we have three cases schedule of oral argument on this morning's docket we'll begin with cars number twelve i'm sorry fifteen dash to their zero five eight nine united states of america versus jim di bella you ma and frankly smaller category is that where just on the face of the documents in the record the court ordered restitution for amounts that are not authorized by statute either the largest chunk is for an award for consequential damages  for someone who claimed eighty thousand dollars for impact on personal income and then another seventeen thousand dollars for losses related to a mortgage as opposed to investment income and other compensable income under the statute but there are others also where as listed in my brief the district court included restitution for the full amount of and purchase of the investment stock without then deducting the amounts of people informed the court they had made back when they had subsequently sold the stock and it's very clear under the law that it's that sole amount the purchase price is not a loss the purchase price is the net down review amounts were awarded the restitution authorized by statute and even in bigelow as i said it's unpublished so it doesn't bind this panel and it's also the target of holding without any real the reasoning and that opinion describes why the defendant lose on the merits it does and then it just summarily cites the lopez line of cases the end saying in any case we can't review it i think that's an persuasive particularly for in light of this court's precedent holding that like  chemical metal industries holding that awards of authorization sorry restitution in excess of the statutory legal sentences so i think importing the lopez line of cases to the restitution contacts is on an authorized the other is especially as far as i think the types of issues i'm talking about here it's not one we're saying oh this person is lying to if the court looked at this additional information you'd find out that what they said is not true this is just looking  completely on face value everything in the district court record taking is completely true what the victim said that as i said that he lost eighty thousand dollars for impact on personal income that's a legal question whether that's authorized by the i have no justification for why that was not done here your honor i find that perplexing and i wish i could offer a better explanation for that and i can't that said in that in that minute the governor has argued that these errors are wa because of that i disagree with that because i don't think there's any indication that this was done as a strategic decision or knowing that i don't argue that it was forfeited because it was not addressed as specifically as it is in my appeal brief but even under that standard i think these errors are clear your honor and he meets the necessary showing for plain error so you're saying it should be dunno because you're relying on the cases that say any award beyond the actual  losses is a jurisdictional so that basically me i mean understand the case law you're relying on that that basically means any mathematical error or just any basic factual mistake you can point out on appeal for the first time and get an overview that's that's your position even though these are easily correctable and they've been pointed out in the district court record so it has to be right so the penalty is it has to be that kind of error where it is so clear on the record as opposed to you know we find some new record later finding that so and so's someone's victim's losses were not what they said they were obviously we can't do that so it does we are we have to be able to show that like you said once it is for you you can't bring in new evidence that says oh we consistent in finding that i have not found any case where an error was of this sort this plane error based on the record composed in a district court where the court has an exercise assertion to vacate the  research has only been applied in guidelines cases so there is court i mean granted lopez came out in the mandatory guidelines era but particularly now that is always going to be a matter of discretion for the court whether the judge is sentencing someone to six months more or less as long as they're within the statutory maximum in which case i don't think lopez would apply if someone if someone were sentenced on a felon in possession case to more than ten years because of some factual error i have trouble imagining this court not vacating that but a low blow pens itself as the guidelines case the other cases in which slow play born in other cases chong in which lopez has been applied to declined review have also been guidelines cases and i think and as opposed to restitution where it's a reading of a statute and limits the authorization of statute to very typical things and i think in and the court has held that kind of limitation again particularly the chemical middle industry case to be in the legal sense and that's obviously never been said with a pure guidelines there you larger amount which i also itemize previously my brief is about one point three million and there those are the places where people to various degrees essential just said i lost x sometimes with a little more detail but sometimes the less the problem then i recognize the force of the cases the government brought to the court's attention this week such as westbrook allowing or find the district court did not err in allowing unfairly relying unfairly bear evidence and imposing restitution ward that said the victim impact statements here are of a sort that weren't calculated to yield reliable evidence as you describe in the brief and as it's quoted out the question that was posed to these victims was tell us or identify your investment and or losses but it doesn't tell them actually that question is structured in such a way as to solicit more than just investment losses it's within the authorized time frame of the off and that's the other one even though the process to the victim statement request from the government informed the victims of the time frame alleged an indictment and also failed to tell them that they could only submit losses that were in that time frame as required by him in those other cases precedent and so in some cases as i pointed out later people when they provided the detail it's clear they provided they included losses for purchases made outside actually in the report why should this be different because it's not again it's not in those cases it's again where people are saying that the facts are not reliable i'm not suggesting that a particular statement by