case seventeen dash five seven four three united states of america versus daniel sexton argument not to exceed fifteen minutes per side mr le savio you may proceed for the  the accounting in this case i don't fully understand fully all sort of getting a handle on the personal matters in his case so i want to take ten minutes here on primary and then five minutes of necessary in rebuttal as best i can tell mr sexton was leading you know a productive life up until he said about fifty five third marriage fell apart a warning his father had died either then or a few years before his mother had cancer and she passed away sister died and then things just changed for  he began visiting his son out in los angeles any minute and hired mr williams to be a c p a and as best i can tell from the record as it's presented on his plea of guilty and his sentencing things just went south  productive life should have it affect given what is close to a life sentence you just happen to commit the crimes when he was in the sixty's and you know you proud of these banks and many millions of dollars yes  cknowledged he did so and i'm still not sure why and again the accounting is important because i don't see any trail as to how much of an advantage he got from the basically the testimony seem to be that he was getting three thousand dollars a week but even at that we're talking that's only six hundred thousand out of a final loss calculation of around two and a half million so i guess i could be missing something but it doesn't the numbers don't seem to add up we did by the way by twenty is what issues do you have an appeal you know you're presenting a sympathetic case but we really have to have ye the first and foremost what hammered him into the ground was that he had a no account and barry plea entered in two thousand and five in california involving some domestic relations matter no sentence was ever heard in that case so in effect there is no judgment incentive third is no conviction yet certainly there is a conviction there was just a suspended sentence there was no since he's spending interim the sentence on him so there never is a judgment issued a final judgment that can be counted on the instead i mean that's not my understanding i mean in terms of final judgment is a technical thing that the court enters when the when the trial court my understanding is there was a judgment which had a conviction it had a suspended sentence and i believe it had probation for a period of time it was a  entered it's it's that way under federal rules it's that way under to california rules that's why if something is on appeal we may not say it's a final judgment in some cases if t where a sentence has been interfered i mean if if the argument is there was not a piece of paper called a judgment that's something that really should have been raised questions at the district court and well his  period and then on a motion to dismiss the case is dismissed probation counts as a sentence under the guidelines correct but he's not but yes but probation after there has been a final judgment and conviction he that was never interfere this was all put in a form of a patience and then when you have the dismissal of the case it is if it never existed what happened here the probation office is trying to second guess what may have been on the minds of mister sexton his attorney the prosecutor and the judge in this case were and reduce the order that was in or the california california court ruling was part of it was i believe it it's attached to all the documents attached to the pre sentence report when that was filed so there was only one even if a conviction is not formally entered then that case we argue and this goes back to our final discussion about issues with how or where the sentencing commission comes up with these statements but this is a binary determination that we say this is he is as responsible here as if he had been convicted after a trial of this office but we don't know there is nothing in the record which shows why this was being done why they decided we're not going to punish you for this we're going to let this sit here and just make sure that you don't do anything bad in two years then we'll get rid of it the other guy how does that make a difference purpose that the court didn't explain the basis for this if you get he's given a criminal history point his criminal history is increased which will increase his potential punishment under thirty five fifty three why we need adequate just punishment do we have proper turd's do we rehabilitate this individual but if you treat all these cases the same then you're not looking at the individual justice that thirty five fifty three also requires for an individual what are his circumstances in what is it about this case that requires this kind of punishment we're now you making an argument that goes through procedural or substantive on the reasonable news to which is a little bit different than the point you were addressing a moment ago yes in that i'm trying to i guess normalize what is appropriate in terms of punishing mr sexton for this fargo act that the trial court itself said we're going to dismiss this but the guidelines say you can do that i mean judge moore read four point a one two after the pre sentence report a person that many guidelines say yes you get yourself in a position where you know you've got some kind of suspended sentence i mean the very position he's in pendry whatever it is perfect you're not like the average person on the street most people don't end up in that situation the guidelines take that situation to account to all people that it up in that situation are there all guilty of an offense of a crime are we lawrence pronounced without looking at the factors that go into it by treating it as bad as if you hit somebody in the head is not reasonable it's not just those who shouldn't have those extra criminalist  sentence that was twenty four months appropriation and there's a form that was attached it's in the record this case is attached to the present reports and it lists the punishment which is twenty four months summary probation that's a conviction it's whether under oath for a one point two eight three or under for a one point two af as a diversionary disposition i don't weigh it counts as a prior yes your honor and honor under the guidelines and then you can certainly argue that if i defend i would certainly argue to the district court that the defendant's criminal history isn't adequate reflected by category and the district judge of course has the opportunity then if the initial court finds it