point six million dollars in restitution to the ira as without first deciding what was the actual harm or loss that will cause directly to the i r s by his criminal conduct in the course of the scheme for which he was convicted he did plead guilty to the conspiracy charge our contention is that that the conspiracy to which he was convicted was narrower than the one alleged in the indictment your honour's in determining the appropriate amount of restitution in a fraud conspiracy case this course m define the scope of the scheme underlying the defendant's conviction why is this important well and adams's court said a defendant sentenced under the n p r a is only responsible to pay restitution for the conduct underlying the offense for which he has been convicted and other words the offense of conviction is the outer limits of the restitution award in a fraud case like this also under the act the term victim is defined in the relevant part as quote any person directly harmed by the defendant's criminal conduct and the course of the scheme conspiracy or pattern so what was the scheme for which mr shelton was convicted divided you a demonstrative aid here which is actually an attachment to our objections to the p s r in the district court and it's a diagram of the overall spirit see that was alleged in the indictment if you look at the center box of the blue box we have mr white and willingham these were two these two men were in houston they were filing false tax returns using turbo tax software and using stolen personal identification information that was provided to them by hunter big and rough and who are the men in the yellow boxes down at the bottom of the chart and that these three men were getting this information from a database at the fulton county georgia courthouse where they had one of them m hunter had access to the sheriff's database and so was getting the information that way at the top of the chart you have mr shelton who sits in this case in the green box he was a mail carrier in atlanta and what he did was he provided dummy addresses on his postal route to mr white who would then use those addresses when he was filing the false tax returns and then when the returns were mailed mr shelton when intercept them and deliver them to mr white also you have over here if you look at the green boxes on the left on the right you have other mail carriers in other places ms jackson was so on the left she was in florida a mail carrier who's doing essentially the same thing that mr shelton was doing in georgia and then on the right here you have mr value a who was a mail carrier in houston who was doing essentially the same thing that mr shelton was doing basically providing addresses and then intercepting the returns when they were mailed and given them to white its discretion as a matter of law much in the way this court found in sharma because the particular award in this case does not reflect the amount of actual loss that mr that mr shelton was responsible responsible for and the conspiracy for which he was convicted now i showed you this this chart and the reason i went through is because on the surface this may look like it's one large conspiracy but actually we know from cases like wilson which are cases where this court has had to count conspiracies usually when there's a challenge between if there's a variance between the indictment and the proof the trial one of the factors is the nature of the scheme and this court said with respect to the nature of this scheme we look at the degree of interdependence of the actions of the members of the conspiracy that is whether the activities one aspect of the scheme are necessary advantage success of another here in this case there is an absence of evidence that mr shelton had a stake in what any of these other mail carriers were doing mr value or mr jackson was so at the guilty plea hearing he admitted only he only admitted that while he was working as opposed to care he provided these addresses on his poster out intercepted the returns and delivered the tax returns to white willingham he did night knowledge of all the other matters in the indictment and we know from cases like adams and host that the understanding of the parties to the oral plea matters in cases like this to defining the scope of the conspiracy well mr shelton's understanding that this conspiracy to which he pleaded guilty to was never than the one alleged in the indictment was essentially validated by the government at sentencing because in that sentencing there was a dispute over the loss what is the appropriate guideline lost that should be used for this conspiracy and the government proposed this five point six million dollars figure because and it's believed i thought well that's a pretty good number because it reflects the scope that mr shelton was involved in basically recognizing that mr shelton didn't ten and two thousand and eleven as the actual loss for the overall conspiracy meaning all these people the other postal carriers everybody and that's not in dispute that that's that but lacks a great no you want to what have the government we  had no agreement on this because what happens in the court said well how can we resolve this so there was an agreement on jail time basically mr they couldn't figure out what this last figure is so they agreed the parties got together and agreed that mr shelton would be sentenced in a range of thirty three to forty four forty one months and this case and so that's what the court did my question was you said that your client under pleading to a more limited conspiracy and the government agreed because of this five point six million number and i said the five point six million is not limited the way you're arguing now it's limited by years and that's what i'm trying to understand so i the government is not inconsistent with the government's current position which is limited by years but not by his particular mail route well it is beyond the government was there at the rearrangement and didn't say anything when mr shelton only a minute to sufficient facts that were limited to this narrower conspiracy so it's not it's not certainly not government has not taken an inconsistent position on the amount of restitution hasn't well i don't now it says that they got they should be held liable for everything and he did then but the dispute in the district court was whether this is an accurate number reflecting the actual loss of the conspiracy for which he was convicted and that was a figure that was never never determined if there was no meeting in the mines your guy is thinking he's pleading not just to a limited number of years which is what the government cannot but to a limited you know post a route or whatever and the government didn't think that then what do we do when there's not a meeting of the minds under ams well i think we need to look i think you need to send it back to them and find out what is the actual scope of the conspiracy here and what is the number for which mr shelton is responsible because every dollar must be supported by record evidence and even the actual even this number here about actual loss it was clear in the district court that the government the court didn't necessarily accept that this was the appropriate figure to use  can't calculate it here you guys give me a number for guideline loss but there was