many so blatant and so harmful were eleven errors occurred the the rule requires that the defendant be informed as to the maximum possible all those listen to how long it takes to properly advise adams as to what he faces he faced a fine of one million dollars or twice the gross gain or twice the was he faced incarceration for sixteen years they tell you now twenty two years but it's really sixteen years he faced supervised release for three years he faced a mandatory assessment of four hundred dollars he should have been told the court can't issue a restitution order but they could make restitution p us supervised release and that's it it takes thirty seconds instead we have pages of transcript in which everything is wrong they say he faces one hundred thousand dollars fine tell us one  i just want to make sure i understand the calculations i thought that the government's position was that including interest and penalties the amount came to four point something one million but that your calculation was that's wrong because it's  consecutive nature of sentencing i think everybody was in effect of the district court didn't even know that didn't even know just answer my question using a council was in effect i think that i think i think that yeah if i if i if i have failed to disclose to my client what the maximum statutory i think i would have been ineffective yeah but it's it's the failure to explain the concept of consecutive sentences that seems to be all you're saying no that's not what i'm saying what i'm saying is the rule says you got to tell the guy what the maximum imprisonment he can faces which happened for each count in this case right but but but but but but no no because you can if you add up all the counts that's not the maximum you got to tell him you sixteen years not you're looking you know we do this all the time and we here we know that federal census can be consecutive if you're a layman sitting there you can face five years on this count of five years on th if you say you face five years on this count you face five years on this count how is the guy supposed to know whether that's ten years or five years i mean i were you were so you were doing that under rule of  is is saying five and five and five and three and three and three is good enough or do you have to say explicitly that means a maximum of whatever it is twenty two dollars or sixteen they didn't say oh and if i add them up i still i get the wrong number it's not twenty two it's sixty i q is not just being a layman is being someone who's experienced in the law if you tell me to face this on this countless countless hours and i am up i get twenty two and that's or something else there there is in each of those cases this dicta this is it you would have no problem with this and if the judge had said what the government on behalf of the judge had said you face on count fifteen years and on count to five years and on count thirty five years and so on by putting the word end in that would solve the problem it would if if if it were really true because it's not and in and  it you face this much on this and this much on this but this one you don't face any more time on and this when you don't face of the judge is a separate error which i did not quite pick up from your brief and i apologize if it's there good morning may it please the court my name is susan whines and i'm appearing on behalf of the united states and there's no plea agreement in this case right there is not your honor and there is no payment tell letter as it's often referred to there was not your on of that i know that is not our practice in the district of connecticut or it's because the time it would take him to write a pen and tell letter when you've been more than the time it took to write the brief in this case or to drive down from connecticut to have us read the briefs and for us to argue this today i certainly might consider it in the next case none in this case and i thought from your brief that you were saying well that's excused because this was like a sudden decision and he just got up and said on the morning of trial i want to plead and so naturally together and by surprise and we just didn't look the gift horse in the mouse mouth and took the boy but but you're telling me now that in the district of connecticut there is no practice of giving him until letters even in the case of someone who gives  notice well in advance of trial is going to change plea a stay get the rest of our office in trouble your honor let me clarify i've only had one other instance during my approximately eleven years in the district in which the defendant has entered a guilty plea weekend two years ago today was certainly not at all a certainty as can be readily understood readily understood by the procedural fits that went on during the course of this case it is also not my experience in front of the district court judges in our district that they engage in an exercise of math in advise ing a defendant who is preparing to plead guilty to more than one count that a district court counsel tries to weave a path around this that he was told the maximum possible term of imprisonment applicable to each count nothing in rule eleven mentions the requirement that he be informed a potential consecutive sentence and indeed the overwhelming weight of authority say that that sort of advice is simply not required to stay in the view i'm sorry the standard of review the standard of review here your honor is plain error mr adams has failed so our position not only is this not error on the face of the rule it's certainly not plain because in this case this court the need not be concerned about a lack of knowledge on mr adams part notwithstanding this declaration that he submitted saying i thought i was facing he says twenty two years by the way or had i been told i was