we will now turn to the first matter on calendar which is the male motion united states versus them please the court my name is andrew bowman and i represent the defendant  honor this is a motion for a stay pending appeal we believe and we submit that we have a strong likelihood of success on the merits the advisory guideline range was three to nine months the sentence was the maximum of two years mr milne had not been involved in crime since the original which is to fifteen years ago the district court made a finding that no fraud had been committed by him during the course a supervised release and she likened his conduct to that of an armed bank robber but more sophisticated with respect to the original offense but he was punished for that he didn't just get a slap on the wrist he received a twenty seven month sentence three years supervised release he paid a million dollars at the time of sentencing he paid five hundred fifty nine thousand during the term a supervisor release my understanding represented that he was going to be able to at least either pad or at least make for the payments and i guess the court ran out of patience as courts do after eighteen continuance i think what we're looking here is a failure in the court made a specific finding that the defendant did not fraudulent he represented he was going to make payments in addition at the time of the hearing there was a representation made by counsel that over a million dollars would be paid within two weeks in the court basically said look i'm not going to allow any further continuances have been and would have been the one thousand continue it would have been your honor but it would be different it would be different if somebody were found to have made fraudulent representations to the court or didn't label your client a fraudster but the circumstances are that he wasn't making these payments while he was living a life that was inconsistent with discord humans to the extent that we review the district court's findings here deferentially i'm not sure what your claim of error is i mean  understand you want a different result here but what's what what do you think is the court here the court did not give a rational basis for its finding that a maximum sentence was the appropriate sentence here all the court did really was exercise frustration and by exercising frustration she said look i'm going to give you the maximum sentence and that's what she did you know the government says that the sentence is not shocking but of course it was the maximum sentence permitted by law the was two years right this is not exactly as if you put him in jail for twenty years and this is this is when despite representation representation that discords him it would be maybe it was not and your client was driving a look serious car spending money on other things that go beyond what most people have is their lifestyle well i would respectfully submit that we don't have debtor's prison in this country and the mere failure needs to be accompanied by more not debtors prison where he's being put in jail because he's on able to pay he's been put in jail because he was supposed to pay and he didn't he used money that he should have been you should have been to school or just for looks your use items so so how is this how does this even if even if he shouldn't have spent as much money and living expenses the difference would not have been so dramatic as to have enabled him to pay the full six million dollars why did he agree to pay six million dollars in discouragement if you didn't have it it seemed like a good idea at the time well i think he believed that he could i think he believed that he could pay it but as life happened and events occurred he went to prison for twenty seven months and he was unable to do it it wasn't willful it wasn't fraudulent it happened that way workman is usually the giving back of what you have in hand well he didn't have it at the time yet he manages to spend seventeen thousand dollars on that at hermes wherever that is look at his expenses were high i don't dispute that story his and detours were high yes where they you know the judges first raided by this but not frustrated and emotional sense frustrated in the sense that the law is being flouted well i think that your honor has made an excellent point and that was this was a sentence that was motivated by frustration this was a sentence that was not respectfully rational this was a sentence that was an reasonable under the circumstances only used one example and again i think you're refusing to look at the fact that this is a man who's coming and repeatedly asking the court for continuances and getting done and then shipped and then going out and spending money on luxury items the court could reasonably conclude in those circumstances that the discord from an order was being willfully disobeyed and conclude that that warranted the seconds by here's the issue that i have with respect to what the judge said he said i find no fraud in mr milne's representations that he would make payments i mean she found that he never intended to lie to the court about his intention to make payments and she made a specific finding in that respect so i would respectfully submit that we're talking about here is failure in failure should not amount to to a maximum sentence i think i'm sorry and that's the basis for your thinking that you have a colorable issue on appeal right and the fact that there was no reason with respect to specific deterrence or general de turns to impose a maximum sentence in this case i mean the man hadn't committed a crime in fifteen years i also want to point out to the court that he is a canadian citizen that he has been a permanent resident hundred four he lives here in manhattan he last entered the united states from toronto in two thousand and eight and a sentence of more than a year is an aggravated felony and an  aggravated felony will subject him to deportation when he has made his life here in connecticut for nearly twenty five i'm sorry in connecticut in new york that consequence and sue anyway based on his original sentence it didn't happen then it didn't happen there was no deportation at the time it didn't happen but it could happen based on that i think anything can happen today you know surround thank you thank you may please the court mike mcgarry from the u s attorney's office for united states of america i submit your honor that judge hall chief judge paul made no error in her revoking a supervised release of mr milne the court all the judges seem to have their finger on this case i will point out as your judge mentioned this was discord to me at the time of sentencing mr millen represented to the court that he had twenty two million dollars he it was established and we submitted documents supporting it that from the crime itself he made twelve point one million dollars he asked for time at the time of the police to unwind his investments so that he could pay back the money and then judge burns order that he scored six point two five million dollars by the end of the term of supervised release and that was made a special condition of supervised release and it was in the plea agreement that the prosecutors have any reason to believe that he has this money and could just write a check for well the financials as the court may know from reading the  violation report one of the violations was that the financials that were provided were somewhat opaque judge hall did not find that to be an additional violation but it is difficult to actually figure out what mr marketable understood however at the time of the sentence he said he had twenty two million dollars you could have twenty two million dollars in assets that are not marketable immigrant this is true however as judge reggie pointed out it's not because he didn't meet the six point two five million dollars threshold that judge hall revoked his supervisor lease and sense in the two years it's because he went years and years of making no payments also why was signing stipulations and motions for continuances asking for more time so that he could make substantial payments and then would make no substantial payments and contrary to what counsel said judge hall did not make a finding that there was no fraud she said she was not making a finding that there was fraud which i think is a subtle distinction but an important one she was not making a finding that he didn't die why is that an important distinction because she what she's basically saying is i'm not making a judicial finding that you committed an additional crime by lying to the court which would be presumably an additional crime that he could be prosecuted for it means that she considered that he did not lie to the court that he intended she didn't with this money somehow well he told the court both judge burns and judge conditions of supervisor of release repeatedly and there are two cases the fleming case and the hargrove case which i think are on point and in both of those cases the guideline range was five to eleven months in the fleming case the defendant tested positive for multiple occasions of of using marijuana and admitted to using marijuana nevertheless judge gershon went above the guideline range and gave a believe two years in that case in the hargrove case the defendant tested positive for using drugs asked for in adjournment so that he could be allowed to enter treatment which is somewhat analogous however he did not enter treatment did not complete the treatment and then came back and judge mcmahon gave him i believe thirty six months in that case and i think the court this court said in that case that the judge is not bound in any way by the sensing guideline range and it's solely a function of the district court's discretion i think in this case both judge burns and judge hall gave the defendant numerous opportunities to in essence cure his violation now he was never going to cure the travel without permission which is also another violation and instead of curing the violation in essence by making some type of payments some type of good faith payments he had payments as the court  alluded to of thousands of dollars i think he has monthly rent of eleven thousand dollars he lives in manhattan he does but i lived in manhattan your honor and there are apartments for less than eleven thousand dollars and