the forfeiture order reads the defendant is ordered to forfeit the following money judgments of the united states coal and a sum of money equal to one million seven hundred and ninety four thousand dollars which represents the proceeds from and the value of the property involved in the violation is charged in the indictment for which the defendants assessed the money judgment solely liable and what i want to highlight i want to highlight a couple of problems just a little oh i'm sorry ok i want to highlight a couple of the problems that are in this forfeiture order that are in the in the judgment first of all it appears that the district court accident money was using language from the wrong statute instead of using language from eight hundred and fifty three dollars the court was using language from the money think of as the honey cut error three but was it properly attributed to the defendant and the nd one is the thirty two thirty two procedure or is how you're saying it maybe you briefed it that there's a separate error having to do with statutory confusion well in relates to the st argument made with eight hundred and fifty three and a fifty three are said that there were no findings under any fifty three i'm simply elaborating on why they were not probably not appropriate findings  opposing counsel says about findings but i mean there was an extraordinary amount of attention as to who would be attributed certain dollar amounts the house the trailer right this is a very strange case of three brothers all involved in the same drug conspiracy but the contention in response to the forfeiture inquiry is the creek brothers were all doing their own independent drug organisations so the image and if you were trial counsel was one milkman who puts drugs three little milk bottles and they take them and therefore you've got to disaggregate them and i thought the government just came in at the end and said in light honey cut we'll just divide the total amount by a rd why isn't that a find three they didn't say that it was obtained directly or indirectly and as honey cut it just come down and if i remember they just court said boy this is sort of i don't have a stranger weird as which which were did the judge use i think streams this is strange new law all right and then sort of abruptly at the end of the hearing the thought is well let's just divide it by a rd right right and you're saying that's error because that isn't sufficient inquiry and finding is that your position well it's a back of the envelope of calculation that doesn't follow hunnicutt appropriately what's your best circuit authority for that we've had honeycutt for a year or so and the best circuit authority for that is united states versus bradley and in that case the the six circuit remanded saying that the district courts to figure out the amount proportionate with the property branch bradley actually acquired to the conspiracy i don't want  man and just get it right that's correct on this curriculum but but then there was a little gotcha element the brief which is well we will we want to remain and but the government can't offer any new evidence at that that seemed a little strange even if you basis the p s r and the agent authority testified i don't understand is that your position or not it is our position that just seems strange why would we hamstring a district court like that it can consider in making a determination about about what the amount should be now and we're not conceding that what i would suggest is that  honey was had already been initiated was already the law of the land at the time that the sentencing hearing took place and that they shouldn't be able to have a nd bite at the apple by producing extra evidence to try to show what was directly or indirectly obtained by mr to follow us personally i think that we've got evidence about the five million dollars total and they're thinking joint several liability and then along comes honey thirty two point two you can move to that yes or no with regard to the thirty two two i'm sorry with five months in prison on both counts because of the spread of more than twenty four months as i explained in the briefs there should have been an explanation but in the setting some transcript there's no reason at all for why it was two hundred and thirty five months as opposed to lower in the sentencing range and without any reasons mr deval is cannot even challenge the reasoning of the district courts since in this case and for that reason he has suffered a substantial harm and it him and impairs the perception reasonable or not it's reasonable or not there's no explanation of the reasons for this sentence of two hundred and thirty five months and so mr deval is can't can't challenge on that basis and it it appears that the i have the record excerpts right here in the end there's no when i look through it there's no evidence that there is that the court attempted to link the facts to why the senate should be at the higher end of the guidelines range just not the the court simply states the district court simply stated the court finds that the advisory guidelines are adequate and that a fair and reasonable sentence can be achieved with a sentence selected from within the advisory range in other words the district court simply presumed that she could sentence mr deval is to at any point within that range the district courts cannot do that she may actually know we gave no reasons st for sentencing to two hundred and thirty five months and on top of that she didn't follow the th circuit guidance which is that you have to two hundred and thirty dollars of my three thousand two hundred and thirty five months both counts more is necessary from the court in order for mr davalos to challenge this sentence and to evaluate it and for there to be an appearance of fairness when there are sentencing your honor the honors i would like to conclude by simply circling back to the forfeiture issue and pointing out other early