well here the next case united states versus thank you chief judge cashman and may it please the court the chart set forth on page two of our opening brief tells us court everything it needs to know about when an extreme outlier the sentences in this case the ten million dollar and posed on the defendant is not only the single largest fine ever imposed on the tax offender by several orders of magnitude it is forty times the upper end of the guidelines range used by the district court in this case it is one hundred times the amount of the fine recommended by the probation office and it is two hundred fifteen times the average fine received by tax offenders who inflicted similar tax losses to the defendant in and you do and that means not only amount of the fine but also the sentence of a imprisonment and in this case what are we to make of the fact that the above guidelines fine which you noted is combined with the guidelines minimum prison term sure i mean i think that's an important point your honor we would agree the court should analyze the sentence as a whole and on that i think the relevant benchmark is the prison sentence that mr zuckerman received which was seven seventy months although at the lower end of the guidelines was still unusually harsh and this is set forth of pages three to thirty six to two thirty seven at the join appendix eighty seven percent of the defendants convicted with a similar offense level as mr zuckerman received a downward variance on the prison sentence and the average downward variance is twenty seven months downward two and a half years so i think that that only looking the sense at the whole only makes the extreme find here even more extraordinary because you have a sentence prison sentence that the government itself acknowledged in this is that pages three appendix that the government acknowledged that a with the guidelines prison sentence in this case was sufficient to deter other quote unquote would be tax cheats as the government said but yet on top of that prison sentence unusually harsh as it was the district court imposed a ten million dollar fine which was extraordinary by any single measure in the court imposed that was there a request for an explanation or an objection that there was no explanation for find it you're challenging is it your honor there was no specific objection at that hearing the district court did provide some explanation and we can we can walk through the limited very limited explanation she provided now we've set forth a footnote one of our reply brief the cases showing that there's no requirement for an objection to preserve a substantive reasonable challenge which is the front line challenge that we've made to the fine in this case so the fact that there were in that it's too high not an objection that there wasn't sufficient explanation or will sort of have been i think there's not a sufficient explanation for it that's a procedural objections yes and no you're right that the failure to provide an adequate explanation can be a procedural flaw that i think is the call case the sing case from this court in  as well make clear that that the failure to provide an explanation which is can measure it with the degree of the variance is indeed a substantive flaw in the sentence and that's what the goal case makes clear on page fifty of this court just reiterated it a month ago in the sink case you can go back to the cinema case and that ultimately that's that the fundamental failure in the sentence is not only did that just go extraordinarily beyond anywhere any other court had gone with respect to attacks offender on the fine but there was nowhere near the kind of explanation that one would expect for this kind of extreme variance and let me just point out three ways in which the explanation provided here was what was wholly deficient first of all there was no explanation or effort whatsoever to deal with other tax offenders and to explain the extraordinary disparity in the fine imposed in this case second of all there was absolutely no explanation as to how she arrived at the ten million dollar figure why ten million dollars why not five million why not one million why not two hundred fifty thousand why not twenty million no explanation at all it's as to how she arrived with this extraordinarily large figure and then third your honour's there was no effort to explain why this kind of extreme find was was necessary to achieve any legitimate purpose of the sentencing laws on top of the already unusually harsh prison sentence that the district court imposed a prison sentence that the government itself recognised was alone sufficient to deter other would be tax cheats in the government's words at pages three page three zero six of the  joint appendix and for those reasons the explanation that the district court provided here can't possibly be sufficient under this court's precedents under the supreme court's precedent to justify the extreme outlier sentence  zuckerman accepted responsibility for his offenses mr zuckerman was convicted of serious offenses for that he could expect a serious sentence but like all defendants rich or poor he was entitled to a sentence that avoided unwanted disparities and that there was no greater than necessary for penal purposes the sentence in this case cannot possibly be justified under that standard we would ask the court to set aside and remand the case for all reasons in one of your as i understand it  arguments about procedural on reason that the district court did not fairly consider mr zuckerman's ability to pay the ten million right and i would like you to help me thousand and sixteen was outdated by the time of the sentencing in march of two thousand and seventeen but did he provide updated information in either the january thirteenth sentencing  or his march twentieth two thousand seven hundred supplemental submission despite the government's submission in its february seventh two thousand and seventeen memorandum arguing that zuckerman and i'm quoting can pay a substantial fine and should be ordered to do so and did he object at the sentencing hearing that he couldn't pay the ten million your honor he did not provide the updated information and i think that this gets to a a notice problem and in it and it's similar to the one that this court confronted in the l good case which is that going into that hearing this the financial information was seven months old it also included assets that belonged to mr zuckerman's wife not mr zuckerman but the fundamental point is mr zuckerman had absolutely no idea that the district court was contemplating a fine anything like this magnitude and was completely caught off guard did say in a side bar at the plea that she was interested in the pre set submissions and the other examples of cases where you have this degree of violation of law  particular how fines have been calculated so she telegraphed her interest