court my name is chris curtis and i represent the appellate honest brain and legal in this case the primary issue that is here before the court this morning i believe is to fifty eight thousand four hundred fifteen dollars  and restitution and the question is whether or not the district court committed plain error in ordering that restitution there's two categories of rest to sion in this case and i think it's pretty clear from both parties briefs what that that story maximum which is where you know winchell and human eyes and a lot of cases that we're all aware with of at this point you might my problem you know the supreme court says that we enforced waivers of the most important constitutional rights like restitution and you can waive your honor if you're talking about sufficiency of the evidence but on your peril line we're talking about a statutory maximum restitution and the analogy would be if you were convicted of a federal office that had a statutory range of zero to five years and the judge imposed a sentence of life will certainly and yet we have a waiver of appeal with no reservation or and i think the th member the th circuit cases it addressed this point that at this core ask to be able to address a sentence that's an illegal sentence that it seats a statutory maximum and that's what we have in this case with regard to the these categories that way virtually often we find more time on waivers than we do on the merits it seems like it does but still could couple related quick questions wind chill makes it binding on that one us representing the client on appeal it binds us to look and see whether a carolina analysis was made with regard to restitution and if it's not it's just got to go back and say para lines procedural as opposed to the restitution issue coming to us because this was this odd multiple sentencings that wants yes the restitution the issue the oppressing did not have the explicit waiver even if you could correct exactly if you go back and look at the plea agreement on this case and it's a boy it's a bit of a soup sandwich to unwind this record but if you go back and in fact at one point this court asked me to brief the  factual exactly and i don't think we would even be having this discussion i think underwent chilled caroline and him in as that the the other case he actually did reserve an appeal of a sentence in excess of the statutory maximum and that language was true in which you did yes or yes absolutely your honor which is why i'm saying i don't think we would if we were on the other case we wouldn't even be having this discussion right now about waiver but the answer to your st question some sort of guidance that specifically addresses that that you just you can't you can't waste that the defendant the government want to put in an exception for ineffective assistance but the reality is it's always going to be there whether you put it in or not correct or like sentence them based on race things like that and i think the are those all in the category of miscarriages of justice and absolutely wrong and i think that you know i think that the rule is simple here is if you have a sentence in excess of the statutory maximum then a waiver you can't waive that and that doesn't apply to all restitution i think that's really important to dresses that doesn't mean every order restitution if this is going to result in some sort of we get to appeal it and that waiver doesn't apply that's not true when you're talking about sufficiency of the evidence then that's it and the case law out of this court is clear on that as well we're talking about sufficiency of the evidence the no it's not a statutory maximum issue facts in the record i don't think are there your that question is an excellent question because i don't think the facts would justify if you take the twenty two page letter that was submitted by victim a m d however i think under  jimenez that c m eyes did case out of the circuit cited in him in as that actually on this issue at least with regard to the victim mandi the court can the government on the merits question it seems like you've got twenty pages of careful para lean discussion and you're jumping from what two million down two hundred and twenty five thousand i mean apparently it's a blurry rule but it seems like that's a sufficient plain error cost then then you just have three paragraphs in that report there is a voted to the expert cost so that is much more difficult for me to understand how paralegal would be complied with i agree one hundred percent with that statement  i think that when you get to the thirty three thousand a category two if you will that that the problem is it's one hundred per cent apportioned to mr lee and there's other cases would it would it denby plain error for the just court to attribute it all to mr leo i think it still would be but i think the fact that they've admitted right in there that and readily admitted that this request has been made to other courts for the certain three thousand i mean that the plane errors right there in the letter it's got to go back and have some sort of proximate cause and apportionment analysis by the district court and that would be you mean it is right there is a difference victim losses that the ante suffered as to severity in which photos and he had all the bucket that was so hard for courts and then the supreme court as opposed to these targeted sentencing memos where that's the loss how would that would be as simple as government how many other cases has this report been sued sent to hands divide that would i think it's that simple your honor there might be some more you know there might have to be some more discussion about you know are there any other cases or do we expect more cases filed in the requests filed in more cases but i think that the district court is not going to be handcuffed is long they're making some sort of analysis