occasions in the past in light of that authority i can see that any air below is neither clear roddy's but the court is also recently rejected the st amendment constitutional claim raising the briefs i was numb publish decision but when i looked for authority elsewhere that same argument has been rejected everywhere it's been made as a result i can see that in the airflow it was neither clear nor obvious and i have one last concession before i get to the preserved restitution  which i believe merits further discussion of the repulsive challenge is whether the district court could order restitution to a government entity acting as a legal guardian for a minor victim of this court has not dealt with that claim  preserved restitution issue and thank you counsel for your candor with the co ordinates is your legal and ethical obligation thank you thank you and that's kind of you to say but i would like to deal with the one preserved issue i think it's the one issue that really deserves this argument in this case and that's whether the district court erred by failing to apportion the loss between the appellant and other adults who had a hand in producing those losses this argument proceeds into for two parts st we need to address the appeal waiver but i believe that given the nature of the appellate challenge the short this court should find that the argument on appeal falls within the exception of her plea agreement which allows you to bring a acts by the defendant so with regard to you claiming i guess i'm asking for perhaps even another concession but at least it's an establishment of position from what are you claiming as the statutory maximum on the restitution the benchmark that you believe has been exceeded improperly your own i believe there are two and i was just about to get to that ok so in order to deal this appellate waiver issue we have to define the statutory maximum i believe in general and with regard to the restitution statutes i believe in general a statutory maximum is the most severe penalty the text of the law from it's a hard limit on a sense in court's discretion and in this case are texas found in a former version of eighteen united states code victim's losses the nd proximate cause and rd the extent of the district court's relevant conduct findings so with that in mind we can turn to the threshold question which is whether the  bars are preserved restitution challenge so unfortunately we don't have a whole lot of case law on that question and we haven't really put together a rule in this circuit i think we can extract from to publish decisions and  may not ask the court to reweigh the evidence or to relive agape any relevant conduct findings so i mentioned a few cases earlier from which i've extract of this rule one is chemical and metal industries incorporated that's a published decision from two thousand and twelve and that case dealt with the full amount of victims losses their district court may no specific finding regarding the amount of the victim's losses but nevertheless awarded two million question clearly and more specifically we get the this is been helpful but what happened what are the specific objections if that's not the objection certainly see the specific objection below is made in the record on pages one specifically the attorney below asked the court to apportion those losses between various causal actors and it also asked the court to apply para line and caution the corps that if it did not its restitution would exceed the statutory maximum those those differentiate between whom well your honor it would be between at least three actors by my count and potentially four so we have the appellant who was creating producing chopper noisy but we also know that many of this other the guardian before she was taken out of the home was was raping her repeatedly we also know that the victim in the same the trial courts have had to figure out whether they she needs mental health care or something that someone might analysis i don't think it has to be very much still i'm not asking the court to come out to a specific and that's what you're asking basically i'm just asking for the analysis there has to be some analysis in this court then that question of that issue that i just articulated that's what the district court should have issue is if this person's fault for raping or is it this person's fault for using him for child porn yes your honor i think that's what the wall requires i think that comes directly from carolyn caroline is a different more difficult case because you're dealing with possession of child pornography in that case that roofline from one defend its position to the defendant or to the victim's losses is a little harder to track but in this case i think caroline applies if there are more than one causal losses what about when people act in concert with one another whether they're charged with a conspiracy or separate way or maybe even one of them isn't charged at all what about when people act in concert with each other which as i understand the facts of this case there's sort of a guardianship or a custody where a person is exposed to more than one individual abuser could not the entire amount  for one another's relevant conduct and it simply never made that analysis it was never asked to either so i think that was edify me here was there a restitution order assessed against the other person or anyone else in connection with this victim not to my knowledge your honor however the at the beginning of that syncing hearing in which restitution was considered the prosecutor did ask for permission to share the record with a rd calls a walk there which is the individual with whom the appellant was sinning child pornography and we also know from that same hearing that that individual was then distributing it further so it's difficult to decision from last year there the district court adopted a formula in which it began with five thousand dollars to each victim that was the lowest amount that any victim of quested and then it added an additional mout multiplied by the number of images the defendant possessed for each individual victim so let's say we agree with you and what would your resolution what would your argument be that the rest to sion should be as opposed to what has been assessed in this case well your honor that's hard to say i think what we need to do is we need to remand the case for further development of the evidence which would allow the court to reasonably desegregate those losses and again judge wrote i appreciate that's very difficult  paralleling and both the government the district court determined that caroline concerns are relevant in a production case now this court has never or did go through had with a witness testify and then they asked the witness if they could separate out the hygiene and all of these the poor high all the the the neglect and other factors of the poor job  victim was having terribly poor poor doesn't begin to describe it and the court