thank you good morning may please the court i'm assistant federal defender when the over my or for gregory be a hoss i serve two minutes for rebuttal i wash my time today i will address the sole issue on appeal which is the illegal forfeiture order in this case no other aspect of the sentence is at issue and there's no dispute that honey cut the controlling forfeiture case issued before sentencing it controlled the sentencing it wasn't you know what just true that we have cases that say the illegal and legal punishment is an exception but i mean most of what people are complaining circuits before then it was just the amount of proceeds and it was a very liberal standard with conspiracy liability under pinkerton and and that so when he cut did it limited to only what the defendant obtained and you correct because he was the latest of the last to plead but he was the first to be sentenced and unfortunately it seems through inadvertent mistake that the attorneys below didn't raise which had issue just a few weeks before the sentencing the substance of the statute that's what makes it a legal it's not simply a factual dispute where the correct legal standard was applied but the parties disagree about that would be just a factual dispute here it's that the legal standard itself was not applied and so that makes the forfeiture order illegal and it makes the error clear and obvious under honey cut the third prong of plain error review is that it substantially affects the defendant's rights meaning there's a reasonable remand that the outcome will be different which again we know that the defendants were found to obtain two point three million of these total about five million proceeds so it is likely that his forfeiture order will be then the supreme court recently addressed planar review at sentencing in los morel us and that held the errors in sentencing plain errors and sentencing should go back should there's often missed errors with the as to have a particular about or what would be your suggested language of free men we asked for limited remains for new forfeiture order we would ask that it be instructed to determine the amount of property actually obtained by v a guss under one and cut i don't think there's enough in the record to make that factual finding now on appeal it needs to go back for the parties to either come to an agreement you know or have a hearing about forfeiture ok thank you thank you and unless this court has any more questions i'll sign my remaining time thank you think that there is any kind of cut error in this case and i'll tell you why what if you look in particular if you look at the example the hypothetical that was just a sort of my or gave an honey cut right you've got the mastermind farmer who makes three million dollars cultivating and selling marijuana and  the college student who delivers a farm makes thirty six hundred and the two of them get convicted of conspiracy what honey cut at is that you can't hold the college student jointly and severally liable for three million dollars because he never obtained three million dollars you can only you can only hold him to forfeit the thirty six hundred that he obtained but what kind of cut issue and honey it wasn't the reverse which is what the issue is here how much does the mastermind farmer forfeit and the answer is he  forfeits three million dollars because all of that money he obtained he doesn't get to deduct his operating expenses he doesn't get to a doctor the salaries that he paid to his employees and that would be just signed an agreement i mean there's no indication at all if this was a standard that was to three million dollars left so and unless you're going to make it so the question is does he become is there some theory and you're trying to give us one on which there is a double payment and some of that money that he can be liable for having obtained money that someone else it is being required to forfeiture for having obtained it right and that is and that is in responses to that one is in the plea agreement that sort of record to twenty five yeah i guess admits that this five million two hundred sixty one thousand two hundred eighteen dollars constitutes is derived from or traceable to gross proceeds that the defendant obtained directly or indirectly as a result of the crime so they are interacting so i'm sorry directly or indirectly and directly doesn't count anymore no it directly or indirectly still counts but he has to have obtained it what what honey cut says if you have to have obtained it if the college student could obtain that thirty six hundred indirectly if he gets it from the farmer directly if he gets it from the buyers if he's collecting the money it doesn't matter whether he gets it directly or indirectly but he can only forfeit what he obtains the farm or the mastermind to be a guest in this case he controlled all the money all of the money came to the bank accounts that he controlled the testimony at the sentencing hearing about that both of the co defendants testified that at the sentencing hearing that the money went into these bank accounts that they took the deposits out in cash gave them to him to be a guest and then he paid everybody in cash because they were his not no there isn't and i'll tell you why there is there is nothing wrong with the judgments executing the hundred percent because more than because more than one person had this dollar first he had it as a result of crime and  had it as a result of her crime so there can be so that so the amount of that's meant exceeds one hundred percent of the amount of  are two responses one is forfeiture is a criminal penalty but more important the government will not collect more than one hundred percent and that goes back i mean there's actually there's a footnote in the newman decision which i know most of newman has been superseded by this but there's a foot in in the newman decision that that talks about how the government just as a practice the government will not collect more than one hundred percent of the conspiracies proceeds no matter what the various judgments say whether they think as you just wants hypothetically you're not claiming that there are seven million college or claiming that the total amount was the amount of his forfeiture and he then passed some of it on yes and that the passing on is not certainly isn't joint and several in the sense that it was concerned with