it's clear under paralleling clear under when showing him in is out of this court that the district court's not going to be handcuffed if it uses some so rational basis to go ok well this is how many cases it's been filed and in the bigger more obvious amount of money that needs to be remanded for reconsideration is the thirty three thousand dollars i don't think the mystic aided repeat institutional actors that utah group the government federal defender the reports right there it's talking about parenting and no one says to the district court hey do the math it's frustrating to have to remain for things like that but it i certainly understand the court's question on that and i you know i don't i'm the appellate attorney on this case and i usually am but i think that i think that the trial attorneys in these situations are up to these sentences are huge and they're worried about they're worried about the prison and worried about practicalities situation too i mean if you're any case that says that we can't consider the ability of the means of the defendant when we when the when the court that the district who can consider the means of the defendant does he have the fine in the beers are he's that that's clear and he's not likely to be able to pay much other than if he gets a good job in the laundry or the welding shop he might be able to pay ten dollars a month  issue it's a straight up legal issue an application of the law so i think it is specially with regard to that thirty three thousand dollars it just has to be remanded again i'm not waiving my argument on the twenty five thousand but i obvious to anybody who's read the record that there's a distinct just difference between the two males the two categories i believe i'm out of time solid to give some few seconds back to the court unless there's a more question lay out knowingly and voluntarily waived his right to bring it and nd it should separately dismiss this appeal because the court lacks jurisdiction given mr leon's failure to files fish and notice of appeal from the case in which the restitution award was entered that said should the court reach the merits of the parallel argument you should find that the district court did not plainly error when it entered a reasonable and paralyzed based restitution award in favor of the sole child pornography victim at issue in this case i'd like to start with a court started with the wa r issue however and i'd like to st point out i think that this is not actually a true challenge to the statutory maximum restitution award i think what this court's cases have made clear that the statutory maximum at issue in  and is is not the subset of damages which a defendant was ordered to pay it's the total amount of damages so an amount exceeding the statutory maximum in a case like this is not fifty seven thousand dollars what it is would be some amount greater than the two million one hundred thousand dollars that andy was seeking and as a result i understand what my friend mr curtis is doing but i think what he's doing is trying to masquerade a challenge essentially to the apportionment analysis as a challenge t statutory maximum as a way to get around his appellate i mean you don't say winchell until late in the brief but why isn't that issue decided i don't think it's as clearly decided as the court suggests i mean there is a reservation there is the separate issue that there's a maximum so in that case any amount over zero would have exceeded the statutory maximum given the lack of evidence before the court to the lack of connection the district court made between the victim in that case and the defendant in a situation like here where i don't believe my friend is challenging that and he's total damages are two million one hundred thousand dollars i don't think he's even challenging that he personally caused some subset of those damages i think what he's challenging is the amount to and the methodology  methodology he's saying especially as to the thirty three thousand they didn't even do apparently apportionment it was not done so i guess i'm going to ask you and i say this with self blame because i think on the unpublished decisions you cite where we did apply waiver i was on at least one of them but in each of those cases the court goes on to look at the merits the court didn't stop that waiver and i'm wondering is there any circuit authority that you can cite us circuit authority elsewhere publish that would not perceive  thought i believe that's correct but then if if we did that and we have to put you back at square one big to be able to renegotiate the plea or could we just address the issue find sentencing here remain free sentencing i think you can do that i don't think it's appropriate in this  i agree it's one percent as to his loss sure it seems probably to satisfy whatever the exact is barely news but when you get to the report and the very honest statement by that victim utah group that this same exact report is being used in other cases that percents a fairly stark apparently probably i agree that on its face it it's certainly much more difficult question than than with respect to the general damage costs but i think the issue as with those costs with any was pointing out was mr lay out as the proximate cause of all of the costs related to that report all thirty three thousand dollars he's not the only person who did that he concedes and i certainly can see that all of the people who viewed these images who caused and his general i think this letter a report now also was created ahead of time the argument is one that it struck me as the one you're making but then i guess i'm just wanting statutorily does two thousand two hundred and fifty nine distinguish between general losses and costs it does not your own and so is there  that doesn't it make sense but it still isn't being a portion is there a case that supports the argument