any particular defend or in any dictum that they lost a certain amount of money is unreliable in and of itself what it is is they were not apprised of the legal framework that gives rise to it they had no way to know it and there was no way for anyone else to know it that they were only seeking losses called losses like losing money from work lost lost lost opportunities for other investments those kind of things i mean those would be when we're talking about business those would be losses but they're not compensable under the statute and nothing provided these victims told them to provide that information and they certainly well let's be clear the whole amount of restitution this case was about seven point three million dollars for six million dollars of it i have not challenge the victims did not provide sufficient information that what they provide it was reliable and so the court could enter the situation so this is just for that other remaining part but as to does it was without providing the additional information again without telling the judge they were only giving approximations they didn't have a basis for reliable information in the cases you're referring to judge davis with the court has held that information a p s r can't be  sufficient that the premise and that it's reliable information and that's what the court is always said that it's like when there's reliable information the p s r the court can rely on it this wasn't reliable information because it wasn't calculated to provide a more nearly the prevention off the victim restitution forms are provided as best i can tell were drawn up by the government submitted by the government and then turned over to probation probation to do a report because this gets remained did when was the last p probation and the court yes so after it's just i think i'm answering just to make sure mention that you're asking after him and there's no question the government then submitted these binders to the court and essentially probation probation then went through them the ones you're not challenging had like documentation of the purchases and i'm just a more concrete calculation of where is the dividing line between what you think are the appropriate ones in the unit probe and that's exactly it so there's something in there such  as bank statements or investment records some to let first be clear that we're talking about investment losses and then to be clear we're talking about the right timeframe so in those like i said resubmit in the vast majority these  the judge made a legal error in ordinary situation and as i said and i do i understand the court's reluctance to do this when there was and there's no criticism of the district court here not providing opportunity to raise these objections that happened also the objections and the specific objections were not raised they also were not waived the attorney repeatedly made clear that they did object to the restitution and intended to be to submit something in more detail and that just didn't happen so that's part of i think of what created the problem an appeal number one there was three hundred seventeen binders that were submitted to probation as well as to the district court during that time the victim witness corden ater the prosecutor the probation officer all of them obtained additional documentation with regards to a lot of the objections what they expect a specific victim impact statements they discussed it they went over it and so this occurred before the first appeal on the first appeal it was sent back on remain and for hearing and to we assess the recitation order based on the arguments which the parties did try to grapple with how do we respond to the remand or do we want to make sure that we stay within the spirit of the order what can we do as we do have these documents over here that we've addressed some of these questions with regards to certain victim impact statements is this new evidence that we can present henri man when we're arguing in addressing these objections or do we have to put it in a separate pile so angry man at the initial hearing everybody was talking about the prosecutor the defense the cork we're trying to figure out the parameters of how do we operate now on remand we want to do this correctly we want to make sure this doesn't happen again so at that point the defense counsel objected to the submission of three hundred seventeen victim impact statements and that the prosecutor said they develop the evidence and show that this was in fact delivered to the court and the work confirmed that he in fact did consider this album that's so during this time the prosecutor says we also have this over here these other documents the supplements that we've been addressing the probation office that we have looked at this really we've reviewed these objections have come back we have talked to the victims we have so there's a lot going on beyond just the three and seventeen victim impact statements so during that time the prosecutor suggested and everyone agreed that in the end this is what they requested in their first appeal was that probation would do an addendum to the press to the probate to the p s r to be a part of the record as well so they agree that once the adenomas going to be submitted that both sides will submit specific objections to anything that they had with respect to th specific victim impact statements the court gave them you know sort of the two months after the defendant was completed to provide any objections in the context of the additional documentation the prosecutor said well we  the objections our understanding is we can develop and discuss this additional information in the context of any specific objections i'm open to discussing you know whatever to pacific objections you have so time goes on there's no specific objections the court grants or continues for even more time to submit specific objections they get to the final hearing and at that hearing just go back one other at the initial hearing the defense's position was not so much that they're making objections with regards to the legal competency of the evidence they were objecting to it meeting it to begin with they didn't think it was a proper foundation they didn't think that  it could be that the court could say that it actually had considered those three hundred seventeen binders the court on the other hand said yes i do remember very very distinctly looking at these letters and the victim impact binders in the context defense counsel stated well your honor if you had you would have noticed certain discrepancies but they don't go into any specifics they say we have a