facing twenty two years or certainly more than sixty i would have entered my plea but he didn't he was not told of a guideline range at the time but i take it what you're going to say is by the time of the sentencing he knew and he didn't get up and say what are you talking about his lawyer you get up and say what are you talking about seventy eight months or whatever ninety months is the guideline range i thought i couldn't get more than five years is that when you're making your honor not only did he not say what are you talking about when you're talking about more than sixty months mr adams own sentencing brief at government appendix three hundred and seventy five dollars they calculated the applicable they were arguing for a sentencing range of fifty three to sixty one months they got the range a little wrong because there is no range that's fifty three dollars to sixty one dollars it's actually fifty one dollars to sixty three dollars but in any event it's over the sixty purported sixty month cap that they purport now to say i thought there was a sixteen month maximum there was nothing said about that indeed if you're calculating a range that goes over a maximum term yes say fifty three dollars to sixty dollars or fifty one dollars to sixty dollars you don't then argue for a range that straddles this maximum that you say you thought was in place mr adams knew all this at the time of the of the sentencing when that went forward not only did he fail to object at any time during this year period in between the guilty plea and the sentencing when that were the sentence was actually imposed there was no issue about this advisement until this priest was filed he cannot show on that record that there was an effect on his substantial role or that there was any injustice here when he was sentenced within a properly calculated guidelines range he was afforded a procedurally sound hearing and the district court found numerous aggravating factors to apply and i was going to ask and i came in planning to ask you whether regardless of how the case comes out regardless of what the law absolutely requires don't you think it would be a good idea for your office to include a all he was pleading guilty to these counts and that's waiving double jeopardy protections so maybe that was really wrong and so maybe it's not such an easy matter all is to figure out what the consecutive  from sentencing where the percent of answers would be with a precise number that would be the answer i think they're very good reasons for not requiring it would be it's easy to say why couldn't the district court just say and these could have been run consecutively but that obviously then raises the specter of this math problem which introducing math is obviously an issue but advising of this cumulative total whatever that may be at one point the defense said it was twenty two dollars then they're saying it's sixteen because of this double jeopardy argument that we think has no merit and that would make the happenstance of the number of charges that are brought in an indictment to be nor impactful potentially co you have a low loss or relatively low loss fraud case that involves say ten counts of mail or wire fraud you would be advising a criminal defendant you're facing a possible sentence if these are imposed consecutively of two hundred years when everybody you know says that he's isn't that true that is what he he could be facing are you saying the judge would say oh well don't worry about that you just heard ten counts twenty five years you may think that's five hundred and fifty years but it really isn't because i'm not likely to do that i don't think that that is within what the rule requires and i think that there are many problems with imposing this requirement i mean look if congress if the room makers had decided that this was a good idea to include in the rule we're saying it's a very simple thing the court could have just advised him that this was potentially consecutive so to it would have been a simple thing to have included in the rule if that's what the room makers intended the advice to include they didn't and no court case that mr adams cites or that we could find says that this was a mistake and that from you and case by the way  does not support the defense position obviously that was a case the court didn't add up the five year term and a five year term nowhere was in effect in that in that case advised of a potential ten they were advised of the max arise under a different rule i think its principles are still applicable your honor i see that i am running out of time if there is a question with respect to anything in particular i can turn to that otherwise i can finish out the rule eleven issue with respect to restitution there i acknowledged it during the rule eleven colloquy certainly i'm the one who participated in that and the advice meant concerning restitution could have been better to the extent that was it was clearly not plain for two separate reason also and it is another interesting example of where it's not so clear exactly what should be told and because i aren't you if you concede that that was somehow an error on the part of the court to allow the defendant to be told that there could be restitution there could be restitution ordered it's a very highly technical point that maybe he should have been told that there could be restitution but only as a condition of supervised release which would start once you're out of prison and that's exactly the kind of thing i would think you're saying defendants don't need to be told because the heart of the matter is that he could be exposed to restitution as an obligation if he pleads guilty he may have to pay court was not clear in the statutory basis for imposing restitution but it is certainly clear that the court has and had authority to impose