never any agreement on restitution even though an objection was made written objections were made to this number many years did he  well he got thirty three months and then the consecutive twenty four months imprisonment for the aggravated identity theft so he fifty seven might have been right that's how much in prison time he got government never met its burden of showing what that is it's the government's burden of proving restitution and there were no evidence for you to calculate yet yes your honor we made it we've made a good faith effort to calculate what was the intended loss and how much well we can't we eat we had using the charts that were provided to us we thought the intended loss was somewhere in the neighborhood of four hundred fifty thousand dollars but then at sentencing the government said no no that's not right because these charge that we've provided you don't reflect the reasons that were intercepted by mr shelton in this particular zip code so the it we were looking at these charts and we were using the zip code we provided you does not reflect the riff the dollar amount of the refunds that your mr shelton actually intercepted so we think that this case should go back for a week or vacate the restitution award and go back for we calculation based on evidence of what is the dollar amount of the refunds that mr shelton actually intercepted on his postal route why is it that in the absence of an agreement as to something more limiting like an ad defendant was convicted and we think that when you have a guilty plea transcript like this that shows what the defendant was convicted of the facts that he admitted to that this is the best evidence of what the last he caused wa broad conspiracy camp well that's true your honor but he didn't air that in a plea agreement he simply pled to i believe it was count one but whatever count it was a conspiracy count and that's a broad conspiracy count and he's only could be multiple payments but there's a victim and the government of a broad conspiracy that he pled guilty to there was no agreement to narrow it you just basically admitted that and so whatever he had his head i don't know why that's binding on the district court what's in your client's and then your honor those are the facts that the court found to be sufficient sporters plea in the government said nothing didn't speak up at the rearrangement about this also the language of the statute does say any person that was talking about the victim under the m p r a is any person directly harmed by the defendant's criminal conduct that says the defendant's criminal conduct is not talking about everybody's criminal conduct and our position is that position that those words should mean something here and our client's conduct was limited if you're the getaway driver in a bank robbery and somebody is hurt inside you're still going to be tagged with that hurt even though you were there because you're part of the conspiracy that gave rise to that harm so why is that principle of conspiracy applying here what you want i think that because restitution is not about punishing the defendant it's about compensating the vehicle with the losses that liability goes i am not contesting that joint several liability is a possibility what i'm saying is the scope of this particular offensive conviction is more limited than what's in the indictment itself and that's our position on that is that that's what we had a narrower conspiracy and that cases like adams you know who said there was no plea agreement and this court accepted the government's concession that an uncharged fraud should not have been  of the united states here shelton pled guilty to conspiracy to commit now fraud along with other counts of the indictment he's therefore legally liable for the actions of his coconspirators in the further into the crime and the district court was within its discretion to order restitution for the losses resulting from the entirety of the conspiracy for the years with which and which he was involved going back to your honor's question yes we agree that the standard of review here is abuse of discretion because it's going solely to the quantum of the restitution amount the defendant is not actually challenging the order of restitution i think to that would you please stay true to the rule you think is applicable on an open plea to conspiracy as to restitution what is the rule  that if you were writing the opinion that we're going to write you would announce i i believe in line with the rest of the with the case law on here mr shelton pled guilty to a indictment that alleged conspiracy along with other substantiative charges it was a conspiracy that encompassed the entirety of the conspiracy his role in it everyone else's role in it there was no limiting language in the indictment recitation i know that mr shelton relies on the factual basis relied by the prosecutor but if you look at that at the very end it's just state that the total overall loss the intended loss was twelve million dollars it was clear from the indictment through the rearrangement and through sentencing that the government's position was that mr shelton was responsible for the entirety of the conspiracy not just a limited part of it for the years in which he was active in the conspiracy the government's position never changed throughout here there's no limiting language document agreement for the overall amount that the government tracery this coord his you are he is because he's a federal public defender and we've got a postman who's going to jail for five and a half years and we're doing all of actually occurred during the conspiracy in the liabilities of the various parties the government's position is that it is accurate the united the district court looked at the evidence looked at the p s r which was not disputed looked at all of the evidence found it to be sufficient restitution may be ordered however if you keep bringing it down under the definition of victim which is eighteen u s c three six six three eight two if you look down to the part the last part of it says any person directly harmed by the defendant's criminal conduct and the course of the scheme conspiracy or pattern and actually this definition of them the ira i believe it was in the one nine hundred ninety s was amended to include conspiracy and schemes in that compass this precise conduct for example if the defendant is the look at in a bank robbery to encompass all of the actions included in that for which he part tuck and as recently as two thousand and sixteen it bends in this court has said that the m v r a however broadly defined the victims to include not only losses directly caused by the behavior underlying the computer runs but also losses arising more generally as a result of the conspiracies scheme or pattern of criminal activity so it's clear to this court case law that it is broader he didn't say that he didn't admit to it he just said that he didn't have specific knowledge of some of these facts and that's appropriate in a conspiracy we don't require every single participant in a conspiracy to know precisely what every other conspirator doing we don't require the exact number to be down don't require all of the precise acts of what we do require is that the defendant voluntarily participated in the conspiracy in the overall scheme of the conspiracy with