period and the they were in the place which was identified as whatever county and elsewhere so it literally they are encompassed within the indictment even though they weren't discussed in the description of what he was admitting to specifically so what do we what do we do with that let's be clear the issue with target is that it occurred in a different district in a different state that's right but the indictment said here and elsewhere and it gave a fairly broad time period so the real i mean i view it as kind of a narrow question the indictment is broad enough to cover it but clearly have not discussed in any way at the time of the taking of the play well in fact it was the factual basis was laid out very clearly  right that's one aspect that we're saying the same thing in a different way so the factual basis is x ok but the and the other restitution is for y but the indictment it can be read broadly enough to cover novo review applies because we're just dealing with a pure question of law involving whether the restitution order was illegal or not getting into the facts of the amounts or anything like that you know but it's still understand it the district judge found that he's indigent the district judge found that he's indigent yes or i mean there were federal defender office represents mr and i only definite district judge said he's not going to order to pay any interest in other he waived other things that is correct and after he gets out of prison he's going to be deported to china presumably because what exactly is the practical effect of this well it could convert into a civil judgment against him  which would be hanging over him from a practical standpoint might he ever ultimately pay who knows what i guess not it's the shanghai lottery you can go try to put a judgment against him but i mean this is this is he can't pay the seventy four thousand dollars that you don't object to so i don't know how he's going to pay the hundred and put those in you know but no i think that's right and it's just a matter of the legal issue that's involved here is he still in prison he was released from federal which did apply it's what we can honestly call the evans martinez rule that issues of law can be reviewed did no vote despite being for corporate below of course we think that evans martinez needs to be cabins with a particular context because that overview it applied plain their review to that point i guess judge w asked you know what do we do with a situation where you have an indictment that is broad enough to cover both sets of conduct in a factual basis that  narrower i said like to point the court to governments excerpts page nine that's the status report that the government filed sixty days before the change of plea certainly in that document the government said that the following factual basis is offered to us for defense guilty plea should he decide to proceed with that plea but it is not meant to be a full restoration of the facts the reality is in this case is that everybody proceeded certainly the government did assuming that both the southern california conduct involving nordstrom and the customers then presumably he wouldn't be liable twice for the same restitution i think the state court in colorado under this hypothetical could still impose restitution but then he could see relief here not only is this case exceedingly close to inviting there and the defendant had five opportunities to object to the notion that he would be responsible for up to one hundred sixty thousand restitution and said nothing again argues the parties person understood this case proceed precisely this way up until it got on appeal but then on top of that yes the defense counsel in district court said he will be deported that's excerpts page seventeen the district court excused interest on the us to sion and fines because he had no back a couple steps and explain why we think there is no clear obvious error here we've already discussed about the indictment and how the indictment seems broad enough to encompass both sets of conduct we're also dealing with a statute where it lends itself to this kind of charging and frankly the kind of restitution analysis for conspiracy scheme pattern this is somewhat of an unusual statute ten twenty nine hundred two and that it expressly says that anyone who uses one or more unauthorized access devices during any one year period teens anything of value aggregating one thousand dollars or more during that period shall be guilty of a felony the key word is aggregating that necessarily bespeaks the possibility of proceeding on a pattern theory and kind of like in wire fraud and mail fraud where we can proceed on a skiing theory or a material misstatement material emission theory this statute allows the governor to proceed under either theory one theory being here was one if i don't see how that helps  recounts you still have to demonstrate let's say you've done a lot of things worth one hundred dollars where you're going to have to prove or have him agree to a whole bunch of different things explicitly you think you have to your minimum floor and here nine status report we said here is you know here are some of the facts that we would prove this went to trial but it's not exhaustive and so if you look at the fact the statute allows aggregation and aggregation is is he's really close to scheme a pattern if not scheme a pattern within the meaning again your way you look at how this particular count was charged you look at how everybody treated this case the government defense counsel probation office district court this this is an appropriate case for ordering restitution for both sets of conduct and mr libby cited the gordon case from the tenth circuit is absolutely right in that case the tenth circuit found cleaner that was also an aggregation case but then you also have the first circuit in a cost which both parties discuss in their brief and that case is very much like this case in that case you had seven different gift cards purchased on just with different credit cards from different victims over a nine month period there was then aggregated t two thousand dollars to meet the hundred thousand dollars threshold in the statute and the district court did not include all the possible loss in all the possible offense conduct in calculating the guideline range going to court only went up to about twenty thousand and the government wanted to go even higher to thirty seven wanted to use loss that was occasioned by caused by evidence of the government only learned of because of an unlawful arrest and confession and the first this case that also doesn't really have much analysis at all and at minimum under prong two where you cannot have a clear obvious error when there is conflicting press in pointing in both directions in this course not you know pine we can't have  him is your your exposure here is one hundred sixty seven thousand dollars and everybody at the time seemed to think that was correct or the no one said it was incorrect it is certainly true that no one said that was incorrect but it would be no different than if the government had misstated his statutory maximum sentence instead of ten years was twenty years did that then mean he was and subject to a sense beyond ten years of course not there's no difference here was any legal fraud that's where those dates come from and when london also looks at the different the government's sentencing position it has a section on offense conduct where it again only references the nordstrom charges