ask can you parse those out and separate those and those would be some of those related to the other person too and the witness says no i can't really parse it too well and then the court adopts that it was responsible for the triple to this incident the i mean this is this child porn so why isn't that enough it's implicit even in the cross that it had a chance to cross examine and see if they could attribute it to some other causation and they didn't so they could in the court heard it all and the cross was not effective in getting them to be able to do that daughter a lot of the harms are are pretty general and the this young girl was neglected she was not potty trained she had various health issues that were not related to the production job and all right but is there any evidence in the record linking it to someone else other than your client because it definitely is linked to your client is it linked to anyone else the evidence it's actually in the record yes your honor and i don't have the record site on the top of my head but there is discussion from one of the witnesses concerning the effect of another individual's repeated rapes a describes that the victim is waking up in the middle of the night has night terrors and also describes that she has been duders sexualization of such a young age she has very few boundaries concerning her body the body of the children unfortunately i don't think the evidence below goes into the extent to which that particular problem may please the court brian portugal for the united states the correct legal abstraction to take away from the courts case law on waiver in restitution cases is that the limits on recovering for the victim is the victim's loss there's an additional restriction in child pornography cases that's mandated by the supreme court and that is the it's the defendant must be a proximate cause punitive defendant is barred by the plea agreement in this case which the specific language says that the defendant agrees to make restitution for all relevant conduct in an amount to be determined by the district court that is what the district court did here and therefore the appellant's challenge to the district court's proximate cause finding is barred yesterday you agree though that if there was an improper methodology used to calculate the restitution that also is a under sharma provides a basis for  raise that that amount of the damages was not the correct methodology but was that the state's losses versus the victim's losses in their brief i don't believe there was a preserve challenge below to the district court's methodology no yana ok but do you believe it's in the brief here today i don't know if we're considering that or not given the argument i heard but can you address that issue i don't think that there about the methodology i'd be if if it is losses were calculated if it is raised probably before the court i don't think it is it would be a meritorious issue because the district court heard extensive testimony and you find that testimony they're describing this victim's harm and they're describing the therapy the therapy that will be necessary for this victim throughout the victim's life and the district court simply adopted those amounts and i don't know how else how better the district court could have calculated the loss ok so that the victims amounts even if it's phrased in the kong tax and the amount that the state would have to pay right because the state stands  the victim's shoes and in the circumstances the god little awkward  i would like to address the district court's proximate cause finding which is that one hundred and seventy four thousand one hundred and seventy five of the record i think judge already are you questioning is is right on point i don't know that the district court could have been clear she says i can see that there could be a concern as to how some of these expenses could have been proximately caused in a possession case but this case i think the evidence is really overwhelming far beyond a preponderance that the expenses that have been testified to number one  conservative under the circumstances and two certainly spence's proximately caused by the defendant's conduct so it doesn't have to decide whether they were also approximately caused by a rd party or if they should be report could not have required restitution of the other adult in this case because that other adult was not for the court so there would have been no statutory authority well i know i was asking if he had perhaps was charged separately state or federal or elsewhere where in other words the source of the restitution i know that that person is not part of this case clear from the record my question was more general if we know from the record where they were having an intellectual discussion versus something that's really happening i'm not sure i follow so that there is there restitution in the record is there and is are there funds available and are we having a discussion in the abstract it's not ever really apparent that it's ever going to come to fruition well certainly we still do we do that often but i'm just wondering what the record says about that i don't know that there's any indication in the record that the appellant has assets that would even come close to being able to satisfy this there is always the hope your honor in these cases that perhaps by way of  on this appeal waiver situation in max and the statutory maximum and do you have a viewpoint of whether our case law is too sparse and whether we need to add to that or not i think the court would benefit greatly by it in a published opinion following its unpublished opinion and fraizer which specifically addresses relevant conduct bisa be restitution and statutory maximum exceptions to a poet right waivers if the court doesn't have any further questions i will see the balance of my time and ask the court to dismiss the p at the appeal or in the alternative the from the judgment the statutory maximum winchell deals with a complete failure to engage in the proximate cause ation analysis and i think that's essentially what has happened here as well and then we actually have a series of unpublished cases that go to a few of your questions that's true your honor the issue is sharma however was conceded the government conceded that the it's a put notes when i looked it up but that issue is conceded there so we don't have a ruling in that case concerning the statutory maximum reservation but complication of sort of this medical which we can extract from all the cases which is that when the district work completely ignores one of those hard limits then the challenge necessarily implicates the statutory maximum what would that be they say it would be a published version of frasier what would it be to you your daughter fraser actually deals with a very different type of challenge frazier dealt with a defendant who argued that because the restitution was not supported by sufficient evidence and necessarily