spreadsheet they never offered the spreadsheet with regards to any kind of specific objections or problems that they had and so at from their representations at the first hearing that they thoroughly we reviewed additional documentation they talked to the victims they addressed the defense objections and you can see even in the a danda that they address the specific objections in the first appeal has in the first appeal again they're able to make certain specific questions about certain victim impacts that was a probation officer address every single one of them showed why they were wrong and so in doing so if you'll notice those same objections are not raise and second appeal so move forward as the court adopts the a denim and says by the way because all the way through the defense counsel is saying that i'm going i'm going to help the court by filing as fines of fact inclusions of the law and the court says please because i could i could use your guidance it would help and so at the final hearing the court still leaves open that states i am adopting a denim but i'm open to modifying my cross the border acceptance of this a dent i am subject to what you court filed the restitution order the find there were proposed findings of fact missions of law fine this was after the restitution order had been enter i mean issued on september twentieth october sixth is when they fall the proposed fine is in th file the notice of appeal two days later so it was after the fact and so for purposes for purposes of anyone acting on them they were late there on time when they were after the restitution order had been filed but the significantly the court waited a month between the hearing and filing the restitution order so it was waiting it was giving defense counsel time to file the proposed findings and they never were filed and the point that i'm stating is that the whole purpose for the remained was to give everyone the chance to you know have a hearing make it because that's what they ask for in their first appeal they want to hearing we want to be able to make their specific objections we want to be able to present our own evidence so that opportunity was provided and in the fact that you appear in the circuit a second time in a restitution order it seems really stems from the fact that they restitution really wasn't put together originally in a timely manner like you'd expect in in a securities fraud case i would think you'd have an expert report even for loss of sentencing purposes not just for restitution those losses everything in these cases going through the stock purchases and transactions and coming up with a figure i mean isn't it problematic to rely on victim impact statements for securities fraud loss calculation when that's something lawyers usually can't even do that's why they often i are experts to analyze the stock transactions how can we expect laypeople to figure out the loss attributable to some misconduct stock securities fraud thing in this case it might not be as difficult as some cases because this was a completely bogus company and went to nothing i mean it really was valueless at the end of the day they went out of business but they were promoting their business by stating that we are selling these jet matters all over internationally or making millions of dollars and they literally had barely know pretty much no income and so at the end of the day the whole thing was really pretty is just about guess you know in those situations where you have legit you know you do have some legitimate business going on it's kind of hard to determine what is legitimate what isn't but in this guys and that's why when they talk about i guess they need then even more the real government sources like even more the reason why what even more the reason why didn't the government put together it own list of losses if it was clear what the losses work i think they based it on what they paid for the stock because the pay for something that was valueless i mean even it if it traded at one point based on foss press releases based on fo because they were trying to make sure they had all the victims at the time of sentencing they did have two hundred eighty four victims at the end of the day was three hundred seventeen so they were they were make one make sure that they represented everyone and they were still trying to round it up i think at the time of sentencing  and you know there are several cases that state that the victim impact statements even ones that are on sign and i'm verified if they in these particular victim impact statements they didn't they did state the scheme they did and there's only once again i mean grif go there is no something else out there go was a sham from the beginning and operated it went under and the whole thing was based on a fraud they merged with the company had nothing to do with the oil industry equipment and it was a wireless communication company that was  on the purchase of this stock state what your losses are and then the victims did state their losses now there are some that did of submit you know a lot of documentation going through it and that's what the probation officer did that's what the victim witness coordinator did that's what the parties d they were trying to go through each one and it goes back to why it should be something that is a fact it's not i mean if it were these were types of facts it could have been easily resolved by by the district court and below it and to show that the a defend them reflects that because if it's specifically addressed each objection they raised in the first appeal and showed why it was wrong and i think there was a lot of discussions and they just didn't have the opportunity to show this in it even on the ones that are in the appeal now and it is amazing that they dial is not someone who is expected to be able to pay the restitution but based on his income but so it is the type of factual dispute that locale as does address and the cases that talked about it too in addition aspect or whether you're determined losses under the guidelines they are for different purposes no question but they are factual determinations and the whole purpose for letting the district court to resolve the factual and to really resolve it is to develop it into allow it what happens if you don't is the appellate court is asked to do a dyno interpretation of the evidence and that's exactly what has happened here and that's why lopez clay born in many cases after that have refused to do that it replaces the fact finding function function in the district court and places it on the appellate court which really was never meant to be and in