it under three thousand five hundred and eighty three d but not to start until after he finished serving a sen other words as a condition of supervised release that is correct your honor that we didn't have a right so we should rename for a change in the judgment i would ask and this may be a big ask that this court consider modifying the judgment and affirming as modified if you find it to be just under the circumstances and i think that there are circumstances that render that res perhaps unusual i don't appear a lot in this court but that might be unusual restitution the court's intention to impose restitution as a provision of supervised release was clear the court clearly was clear and its findings as to what the amount of that restitution was and also was clear in terms of the factual underpinning for a warning accrued interest did we  for you must make raised restitution under the mandatory condition you see this is a big ask really what you're asking is a very technical thing that we are empowered roth wise to do which is  to uncheck the immediately and leave the us that's exactly what we're arguing you want your honor it is yours to us that you have the authority under twenty one o six to modify the judgment in a way that will make it conform with th this gets highly complicated though the judge the amount of restitution was set in the course of giving the sentence not in the conditions of supervised release mean in other words it says the judge said here's your restitution obligation that's part of the sentence oh and by the way and you're on supervised release for x years and it's a condition of that that you make you pay the restitution you're getting out is that the judge may have thought well this is mandatory so here's the answer for what the restitution amount is at least in theory if the judge were setting a discretionary restitution amount as part of the conditions of supervised release is there some possibility she might have done it differently i don't think so your honor st of all there was no dispute in the lower court whatsoever about what the amount of restitution that's another thing that was forfeited arguably correct this is correct there was no dispute about the amount except for the legal arguments concerning interest and penalties the court went over those calculations the court considered very detailed calculations including a memorandum that the government submitted specifically on this issue and came to the conclusion based on a healthy degree of back and forth on an issue that wasn't in dispute that the  problem the nd problem is this isn't just a question of this isn't this in tension with your other argument because on the sentencing it seems to me you're saying what really matters to a defendant is he has to get what's the worst that can happen to you and it wouldn't matter if you didn't say anything about what the maximum is on each kid the point is he has to be told it's it could add up to sixteen now you're saying with respect to restitution it doesn't matter that he was told which is true that he could be required to pay restitution to the government you're saying but that's not wrong because he wasn't told on which counts the rest attention it was got him on which counts they told them wrong y  and after a certain point you mean after i mean he was well aware no objection my look maybe this gets to you in effect of assistance of counsel i don't think i don't think he was i mean they're arguing you know this prepared under a different statute in the statutes that allow after they prepare a restitution what are they submitted to the judge the judge issues that they begin and they've they've they've levied on a whole bunch of his accounts the money is sitting in the district court i don't know what she's talking about what might my sister is talking about when she says it's just a question of checking we just moved that we just moved the date on the restitution where there's a restitution water it should be of a caterer all that money that they seize person to a person into it court congress has never given a quote power to order restitution a tax case but you can do it as a condition of or to impose restitution as a condition of supervised release you can that's fine and i haven't i haven't i haven't said the same thing wrong with that right so just that it is used to modify the judgement to make it clear that restitution is simply a condition of supervise release and it's not to commence until he concludes his sentence may suggest that the right remedy if we conclude that the current restitution order and judgment are in error is to send it back to this because tell the district court that that was error and let the district court then proceed to do whatever is necessary to undo the error ok one more just quick point and that is to make a big government makes a huge deal about the fact that well the probation report think might be would trump the guidelines in fact that's not even correct because the guideline range is not if the century maximum is sixty months the government range is not fifty one to sixty three it's actually fifty one to denying it i didn't have that to present to you in jail in june the guy's mom died i said could you just i felt emotion could you just release him for today so you can go to his mom's funeral is that the tax evaders some gang member terrorist she not only did she denied the motion she threatened me with sanctions i have no idea what was wrong with asking the judge to release somebody when she still had it and in that ruling she said ok i'm going to deny that motion you made back in january my statement of reasons will be forthcoming it is now two hundred and seventy five dollars days since i made a motion that this man be released on bond and she still the district judge still has not given me anything i can