in this issue early odd now you're quite right your honor just poor but in our sense the manner memorandum we had we addressed her question how it finds  calculated in other cases like this at pages one sixty five one sixty six of joint appendix and what we explain was is that the largest fine for a case like this was one hundred thousand and that the average fine was far below that actually about thirty five thousand the government in response and this is at page three twenty two of the j provided essentially no data whatsoever but made a blanket request for an above guidelines fine and that was it so based on the data we had provided again she wanted to know what the at what what was happening in other cases we told her it was one hundred thousand dollars at the top and thirty five thousand dollars average absolutely no reason for mr zuckerman to go into that hearing and believe that a ten million dollars fine was in the universe of things that could possibly i imposed if he had known that and this is like the case that this court decided if he had known that he would approach that hearing completely differently he would have updated the data he would have any defendant in a situation would prefer that approach that differently and that in itself is a fundamental notice problem with the sentence in this case with respect to the the me sco transaction so as i understand it that dollars now no one and that is that would make mr zuckerman a wealthy man by any standard but that in itself doesn't justify the find in this case wealthy or poor people come into a court and expected to be treated the same and no defendant can be subjected to a sentence that has unjustified disparities and that is far beyond anything necessary to achieve the penal purposes as the government itself acknowledged when it recognized at the extreme that the unusually please the court could morning the ten million dollar fine imposed by judge moore who are now support the ten million dollar fine excuse me your honor the government now support the ten million dollar fine yes completely yes don't ask for  we ask for a substantial variance above what the five guideline provided in the case your honor you didn't mention amount we didn't mention in mt your honor but the judge in the exercise of her discretion and consistent with the commentary in the guidelines was perfectly entitled to fix on that amount given all the facts in the case and let me please explain why did ten and not five or not twenty i mean she could fix on it but ordinarily she would explain the calculation wouldn't  there's nothing in this court's case law that requires that when there is a variance that the judge has to explain all of the guideposts along the way to what the judge ultimately arrives at or she could just pick a number anywhere it and if it's consistent i think with the underlying facts of the case and there's a financial wherewithal to pay it and it's consistent with the thirty five fifty three factors that the court relies on in opposing that the answer is yes judge pooler and i'd like to explain those thirty five fifty ahead first this is a case that involved a breathtaking series of fraud schemes it wasn't just one fraud scheme it was a series of fraud schemes that imposed forty five million dollars loss on the s new york state and new york city there was significant uncharged were dismissed conduct that is the defendant was caught red handed in in the sales in use tax fraud case before the manhattan a s office in two thousand and two in that case he had engaged in a three year scheme to ship paintings to add a state or actually take physical custody of them and to collude with the gallery owners to create false  specifically cited to the charged and dismissed conduct when imposing the sentence in this case it's also important to remember that although the defendant touts the fact that he paid over thirty seven million dollars in restitution restitution is not really a criminal component of the sentence it's giving back to the victims that which the defendant had fraudulently obtained so there's no real  defendant's resources before he engaged in the scheme so the judge torres was left at the end of the day with the fact that unlike in virtually every other case the defendant used his corporations to pay the lion's share of the restitution and was left with having to decide given the breathtaking scope of this fraud how do why impose a significantly punitive aspect of the sentence to make sure in her words and judge torres was in vatican how she was relying on the deterrent aspect of this sentence when imposing the fine what she said is i am mindful that there are others just like mr zuckerman or watching to determine whether they too will have to pay their share what clear adversary your adversary says that the government's position had been that the sentence was was a sufficient determined is that correct or not with respect to the incarcerated aspect and as such we never retreated from the submission that we made in our sentencing memo that there should be a substantial variance upward variance with respect to the fine which higher than your recommendation was in terms of the incarceration portion no we recommended a guideline sentence of the seventy two to eighty seven months and she imposed of the bottom of what we had recommended you recommended the guideline range correct the supreme court specifically recognized in kim bro that variations in sentences or the price the courts have to pay for the remedy that was affection weighted in the booker and the fact that this sentence with respect to the fine might be the highest criminal tax fine ever imposed is not standing alone sufficient to warrant overturning it first highest the next highest below the ten million i think limited to this record based on criminal tax cases i think the case at the fence site is one hundred thousand dollars but we argue facts of the case judge pooler first of all it's important to keep in mind to see the guidelines commentary to the fine guideline specifically notes in application for that it was the commission intent that as a general matter that the fine range faced by the defendants in cases should generally be twice what the loss is with twice what the gain is here the  loss caused by the defendant was forty five million dollars so the guidelines specifically authorized judge torts if he wanted to up or at least the part based on that now mind you we're not arguing for a upward departure we committed not to but our position is a simple one if the guidelines commission specifically said that they envisioned that the standard range for a fine should be twice the gain or the loss then it could hardly be considered an abuse of discretion by the sentencing judge after looking at all the sentencing data to impose a fine that is significantly below what she was authorized to offer leave the part to and