today so i will spend very little time on the preliminaries please remember our light system when you get the yellow why you have two minutes left the red light stop unless we tell you to stay of course we can do that rebuttal only and we always appreciate cites to the record when you're telling us facts that you think are important so we will begin with case number sixteen dash one one three seven seven united states the court my name is brandon beck and i represent for i'm a room to be appellant in this case your honour's this case is about imposing reasonable evidentiary restraints on the district court's ability to impose a restitution award and there are two reasons why this court should vacate the restitution award first despite the plea agreements appeal waiver mr miranda should be able to challenge the restitution award as a sentence exceeding the statutory challenge the district court's restitution award as a sentence exceeding the statutory maximum in chemical in metal industries in two thousand and twelve this court held that a restitution award keon implicate the statutory maximum two years later in united states versus keel this court explained to the to challenge to a restitution award as in excess of a statutory maximum is not barred by an appeal waiver the crucial question then becomes what is a statutes maximum punishment the answer is two fold first in the abstract statues mask maximum punishment is the greatest imposition that the text of the statute will allow and that's true whether we're talking about a term of imprisonment or restitution of war in more concrete terms looking to the text of the m v ari than the default rule is that the maximum punishment is the monetary loss which is directly in proximately caused by the office of conviction now in this case however mr in the room to agreed that the the punishment could exceed just the office of conviction in his plea agreement in fact he agreed in his plea agreement to pay restitution to the limits of his relevant conduct that is the bounds of what is permitted that we have the president we have that isn't this very circular you can challenge this fish and see the evidence by saying this is evidence is insufficient and that gets you past the appeal waiver you won't encounter that in something that says the statutory maximum i forty years and somebody's got forty one years that's pretty clear we don't have to sit there and say well forty years meant something else so to me it's very circular here i mean again i understand the precedence we  have but occasionally we take cases on bank and that kind of thing and so broadly speaking that isn't this just very circular to say the statutory maximum doesn't apply here because there's insufficient evidence and therefore we can challenge the sufficien the evidence your honor i understand your concern and i think the concern to an extent is unavoidable and the reason for that is restitution the proper restitution an award in a case is on a case by case basis in the maximum restitution of a war can actually be adjusted as more evidence of direct impacts on the loss is injected into the case and as more things are agreed to in the plea agreement that set the upper balance of what a restitution award can be so in other words it would be impractical for congress to place a bright line rule on the statutory maximum restitution but that's something that's much more easily done in a term of imprisonment stats ok well what about if you said bit the victim lost a million dollars as a that's a statutory maximum and then the question a proximate cause is the sufficiency argument so you would separate those two you would say as long as the cordon awarded over a million dollars we don't have a statutory maximum problem and if there was an appeal waiver were done if there wasn't an appeal waiver then of course we examine the proximate cause issue mean you're putting them both as a statutory maximum the cause ation and the dollars i'm saying why wouldn't you normally because for example forty years we don't look at what caused the forty years we just say it's forty years so again why wouldn't you say that the victim's losses are the statutory maximum and then if you get past the peel waiver or there is no appeal waiver the proximate cause is the sufficiency challenge your honor i want to answer your question in two different ways first my authority for the language i'm using comes from the united states versus sharma where it's interprets the statute thirty six sixty three as being bounded by the direct impacts because of the office of conviction in lest the defendant agrees to more and the more direct  answer to your question your honor is simply that the statute that were referring to places these limitations on what the restitution of work can be so you may have instances in fact you very often have instances where there are multiple counts say in a fraud case because there are multiple victims in the defended in their plea agreement agrees to plead guilty to one count in response the government agrees to dismiss all of the other counts the  says that unless the defendant agrees to more the restitution award is limited to the count that they pleaded guilty to now the more agreement in this case is relevant conduct and that sets the upper stage here now your honor it may be the case in this course certainly can interpret it this way that the statutory maximum is always with the statute says here the direct impacts of the cause of the office of conviction so even once you get into the relevant context that would be above the statutory maximum yet we still would not be able to argue about anything within the relevant conduct because we've agreed otherwise and the government could simply enforce the  to let you get part but i had three quick questions on the waiver would this is a yes no question would you say are precedent published an unpublished on this has tension among itself or does it all depend on the different phrases and languages of the waiver there is certainly tension there is tension ok this that i agree that the second question is we can always just move past if we don't want to deal with waiver we want to get to the merits we can do that right under a law as i understand it yes and if the government can seek to enforce the waiver which