to the district court committed clean air and imposing a fifteen thousand dollars special assessment under the justice for victims of trafficking act eighteen u s c three thousand and fourteen permits an assessment of the amount of five thousand dollars country yet has addressed the precise question before us and every court that has addressed identical language and new provision has come out the other way how could we have them say that  so in determining the maximum assessment under three hundred and fourteen we begin with the text and here the plain text to start only list one amount five thousand dollars there's no indication in tax that the number of counts as relevant in fact here is somewhat unique we have a unit of measurement as different chapters five chapters that relate to sex and human trafficking this is quite different than three thousand and thirteen which which pegs the assessment to certain grades of offenses why does that make a difference in makes a difference oh i referred to donaldson which is the rd circuit case that discussed the three thousand and thirteen assessment it makes a difference because if you only link it to let's say the highest grade of the offense for example of the felony offense then you have one person charged with multiple felonies has one assessment but then a person who's charged with a felony animistic mean i would have multiple assessments that's how donaldson read thirty thirtee and that produces an absurd it result where the more culpable defendant would have one assessment and the last couple defendant would have multiple assessments so the classification and the different amounts that were listed for that there's a suggestion that multiple assessments would apply to donaldson that was a reasonable interpretation it was it was it was in debate all over the country it wasn't a given that that would be clear to everybody but all the courts did resulted in that favor but but that wasn't the case at the time of between a ten dollars and fifty dollars amount for a criminal defendant and clearly multiples of five thousand dollars are very significant amount amounts for criminal defendants and we know that the nominal amount is distinguishable were three thousand and fourteen because we have the indigency exception in the statu that dictate consisted interpretation across the statutes because every other part of the the statute is different so those two an amount and an offense are similar the indigency exception is citation to chapters to five chapters as opposed to the classification of the offense as a defense the listing of different amounts for different classifications so the suggestion that different amounts could meaning of the same language in another statute and is making explicit reference to but the prior construction can and is is a way to interpret a statute beyond the plain text but if there's material materially different language then that doesn't apply and so here there is the cross reference again but it's not just a cross reference it's in addition to recognizing that that this defendant is going to pay some multiple in mr john in the case three hundred dollars plus this  excess and here and then the language throughout the statute not just subsection eight it's different the way that the assessment is paid after all the other assessments the way that the collection appl what that meant did they not and shouldn't they have said oh but only against the person and not as per the count wouldn't they have said that if they wanted a different result they could have said that they also did other things to distinguish the tax which should not in  material way so so the indigency exception is a material aid because it's an all or none statute but what does it mean it just means we're not going to assess this against people who can't afford it whether it's five thousand dollars because there's one count or you know trial and that defendant the most couple defendant is likely to be found indigent because his ability to pay in the present or the future for taking a standard adopted by some course would be impossible sixty five thousand dollars on top of a special assessment fine likely to pay the amount i do i do think the amount of the fine is relevant i do think that if one dollar person being able to pay five thousand dollars in the future or even in the inmate program versus an inmate being able to pay sixty five thousand dollars i think that produces  same sort of absurd result that the court was concerned with ok when but so you take it into account in determining it and she see and you say ok it's five thousand because it's one count or you can't pay twenty five thousand cars because it's five counts but i don't see how that then says oh well we're not going to look at it per count we're going to look at a person to me that's a non sequitur it's relevant to the extent that congress is worried about funding this victim compensation and  other programs that justice for victims of trafficking act set up and so it does all the more reason they want to per count that to add up to more money but not if an indigent person would never pay anything it's like prigs sample there's no there's no bumping it down there's no reduction so that in and they could pay five thousand dollars but not sixty five thousand dollars if you're indigent you pay nothing and so so congress isn't able to fulfill its goal of filling up the congress with a thirty million dollars argument that differ interpretation through on the different amount of use and the rest on the wall when it is my argument my argument to begin with is that the plain text only permits five thousand dollars and that's and that's donaldson as i as i briefed the exceptions the donaldson brought up why three thousand and thirteen didn't apply the rule of money don't apply in this case because donaldson was talking about a nominal amount fifty dollars as opposed to five thousand dollars  and again classification of a felony or misdemeanor didn't talk about a sentence in a criminal case in this case we have very specifically you are convicted of certain sets having offenses that the assessment place so i believe that donaldson believe again supports the donalds and was wrong on that and that this would be a penalty but kolker says when an individual is made to pay a non compensatory sanction to the government as a consequence of illegal violation the payment operates as a penalty and so even though donald step further what i thought of that reading and my friends excellent reply brief where she focused as she does again today on the amount the fact that this is five thousand dollars versus one hundred dollars for the special assessment and what occurred to me is that there are so many federal statutes federal punishment provisions that are much more draconian than this which are always considered based on the individual facts where jump to mind immediately when i read the reply brief was the fine provision the fine under that statute the default is two hundred and fifty thousand dollars not five thousand dollars and yet it's common way and universally understood that there