irregularities the order of money judgment order was trying to fix some of the errors that were in the judgment that was entered in september two thousand and eighteen the order of money judgment talks about the order of money judgment that was issued ninety days later still misuses uses the wrong language instead of using the language under a fifty three dollars and uses that language from the forfeiture for money laundering and your time is almost out you haven't alleged consequences from a procedural error pertaining to a preliminary order you haven't brought that up at all right you remember sentencing when the whole forfeiture issue comes up he doesn't say wait what happen to that preliminary order yes ok so it's reviewed for plain error and in light of that if the primary purpose of that pre sentencing order is to give him notice the indictment ga notice the advisory gave him notice of the p s r gave him notice the guilty plea both parties agree that's put off to sentencing seems like that would be not rising to plain air if the notice was very his argument that here under the facts of this particular case the appellant did not show that there was that he was prejudiced by the lack of the court entering a preliminary order of forfeiture and as he  has just stated this court should review that for plain error and again under these facts he simply does not carry his burden of proof to show that there was a plain error on these facts because the court as the court has also related the basically all the steps of rule thirty two dollars which is the procedural rule for what the steps a court has to take to orderly order a poor fit your criminal the rule via some other me it says you follow the rule unless it's impractical isn't it what is it that is correct your honor it is the that part of for example that phrase or argument is not that was impractical it's just that well he got know that the purpose of the rule is to give  notice and he got the notice anyway actually it's a two fold argument your honor it is that he received notice but also there is the record doesn't really speak as to whether or not it was impractical to order a preliminary order forfeiture in advance or for the court to enter it in advance of sentencing however i did notice from the record itself the court set a combined forfeiture and sentencing hearing to receive the evidence that the court needed to make the findings several thirty two dollars specifically to make the factual determination as to the specific property and the requisite nexus she needed to receive evidence to do that and also the amount of the money judgment she needed to receive the district court needed to receive evidence to do that and so the record for the record when the parties at the guilty plea stage agreed to defer determination that at that point maybe it wasn't contradictory and then by the time they got to sentencing all the sudden the issue of forfeiture was more contradictory i believe that is correct your honor and if the court notes there was a bench conference a sealed bench conference right before the beginning of this combined sentencing in forfeiture hearing where the court was bringing up and the parties were bringing up the forfeiture issue and how that would the evidence would be obtained by the court as to forfeiture so i do believe that is a correct  scenario that the court dealt with below but i would like to again emphasize that the court is as you were saying judge the rule thirty two dollars is just basically a roadmap yes it has to it has a lot of steps but  for example the notice and as the court already observed he did receive plenty of notice in multiple ways in this particular case also the court made those factual the determination there is a lot that's in dispute at the at the sentencing right the wife gets on the stand and says the house is mine no drugs ever from the house they were always from the trailer then the agent gets on and and so a lot was happening at sentencing and i suppose he didn't argue it today but i suppose he would have said some of this caught me by surprise i didn't think they were going to go after the house and i would say your honor if he made that argument that would be disingenuous because at that point he had pled guilty and at the plea hearing he did had he and eighty and two hundred and eighty one the defendant quote is personally responsible and quote for the drug trafficking activities out of three o seven west and then the case agent testimony which is it records t eight through three hundred and nineteen and the p s r which is also a record for thirty nine for fourteen to address you just give me i'm assuming that includes the trailer on the property it does or was the point of confusion yes and i  understand that your honor there was confusion as to the properties however i believe the evidence that the case agent give gave at the time that he testified at this combined forfeiture and sentencing hearing where he stated there was daily interaction between the defendant davalos used the white house just because he goes in and out of the house before he gets to his drug dealing crack house trailer that and the additional facts that the agent testified to at the time which plea but every agrees guilty plea they put it off or on objected to in the p s or but then that gets contested so it's really going to have to come from the agent because that was the only witness and the agent says i never saw drugs in the out of that house so what's the  the did supports a nexus finding when the drugs were never sold who the guy was may be careful he does it all through his treatment that's basically the underlying factor by what's the case that says you can still the nexus buy because you go in and out of your house to sleep believe that yes that is what i would say your honor the facts that the agent testified to he testified further the defendant in three hundred and ten dollars was supposed to have a surveillance