you're pressing which i understand and i'm not aware of one but even still i think it's the proximate cause analysis that ought to lead th that there has been a portion in a situation where there are multiple proximate causes for the same part of costs which is to say each person is individually liable for one hundred percent of those costs each person was the cause of one hundred percent of those c that's not the case with the general damages each person with respect to the general damages are responsible for a much smaller sliver but we're each person is responsible for one hundred percent of the proximate cause is the proximate cause of all of those costs so  only person who still needs a psychological evaluation he needs an econometric evaluation to get to a point where he can make a restitution request all the record says is that he would have to pay thirty three thousand dollars if mr lee out alone had been the person to view those particular images and i appreciate that i could confirm that no one yet has been had has had that report cost attributed to them is that the record is silent on that front and we don't even know that's correct i mean information and many victims have been rushed to believe against i can represent to the court that i know him and he has recovered i think somewhere between ten and thirteen percent of his total singular sentence being referenced i don't recall that that could well be the case but i think what's important here is that there is only the single judgment referred to in the case one that's the case where those two sentences and no restitution order  that's what i think he was referring to in that notice of appeal on page eighty eight because all he does reference the cause number one judgment a single judgment not both judgments like he had that day and the two sentences and they were the stiffer sentences in that case whereas case two has only the single sentence and the order of restitution and i think that's what brings it sort of within the diluted case given the similarities between the two but i appreciate that this may not be the issue on which the but like to go straight to the jurisdiction issue st of all i want to respond before it forgets to the idea that that the reference in mr they alice notice of appeal to appealing the sentences  might possibly refer to the one of the multiple counts in one caused number just think that it flies in the face of any any logic in any experience we have that sentence in that single cause number  one aggregate total aggregate sentence yes they sentence certain amounts of time on an individual counts in a multiple count indictment but in the end it is one total aggregate sentence that mr leland is notice of appeal specifically said that he wanted to appeal the sentences imposed on august august th and those sentences were imposed in one sentencing hearing not pro se i think the really the really the one thing i'd love to hear your response to that on plane air i suppose he's got a point that it it may be error but is it clear error if we are know whether courts ever say as to the expert c how when that has to be a portion absolutely appreciate the question of course the reason it's clear where this because we'll start with paralyzing per line is specifically referring to different than the harm to the child absolutely but it's listed it is under the cost of in twenty dollars to fifty nine dollars i forget which sub number it is but it's listed that specific loss as one of the losses listed in that you have to do the proximate any loss that comes from twenty to fifty nine dollars and i don't think the government can argue that this loss the loss in connection with submitting the reports that that is authorized to be recovered anywhere but twenty dollars to fifty dollars and and we know that there are past two thousand and fifty united self so that there has to be approximate cause analysis and you know when you look at the twenty two page letter it jumps out when you really go back and look at it just ask them how many other places if you said it it's easily done by and they do you know if they need to present i think pretty sure under a minutes referring to the c m i case that if they've got to present some additional facts that's there this is an exception as with regard to the victim and the victim who actually submitted a request they're all out that you know that they're allowed to  submit additional facts for their request for restitution for a and b and in that state that seems like the fair and just and right answer anyway if you remained it to the district court say hey you missed this parallel e mail says here it just seems just unfair that the district court would get to do a full analysis that they wouldn't be limited by opal all you've got is this point two page letter you're not allowed to you know make any kind of other the judge government any other questions you or something of that nature so it is plain air and it's clear it's clear i think it's clear to everybody when you stop and you look at this particular order of restitution then go look at the the request from utah it's it shows that he just jumps out at you that there is no mccall's or portion analysis with regard to the thirty three thousand i also think that could be argued as far as the twenty five thousand dollars is concerned because the seven factors that we know and the letter itself lists the seven factors from paralyzed and yet there's no seven none of the factors are applied they just use the mandatory minimum for a civil lawsuit in these is as a guideline to come up with a twenty five thousand but that's not as glaring as thirty three thousand the other thing that's glaring about thirty three thousand that jumps right out to you as it's been submitted in other cases the letter itself says that and that should make it clear to the judge that oh well we've got to do some