the p s r as it was going through different iterations and the wells fargo's statements as well as the statements were attached to that last sounds more to me like forfeiture than waiver in other words where does the defendant ever express that he understands that this distinction applies between who's  victim and who's not but he chooses the advise the core goal for in other words you do see what i'm saying why isn't the forfeiture instead away so it sounds like that sort of comes to unknowingly perhaps argument of whether there is like a knowing intention take this particular route which it ended and i will point out that wonder on a minute wait a minute the plea agreement doesn't talk about web banging and wells fargo it just gives a number right and that number on the record when the defendant did learn about wells fargo i'm not sure it was as soon as the p s r it's wells fargo's in the p s r but i think that the stipulation was higher than eight hundred thousand dollars he was agreeing to pay a non victim i don't think the court needs to get there i think under n p r a under eight to the nd definition of wells fargo satisfies that definition and i want to contesting the amount at stake in which case i think you can resolve this i'm playing here but to the extent that you take up the categorical approach this court has set a guilty verdict for wire fraud necessarily stablish has the existence of a scheme to defraud of course wire fraud and bank fraud or different statutes but they both have that same phrase a scheme or artifice to fraud and they're both governed by section one thousand three hundred and forty six which provides a definition which is what occurred here could be part of the restitution order in which case while spargo is a victim and again i don't think that this court needs to even get to this result especially if there is no dispute about i'm out if i can answer any further questions from the court is the better practice just the name the i think you're on your your honor i think you're mute relatively minor problems y rebuttal thank you your honor i want to talk about just to be clear we are challenging the who under the n b r i n p r eight which will necessarily affect the amount that we are not a set we are not challenging the amount because we don't believe that that is something that we can bring up here and challenge an plane or nd that a procedural history of this is that for the st time ever web mr williams learns about wells fargo during the p s r i don't think that's forfeiture i think that it's failure to object and i think that's plain error and that's why we're here but the plea paperwork in the statement in advance of plea specifically says one victim up to one million one hundred and forty six thousand dollars there is nothing in the indictment the plea paperwork or the statement  referring to wells fargo so the reality is they found out about it during the p s r process well during the prius our process at that time forward he knew that and there is no objection is that that has to be the basis of your alignment was an error but he did know it from the p s r all and even during the sentencing process i would agree he knew it and they didn't object and that's why we're here in plain error unfortunately but i its legal authority to order restitution or any we go thirty that necessarily affects somebody's substantial rights and that effects the integrity of the judicial proceedings because a court has gone outside of its scope of authority