the knowledge that it is bro directly affected only the people who were involved and the refunds that he intercepted the why shouldn't it be limited that russian the restitution be limited to that and for two points i think first when you're looking at the conspiracy they're going to court in fact here is that the refunds were processed or  i'm not sure your honor when the number of years that he was involved in this and the amount of refunds that he picked up over the years it's a reasonable interpretation that he is aware that this is broader than just him in atlanta sending these returns back to houston the i mean the intended loss here is twelve million dollars over three years that's a sizable conspiracy so i believe a reasonable person would know that this is larger  attorney that for a twelve million did not come from it didn't and one of the one of the issues that came up in the sentencing hearing was that the number proposed by the defendant in limiting his viability for the restitution amount was that he was calculating only the number of false returns that were filed from the zip code in which he worked he wasn't also including the number of returns that were picked up for example someone could file in california using a address there file the return but the refund was sent to atlanta so this is something that occurred in various zip codes throughout the united states is just a process of the fraud itself going back to your honor's question about limiting the amount of restitution there is no the defendant pled to the general conspiracy the conspiracy count count one included all of the members of the conspiracy in it and also stand corporate and all of the counts of the indictment which included all of the accept forth done by the by the mail carriers and the various other positions and the various other locations so by pleading guilty to it the defendant agreed that he partake in this broad conspiracy there is no limiting language and there is restitution staff you can employ when there is a conspiracy actually charged in improving either by trial or guilty plea that the restitution encompasses that joint several liability the conspirators yes your honor conspiracy fraud or scheme and here actually if you look to any of the other counts you have fraud or scheme as well having said that we have a general conspiracy which incorporates it all and so i think that's and it says calvin should open and all these other guys did knowingly combine to combine conspire confederate agree with each other and with other persons no hearing that or agreeing to mirror that for a fact and the government did not agree to narrow that down now and in fact in the factual basis the government specifically said that the overall intended loss of the conspiracy is twelve million dollars so the government's position throughout this entire case has been that the defendant is responsible for his role in the entirety of the conspiracy which is the entire conspiracy because that is what he pled to my calling relies on atom's but those two cases are distinguishable for a couple reasons first and the the defendant pled guilty to money laundering he didn't plead guilty to a conspiracy or a scheme and the factual basis included information that wasn't part of any indicted as scheme that wasn't indicted and the judge specifically told him that restitution would not be based on that unindicted that unindicted conduct so then when he was therefore assigned restitution at the end and an indicted conduct this court found that to be error that is simply not the case here also in adams he pled guilty to fraud he did not plead guilty to conspiracy the factual basis did not encompass a conspiracy particular evil or horrible that will result if we disagree with you and interpret this statutory language to only refer someone like this to  which is from one thousand nine hundred six and two thousand and twelve and i think also there's we we want to hold defendants responsible for their conduct he participated in a large scale conspiracy which harmed many and many people  parties and indeed when we're talking about the sentencing hearing and some of the confusion of coming up with the numbers one of the problems was there simply was a lot of discovery and a lot of numbers there i don't have an exact number  head to give you but we know that he was given funds back for each piece of mail that he sent back to houston and i'd also like to just one quick point to clarify the sentencing hearing where the defendant makes it look like the district court didn't know all of the numbers and wasn't provided with all the numbers the government's position throughout this was that mr shelton was responsible for the entirety of the last for the years that he was involved it wasn't a portion of that  the defendant argues that it should be we had substantial of evidence to show the numbers that we put forward that were his responsibility under restitution and the loss amount there was never any question about that the district court didn't have numbers for this portion in that the defendant would like to do in terms of his restitution and to a certain extent the last amount and it was those numbers that weren't before the court and what the district court actually asked the prosecutor to provide for him so honor so i just have several points i'd like to make one is to answer it judge winners question there was no evidence in the record at all that mr shelton was even aware of these other mail carriers and other locations performing a similar separate conspiracies with white and willingham it's not in his admission it's not in his guilty plea admissions it's there is nowhere in the record that the gov and the government couldn't point to any evidence in the record also the government as the government read just a moment ago or a the second part of that definition a victim does talk about any person directly harmed by the defendant's criminal conduct and those conspiracy that's the that's the starting point which we say is narrower than the one alleged the indictment and then you look to what is the defendant's criminal conduct so even if you even if you thought that he was part of this larger  grand scheme that with all the mail carriers we should still be focused on what was his criminal conduct in the course of the scheme of the conspiracy and there's no evidence that he was involved whatsoever with these other mail carriers or that he even of these guys at the courthouse in fulton county georgia who were the one stealing the personal identifying information all the only evidence we have in this case is that he was engaged shelton was engaged in conspiracy with white and willing whereby he was providing addresses and then intercepting the returns and sending them to white in exchange for a kickback and that that's really this total of what the conspiracy was and your honour's for that reason we're asking you to brief called mode seven circuit case where the seventh circuit did look at this language and say oh this means that you can order joint and several liability for everybody in the conspiracy no matter what the defendant dead but it didn't really engage in any analysis of why that's so it just said this is what we've held in the past that the most that i think that our court has ever said about this is in a case adams and i think