at this time of year united states versus down the is have the underlying decision regarding restitution only overturned in light of the fact that there is noncompliance with the mandatory victim recovery act of one thousand nine hundred six also known as eighteen u s c six three six six which that has been incurred by my client is one which for five and a half years he was unaware of the fact that he restitution order of the approximately one million dollars would be issued against him what would he have done differently well your honor the is if that bus to sion order had been imposed on day x plus one and if we if we look at the p s i i your honor first of all he was unemployed for a portion of the the restitution order would have been last it's a twenty year judgment that would have reduced down the period of time for him that he would have had obligations to pay the prejudice is severe and that now he has to work to age seventy one if he has to comply with and provide contribution to the victim of this but more importantly he and his family have suffered tremendous prejudice and as we know the courts have said that financial ramifications to the defendant can be considered by this court as prejudiced for example he and his wife went out and got a fulltime job he was looking for full time employment they were contributing towards their mortgage on their home at the time they elected him and now there's a lien for a million dollars five and a half years later in which this restitution award comes out so the equity has grown they had they did everything they could to support themselves and support their children not file bankruptcy he tried to pay off all of his debts and work his way through this this is a man that let's not forget that was called a model citizen by the sentencing court and what and why do you say he didn't know if you have to pay and he was whose it was said at the sentencing that he was going to have to pay a substantial restitution and it probably would have been imposed right there and right then but for the fact that it's counsel asked for an opportunity to to to question the  l which will never be appropriate but it takes time to get your honor of the it could have been imposed and my argument is in light of the dolan case should have been imposed or should have been hearing conducted  conformity with the statute should've been conducted within the ninety days there's no evidence that came out in any of those hearings that was not or could not have been known within that time frame the dolan case dealt with something completely different it said listen on the ninety day provision we can extend that if we don't know what the damages are there was nothing that was restricting this court from determining five and one half years later not one year ninety days but five and a half years later so with you now having dressed the judges issue addressed the appeal waiver well i will your honor there's more to the prejudice waiver to the prejudice your honor you know address the appeal live and very well your honor with respect to the waiver of the appeal your honor i think that the second circuit has articulated in two separate cases that are cited in my reply brief which aren't start on page two hundred three page six us and i'm going to pronounce this pronounce wrong i apologize i believe it's pronounced g which is what starts on page two and also u s versus reading in which the courts have said this court has specifically said the legalities of a restitution award can be challenged as well as the amount here's a perfect example of those cases involve specific language in the remit that specifically the waiver provision of the plea agreement that specifically refers to best solution it refers to the fact that they can always be legally challenged regarding regardless of whether there has been not to appeal or collaterally attack the conviction a sentence imposed by the court of the sentence does not exceed thirty three months a three year term of supervised release restitution and i reckon that's underhill referred in connection with the waiver provision to the fact that your client was waiving his right to appeal restitution in whatever amount is found by the court case is over in any court your honor that has to do with the legal imposition of the restitution amount in conformity with thirty three six six three of eighteen u s c number one number two are there is a basis in those cases one occurs the courts review those cases do allow the court to determine if for example he came back with a one billion dollar restitution award i could be in this court today and see judge this is just unreasonable it's completely outlandish and that's the example that's provided in in my brief and also in the cases that say that there is a legal right for me to come forward here and challenge the amount of the restitution that's provided or required by my by my client your honor back  the other questions why why did your client agree or understand that he he was he was waving his right to appeal any sion and whatever amount in some other way your honor and again that's not the way i would interpret it nor the way i think the court would interpret it if it was any amount it came back as one billion dollars i think the court would ultimately east decide that's that's egregious that's that's not within the realm of of reality and would be subject to this court's discretion to overturn that on on on on prejudice to my client we have a temporal gap here five years and five months right director on would you just give us in very brief form who dropped the ball and walk your honor and ask you to look at example exhibit j seventeen of the record it's the july fifteenth reference is the july fifteenth  telephone conference between judge underhill and i think it's actually been cited in the government's brief j seventeen is the it's g a g a one hundred j seventeen j one hundred four but i'll read t relevant language and said it has recently come to the court's attention that no restitution order ever issued in the defendant's case when was that that was in july of two thousand and fifteen and judge on the hill resurfaced and the earlier the earlier action or four or record statement what was going on here in i can answer now from july of two thousand and fifteen the court requested a hearing requested a joint hearing with the other codefendant who by the way has withdrawn his appeal and has no assets and is not contributing anything i know that's  point but there have been there was a hearing there was a joint stipulation that was filed and then the last hearing was on august thirtieth of two thousand and eleven there's no evidence here hearing and then the decision was  granted on january fifteenth two thousand and one isn't it reasonable to assume that you know most any court proceedings are propelled by the parties