well they can in their response to your question but as to our authority we can always just say we're going to preterm it this will get to the merits right i believe so your honor not interested and that's right i don't have a case to side on that's my understanding then the last question waiver i had is let's say the government did not want to reduce the plea to one ten twenty nine charge which helps defendants they did they said the only way we're going to let you plead is if there is no appeal is there a way under your proposed rule that you can waive any appeal of restitution or will it always implicate that max and therefore the only way you could waive it is if you said and this includes beyond statutory maximum beyond a reasonable doubt that he is the direct office of conviction cos it lost in excess of one thousand dollars so a thousand dollars plus one cent is nothing we can argue about right here is the example that i guess i'm just asking how would how could they have written this waiver so you wouldn't be here they could have listed the specific number that were green to tip a restaurant so be it ok that's the solution to all of these cases in my view interesting and that gives a meeting of the mind s the problem we have here is mr miranda agreed i'll pay more than what i owe under the statute the in under my argument the district court imposed even more than that and now the government is coming say yeah but if you all had agreed to the three point five million but still had this general notion about you can appeal an excess of stature next and you can still make the exact same argument you're making here because you could still say we created a three point five it turns out it one directly in proximate cause involve a lot so you could still make that same argument so it would seem like you'd have to say except for the award of restitution you can appeal a statutory maximum and with respect to they were and then whether you said the number or not you'd be clear well i think there's a couple solutions to that problem judge things one if we do define the statutory backs as the direct approximate cause of the office of conviction yet we agreed to more the government's remedy is very straightforward which is to simply enforce the plea agreement that we entered into so we can avoid talking about statutory max over not because the government can just say you agree to that and they would win in that case the other way of  differ from here well that differs from here because we didn't agree to a number and that you're saying if there was a number if there was enough of the government considering your force that through the police not necessarily through the appeal waiver but the result would for the government be the same the other way this court could look at it that would equally solve the problem is to say we're going to define the statutory maximum the way the in the ira does and then we're going to say that if you agree to more we're going to raise the statutory maximum that number so in other words the appeal waiver would encompass that which is the directive proximate cause of the office of conviction plus that which was agreed to if it's more than that so then that would put us in a position judge haynes  know it doesn't solve your initial concern that we would still be in a position to where we could come in and argue that it exceeded what we agreed to that's why i think the best solution in all circumstances is the meeting of the mind specific figure so is the problem here that your client just didn't apprehend what how big this number would be your honor the problem is that it was in comprehensible that the number  this amount in the reason i say that is based on the evidence that was put forth by the government in this case and that brings me to my second court point here that the evidence was in adequate to attribute the district court's restitution award to mr moore and the number that was put into the p s r by us probation that they received from i r s as to the amount of loss and a broad fraud screen team lasting multiple years was a little bit more than three point five million dollars that number first appeared in the p s are on page one seventy four of the record now if you look at that particular page in the record it's a spreadsheet and it lists some different f i in which of these numbers that are associated with tax return software it lists a year and it lists an amount and we're not disputing that the amount adds up to three point five million dollars but we are disputing is that they cannot attribute that i'm out to the actions in any way with the evidence of mr marinda when defense counsel objected to that page in the p s r defeats council's decision he said where are these numbers coming from please show us how mr marooned fits into all of these numbers especially considering the fact maroon was incarcerated at the time some of these numbers were being used to defraud the i r s so that raises a question that presents a serious problem us probation instead of attaching any documentation in the government instead of attacking any documentation they said we're going to call a special agent from the i r s to testify but if you read their response that p s r and i'm referring to probation not the government they said we don't we're not attaching any documentation because we don't think we have to because all we have to do is make a reasonable estimates nothing more and i think that presented a serious problem in this case but the the part of the record i think is particularly important are pages one thirty four one thirty five and one thirty six that's the cross examination of agent tests laugh from the from the i r s in there the agent agreed that we don't know what numbers mr marandi was using that he was incarcerated at the time some of them was were used that these numbers he's seen it she's seen instances where these numbers were bought and sold in armley arms l transactions on the black market what's the what's but that by the at the end of that whole cross examination doesn't the sentencing court sort of engage in an exchange directly with and says not one hundred percent but more likely than not well you honor and i have a concern about that interaction in the concern is simply that the court said do you think in