mr maxwell we come speak w succeeds in events applicable guidelines range that strikes me as a waiver of anything with respect arrest taishan we were dresses in the briefs variance you're complaining about that and that that that that was not waived it seems to me by the agreement but the restitution issue is waived because the only thing that t that's the st issue that you've raised up what i'm saying is that you've waived the restitution issue because you haven't you haven't reserve the right to raise that issue that's true we didn't reserve that right course we were not also advised leacock we would be waiving a right to here's the agreement i'm reading from the agreement the defendant expressly waives the right to appeal the defendant's sentence on any ground except the ground that that sentence exceeds the applicable guideline range that means  can't appeal the sentence on any other ground doesn't it direct including restitution which is part of the senate right yes i believe restitution is a part of the sentence and you can't appeal back you've waived that you've expressed leeway that your client judge if that is the court's ruling then so be it and i won't stand here and argue i mean my position has been that restitution would be a part of the sentence and that and that we didn't wait we wait say i don't agree with that but that's really the core alibi by i still think that restitution is a part of the sentence and that we we have a right to feel the sense we can repeal restitution but if i'm incorrect then that's a different ground that's appealing on a different judgment i don't know but anyway let me let me just make sure i understand your arguments of restitution as part of the sentence and he can only appeal the sentence on the grounds that it's outside the guyland guidelines and what is your argument on restitution that was  five variance and we do not contend in the circumstances of this case that since suppose was unreasonable now i say that because in two parts one the court seem really relied upon a but a portion of the of the evidence and that is the violence involved in the case the beating of d c the selling of women for profit and things of this nature which were described as being horrific and i'm not saying they were not bad facts in this within the hard cases the guidelines do readily provide for that type of conduct now as do the once we go over the outside the guidelines a court is required to set forth  sufficient justifiable reasons why the guidelines are not sufficient in this case i don't relieve that's been done i don't believe the court has described why this case is any different from a typical  case that the court fork is only a portion of the factors involved not all of them and for us as i would like to point out that yes there was violence in this case but the same time this case is distinguished somewhat c was never kidnapped or forced or locked in a room are kept against her means in that regard she was actually working as a prostitute on the streets of jacksonville she was a drug addict she had a client was working on the streets of jacksonville selling drugs and she was also a drug addict d c actually a protester i believe that your client acknowledged in her inner plea right that she had routinely beaten d c and prevented her from escaping that she smashed dc's head into concrete steps after an escape attempt that she took advantage of addict addictions to maintain control of her isn't that true substantially and it is these parties and the district court said that there was  pretty serious and lengthy criminal history here wrecked writing that reflected a serious to disrespect for the law and for the safety of others acknowledged your client arguments regarding a difficult childhood but said look the guidelines were inadequate to reflect the seriousness of the offense there and adequate to protect the public they're an adequate to accomplish deterrence for miss brooke and and their inadequate to accomplish just punishment that that's sufficient isn't ice if that's the case most any sex trafficking case would be outside the guidelines i believe force they lived together they had a romantic relationship yes d c paid her money to brookings bookings paid all the expenses and this went on for a period of nine months and we have one reported occasion where that didn't a place that's not nice nasty but in a period of nine months that's the one reported occasion yes there were witnesses who said that she had blacked out when they saw her from time to time and things of this nature but also we had witnesses who saying they saw  together at their house and they seem to be a reasonable relationship they've played with the kids and all that also one occasion may of two thousand and fifteen when d c was arrested and they got released went to mother's house where later on she says kind of get back with you these are factors which i think tend to take this out of the typical sex trafficking case and in fact is which war war war way property and how although i'm not saying there wasn't violence in this case and i bore the violence but that is found in most sex trafficking cases and well i think you need to balance all these issues and i just suggest that in this instance the court did not do that and not do it or did not do it in a manner in which you think less appropriate apparently did do it you disagree with the manner in which the balancing to please it when some factors to be given greater weight and others and this is a plane air or case so did not make so it is reviewed for plane air or in the record as the court has as cited this instances where the court did indeed make extensive findings it's not the case of the court was focused soley on the violence here the court was focused on the violence the court was and it was not one occasion in nine months there is no objection to the testimony by for example dc's mother who said everytime she saw her daughter she had black eyes she had a broken lib she b beating her and the story of d c trying to escape calling her mother from the bathroom of a hotel begging her to pick her up trying to get in the car him brooke ins pulling her out and smashing or had against the concrete this was not an isolated incident in a nine month happy relationship this is an ongoing pattern by broken zte to control d c to force her to traffic herself to to prostitute herself and to take all of her money and to exploit her diction that's with this cases about and i would submit that this romantic relationship that she had with d c that makes it worse that's a betrayal they had a relationship she supposed to care about her and she's beating her constantly to prevent or from escaping and to force her to traffickers elf