my name is edward mallette i represent francisco garrett even on the flight is age thirty six who entered a plea of guilty to count one of a conspiracy to engage in commercial sex trafficking his guidelines were initially calculated at two hundred ten to two hundred thirty months he cooperated gave substantial assistance the government filed a motion for a reduction under five k recommending a three level downward departure of the court gave only two levels and then gave him the top of his recalculated guidelines which meant that he got the bottom of the original guidelines of the top of the new guidelines i mean mostly to get two hundred ten year order instead of one hundred eighty eight recommended by the government the issues on appeal are first did plight as waive his appeal and second did the district court violate mr apply to it's constitutional instead atory rights to effective assistance of counsel when it's substantially increased the restitution the border in an explicitly proceeding on the first i think it's fairly simply answered in his plea agreement while there was a waiver of appeal the language of the agreement expressly states on page four of record one twenty five defendant does a lot of waive the right to claim to raise a claim of ineffective assistance of counsel on direct appeal likewise in the fle guilty colloquy the court assured him do you understand at record three thirty five under some circumstances you or the government may have the right to appeal any sentence of the court imposes we believe these are those circumstances in the pre sentence investigation report it was reported to the court the defendant retained the right to claim ineffective assistance of counsel in the appropriate form respectively this is the appropriate form he is making a claim of ineffective assistan whatever type are we talking about a difference between not eight thousand dollars that was what was recommended in the third in the man the one thirteen in round figures that was recommended in the in the fourth aden that really what we're arguing about not entirely but your honor i can understand how the court could read the record that way because in the initial statement of reasons the defendant the court recites that it will defer ruling for ninety days and it provides there that the co defendants have been ordered to pay the ninety thousand dollars it wouldn't shock the conscience to think that that your interpretation is absolutely correct on the other hand the relevant statute provides that there should be a determination of proper restitution by the court and respectfully we believe that that common plates a hearing that eighteen c thirty six sixty four zero indicates that the court should set a date for a rest or to sion hearing so other than the four hundred ninety dollars order in the first judgment object based on the fact that the work will be a legal work and they were illegal aliens ejected he objected in writing and he argued to the court at the original sentencing that the probation officers methodology for account calculating restitution was incorrect however he then moved to withdraw he was granted leave to withdraw probation department filed a fo premature for the lawyer to get out was that there disagreement between the client and the attorney or what that routine to let the lawyer be excused from of the point made before the final judgment was signed by the court been judges for a long time and it is unusual what it appeared to a reader since we're talking about what is routine and what is not retained but to me is the lawyer reviewing the record in appeal it appeared that each time or found fault with the probation office calculation they came back with a new calculation that raised the punishment he wasn't didn't seem to be accomplishing very much for his client because the recommendation of probation went up which each succeeding very good to me but in his order he said new counsel will be appointed on appeal and that is may so he raises the restitution actually stated at the hearing on sentencing from four hundred  ninety two a statement of reasons referenced the referencing these recitation ordered by the co defendants for the co defendants and then he entered the final amended judgment after counsel was allowed to be not the ninety thousand i mean at point some point that is correct the ninety thousand appears in the third the dent as a number that they are now coming with any power to brief opposing an i judgement was not the imposition of the senate that made this case more onerous clark's presence was not required and the more a case that this court relied on clarke it was reversible to enhance our ra senate more onerous in a proceeding in which the defendant was not present so there is precedent precedent in the circuit for a herring that's correct a counsel to be present of course any proceeding that affects a defendant substantial rights are ones which are hearings in which he is entitle to assistance of counsel and and we make good or is there a distinction i guess the sentence punishment part did not change what change would the restitution part is there a difference about the importance of having counsel present at a punishment court versus the issue of restitution the restitution is part of the monetary battle t it's a part of the sentencing in the case i believe i had not having been a judge but i anticipate that a trial judge would have some interplay in his mind  any or probation and the monetary penalties there are a common single document so i cannot imagine it being a constitutional rule of law that a defendant must not have a right to be present and represented less weight when his punishment is enhanced from the punishment set at the hearing at which he was present but you're just talking about restitution today that's correct your honor i'll reserve my five minutes then for rebuttal thank you thank you please the court system let richard break for the united states let me just ask you something grooming there yes this guy got two hundred ten more yes or any likelihood at all with the victim to collect any of this restitution centrally zero your honor the pay a star says he has no assets he has no income is only work in this country was as a parent if you were fifty if you'll excuse the expression and as soon as he finishes his two hundred ten months or seventeen and a half years he's going to be deported to el salvador he is here illegally he is a citizen of el salvador and he will be sent back so the honest and simple answer is essentially zero you yes in practice if i may it's a fairly lengthy answer to your question then a fun day i'll address it i'll address it more fully there was a thirty one page sentencing hearing in front of judge the whole issue of restitution came up well let me set the stage for that the day before plight as was sentenced to up his co defendants were sentenced and mr saper you mr safer was present for the codefendant sentencing so he had actually knowledge that three of the sex trafficking victims had submitted victim impact statements and mr ply to sentencing there was a lengthy discussion about restitution