is applied per count and that's when someone is convicted of four counts then we lay out the maximum penalties we say you in a single criminal case they saw the other fact of showing up just that you have the connection as opposed to per count or per conviction in a criminal case i think they're basically six things that happen generally you have imprisonment you have supervised release you have a fine you have a special assessment you might have restitution you might have forfeiture every single one of those provisions under the statute selected by congress are determined based on the individual count and the individual holding him down son and with all respect to judge adams for my clerk the the fact of the matter is that it's been superseded by subsequent decisions now just coke ash but the other significant development is in the double jeopardy area alleged decision of the supreme court which has been echoed in other decisions of this court that a special assessment is punishment for purposes of the double jeopardy clause and the supreme court in this court of therefore held that even when you have if you have multiple lenity is not let's cut a break to a defendant because criminal kind of these are harsh the will of the manatee is a matter of statutory interpretation and the rule of lenity is that we use all sources of interpretation that are free card by any means and that's why not just work with regard to this five thousand dollars provision but so many severe penalty provisions in the federal code we interpret that we don't it's aware instance where you get as far as application of different kinds of construction was that the language the plaintext was ambiguous and so there was reason to apply different kinds of construction in trying to ascertain the meaning of it and three thousand and thirteen why shouldn't that carry over here at least to the extent we start just plain text assuming it's the same plain text why doesn't have the same ambiguity we can then turned to different canons like the backdrop against which congress was legislating but isn't the plain text just as ambiguous offense but as you are as a pointed out it says in addition to the assessment imposed under section thirteen the very thirteen now congress no that multiple special assessments are imposed in cases in which there are multiple all of them come after you've paid every other criminal penalty in the case and that's an understandable thing to address but it doesn't impact what the amount is if there's no correlation between those two things any references arising from the criminal starts with the assessment for an offense and so then at the end of this thing that assessment is paid after the convictions it logically follows that if you have multiple assessments based on multiple counts it would apply the same way  to hear that would lead you to believe that they thought that the meaning is clear well i don't believe in reading donaldson that this was much of a struggle that the court did what it's required to do but it went to different arguments about what it would mean and legislative history and the absurdity of reading it one way versus another seems to me of a typical ambiguity analysis i see that as a typical commendable statutory interpretation the as applied by the supreme court acknowledges that statutes might be ambiguous and needing interpretation but the mere fact of ambiguity and maybe this is what you are suggesting the mere fact of ambiguity doesn't mean we throw up our hands stated the but the main rule of the rule of lenity is that we have exhausted every other method that we use to resolve ambiguity and to interpret the statute and we're simply left with our hands and at that point at that point the court within say defense prevails based on the fact that these are criminal penalties as you have you know i would point out about the statute about three thousand and fourteen is that it lists all of the many different and very serious crimes there may trigger this special assessment crimes relating to peonage and slavery and trafficking and sexual abuse and that also wouldn't make much sense that if you have somebody who committed many offenses where donaldson saying why are we treating better somebody who has multiple counts in one case you know versus somebody who might be could convicted the multiple separate cases i'm assuming if we found it was for person that you would start your indictments having one count and just have multiple indictments where you know you can absolutely do that the fact is we've most criminal cases as your honour's are well aware ending guilty pleas and many negotiated guilty pleas in this area are police to one count and that's why in the brief history of this statute we've had so many cases where single five thousand our assessments but there will be serious cases and this was a really serious case if you look at the different criminal conduct  involved where it is appropriate to have multiple substance based on the number of victims who were exposed what do you think the in the non indigenous aspect adds to to the argument i don't i think there's a separate issue i think the congress has recognizes a significant amount of money as a mandatory penalty and therefore it felt the need to give the exception for somebody who's indigent to commit the courts to recognize them but i don't see how that would affect the in argument with all respect the the court makes a judgment as to whether the person is interested in her or not she is correct that there have been some reported decisions recently it with the courts have looked to future earning power and found that people are now on indigent that decision the district court needs to max but again i just don't see the relation to the separate issue we're looking at it's similar to the restitution area in the restitution area in many instances courts have discretion now to after impose restitution or not to require collection based on the person's financial circumstances that doesn't change the fact that at the beginning you figure out restitution which is based on all the harm caused to all the victims of all the  is such a case my answer would be they were mistaken in the you know based on our interpretation leads to a five thousand dollars that's not on top of a three hundred and sixty eight month sentence and this is not a situation where we have to be concerned that that the defendants who are culpable of of serious crimes are not being appropriately punished this is a very unique statute  start with the text but then we exhaust other canons of interpretation before we turn to the rule quite significant but everything i found has indicated that the five thousand dollars isn't is what congress intended the advocates who were looking to congress to create the statue also and suggested that the five thousand dollars total assessment was  miss proposition that lenity doesn't kick in until all the other canons have been exhausted or the very beginning and both conclusions would lead to the same outcome which is that congress only permitted a five thousand dollars special assessment in addition to