system an electronic surveillance system facing the track the crack house so he could monitor his bedroom the way the house was situated watched and could see everything that was happening ellis from from the house cover the crack house trailer and that catches the house yes it did your own whatever sort of say that and did you have any value in getting the house nexus wouldn't that be why would we say to the just when we're firm as the house but not the money judgment why not allow the whole forfeiture thing would you have any difficulty with that no your honor actually that is that is certainly a remedy that would be reasonable for this particular appellant and i think that that is probably all that he really does should get of course the government is of the opinion that there are sufficient facts of the record and that he did not meet his burden of proof that the court could already uphold the forfeiture however if the court does decide to do a remain for the court to have further factual support of both the money judgment and this particular nexus for the property sought for forfeiture and the office that is a remedy that is available to this appellant and the government would agree that that is a possible remedy doesn't agree that it's  necessary but i would agree that that is a possible remedy here and again i would stress for the court however that and this court has actually visited in very similar factual scenario you're holding in the marcus case that actually dealt with a forfeiture context and the same issue the failure of the court to enter a preliminary order forfeiture in advance of sentencing the court here you this court found that the under the plane air review that the appellant did not carry his burden of proof there because he received all the protections all the rights that adequate due process has for notice and for the opportunity to challenge the forfeiture and that is the case here very much so and i want like i would like to go one step further and say that here this appellant did not show any prejudiced himself because he did not show how the results would be any different he had a detailed factual eviden hearing where facts were received by the district court as to the use of that house how it ties to his drug trafficking often says and how would that be any different at this point we would be basically introducing the same testimony from the case agent albeit maybe a little more expanded upon but the facts would remain the same in that transcript it did seem like even the government was sort of hadn't really thought through honey remember how comes up at the very end they just say let's divide it by three i think that is correct your honor how ever they were cognizant enough at least the the prosecutors at trial to say we do have to make a distinction and i said it goes all the way back to the plea hearing where they tried to say he was and they did say this of defending you agree wires district court findings as to what was acquired even though the sensing transcript i don't see the district judge looping back at the end and saying this brother got this  she did not the district court did not make findings as to the codependent brothers and what they were she made a general finding of the of the entire amount five million nine hundred thousand however at at page three hundred and fifty six of the record this court did say i find that as as you reference she said it's very strange this new cases come out honey cut however as to you and she asks the prosecutor is this jointly and several several liability the prosecutor responds clearly kno this is what he is personally responsible for and of wouldn't suffice circuits that have looked at this you agree the th circuit the th circuit that it would be problematic it would be problematic your honor however i do believe that you can't look at this in just that vacuum you have to look at it in the context of the hearing and all the evidence that the court had just received the agent did do a specific calculation as to why this defendant's money judgment amount was reduced to one million seven thousand from the five ninety eight which is attributable to the entire conspiracy and the support for that calculation came from his previous testimony as to all the facts that surrounded the drug trafficking activity and it also became one common supplier for cocaine coming in from mexico they had one common supplier however that the agent also noted that this defendant supplier was for have read that codefendant and he made a point to say this is where this defendant worked through out of only three o seven west to the crack house as they refer to it sometimes in the record of the trailer that was controlled by this appellant they gave he attributed the amount the quantity he attributed a dollar amount  camera to see the activity where they saw every ten days he was very specific to say every ten days this appellant met with or have read that of his source of supply on the property sought for forfeiture he would me and they said the conclusion was they were either exchanging monies the drug proceeds from the house so that all of those factors go into his the son i believe your honor what his role was is to inform the this appellant as to the presence of law enforcement and there's a specific part of the transcript where he says there's a parade going on today that was the son's language and that the agents found out that that actually meant that there were i think he also reference a lot of birds were around the area the agents saw that as narcotics coded language for there's law enforcement presence around so he would do things like that activity and i found giving those warnings the son was in the house not in the trailer you're in of the record is not clear as to where the sun was when he would when he would make those observations for the sapelo and so that this is we're back to the house my understanding is that the nexus to the house it's just