your view is it more likely than not that these numbers are correct meaning the actual loss suffered by the i r s he doesn't tie it to mr miranda number one number two that's the district court's province to make the decision on preponderance of the evidence the exact same question could simply be worded as agent do you believe the government is carried it's burned by patterns the evidence well that's the purview of the district court not the agent so i don't know what that does in that case and it's a bit of a raising eyebrows moment when i was reading the put and i have only about twenty seconds left in my initial argument so i would like to express my overall global concern which is if the district court could put any number in this case say a billion dollars i believe the government's argument is that there's nothing we could say about that and i think that that's a problem and i reserve the rest of my time please the court brian portugal for the united states when mr miranda pled guilty you knew three things first he knew that he was a green to restitution for all relevant conduct second he knew that that was an unknown amount that would be determined by the district court and three he knew that he was waiving his right to challenge that unknown amount except to the extent that it exceeded the statutory maximum for that reason and follow for those reasons and following this court's decision and frazier the court should enforce the waiver and bar mr miranda from challenging as relevant conduct the amount of tax fraud that was accepted by the district court in the p s r frazier can you help us square him up a little bit sure he'll keel on a general waiver inforced or board the defendant from challenging restitution but simply noted that there was no claim of a statutory maximum violation but if that claim had been made the waiver would not aboard that argument and chemical the court said that the general reservation of excess of statutory maximum allowed for an argument that an amount was not supported frazier said is that when the challenge is not to the amount of the victim's loss but to the defendant's responsibility for relevant conduct causing that los so that was mike's earliest exchange with here was in counsel which was is that the right way to look at it to say the victim's losses are the maximum so if the victim lost a million dollars caused it but the victim hasta million dollars in this circumstance then that's the statutory maximum if the judge awarded to me and there can be an appeal despite the waiver if on the other hand the judge  nine hundred thousand but the challenge is that mr x isn't the one that caused the nine hundred thousand that is barred by the statutory behavior is that the argument you're is that how you are congealing all these cases and harmonizing them that's the argument i'm making in the circumstance where the defendant number one agrees to restitution for relevant conduct doesn't know what that number is but agrees that the district court will determine with that number is and specifically waives the right to challenge that amount unless to your your point judge means the amount is not actually the victim's loss so if the agent here put on evidence a three point five million in the district court awarded four million then you would agree this could be appealed or the appeal waiver would not bar the appeal if there was no evidence to support that additional five hundred what i'm saying is there was no evidence period other than three point five million that's the only evidence that was put on anywhere in this case and then but the judge for some reason wrote four million down then you would agree that exceeds the statutory max and allows for an appeal on the other hand where there's evidence to support three point five sort of question if we think there is evidence to support this regardless of the whole issue of the appeal it's not a jurisdictional bar to our consideration the merits that this appeal waiver that was correct so we could preacher meant that and go right to the heart of it if we wanted to that's correct i think though that there are good reasons for the court not to pre term it and took a presidential holding ok ok with that it is following frazier i think the court would the court in the parties in the district courts would all benefit from the court not preacher meeting and going to the merits and issuing a presidential opinion following frazier articulating that in circumstances where there is an agreement to pay restitution for all relevant conduct the defendant waived the right to challenge that except with respect to a statutory maximum violation that the defendant is barred on appeal from challenging relevant conduct with respect got you they be gotten you have to have said to them you want to do it force the waiver correct i'm sorry when they indicate are you going to enforce the waiver you communicated yes you would in this case right yes no it's just waivers already getting complex there are so many subsections and then restitution is a there he difficult piece you put the two together with a preponderance proof case that's really hard to establish loss  forcing waivers is maybe it isn't the best case for us to try to clear it all up but that's our call you know it's all right do you think you're sufficient confusion that a harmonizing opinion a brilliant harmonizing opinion would be helpful well i think the court's order certainly the court's order directing the federal public defender to at least consider this issue before pressing their motion to withdraw to me indicates that  that the court would probably benefit by armon eyes in this case law on the merits i would like to say one thing specifically one last thing on the harmonizer can we do that as a panel or do we have such inconsistency that we need in on wagner i don't see anything approaching inconsistency that would necessitate a non bank session with respect to the merits the defendants pointed out the issue that they raised that mr miranda was incarcerated for portion of the time that he's all held responsible for loss and actually if you look at the page one ninety nine it clarifies that he was incarcerated for a period of time for which he's held responsible for a loss but the agent and probation were able to determine that