please report one of goodman i represent mr o'day we're going to split the time your honor and i'm going to address the issue of the government's breach of the amended plea agreement and the effect of the appellate waiver mr nash is going to address the issues related to his client mr hussain and also the issue of acceptance of responsibility this case presents a somewhat unusual factual circumstance we have a plea agreement which contains a stipulation about guideline last numbers and an appellate waiver represented by new counsel mr o'day files  motion to vacate that plea agreement then he reaches a new agreement with the prosecutor the terms of which are not in dispute this new agreement says that mr o'day agrees to withdraw his motion to vacate the guilty plea and in exchange the government agrees to him effectively amend the plea agreement to allow mr o'day to challenge the amount of loss this was  essentially an oral agreement although it was memorialized in a written filing by the defendant at the outset of the sentencing hearing the prosecutor broke his promise not to object to mr o'day presentation of evidence challenging the loss in a lengthy speech spanning more than three transcript pages the prosecutor expresses his frustration at both of the defendant both of these men for agreeing to a last calculation in excess of one million dollars and then going back on that agreement these comments were a breach of the amended plea agreement and they poisoned the entire proceedings because as we show in the brief the sentencing judge issued nearly every single ruling under the false impression that both of these defendants had broken their promise not to challenge laws in response the government makes two arguments first it argues that the failure of mr o'day as counsel to make a timely objection to the government's breach at the sentencing hearing is fatal and precludes even plain error review in this court as we set forth in our reply brief the government cites two cases united states versus hair a two thousand and one case from this court and united states versus hicks in one nine hundred ninety seven case as we set forth in the reply brief the government's narrow reading of these two cases which they say would preclude any plain error review conflicts with this court's decision a two thousand and fifteen decision and united states versus navarro united states is vs never zero is directly on point in that case there is also a plea agreement with an appellate waiver the government breaches the plea agreement at sentencing the defense attorney fails to object this court reverses on plain error review and finds that reversal is required because it is likely that the defendant would have received a lower sentence but for the breach the prejudice to these defendants is even more clear than in the navarro case in this case at least with respect to mr o'day he was contemplating a sentence of fifty one months in the plea agreement and ended up with nearly three years more a sentence of eighty five months the government second argument is that mr o'day has taken the prosecutor's comments at the beginning of the hearing out of context a sensually what the government argues is that all of those comments were only directed at mr nash's client none of them were directed at mr o'day and therefore there was no breach we've set forth the prosecutor's comments in the reply brief on pages five and six it's clear that they're directed at both defendants but if there is any doubt about that we would ask the court to focus its attention on the district court's response to the prosecutor's comments which is in the reply brief on paid beginning on page seven and in the transcript at page's the first day of the sentencing hearing transcript on pages fifteen through seventy and it is clear from the prosecutor response i'm sorry from the judge's response that he understands that the prosecutor is saying that both of these defendants are acting in bad faith for putting on this evidence after stipulating to the amount of loss and then even more telling is the judge's response at the very end of the hearing at the second day of the hearing when finally defense counsel speaks up and says note judge we agreed the prosecutor agreed that we could put on this last evidence and the judge's respon that these that the judge with operating under this false impression for the entire hearing he ruled against the defendants you found that their last challenge rejected their last challenge found that acceptance responsibility was inappropriate for both un you judges i represent kaiju saying the second defend the first question that the government raises with regard to my client is that it agreed to an amendment of the plea agreement in the stipulation as to loss as to mr o'day but not as to my client the fact is that he did agree in the district court to allow my client to go forward and the judge said you may go forward and join the challenge to los it's inconceivable that that would not entailing amendment to the plea agreement in the stipulation since the loss is the loss whatever it may be there could only be one loss it could not be different for the two clients whether the government's estimate is taken or whether the defendants estimate is take but the district court could not sentence mr o'day on a loss of say three or four hundred thousand dollars which the defendants had put forward and then say no mr hussein is bound by the stipulation the police green he's entitled to an accurate figures to last and that was what was attempting to be figured the next is that the burden because of what the prosecutor said at the very beginning of the hearing put the defendants on the burden of proof the burden of proof as to loss is the government's always has been and is today and yet the judge said that notwithstanding what the pleading said about defendants were tempted to call show reconstruction of the books in an analysis of the income and what other stories did that that was a bare denial a bare denial  set forth in this court's decision in hussein had no relation at least that i know that was quoted by the court and relied upon by the government this court decision  says we guarding the denial there the lawyer contended without explanation challenging the figure the next time the courts folk the defendant presented no evidence that's what th the wherewithal to of did to decide that the government was more accurate than we are but the issue is not who is