merited to go up or down depending on what the actual context days but to properly calculate the guidelines range it has to be and then the only other thing i want to bring up is this three k a week number that comes up in the brief the that three k does not count the many other things place where this money went and that's all in the record miss flynn testified to it during the sentencing he bought houses for people and he had a plane he would studios trips to california where he would take twenty five grand with him  williams did not draw from those businesses as much as sex and did so he actually didn't end up with much of the money cash he had access to it because it was in the businesses i'm concerned about the  selling of collateral and such and so actually it's always generous if anything to mr saxon because it wasn't the total proceeds that he and his business obtained it was actually a loss amount from that the bank when i've been trying to look at these documents this morning i really don't see how you get to the amount of two point five million for sex und which lists things and list sex to williams and tobin or sexton and williams and so there we don't have a clue who would be getting the money involved the the money all and if it is a tricky situation because it's a case where you have sex and williams as the two co owners of these businesses sex and i don't own or coned each of the businesses of course some of the money i clearly going to sex and in that it's going to find its condos his various houses some of the money went to businesses and those businesses work oh and by both sex and williams and that's not a situation that that honey dealt with where it was a business point five million it's a tricky situation again because they coing the business is if anything mr williams might have an argument that he is being over credit because he wasn't actually drawing from the businesses what the answer is under when it is a business that's owned by multiple people but i think in this case where sexton is clearly the one who with the only one who is drawing on his boat business as a bank account this is not the case to answer that question he's square we've had full access to that money he was drawing off these businesses they were all he had ownership interest in them he has access t was working for would have obtained and that carson never had access to three million dollars it would have been required him to forfeit queen money to make up that amount that's not the case here but that's because of the particulars what  eight million dollars and it was he took six hundred twenty four thousand in these three thousand dollars a week paintings right i don't know if they were those exact numbers are but that the money went told a lot of different places it would have to be about another one point looking at bankruptcy and properties were about to be fork and most about the foreclosed upon by the banks he took twenty five grand in cash just out of out of jar in the trailer homes and flew to california to inspect it when you look at the plea what exactly did he plead on the forfeiture in paragraph ten my reading he defended will forfeit to the united states all interest in the property listed in the work which are allegation of the indictment so we go back again to the document that i was referring to and then says defendant also agrees to the imposition of the money judgment in the amount of two point five million which was the amount of restitution listed above in paragraph s banks were able to mitigate their watches quite a bit because there were a lot of properties that they were able to obtain and sell off but that amount actually dispersed was was eight million dollars  just real quick the california documents of page eighty seven sixty three it notes in writing at the bottom you know this goes ok we'll dismiss so again we can  imposed in excess of statute and here it's pretty clear even under honey cut this is imposed in excess of statute in the mid to judgment that told its motion ok so we set aside your forfeiture but still ordered the sec's to two point five million and williams a two point three million in excess of what the law says what these proceeds are part of the problem is there is nothing here which and i think i where it comes to us with representation by the defendant who knows better than anybody else what the numbers are that it's a specific number the district court has told us that specific number comes up here basically that you know the papers are sort of d was the statute that the forfeiture was ordered under you know for both of you i would think that this would be something that you would know because any kind is applying a particular statutory language and we need to know whether our statute that's involved here has the same language and i think that there are several possibilities here one is nine eighty one and one is nine hundred do and they have different language and that's why i was interested as to what you thought was involved here  ok he was so hot he cut they were applying twenty one u s c eight fifty three right this applies to the statute under which sex today was ordered to forfeit the proceeds eighteen u s c indict anyone which or indirectly in this we're getting eighty one a one c says any property which constitutes or is derived from proceeds traceable to a violation the only court that i found that addressed this was the third circuit and united states versus jelly third circuit twenty seventeen i didn't have enough third cite for it but also they followed up on of an unpublished case u s versus browned case or a fifteen dash fifteen ho five which held that chilean honey can apply to an eighteen united states code ninety one forfeiture assessments in a mortgage fraud scheme like sexton's so at to a to a third say to me two different statutes with two different kinds of language and then the judgment refers to the forfeiture allegation of the indictment so maybe that means that both are involved but they're somewhere else where it looked like it was only nine eighty one as opposed to ninety two so that is in the amended order of forfeiture from the district court so though it is it is an interesting conundrum and we've used up your time so thank you mr sexton there was a note that he had all these other businesses that were generating huge cash so i don't know what the numbers thank you i understand that you've been appointed pursuant to the criminal justice act and we thank you for your service and thank you both for your argument the case will be submitted and with a clear call the next case