her and several liability which was holding someone responsible for forfeiting money that they never obtained so we don't have that there is something that sort of a in that when the when the mastermind farmer has to forfeit all three million and a college student has to forfeit the thirty six hundred that he got as a cut those two together yes that's more than three million this is theory in you ever applied honey cut well i'll tell you it i'll tell you why i think that that's not the case we are first of all i do believe that in the plea agreement not only did he admit that he obtained this money but the  plea agreement that's at two thirty one to two thirty three is as comprehensive a forfeiture waiver as we can do it's the same waiver that was in the pollard decision the difference in the pollard decision and what this court said in pollard is that that language that is from our office so it's the exact same language right that language waived his right to a hearing to determine how much of this money was his it waived his amendment claim that way the only thing it didn't wave was the claim that the order was illegal and the  issue about the order being illegal in pollard was that the claim was that this offensive conviction doesn't allow for forfeiture and if the offense of conviction just simply does not allow for forfeiture then the forfeiture is an illegal what we have here is him saying ok there's no question defense of conviction allows for forfeiture there's no dispute at the amount of the forfeiture and the question is how much of it is his how much of it is he is he responsible for and if that is a legal issue rather than a factual issue then every challenge to a sentence is a legal issue not a factual issue because it's a if the sentence is too high then it's illegal so therefore i'm entitled to a hearing on that and that's what the waiver precludes questions oh i see ok reasonable showing there is a reasonable possibility that the district court would not have found by by a preponderance of the yeah i guess control of all this money and i would just i would just say just the sentencing transcript in man's testimony from pages one twelve to one twenty seven of the excerpt of record where she says he was in control of all of the money we gave it to him and then he gave us back our cut he was our boss we were his employees the defendant admitted that he collected this money he admitted that he obtained the money and he explicitly knowingly voluntarily waived any right to challenge that i would say that if this does go back for any reason the court should vacate or should should instruct to vacate the sentence as a whole because partly you know we had a plea agreement what we got out of it was not having to fight over forfeiture and not having to do this appeal and what he got out of it was a significantly reduced custody all sentence and we upheld our part of the bargain and if this goes back we should be free to argue for the custodial sentence that we think is warranted as well yes thank you your honor the government essentially argues that honey cut created some type of a carve out when a person is a leader in a conspiracy offense and that such start with a plea agreement  violations of this law the dependency gets plea agreement and so the play of what's in the agreement is binding i think there's a it's just not clear that he agreed to what was he directly actually obtained directly said directly or indirectly is that the difference i think is directly or indirectly indirectly it's not clear what that would mean especially in light of the change of the definition you know the pl agreement was done under the understanding of the old law which was what was director in directly from the proceeds derived from the proceeds traceable and that's what the court went over at the plea colloquy at excerpts of record two seventy well on your understanding of  if all the money went into his account and depending on his relationship with these other people who were coconspirators but the representation is that their employees i don't know whether that's true or not  but if they were ok and if he then transmitted to them as essentially paying them for their services  just because i it passes through his accounts doesn't mean that he ended up obtaining that he did he alternately part of that was obtained by his coconspirators who one of his gang on was essentially his right hand person she was very much involved as much as he was and so just because someone you know with passes through again that goes to kind of the pinkerton conspiracy liability the honey comb over ruled is just because someone is a leader of a conspiracy doesn't mean they are jointly and severally liable for in forfeiture standards now restitution is different you know restitution the defendants you know are jointly and jointly separately liable to the victims and that there is a restitution order here for the full amount of forfeiture is for disgorgement of tainted funds so it must be proven which funds he actually obtained and not just which funds pass through his accounts but which funds he ultimately ended up with and that's why the forfeiture order is illegal if it exceeds the substantive statutory requirements below this is not just a factual issue is that the actual legal standard was never applied and that's what differentiates here and that's what makes the plea waiver not bar this issue on appeal and so we ask for limited remains to correct the forfeiture order which is not tied to any other aspect of the sentence everything else the government bargained for was maintains he did not appeal the leadership unhandsome and as was bargained for in the plea agreements he's not appealing restitution he's not appealing supervised release or conditions  all that remains unfortunately what happened is that a new case came out before sentencing that wasn't address and so that's what playing a review can catch and precedent allows the judge cool from obtained that would be perfectly acceptable that's what we're requesting your honor thank you as i understand it my question is therefore without deciding this legal question that the government is now  d i think for the first time if whether if the money went through his bank account and he paid people essentially for services how that would be correct your honor that could be what he actually obtained under honey cut can be litigated