as far as the lack of factors such as kidnapping or being bound or things of that nature those are not part of this case those are not elements of  admitted she pled guilty to trafficking d c she pled guilty to forcing her to traffic herself and give all of her money to her and she admitted the p s r facts that she did the same with j v now she had that count dropped as part of her plea agreement but she never less admitted to conduct that otherwise would amount to sex trafficking as a g p and so the court made it very clear that it's upward variance which is a modest fifteen percent above the upper end of the guidelines range was to reflect not just the violence in this case but the pattern of violence in the pattern of defying the law the pattern of not showing up for a court hearing when she was supposed to be sentenced and then being picked up on another gun charge and none of those things that were discussed the sentencing hearing brooke object to any of those now when she took the stand she did try to justify or violence and that was another thing the court pointed out is a lack of remorse and her attempt to justify her violence and moving on to the restitution issue a judge pryor would agree that that issue is waived here based on this court's decision and johnson and miller is an unpublished case we cited in our brief but it really amplifies jonson that in a case like this where you have a recitation order based on an agreement to pay restitution you can't brooke ans was made very aware at the change a plea hearing you do understand that paying you're going to pay restitution as part of this plea agreement and you do understand that we don't even know what that amount is yet yes i agree to that and then three thousand six hundred and sixty three has its own built in limitation you have to show actual losses and the government here showed actual losses the amount of money brooklyn's took from j v by force by threat of violence and gave her what we would say is really an undeserved benefit of an additional fifteen percent reduction to reflect expenses she claims to have made but on no evidence which was her burden they did reflect the ability to pay they judged all the judges are quire to do is consider it the judge did the judge set up a payment plan for while bracken is in prison and then said it would be revisited if needed when she's released so the judge did exactly what they are quire to do and considered it was there any aspect of the plea agreement or colloquy explicitly put ricans on notice that she was her restitution order your honor i would say it's can included in that but the language the judge prior cited of i any ground that was very clear and that includes restitution that's not a new concept so no the a let me let me ask yes on the johnson case as i mentioned earlier there was an explicit reference in the appeal waiver to the restitution amount because it said the reference the sentencing court's finding in the event the loss amount is determined to exceed thirty thousand dollars like your brain it was talking about there was a limit but there was a reference that would have told the defendant at the restitution orders part of this appeal waiver was there anything like that in this case there wasn't and i just want to point out one distinction with johnson and johnson the provision that you're citing that's about the amount of loss for the purpose of the sentencing guidelines so that's a little bit different here in courts of said restitution and calculation of the amount of loss because it made the intended loss are two different things so it's johnson i wouldn't even say that there is really a difference there because all they're saying is as part of your sentence if the calculation of the amount of loss is more than thirty thousand you can appeal well that's not what johnson says and johnson the court said it was undisputed th johnson explicitly waived an appeal as to restitution long as the amount did not exceed thirty thousand dollars so there's a reference to restitution there excuse your honor well either way i would say that johnson including that language doesn't mean that that has to be in there and in fact because it's been well known that restitution is part of a sentence that that language doesn't need to be in there so long as brookings is told on any ground you can't appeal your sentence because otherwise the court would be required to go through every hypothetical ground that one could appeal a sentence on in order to make sure someone adequately unknowingly had waived the right to appeal their sentence the other interesting thing i noticed about johnson is that the quote that a waiver of the right to appeal a sentence necessarily includes restitution is johnson they were actually quoting the government's argument that says the government argues that because restitution is part of a criminal defendants waiver a waiver of the right to appeal a sentence  is there any cases besides jonson that make the holding your honor i found i don't think i have a published case i have the miller case that refers to johnson and refers to that as the holding it miller can seems to consider that to be part of the hol ding of johnson if i could try to find the language here miller's and i'm published that's correct but again the court seemed to adopt that it didn't say anything in it to controvert that and actions it seems to have embraced that your honor and then there's the charlemagne case where the court said we were less certain that there was a knowing and voluntary waiver of the right to appeal the rest you come in on agreement though did it express league knowledge the defendant would be republican responsible for paying restitution as part of the senate's right that's correct and the defendant conferred at confirmed at the during the play colloquy that he waiver is going to be enforced according to the english language that's greatest you wave expressively wave on any ground except right that's senate i don't want to keep pushing on that but i would say that in considering all of these factors i did want to mention that there was a nd person involved which i haven't had the opportunity to speak directly much doing that is j v which primarily came in the vote  why this to finish from history makes her why she's any worse than anybody else in a category five this is what i suggested talons give weight to all of this and if the court's going to go outside the guidelines with the variance there needs to be some justification other than just a generic version of hey there was violence in the case as the restitution briefly out in a stand the court's feeling in this regard i will point out that there was no actual evidence disparity the actual loss