the court was aware of the problem and even expressed concern about alexander's competency to continue with the click but rather than call a halt to the proceedings or even explore in any meaningful way alexander's mental state record attempted to resolve the in that class on thinking it's opposition that the best thing would have been for the court to halt the proceedings but a bare minimum if the court was convinced that mr alexander was fresh knowing that he was not in a good mental factual basis for the flick going to turn to the on timely order of restitution at the sentencing the court said there would be substantial restitution and the judgment said it would be determined with for ninety days but nothing happened for fifteen months the government did not speak and the court did not schedule a hearing within that time period and the government has not provided any justification for its failure to take any action it's true that mist mrs alexander had a phatic zero hearing many months later but his judgment how was that when i was your client prejudiced by the fact that he was not present at the vatican hearing me my client has never had an opportunity to contest the amount of the period has been impaired the defendant's right the defendant has had a chance the court said don't lend to mitigate his harm because he knows the amount of the restitution so your argument is that your argument is just to make sure i understand it at  e sentencing there was a acknowledgment there'll be substantial restitution it'll be calculated after today and understanding that that was going to be taken up later at the same time as  as his wife's restitution but that he never got notice of anything else and so he was completely deprived of the notice and opportunity to be heard as to restitution yet that's happening with one tab the court did not say his restitution would be taken up at the time mrs alexander is restitution the quick that it would be taken up with the ninety day mrs alexander a certain number of continuances i believe she changed counsel at one point so a lot of months passed where there order restitution and i understand your read of dylan but let's say we assume the do you have the authority to act out of the ninety day period still your client did not get notice that anything else was going to happen and the government says that there was he did have an opportunity in his sentencing memorandum to talk about restitution in the district court acted within its discretion to essentially use that memorandum is the basis for going forward and setting the restitution amount how do you respond i don't think restitution really came up at the sentencing hearing i think that's an unfair argument in chance he did talk about law in his sentencing memorandum but restitution wasn't really on the table then and the government acknowledges much both in the sentencing papers and i think  it's great before this court absolute bar to imposing a later order restitution thank you pl hear from your co counsel or from them mr stern order regarding the schedule and the manner in which the rest to she was to be collected so i don't want to spend any time on that what's the corner of questions other than to say that over the course of time three years and that's part of our ineffectiveness of counsel argument on that issue nothing was done in the district court may i move on to the well let me ask you a question about remedy if mark is right he was denied an opportunity for a hearing and the prejudice becomes irrelevant because it's a substantial right and there's concern about the effect the overall effect judge said that she couldn't make five hundred dollars or more of credit card purchases without the permission of the probation department in order to  in paying the rest of two shouldn't and the court in the district court said you will back condition will prevail until of your financial obligations are paid so it was for the purposes of the restitution to that condition was unlawful because the judge can only impose such conditions unless the defendant is not in compliance with the restitution orders because of a general overall condition that she can't make credit card purchases without permission of the probation department has no standards by which the probation department should be guided on case and in the peterson case that the conditions of supervised release are not to be imposed without limit from driving nor could someone who uses the telephone in the commission of a crime be precluded from using the telephone because those things were not the essential natures of the criminal was for the purposes of the restitution there's no standard by which the probation department also could have determined rather a single purchase over five hundred dollars in there or not it was totally at the base question of the probation department and had nothing to do with whether or not she was meeting her restitution obligations it's only if she wasn't meeting her wrist to sion obligations that such a condition could be operative and that's how the court should have phrased it she could the court should have said that you can't make the probation department should have say over these purchases if she were not meeting her credit her arrest to sion obligations but the court did not say that she allowed the probation department to make these  determinations on her credit card purchase purchases even if she was meeting her credit card or restitution obligations so thank you mister here for the united states a direct exchange between the judge and mr alexander and after the break in fact he so one one observation that was that was meaningful kmiec is she says i really tell you before you get to rachel alexander's claims as to mark alexander and his counsel withdrew and with the understanding that the restitution order remained open and as you say nothing happened to give him notice an opportunity to be claim so you know the counsel has said that there is prejudiced in that he didn't have an opportunity he would have said things about the vehicles is there really a greater burden and that in this in a context like counsel didn't get notice it's his fault that he didn't file an objection he takes a timely appeal it's his fault i'm not so certain that it's his fault i'm not i would think  responsibility you just said it was to ensure that the proper procedures are followed he was shot out he was shot out of the hearing and to simply say well it would have been that number anyhow if i'm sorry he to the restitution because plane error occurs when you have sort of waived your opportunity to raise an error in the trial court and there was no opportunity here it was raised on the t l and that's the only it should have been raised the nd thing i'd like to say very quickly is even if the court was convinced that mark was fine after he was refresh to be more comfortable after he ate the sandwich that doesn't change the fact that the most important part of the plea allocution the will nine colloquy took place when the court observed he was near banking cumbering something was wrong something was wrong with his mind it was probably due to some kind of hype and i c b m and it would have been a simple matter to just go back and redo the beginning of the play and make sure he understood exactly and w waiving the rights that are part and parcel and the critical aspect of the rul plainly if there is to be remanded the restitution issue the credit card condition that went along with the rest of mission should be included and it suffers from the same