in pairing instead of from the majority opinion as this court is well aware paramount is the seminal decision on restitution in child pornography case this and the court resolved the open question of whether any defendant who possesses child pornography must pay restitution to the victims whose childhood abuse is depicted in those images even if the victim did not know that that particular defendant was one of an untold number of  child pornography are all part of the vile phenomenon of that industry and it is close to impossible if not actually impossible to identify any type of incremental proximate result one offender has on a victim's loss from another and regretfully applied the exact opposite of what the supreme court required imperiling by requiring a specific knowledge but for causing an element when that is specifically precluded in foreclose by the parent decision so you're absolutely right there the second part of the  leave the legal issues that might inform the district court in my informed this court's decision going forward i think there are two tenants that help us answer your question that we need to get into that to start an extent yes only only because restitution here is mandatory and i just want to make sure the court understands here that even and yes for whatever reason the district court you found that there is no even if you  question why would we get in if the district courts never address that because applied the wrong legal standard why would we speculate about what the district court might do when it goes back and applies the right the problem with the government's position with respect to the non contact victim is dictums is that the government has it about half right apparently and does indeed apply to the non contact victims and it s the standards in the statute itself requires restitution in these cut types of cases twenty to fifty nine does require restitution but the government still bears the burden of proving the amount of the loss as to each of those non contact victims it's not enough to show that all of these non contact victims in this case suffered the general harm associated with the trade in pornographic images that's the first part apparently opinion says that sense the government didn't show evidence that connected hard to this created by this particular the fende there's nothing in the record step wishing the knowledge of this case has resulted in any harm the government has failed to show that the victim was actually where this defendant possessed evidence of that abuse and government on this point wouldn't we just tell the district court to do it over because they got the legal standard wrong so having gotten a legal standard wrong we don't know what they would do if they appl the the district court got the the issue right because the district court determined that the government had not met its burden of showing losses as to these non contact victims what the government didn't this case is  would allow it to make a reasoned decision as to restitution as to the non contact victims there was no evidence no case specific evidence offered as to the non contact victims apparently it says the harm associated with child pornography is the trade of the images and the government was able to show that the thirteen hundred fifty pages of victim impact statements and other materials submitted to the district court but what  the in a majority decision your honor the coup the case as to quote the language the relative role in the causal process that's what the government is required to show a link between what the defendant has done and the harm to the each of these victims and the portion of the opinion your honor which talks about the factors that the district court should consider in making the determination the number of images what the images depict i mean that's that's an exclusive contact victims and one all encompassing count of receipt distribution of child pornography in general he there's no evidence there was no evidence before the district court linking what my kind did with respect to statute said as to the second one that you ignore compensation from any other source which would seem to indicate the district court was an error in how  damages should be calculated your honor i am not defending word for word what the district court held in this case but i am defending on the merits of the decision that the judge got it right when you denied restitution because respectfully disagree your honor this court can affirm the district court's decision if it's correct and it is correct because the government did not meet its burden of establishing losses asked of these non contact victims there was no case specific evidence there was nothing linking what my client did asked of these non contact victims you can go through this thirteen hundred fifty pages of materials and you will not find a single link between what my client did and what the claimed loss on the part of these non contact victims in fact if you look at the submissions several of these victims attorneys asked for the very information that the government did not present to the district court like how many images of my client victim did mr diller possessed did he possess or doing just did he did he possess and distributor just possess none of that information was provided to the district court and that's an independent basis and this court routinely i'm usually on the other end of this this this court routinely affirms the district court decision where there is some other basis that that justifies it it may not have been relied upon by the district court and i submit to the court that you can do that with respect to this non contact victim issue if i may move on to my appeal as to the contact victim the court will recall that to the contact victim the government presented the statement of the counsellor indicating that her damages totaled three thousand five hundred ninety dollars the government asked maybe whether i would agree to double that take into account the possibility that might be understated more counseling might be necessary we agreed to it so the only evidence of government i would say we negotiated wasn't a back and forth it was the government offered the counselor statement indicating three thousand five hundred ninety dollars the government said well