some of the tax returns at issue were started at the time that he was incarcerated the modifications were made to those returns after he was released from custody ok i understand if somebody is in prison maybe they could've been the one shot x y z out at the bar or whatever i don't really understand why being in prison means you couldn't commit a fraud act many people do stuff from prison we've heard about  certainly not personal knowledge but we just hear about people meeting and they pass letters and i don't know why but in the end fraud occurs via the prison through a lot of weird mechanisms so i mean are you just spotting them that argument is are we sure that there could be no conspiracy or continuation of a fraud from a prison cell no you are not spotting them that argument i just think that it has a little bit of intuitive appeal to say i can be responsible because i was in prison for that agree if the question is could he physically have been at the jones bar last night when he was actually in prison i agree that's a full alibi but on a crime like this that doesn't require physical presence i'm just challenging that this is a just to remind the core of this the initial indictment count one is a conspiracy to commit wire fraud so this is his activity was charged as ongoing and could have from the prison cell which will now correct but of course that would be perhaps his are going to be without be your burden to show that while he's in prison he's still involved with people that could get this done except that to do that he would need to challenge the p s r with rebuttal of things which he did not do here make one more point on the merits and that is to the extent that the appellant is pressing the challenge here that they pressed below that in some way paragraph twenty three of the p s r is a bare bones assertion it's certainly not that paragraph describes the nexus between mr marooned and the events that were used to cause the tax loss and the agent also testified to that at the sentencing hearing if the court doesn't have any further questions i'm happy to rest in my brief i can ask you to affirm thank you thank you so much ok please the court order of like to address a couple of this court's concerns expressed in the government's response to the question of if the i r s in this case can simply say or even establish that their total losses over a period of time qualify as a certain amount or add up to a certain amount the reason we can't define the statutory max on this that is that number i because the very statute that imposes restitution limits to the direct impacts mccall's of the office of conviction so presumably there could have been many people in this scheme and working perhaps even unrelated to tesla conceded on cross examination and it wouldn't be just it wouldn't make sense and it would be consistent with the statute to say that mr miranda could possibly be on the hook for all of that without evidence and that's the biggest problem in this case your honour's y'all didn't have to waive your appeal rights and that's part of the bargaining you know you say well we don't waiver appeal rights well we won't give you this deal if you don't want to while that we're going to trial and back and that's what and you go sheesh in is so i mean that has to be some meaning to it and it seems to me your version of the case law and your version of the president is there is no meaning to it i can  murray negotiated a carve out reserving the right to appeal the sentence in excess of the statutory maximum sentence being defined also in that same agreement as including restitution that's also consistent with this court precedent at the time that this agreement was signed if mr marooned thought that the number could be three point five million dollars or everything that these numbers were used to do over a multi year period perhaps he wouldn't have signed the agreement and that's one of the problems we face is but then he could have negotiated a cap on that but no more than in a kind of scene that was senses we don't know what we're going to let the judge sentence we don't know what the p s r will show however no more than you know that kind of thing so you could certainly have said well i'll agree robin kahn i woll law we don't know what that exact dollar is can't put an exact all or in here however no more than that what is that would have been better and that's my recommendation to everyone on both sides let's just agree to a number so we don't have to come back and fight but the kathy did agree to is relevant conduct and that was certainly exceed our and that's a that is open to construction  that a million dollars is a little bit more clear than and relevant conduct that's what we're finding that here because you all disagree on even when we get past the let's say we get completely past the waiver the merits are shall we say disputed they're disputing your honor but i have a hard time see when i do a relevant conduct analysis looking at scoping for see ability how the evidence in this case could possibly get to three point five million dollars you know is that because you don't think he's connected to these know anything we know very very little in this case because there's the government put on very little information we have the paragraph in the p s r that lists numbers computer software in years we have the agent who testified she enter a plea about how these types of schemes work yet at the same time conceded that these numbers have been in her experience bought and sold in arms leaves transactions the burden is on the government in this case and your honor if the question for example that's good mr moran to have been working with someone else on the outside in the prison that's certainly possible it's also possible he wasn't the problem is we don't know because there's no evidence either way and the party bearing the burden has to absorb that loss or that problem when they cannot put forth evidence and i just want to leave with one final observation prior to representing criminal defendants i represented defendants in personal injury cases and i can't help but keeps coming back to an instance where a plaintiff is sued someone for three point five million dollars claiming that's their medical expenses yet refuses to  arguments and the case