take to this court to try modify a restitution order that was entered at the same time basically as the judgment you think we do i think you do we should vacate the right we should vacate the restitution order is what you're saying that's your objection  might yes my objection is i look at it this way i think that there needs to be a modification to the restitution order in terms of the timing of payments i want to urge this court not to remain and for a full hearing on restitution or something that is anything but very narrow in scope given mr adams propensity for procedural mishaps in this case and the fact that the district court's intention to order restitution as a condition of supervised release and the amount was very clear based on what the court did order promised different statutes that you admit don't apply right the restitution order  the so the order part of the restitution issue was a the court of post restitution during the sentencing hearing made an oral pronouncement and then imposed a written judgment and all of that is fine albeit the payment issue was not clear this restitution order came on march th two thousand and nineteen more than three months after the court held the hearing and that is not that order should not be taken as determinative and in some cases even reflective of what the district court intended and what the district court actually did the court in the docket entry at government appendix forty six dollars expressly limited the targets of that later arrest order which is in a form that the clerk's office in our district prefers the court in the docket entry expressly limited the reach of that restitution order saying we're reiterating the order of restitution in the same amount and same terms as previously ordered at the sentencing and went so far as to specifically reference the official court transcript as well as the judgment that had been entered at the time of sentence the same terms would mean inconsistent with the judgment it is exactly what judgement is because the judgment says he pays immediately and the only statutory justification for that would be three thousand six hundred and sixty three dollars this is true there is an error with respect to women and is mr donovan wrong when he tells us that pursuant to the restitution order which operates as a judgment as sets of mr adams have already been levied upon and seized by the government  further in some of the restitution obligations there is some enforcement activity that started to happen this is a bit beyond the scope of this appeal but what i can say is that there was has been some enforcement activity  for the show the point that there was no objection to restitution this counsel actually conceded to the freezing of one of mr adams bank accounts that the government made a motion to freeze in order to enforce the restitution order and this counsel actually stated no objection to that freezing order so why don't you know why isn't the obvious thing to do to send it back and let the district court sort it out how can we without even a record decide what is the appropriate way to treat this restitution or whatever other than to say as issued seems to be an error this record go figure out what the what you want to do because i think there's a very important difference between what is right for appeal what is and what has been briefed researched and has before this court which has to do with the validity of the rest no but more of the asking excuse me you are the one who is asking us to do something very specific about what you concede to be error and you're saying but we can't look at or don't know about what the conditions are that might influence what an intelligent decision would be right precisely because it's outside the scope of this record all the stuff about has there been a levy or has there not been a levy we don't know the answers to those things none of that is in the record but it would make a considerable difference it seems to me to figuring out what the consequences are of adopting your proposed remedy rather than the obvious one which is to say if there is an error it goes back to the district court to correct the error and the district court can decide what it wants to do as a condition of release and what it doesn't want to do as a condition of release and mr adams counsel can get up and say well fine if you're going to impose this as a condition of supervised release that's ok but honor i think i understand what you're saying i'm seeing that there is a severability here having to do with how the restitution order was imposed versus any enforcement actions that are that have been taken which have not been briefed at all in the district court if there is an objection to that our flu unit i have not researched this issue because it's not on appeal or flew unit tells me that they believe they have authority to enforce the restitution order now  withstanding the fact that payments may be order to begin later that's an issue to be briefed in a separate thing that there might be an argument i've no idea what the merits of that would be that the government should be allowed to freeze his various assets so that he doesn't dissipate them before the time that the restitution clicks and whether that's a good argument or not i mean i have no idea hasn't been briefed is not before us but all of that could be brief could be argued in the district court  but it should be done it seems to me with clarity and that the current restitution order is not controlling of that which is why i'm suggesting i don't think that the nature of enforcement needs to be wrapped up in this court's determination of how to remedy the error in the timing of payments that that restitution order error can be dealt with and then the parties can do whatever they're going to do with respect are you started your