this case they had the opportunity also there the appellate court is ill suited to review an object in fact undeveloped facts up for the first time on a deliberately avoids objecting play marijuana's never be found at the purpose of a contemporary object abjection under pocket is to avoid sandbagging it also avoids delay and expense of a full appeal which we've are now this is pill number two and the government going back to what you know what the context of what occurred the government's position is that we should be able to rely on lopez we should be able to lie and play born and that the victim impact statements did provide a sufficient  at least initially and that it behoove them to make specific objections and provide some sort of argument or rebuttal that's exactly what they asked for an appeal number one that's what they received and they just did not participate they did not meaningfully move for everything right the first time and you know and if it is sent back to we limit the court from considering all the evidence with regards to what the losses are should the court be able to consider the things that they receive from the victims and explain certain things that they they claim on appeal that we were unable to defend or to even discuss because we didn't know what they were until they found their brief for example i mean some of these to go through the victim impact statements when they say lost income no what you can tell from the victim impact statement that they were referring to the purchase price of the stock they put it in the blank of lost income but it's very clear you can see that they're referring to it this is what i paid for my penny stock there was also one where they claimed that the government was it was including promotions bonuses and foreclosure well if you look at it closely that amount was not included it was deducted from the total amount but these are things that are facts that could have been resolved could have been discussed could have been clarified and so now what we're doing is we're trying to kind of make sense out of it for the first time on appeal when just like in the it's the second a denim the first time around they were in the probation officer was able to explain and show why each one was wrong and if for some reason one was incorrect or one did have an issue we could have resolved it and we would have resolved it so now we're back and they were is doing the same thing again so i think the government does rely on lopez and playboy because that's these are factual it they the government conceded we did not present one iota of evidence period so i mean that was clear on its face that's an unlawful restitution order there was nothing to support here there was evidence to support their just claiming they're just disputing the fact restitution order and so even getting past lopez and claiborne's where they talk about when it's something that can be resolved it's within the power of the district court to resolve it can never be plainer and i'm an example of that is ineffective assistance  counsel almost nap you know almost in every case this court unless you can clearly see from the record they're going to send it back to the district court to determine the ineffective assistance of counsel going to try to resolve facts for the first time on appeal that's the purpose of case the fourth pronk should be applied on a case specific fact intensive basis and it should be applied in rare cases and this is just not one of them going back to systems should not exercise discretion when the defendant delivery avoids making proper objections and in this case defense counsel of the second and final hearing said there's no way i see no need to make an objection i have a son i have a record site and i can cite it for the court the government would rest on its brief thank you serve the restitution order recently and noted how much had been collected and i think the amount total so far has been about five hundred thousand most of which had come from the sale of one of the defendants homes so yes as you suggest i mean realistically the prospect is not great authorized by the court exceeds that allowed by statute it's not if that's a conclusion of law which this court can do which this court is used to doing in many settings and then the remainder the district court for them to for it to exercise its fact finding rol points i do think that the government's reliance on the first appeal as a basis for less of a finding or look at being less willing to find cleaner now is not warranted what happened there was much different what happened this time there the evidence wasn't in the record evidence for submitted post sentencing apparently the statute to get there even though defense knew that restoration was was contemplated what happened there was the statute talks about this that the defense did have an opportunity but that's always the case almost always a case in any plainer appeal to lawyers and clients have an opportunity object to what's going on in the district court that is not a reason to find waiver to reason find plane error but we need it we  showing for plane air in this case you're on the you do what about her fourth prong argument that it's not an injustice because you've got a full opportunity to raise these issues in this context i think that's inconsistent with the court's precedence your honor i have not found restitution the court has a as best i can tell in all those cases has found that read and authorize restitution awards even less than this sixty thousand dollars and seventy thousand dollars i think why aren't you arguing for the novo standard review of the way you get around lopez is by saying well restitution this is a jurisdictional problem you can exceed the true amount of loss or it's it's beyond the authority of the court so why why don't you why do you want to still say it's playing there i'm not sure how you get to that well i think the court is sad and well even in for instance westbrook's when you're talking about a different restitution i think what the court said there was well this wasn't right we don't need to figure out whether this was raised below because it would have the same effect and we always move on and find the third and fourth prong satisfied in here so while i'm saying it's plain error because it wasn't objected to specifically frankly i think to some extent it's just using different words to get the same thing because he's since we're talking about restitution and awards in excess of the statutory maximum i think ultimately the effect on this court's analysis is not very substantial regardless what we call it