the judge has a lot of cases a of things to focus on and you are the one who's standing here today and saying you are prejudiced so if you are experiencing prejudice that usually means the court would look to you to  stimulate the decision i could say your honor there were court there were calls made to the clerk to determine the status on probably a dozen different but on the record it is not your honor i can represent that as an officer of the court i believe who represent that he called as well the reality of it is is an obligation that would seem to suggest that did was fully anticipated that there would be a restitution order and the likeliest restitution order would be in the precise amount that it was entered right to the penny and that's why it should have been decided with in conformity with the statute it was in the p s i i it was at the plant it was very well the way people would complain that they have to pay money five years later then then five years earlier not to the prejudice somebody has to work until they're seventy one years old your honor and there is due there is undue influence on due prejudice on this gentleman who didn't get a dime if he stops working then ten percent of his income drops correct he just pays ten percent right percent or a minimum of two hundred fifty dollars per month i believe is the order and i don't know how that number was determined why it was determined especially when you look at the sentencing comments with respect  had it's indicated in the sentencing that he was not he's not the target he was not the main person he was not primarily responsible hoarding i know but there's no there's nobody else around to pay is there well that's unfortunate that that the five and a half years later we're looking to the morning may it please the court i'm david sheldon assistant united states attorney from the district of connecticut on behalf of the appellee united states of america at all times in this case the defendant knew that he was subject to mandatory restitution he signed a written plea agreement to that effect it dollars in the agreement that restitution was mandatory the agreement contained a rider that said that the court shall order restitution he stipulated in his offense conduct to the loss to the victim of nine hundred fifty six thousand and ninety dollars and he waived his right to appeal and he silence that imposed rest is that is that where the government thought there was no point in in bringing to the attention of the court that years and years are going by without the entry  this who are beacons there's something to the argument that that that as and as your life progress is your financial needs and planning to change there's no question that if the government with a party here complaining that we had been prejudiced by the delay then we would have to and the government doesn't have to give the government is not the thing to be prejudiced by the delay in the government has an interest in the orderly proceeding of criminal cases without question or honor and as my brother counsel said there were informal inquiries as nothing in the record to confirm that made but at all times we wanted to make sure that the victim got the full measure of restitution in our mind that meant that judge underhill had to work his way through a very dense history of the proceedings and bankruptcy court if you look at the material that the party submitted to judge on hilary in response to his request in december of two thousand and ten there's an awful lot there and we kept hoping that we had sufficiently unwound the record of those with is possible the government's got another victims and for different reasons the phantom they want to start paying sooner or later i think that's absolutely right and the fact of the matter is the ninety day period as this court has consistently said and the eminently clear here that from the date of his plea and all the way through his sentencing he knew that restitution could be ordered he knew it when three months after sentencing within the ninety day period in october of two thousand and ten judge underhill held a hearing and at that the plea agreement was silent as to the aspect of the sentence that was appealed there was no mention in reading of the issue of restitution so this court held well the waiver of appellate rights could not of waive the right to appeal restitution because there was no restitution and the campus of the defendant during his plea was exemplary judge underhill said you understand your waving your right to continue to appeal restitution in any amount the court might order and all of us said yes i do and you have  serious as well what if judge underhill had imposed a one billion dollar amount there's no question that we're you have a fundamental miscarriage of justice that an appellate waiver would yield right if it were completely unforeseen us some in for some notion of what the rules might be here at that sentencing judge underhill told him that restitution would be decided soon quote unquote yes at five years in the law in the circuit prior to do first one in october twenty times within the ninety day period another hearing in august of twenty eleven that was the final hearing and then there was additional briefing submitted after that hearing and then four years after that hearing  it's come to my attention that that well after five years the question seems to me the threshold question seems to me to be who has the burden of showing one and i don't understand why in these circumstances the burden should be on the government to bear the burden of showing a lack of prejudice a lack of prejudice yes well in this case if if that's the case just a promise there's nothing in the record that establishes prejudice there's no showing in judge underhill said that when he ruled and you think if there were such a imposed well i think the question would be then a weighing of the facts and consecrate right at this point consistent with the analysis of dawn he knew all along that restitution was going to post he knew it was mandatory and all of judge under his remarks said that to the defendant and so he knew he might have had a hope that he wasn't going to be held jointly and severally liable he also knew that the government wasn't pursuing it and he also knew that the judge had said rather remarkable things to his credit and this they would they want to move on a question about that your honor and i think it's very unlikely that this factual situation is going to recur but the fact of the matter is that the clear teaching of don is the analysis turns on the prejudice that the defendant might have holdings in the rigi case are a g g i six forty nine f third and in yemen which is cited by my brother where you look at the nature of the right that's affected by the delay in this case it's a statutory right not a fundamental one is d