right the issue is whether we were presenting a frivolous frivolous denial of the l figure and we weren't we put three experts on the witness stand the government cross examined them actually the cross examination was longer of them the direct examination but the whole thing got off on the wrong foot when the prosecutor said that this is a breach not by just might meet but by both clients of the plea agreements it was not the challenge was not frivolous the indictment itself pointed out that the tax returns on which the government's loss estimate relied were false and not reliable so the government's figure by itself is suspect and subject to scrutiny and all we did was try to present the court with a better way to estimate the laws the agent the government's agent on witness stand said the books were in such a way that they were not able to tell how many fraudulent sales there were and how many legitimate sales that were so it was just where the judge in this reason  responsibility when he said it was a bare denial and the prosecutor spoke then about the breach the judge said i want to alert you now that that this is it looks like a frivolous attack on the frivolous challenge to loss and acceptance of responsibility is in the balance and then when he finished all the evidence he sent the parties out to see if they still wanted to continue with the challenge i guess and that acceptance of responsibility was in the balance in effect the judge to prejudged our evidence without ever hearing a witness  please the court good morning my name is raymond kilian i represented the united states down below and i represent the united states here today sitting through the opening part of counsel's argument i know that they were not present during the hearing but i i don't know what sentencing hearing they're referring to because what occurred was not what happened down below this case is a three year case that food stamp fraud that led up to today's sentencing there are a number of different lawyers that have been outlined in the briefing some eleven days before sentencing an individual by the name of adam fein was  replaced just shortly before sentencing again with an individual by the name of william daniel the first thing that i want to start out because i think it's important to lead off and that is under hair there's a plea agreement there's there is a stipulation and there's a waiver that should be the end of it the next is under united states versus hicks if the government breaches which the government did not do if the government breaches then under united states versus hicks it's incumbent upon the defendant the defendants in this case to say wait a minute your honour's the government is breaching their plays agreement let's fix this now with regard to the government's opening statement and i'll be it there was some frustration on the part of the government because there had been a number of lawyers and this challenge to loss was relatively new the if you open this was my your honour's and i if there's any question read the whole thing in context with regard in addition to what mr bradshaw that the attorney for mr oda says after my opening remarks my opening remarks were put into context to the court what all of the because mr bradshaw was saying wait a minute they believe that the last number is less so there was a that motion was in fact file i had discussions with mr bradshaw the theory was that that his client could not speak english and therefore he did not understand the one point six million dollar loss amount that had been talked about for three years that both defendants with their clients had been in our office multiple times one point six never change but now right before sentencing one point six is not the correct amount so what i did at the beginning of the of the sentencing is i basically outlined judge there was a motion to withdraw from  we did not allow agree to allow him to withdraw from any other portion of the police room and it was to put on the last number this after all and in fact i say i got mr bradshaw us number on my speed dial i've talked to him so many times about this saying are you sure you want to do this because there is a stipulation because the way we've calculated is conservative there is a danger that the judge will find this is conversation with the shrek shop there is danger that the judge will take away except and i said that i didn't poison the well i told the court exactly what i had told mr bradshaw now with regard to mr hussein mr hussein three days before sentencing for the first time says hey i want to join in on the party and i want to also challenge the last government did not agree in fact the government said look we've got this agreement with one defendant we have separate plea agreements with separate terms the playground with mr oda agreed to a certain guideline recommendation from the government a separate plea agreement with mr hussein with a separate guideline recommendation from the government to lawyers to defense they were treated differently three days before mr hussein comes in and says to his attorney we want to challenge to i put on the record and just to clarify i want to make it perfectly clear we never said and strode a bridge in fact we never said mr oda breach all the way through until the very end where he decided to open his mouth again and start lying and we set out in our brief and i hope i have time to cover it today but with regard to the breach and counsel has pointed out how this opening statement by the through that with regard to mr ota we had an agreement to a line put on last i want to say one additional thing with regard to that because it completely blows out the argument that somehow i was attaching both defendants together the person who was in the courtroom who best understood the agreement and best understood what i said was the attorney for mr mr odo this is what he said and i apologize from reading from the transcript but it's document two thirty six page nineteen after i have finished mr bradshaw says your honor i think i understand mr killian's frustration about dealing with this case for several years let me just say preliminarily that i think it a quite a bit of credit is due to mr killian mr coon and for that matter and their offices for taking this approach of allowing us to put on this last evidence because i think it's important incumbent upon the court to determine the amount of lost even if the parties stipulate the amount of