we're going to ask the court to double it do you agree to that and i said i don't object that's how it happened there was no limited to cost incurred your honor or cost estimated cost to be incurred and in this case the only evidence of cost incurred the only evidence the amount of loss was the statement of the counselor documented three thousand five hundred ninety dollars from seventy seven thousand or more moderate basically what the judge said your honor is i've looked at all these other non contact victims and their counseling expenses and their losses are it's not based on the evidence it has to be based on evidence of cost incurred the amount of loss by this victim and extrapolating from what happened in other cases it would be like saying because the average of bank robberies was one hundred thousand dollars this bank robber who took five thousand dollars ought to pay one hundred thousand dollars twenty two fifty nine is not a statute that allows for an award of restitution for things like consequential damages punitive damages emotional harm it's based on hard evidence of costs incurred amount of loss and here the only evidence of the amount of  the statement of the counsellor documenting three thousand five hundred ninety dollars i'm not saying that his motives judge conjurers motives weren't good who and the amount of the loss and the district court basically speculated in the amount of one hundred thousand dollars as opposed to having it based on the hard evidence of the lo and to reverse judge cause or recipe as regards the non contact victims without me man because of an evidentiary issue because there was simply no evidence linking what my client did with respect to the non contact victims the second part are apparently i don't deny for a minute that the government presented ample evidence showing the general harm to these non contact victims associated with the  trade their images over the internet clearly the government did that but what the government did not do is it did not present evidence linking that general harm tracing some portion that general harm to my client and that's the flaw in the case and yes judge kaiser's language was inconsistent with peril lane but on the bottom line question of whether he got it right in denying restitution on this record i would submit to you that he got it right and this court can and often does look at the record and determine that perhaps the judge got it right but for this court in broughton jones and in the cohen case where the court said that a restitution of words that exceeds what eight what the restitution statute allows is an illegal  survives a waiver of appeal no one can agree to be sentenced illegally be it one day beyond the maximum penalty or in this case an amount that exceeds what's allowed by statute exceeds that that violates the statute but you only get to your argument that it exceeds the amount of the loss because you don't think the evidence supports it right there is no evidence to support it that's correct ron ok then i didn't hell does that not within the waiver to the same degree is it that it did not fall within the way presented at the restitution hearing and that's just absolutely inaccurate and the record does not support that statement whatsoever not only was there information presented at the restitution hearing but judge keyser had presided over this entire proceeding and there was substantial evidence in the record case the civic evidence and the record tying these non contact victims to mr dillard i will identify a plea a few places in the record for your honors in just a moment but i want to make a much more important point which is that mr dillard and mi images he pled guilty and under paralyzing causation is therefore presumed if you possess these images and it may end there are still outstanding proven losses by the victim for the continuing traffic in those images causation is presumed and this heightened causation standard that is being proffered by the apple in this case is simply not the law with respect to the actual evidence so that the court has comfort at j a sixty two which was a memo that mr dillard authored to the district court he admitted to possessing the images and states that may have he may have distributed them in his words quote pass them along to others unquote fifteen twenty seven which was the ruhleben hearing transcript the government's factual proffer includes the fact that mr  dispute that he possessed the images causation is presumed and the only question that is left is the relative amount of money that mr taylor should be held responsible for but that question should not be answered by this court on appeal that question should be answered by the district court applying the facts to the correct legal standard as for the cross appeal it is the government's position that the appeal waiver precludes mr dealers from now complaining about the hundred thousand dollar award to the contact and mr carville's argument respect  conflating is your honor has noted the idea that there's not that there's not sufficient evidence to support the award but the fact that the award would be an illegal sentence and respectfully i think mr carville is not just fining illegal sentence correctly  that an illegal restitution sentence may fall outside the waiver of appeal however cohen the case that mr carville cites in his brief as well as bronson jones the other case that mr carville has noted both make very clear that any legal sentence is one that the court does not have the statutory authority to order here there is absolutely no dispute that keyser have the statutory authority to order restitution it's governed by section twenty two fifty nine that is further than clarified by the mandatory victims rights act thirty three sixty three so there is no doubt there he had the authority the only question is that within that authority was there sufficient evidence to support his exercise of discretion to award one hundred thousand dollars to the contact victim i'll be the first to admit that we certainly did not argue for the hundred thousand dollars we can only argue for the seven thousand dollar amount but i understand we're just kaiser's concerns are coming from that this would be an ins the exact argument was made which is that the appeal waivers not apply to the restitution