judge  torres during the proceeding touched all of the thirty five fifty three cases she noted all of the factors that she had to consider including disparities so our position is simple that when the judge clear that when she was discussing those she was not also discussing the in prison term seems she was discussing both i think that that's clear judge there is no indication that she was focusing on the fine with respect to breaking it down but she was i think speaking largely to with respect to all of the components of the sentence when she said that she had considered disparities and i want to respond to the claim that this worked somehow as a surprise to miss desire from first any claim of lack of notice of surprises for close by the supreme court's opinion irizarry in irizarry the court made clear that with respect to variances there is no pre notice requirement that the district court to corporate leave barry as opposed to upward departure and second that claim of lack of notice falls on a factual grounds because judge taurus preceded at sentencing that she envisioned imposing a significant financial aspect to the sentence when she was was going to impose  that's why they defended commission the study that they did so their suggestion that they had no appreciation of what the judge was going to do why did they commission the study to present all those facts to the judge about what has been gone on another  contemplated a ten million dollar fine they might not have contemplated that but i think judge where de fine statute would've authorized the court to impose twice the loss that is ninety million dollars it  would it's hardly an abuse of discretion for the judge to impose a sentence on a small fraction of that when the only other financial component of the sentence was discord shipment of the funds that the defendant had illegally obtained i want to talk about the ability to pay argument that your honor raised because as of fact the defendant raise no objection to the pre sentence report at the time of sentencing which noted that com worth of thirty seven million dollars and with respect to your question to counsel to judge katzman about whether the combined wealth should be considered all of the facts in this case make clear that morris sucker in the defendant was the source of all the combined wealth for him and his wife there's no indication that she had a job at any point and so all of the money even though he may have titled certain financial accounts in her name it was his generation of those proceeds that lead to that money and this court should consider the meds co asset even though it was transferred to the defendant's wife because that transfer  i see that my time's up may i conclude briefly judge katzman the standard that this court must apply in this case is whether the sentence shocks the conscience based on the conscientiously view of all the facts in this case and the thoughtful sentence imposed by judge torahs i respectfully submit that this sentence does not even stir the conscience much less shock it for that reason this  submit that that doesn't shock the conscience then i don't know what would the same case is also relevant in that case the court did specifically rely on statistics to find that the sentence was unreasonable so my apparent  errors of the district courts if you're correct your honor absolutely but i think the sync case is informed that it's also a form of in terms of the level of explanations that work that is demanded for this kind of variance with respect to the three fifty three five five three factors my friend mentioned the breath supposed breath taking complexity the offenses there was a sentencing enhancement here for sophisticated means one of the ways in which the district courts explanation was deficient where she never explain why that enhancement didn't already account for the so called complexity of the offenses with respect and charge conduct that wasn't mentioned at the sentencing hearing it came in the later issued statements reasons form but that can't be a basis for the sentence the reasons for the absolutely with respect to guidelines note for that is with respect to departures the government itself as my friend acknowledged agreed not to seek a departure with respect to the find it was a variance so that notice simply in a play couple even if it was a political the fact that there was a  tax loss year we've explained that the average fine for defendants convicted of similar tax losses was thirty five thousand dollars i believe your honor your honor the principle that they're arguing for here is a dangerous principle that would extend for beyond this case the mendez case of the fifth circuit that we cited at page forty six of our opening brief involved a defendant who was convicted of a legal reentry a fine of seventy five thousand dollars was recommended the district court increased it because of the perceived ability of the defendant to pay two hundred twenty five thousand dollars the fist circuit in that case rightly said that just because they think the defendant can pay it isn't a sufficient basis for increasing the fine and beyond just the defendant's ability to pay the extraordinary departure here worlds beyond any previous find itself has to demand an extraordinary explanation the gull case makes that clear from the supreme court the sing case makes that clear from this course the cinema case makes that clear it would be mad to the district court direction would we be giving the district court well we would ask you to give strong direction with respect to the appropriate factors and strong direction that she would have to explain why the already harsh prison sentence outset judge chief judge katzman a sentence is a package and this sentence was already harsh with respect to the prison sentence and then to add on the fine on top of that it suggests that here as in the sing case the court's remand for a full re scene so that mr de sacrament can it can have the benefit of what every entitled every defendant is entitled to a sentence that avoids unwanted and unnecessary and unexplained disparities and we are also as you are just just briefly  we moved for a stay of the fine in this case the court expedited the proceedings in this case we would urge as court to enter a stay of the fine in this case mr zuckerman not only is serving his time in prison he's he's required to pay two hundred  fifty thousand dollars each month with respect to a fine that is simply invalid and we were just court to state the payment of that fine we previously submitted one your honor and the court expedited the proceedings here if your honor would minute another written motion but we believe that it would be appropriate for this court issue a stay pending the decision in this case reviews motion for a stay the court denied the motion first day and expedited the proceedings in this case and we're here today