the loss if there is other evidence with regard to what the judge said the judge the judge's statement is fair there's a written stipulation they raise their hands before a judge and said this is the last amount and now they're coming in and it's a danger you roll the dice and they roll the dice and two days of sentencing if any month fair minded person reads the transcript of that sentencing there is no way that you can conclude that the judge was in error in determining that the last calculation was frivolous with regard to the exception acceptance of the judge says look there's words that pilate's in fine if it's wrong it's wrong but we've got two days of some of sentencing now i determined the judge here using a common sense analysis based all the evidence that was presented that it was frivolous and with regard to why it's frivolous there's some language in the brief that states that the government knew before the sentencing that what the evidence was going to be that's not true at all we knew we had the mr bradshaw allowed us to talk to their two certified public accountants certified public accountants are great they do great things with numbers the problem is we didn't know the basis for their numbers they had a person by the name accountant by the name of white who testified she testified that she was employed by the defense she testified that she came up with a cost of goods and that was utilized by these two very skilled certified public accountants miss weiss's numbers the court later said junk in junk out our brief talks about bank accounts and i you know i apologize for that because it maybe puts too much emphasis on bank accounts the real world was that the accountant for the defendants got her information for determining cost of goods from the defendants that's how she come up with her cost of goods she never contacted the government we knew of other places they were getting goods we knew places with they were using snap cards the money on snap carts to go out and purchase items from vendor sam's and other places those could not have been calculated into our cost of goods people gave in their this your honor unfortunately we have places like the st louis which are characterized as food deserts there's places where you can't go anywhere else so the food nutrition system the department of agriculture gives food food  stamps in this case they're called snap part but what happens is the individuals who are the most vulnerable have a hundred two hundred dollars three hundred dollars on this net card they'll go into businesses like garden grill wanting garden rule to which was the subject of this case they'll take it in the defendant's individuals which is a guy's hussein and majesty ota will then take advantage of that and what they will do is you hand them their snap car they put in their number they take maybe one hundred two hundred dollars of value off that cart and then they give them fifty cents on the dollar forty cents on the dollar they pay in cash so the kids were home who aren't getting food  finding that the defendants last calculations were in fact frivolous of course that's a clear error there's great deference given to the court the court in this case had multiple reasons to take away acceptance not only to the court have two days of evidence that the court listen to and determine was frivolous but also the defendant hussein had had an obstruction where oftentimes i accepted his taken away in addition to that at the very it's minimized in the brief of the opponents but just just so the court knows the government stuck with the plea agreement as too much to owed up all the way through you'll never hear the government say keep and feed the kids that was false would invest if he had known how of violent he sent lewis was that was false he continued even as of that sentencing to invest in east st louis he blamed that was false he minimized his roles he made it sound like this whole thing was guys the fact of the matter was in the court heard the evidence that much the odor was the money man he's the one that on the receipts when someone didn't bring a card in and get cash he instructed the employees to write cat the amount on top of it so he was probably the most culpable out of both of the defendants yet he sat there and tried to minimize his old own role at the very end when he was talking to the judge he also said if i spoke english and i understood the laws that i wouldn't be here today and that has been as bogus at the beginning as it is today we were prepared and one of the reasons i suspect mr bradshaw withdrew his motion to cash do they ever get punished you're on and in some instances they are in most instances we allow the department of agriculture and food nutrition system to deal with them if we have but it's a double edged sword because just keep going it well it's a double edged sword to me at some point they will be cut off i don't disagree with you you know it it but however in the big picture with limited resources it doesn't happen unless you have guys use you have guys hussein's in harsh but until people learn that they can get away with it by him talking simple terms people personally say well you know when you get seven hundred dollars you don't need all that and  of the most difficult to prosecute that's why when you have a case you try to get as much general terms as you possibly can there are a number of different issues i think that they're adequately covered in our brief if there's no further questions thank you  just like to respond to two points mr killian raised first he argues that the government never said that mr o'day breached the plea agreement and that the government fully advise the court that the greenman had been amended to allow mr o'day to challenge loss and i would direct the court to pages seven and eight of our reply brief pages fifteen to seventeen of the transcript from the first day of the hearing this is the court's response to mr killian's expressed its expression of his frustration the court begins with here's my reaction to what you said the court then mentions the binding plea agreement mr killi response the plea agreement entered into by into by both the parties both agreed to both a loss calculation in excess of one million and both agreed to it the court asked it's a plea agreement mr killi agreement not some antics it's an agreement between the parties that the government can argue is breached that was his words back then clearly accusing both