order the court went through the analysis that there is no inherent authority of the court to order restitution but in that case the embury provided statutory authority and so the only remaining issue was whether or not the district court had correctly calculated the amount of money that those victims should receive and the fourth circuit how that that question the calculation of the correct amount of restitution based on the evidence is within the to issue the restitution to the contact victim but whether or not the calculation of that amount of restitution should be subject to review despite the appellate waiver and the answer that is clearly now it's within the scope of the waiver this is part of the  process to waive your right to appeal or restitution order the calculation the amount of that restitution order that would include a waiver of the hypothetical your honor just posited with respect to what would count as an illegal sentence when the waiver would not apply mr car has pointed the court to the broughton jones case which is also a fourth circuit case from one thousand nine hundred five and i want to highlight that this further supports the government's position because in that case the defendant pled guilty to perjury but the judge awarded restitution to the victims of wire fraud charges which were dismissed and the plea agreement in that case did not allow for the dismissed counts to constitute either relevant conduct or office conduct for purposes of restitution and so in that case the court was awarding restitution to victims of a crime that the defendant was not convicted of committing and because there was therefore no statutory authority for the court to issue that restitution then the fourth circuit found that the appeal waiver there was not binding because the lack of i'll just close with this that this mr diller's position were to be accepted by the court that an appeal waiver does not cover the calculation of the amount of restitution based on the evidence before the district court then in essence the government would never be able to secure a waiver of an appeal of a restitution order because every time the district court is calculating the correct amount of restitution the defense would argue that that would make it in a legal sentence if they disagree with the amount of restitution your right does waiver for you it is the western district of virginia standard appeal on any ground would certainly cover a restitution order in this case and then a few pages later in the plea agreement of course is the language of governing mr dillard's restitution obligations which further reiterate his understanding an agreement to make full restitution in the amount calculated here so we certainly know that he did not admit or agree in his clear agreement to pay one hundred thousand dollars but he did agree to pay full restitution and not appeal any order or any of those losses to the individual defendant by recourse to a more traditional causal inquiry a court applying section twenty two fifty nine should order restitution in an amount that comports with the pendants relative role in the causal process that underlines the victim's general losses unquote and i read that to mean that it's not enough to just so general harm that the government still has the burden of tracing some amount of the l to this particular defendant and that's the fundamental problem in this case the government did not do that michael i pleaded guilty to be sure but there was no itemization and the government never provided to the district court any item ization to these particular non contact victim on my conscious computer there were hundreds of images and no one ever detailed which of those images how many of those images involv non contact victims and whether he possessed them only or possessed them and distributed them and you'll search the record in vain for any evidence of that and if you look at joint appendix at page one sixty and  page eleven forty four you'll see that the victim's own attorneys asked for this information the government the victim's own attorneys asked for this sort of nation and never got it and the district court didn't get it either and so yes i agree judge kaiser got the standard wrong but on the merits of whether he got the decision correct i would submit that he did get it correct on the waiver issue your honor cohen is different in cohen the defendant agreed to pay restitution in any amount and warded by the district court he knew he knew when he waived appeal in that case that the sky was the limit that's knowing intelligent waiver that's not what happened here my client agreed to make restitution as required by law in the us the government puts on some evidence about how much damage the fent puts on some evidence about how much damage is done and the numbers are different and the district court picks the h number does an appeal waiver apply then i mean they picked the number they put it probably does your honor after because after the court did what it did and brought  in after the court did what it did in cohen after the court looks at the calculation and determines that it was consistent with the restitution statute that is that it was legal in ca one itself your  applied waiver the court still looked at the last calculation still looked at the restitution amount and decided it was caressed the evidence was insufficient that the government servants and that hypothetical was insufficient and that the only sufficient evidence is what you put on to establish restitution and that because of that any i'm out over your evidence would be in a legal sense i'm saying your honor that in that circumstance what this court would do was it would say you've waived appeal we're going to look at the calculation just like you didn't call it just like you did and brought johns and we're going to decide whether it still complied with the statute and if it did then we're going to apply waiver period that is what happened in cohen and that is what happened in broughton jones the court still looks at the merits of it to determine whether it was legal whether it was lawful and cohen the defendant agreed to pay whatever amount of it restitution awarded by the district court my client agreed to pay restitution as required by law and he did not agree to waive his right to appeal