that there of cameras which offered a view of what was going on at the trade is that it two different surveillance cameras you're on are one dollar and one dollar put up by law enforcement which is the pole camera so they could watch that activity but that the defendant this defendant had his own surveillance system in his house installed that was just focused on the trailer across the street that he had daily interaction they would see him walking every day back and forth between the trailer and i guess  my i believe in the context that we're talking about your honor mr davalos his intent was very much to have surveillance of that crack house or trail because that is where he also delivered the cocaine was delivered or other drugs money was handled he had a very specific purpose that could be reasonably inferred as to why he wanted his cameras directed that way and i think that's fair to say from the facts of this particular case that that's a reasonable inference to make and they may and that testimony was also that the agents had surveillance on him and saw him again meeting with his co defendants the people that he directed i believe he had five individuals attributed to him those individuals were were known as the quote unquote doorman of the trailer those are the people that actually conducted the drug transactions so there was those types of facts in the record to show him and his daily interaction from his residence to that particular it's after he's notice for appeal so then it gets a little tricky jurisdictionally as to can a district court clarify anything if the issue is already on appeal that the record isn't very clear about what why we why that process was complicated so you didn't do it but they did it in i i frankly i just haven't dealt with forfeiture enough that does seem problematic to use that word i like which is they've appealed before pitcher issue in the judgment but then the government send notice it directed the government to publish it directed the government to seize property and to begin to discovery to be deemed a rd party yes your honor she was and in fact that case and apparently that case is still pending because the wife's claim is there so the ancillary proceedings are ongoing in that case there's no final order the word he used before was there were irregularities by virtue of the preliminary order so there was an irregularity i would say your honor in  i would have thought that whatever was done in december after the appeal is a legal knowledge if it pertains to an issue that's already before us on appeal that's what i would have thought of it with if you kill me out with a case or any your you're  'm just asking how is that i didn't know that detail but that is helpful but how could i could a district judge issue either if they've already appealed forfeiture that's my concern it's like much saying it's determinative of this case i just didn't understand the authority a district judge pass on that issue your honor i am not sure if i have the authority for what how the district court could enter those orders i will say i don't you mr develops wasn't in a manner it was a middleman he was a middleman in under honey cut the middleman is not responsible for what his supplier received in this case there is no evidence of the amount of money that was sent back to mexico there should have been such evidence under honeycutt in honey cut they talked about a they talked about the mastermind the farmer mastermind if he gets the money and one percent is it back to mexico he has acquired you don't subtract the profits from the guy at the top do you yes under honey cut him in for instance in h cut they give the following example suppose a farmer mastermind masterminds a scheme to grow harvest and distribute marijuana on local college campuses the mastermind recruits a college student deliver the packages and pays the student three hundred dollars a month from the distribution proceeds for services and one year the mastermind earns three million dollars so the supplier he's responsible for all of it but the student earns only three thousand six hundred dollars in other words his commission so they're not attributing just the commissions but i guess i mean again admittedly honeycutt was knew that it was strange maybe the have to go through it i get this guy doesn't seem to be the college student who's just already three thousand or whatever right if the fact is this guy is finally three million back he would have acquired the three million but anyway i'm just speculating what i can know but i'm hearing that question but i thought the magic word was a  they're just the honeycomb chord stands for the proposition that if they're just acton's or broker just passing along the proceeds to the supplier they don't know any of that so here you're answering his is question is does the language i is it a pain or is it acquired and i don't remember but you're saying it's a ticket and that the statute says quote unquote obtained directly or indirectly and then while the supreme court goes through the decision i mean it goes through the analysis and looks at the definition of obtaining and it sees that requires a definition for obtained so that a fifty three dollars quote unquote says of tame directly or indirectly look at that definition and says x our court as the p s r states he had four people working for him he didn't obtain directly or indirectly curious i guess we'll find this out so yours is any circuit said what you're saying that honey cut means subtract out with the big guy gets dragged out with all your employees gets if you just in the middle you get that you get very little that's because any circuit really brat in the united supervisor the six are just very little time what about the house surveillance issue because we were both curious about that you know if he in fact said his house up to have all the cameras on the crack trailer sounds like a very sophisticated person that's trying to protect