defendants of acting in bad faith by bringing this la challenge and it poison the entire hearing your honour's and it's not correct what he's saying to refer to the stipulation yes they entered into a stipulation but the amended plea agreement says pacifically that mr o'day was not bound by that stipulation it's no longer part of the plea agreement it's as if the parties agree to disagree about the amount of loss that was the situation when the hearing started and mr chilian with all due respect misrepresented that situation to the court and bad and the court ruled against the defendants under that mis apprehension on every single issue have been that this is important is from yes i want to get these so that my notes match up to because that the lengthy statement that he gave the three page statement is very confusing but i think if you look a little corollary i will have to deal with that i've read it so if i look at the court's reaction to that and that's what i'm saying page seven of our reply brief the parties both agreed to both last calculation in excess of one million and both agreed to it that was not a correct statement that loss stipulation had been set aside with would it's clear what the judge's interpretation of it is because we look at the second day of the hearing after the judge has ruled against the defendants found that their last challenge were checked at their last challenge that mr hussein had not accepted responsibility and was about to find that mr o'day had not accepted responsibility at that point defense counsel finally speaks up and says the government in this is on page twenty eight of the appeal brief the  government this is mr bradshaw says the government agreed that we could present the amount of loss and that part of the agreement was that mr o'day would be entitled to the benefit of acceptance responsibility as set forth in the plea agreement and we haven't done anything different than what was agreed to the judge's response to that and this is near the end of the hearing is ok hold on a second i'm having a hard time show me where it is that you agree in the plea agreement and then mr bradshaw explain that the plea agreement was amended yes there was the stipulation but it was mended and it was set aside with respect at least with respect to mr o'day he was allowed to challenge loss the judge this is clear that he was allowed because of this stipulation to the amendment to the mentally agree we don't have that with mr hussein right well i'm not i know you want to mr nash yes mr to st joined into the challenge two days before but i'm only representing mr o'donnell it's clear with respect to mr o'day that that step relation was set aside he was not bound by that stipulation as they began the sentencing hearing there was an agreement to disagree about last night for mr killian to stand up and accuse the defendants of acting in bad faith both defendants he clearly uses the word both was a disingenuous argument to the court it was not accurate to the waiver we've got the case law which allows us to reach it even no that's normally not the case we feel these issues are better resolved for one district judge the attention of judge well judge we can see that the a proper time the objection was not made it was brought to the attention of judge but at the very end of the hearing and after the judge had already ruled against the defendants but this is exactly on point with the navarro case your honor and that's the two thousand and fifteen decision it's the exact same facts you have the two waivers the appellate waiver and then defense counsel drops the ball and doesn't make a proper objection when the prosecutor breaches and this court looked at it under plain air review and said yes it's likely that the defendant sentence was enhanced by the government's breach and therefore we must reverse under plane air standards we have the same situation here we have the defendant o numbers you know the total amount well i suppose the government's opened can you reopen this government's going to reopen it as you know that that's true your honor but and i assume your clients weren't that he's aware of it but the total amount of snap receipts is not in dispute it was two point two million the government basically said three fourths of those were fraud the defense said different so it can't you know yes you're correct the defense also a great tool for level managerial if i could address your honor's question it's clear from the transcript in the district court that the assistant u s attorney in his frustration of dealing as he explained here today although none of it's in the record except for it he says but i accepted to face that he had dealt with many lawyers he's dealing with the terrible situation from his point of view and i understand that and he's frustrated he had signed plea agreements he had signed stipulations of fact were guarding the laws but when the defendant oday filed a motion to withdraw from the plea agreement and from the stipulation he agreed that there could be a challenge to loss there's no question that that loss that agreement had to apply to both  sends the defendant and accurate information he's constitutionally entitled to that and that means loss so the loss was going to be what it was so it had to be is to both and he says very specifically to the district court and pages fifty fourteen actually it starts at page ten with the judge's reaction and goes through page seventeen and the part that mr goodman read to you it's right there in the transcript on those pages and it's on page seven of our reply brief i understand mr kelly has restoration but the fact is that he let the court think that there were plea agreements and that they were being breached and they were and stipulations and they were being breached and he agreed otherwise that mr hussein  it's understood judge there can't be a challenge to lost by one because there can't be a different loss for one and the other the two stories created the fraud run by both the brothers so there's just one loss whatever it may be so the loss has to apply to both of them so if for instance it's not an agreement  o to amend my client's stipulation of fact and plea agreement could the court then find that the loss was three hundred fifty thousand dollars and cents mr o'day on the basis that that laws might hold my client to the to the plead remit and the stipulation when in fact he's the court has determined that the losses three hundred fifty