chuck schumer said i'm going to bring in our in order restitution now and then he thought about the issue for a bit and realized that there was no contest as to the small amount of that was a contest as to the other sex trafficking victims and said i will defer that was an injury docket entry in the record and judge your stated from the bench i'm going to defer a ruling on restitution until i get some research from probation but in and defense counsel copies of the victim impact statements which included calculations as to the restitution that was being claimed after the sentencing hearing which was seventeen the judgment wasn't entered till the twenty fourth the statement of reasons are attached to the judgment also says the court will do for really as to on restitution this to two of the sex trafficking victims for a period of up to ninety days so there's the or pronouncement there's the docket entry and there's the notice on the stated reasons that the court is going to defer a ruling on restitution  most filed on the twenty fourth the same day that the judgment was filed that the district clerk's office the original judgment has restitution of only four hundred and ninety dollars on the twenty fourth  the same lot of reasons and the judgment is filed the next day mr saper files objections to these third amendment to the p s r which had been i beg your pardon which was also filed on the twenty as to restitution to the two other sex trafficking victims on the twenty fifth mr saper files objections to the p s r setting out that he didn't have notification that it's not under the victim witness protection act there are a variety of means of calculating restitution and that it should be the higher of the game to the defendants or the fair labor standards act the probation officer  choose to object he did have a chance to object to the fourth amendment because it was filed on september the sixth mr mallette was mr saper was released from the on september ninth and that was reentered in advance of the time that mr mallette was appointed on the case on page thirteen of the record in the docket sheet which is obviously in chronological order mr mallette a chance to know sure your honor but it would have been a chance to file a motion to abate the notice of appeal and ask for a rehearing just as to restitution if you had wanted to but i respectfully submit at the sentencing hearing there's a  let me to judge there's no requirement that the court have a hearing that correct i mean it does not required that if there is an addendum the court must have a hearing to give them an opportunity to respond you all not aware of on either statutorily or mean case law but again i would respectfully submit that it all happened in the same day if there was an issue they could have resolved that right there in the district court simply ask for surreal i'm not saying he had to object the same day he claimed at the time of the clitoris sentencing that he had only had he was only aware of the restitution for twenty four hours because he had the case as indicated by his comments at sentencing about how much of a downward departure he was going to grant and what his selection of sentence was going to be and why he selected that specific s at the original sentencing mr saper could have asked for a continuance and addressed restitution a later date who would have asked for continued what attorney mr safer could have asked for one at the original sentencing hearing if he found any part of the restitution objectionable they disc thus the amount the ninety thousand dollars and the method and manner of calculation when the fourth have done them was filed on the same day that mr mallette was appointed and earlier in the day since it case but in any event he was appointed to represent pli tez and that same day the district court enters an amended judgement i would respectfully submit that if there was an objection to the restitution  the appropriate course would have been the simply file of a motion to abate or suspend the notice of appeal and ask for to reopen sentencing as to restitution only since everything else had been decided all the of objections all the imprisoned mr miller would obligated to do that the same day that he was appointed nasir he would have had at least ten days he'd have fourteen days to file a notice of appeal so he could have filed any time in that period he could have and the original judgment on the twenty fourth of august showed mr white has liable for four hundred ninety dollars in restitution but it showed his co defendants liable  for i forget the number eighty nine thousand one of the centrally ninety thousand dollars in restitution so he was certainly on constructive notice if not actual notice that he might very well be liable for the ninety thousand as well record as far as we're concerned because we're like oh my god it didn't have a lawyer we got a brand new lawyer well what's going on here he asked me if i would take a look at it because every time he objected probation raise the punishment and judge him or with his going with everything they said and they were he was not being listened to and being heard as you see the court receives a fourth a dent in his judgment the same day it is a relevant matter of statutory construction may pl answers to that your honor reading in the statute subsection if thirty six sixty four discusses resolving any disputes as to the amount of restitution it allocates the burden of proof it says the courts will determine the proper amount a preponderance of the evidence some burden on the government some burden on the defense so i believe that the hearing does that the statute that we are constructing construe in applying here commonplace a hearing jury nation of the final sentence not rejoice thirty six sixty four just after reviewing the report of the probation office the court made require additional documentation or hear testimony that's true that's just above the section of and forty three of their birth rate cites for cases kill him or glenn and lester for cases where this court approved the increase in restitution i read those cases in each of those cases the district court set the final restitution at a hearing that the defendant attended represented by counsel so there is no authority for a court at any time that suits its convenience within a ninety day punishment i cannot tell you my memory of having read the cases of this and we have an amended p s r but they do say that the court deferred hearing the term determining punishment and then had a hearing at a later date and approving the increase in restitution on september the sixth and document to ninety one a single page order which was three days before my appointment i am also really want to reliable he said it is unclear whether the defendant is what is liable for the ninety thousand one hundred ten and what he got is a consequence of that was a fourth a dent them that raised the punishment to which we object because the defendant preserved his right to repeal denial of counsel and because the court did not set a date or let him come to court for the court to decide by a preponderance of the