panel anderson and to reserve a minute or two of my time for rebuttal with the court's leave the underlying issue in this case is one of restitution but it turns out the more interesting issue from a legal standpoint is the threshold question this court much for must reach which is contractual obligations of the agreement and in addition the court found that there was insufficient insufficient evidence of a breach and those two arguments are separate but related to begin with the government in their answering brief does speak that this objection to there was no objection to that question for each and therefore this course you consider that issue and we submit that is wrong for two reasons one both legal and two factually the easy one is the factual issue was this object this matter the second question is doesn't matter legally plane air doctrine generally applies to a question of an attack to a judgment fact criminal defendant whether or not error was preserved when a criminal defendant is trying to over turn a conviction or sentence here what we're looking at is the threshold initial jurisdictional question of whether or not there's a valid weight room with fuel costs that puts the onus of the government to come forward and argue under contractual law principles that there is a valid agreement even under the requirements of the mandatory victim writ restitution act that they can only bring in restitution that's related to the scheme that's pleaded to you here essentially in the original government indictment the government lets you separate schemes one involved the clients use of fraudulent names to secure mortgages and second mortgages on homes and that's the bank fraud related scheme the second scheme which is alleged to count five talks about access to vice fraud and the the court may impose any restitution relevant to the scheme of the county conviction an argument here is that there are two separate schemes my client only played the one therefore restitution only flows from the last incurred by the one scheme and that would be our argument on good morning daniel she's the prosecutor who handled the case below i submit to you that the analysis that should be used to resolve this issue is first whether the government reached the applies as to whether the defendant should have raised that issue below and if you find that we have breached the plea agreement then the next step is what's the remedy let me go back to that very beginning defense counsel van commenting argued to the court as to the lack of the quality of evidence to be able to prove that as soon as he was done the defendant stood up and said your honor here's why the government's always right only they he didn't even object express a gesture but going to my point here at that point when the judge says there is insufficient evidence to find criminal conduct in that same breath or the same statement the judge said i find this question a contact number one number two i'm going to publish the high end of the guideline range at eighteen months and number three even if the government were to recommend low and i'm not going to follow it at that point in time would have done me any good finding that there was insufficient evidence only when he made that finding in that finding he says i make the finding that there was somewhat equivocal evidence and then he says now i don't know how you want to look at this m by the government it's pretty hypertechnical argument you know here you have a defendant who is not charged with any crime this is this conduct you put on was not he was never charged with a correct he didn't charge and state didn't charge and all we have is hearsay evidence that the person from one of his business associates who come into court in the business associate for whatever reason doesn't appear and he leaves a phone messages says that it was all a big misunderstanding and you want to say all right we want to be relieved of our judge knew what my recommendation would be if he already said your recommendation of lowland i'm not going to follow it so the defendant got the benefit of the bargain in the sense that even had i made that recommendation the court wasn't going to follow of the obligation you get to enforce it against him and he therefore waves all rights to appeal so that's the law that's a failure of consideration it seems to me under traditional contract analysis it's so why now let's assume i think we understand your position or the government's position on that if we do reach the restitution order and let's assume that the plea agreement is void where does that leave the and the remedy then should be construed in terms of fairness to all parties the court doesn't pass to relieve the defendant of its obligation to pay restitution on everything but  sentencing when the court said even if you were to recommend the law when mr cheesed i'm not going to follow i'm going to give you eighteen months that point then the question becomes did the government's breach harm the defendant  possible way the answer is no and because it's no the appropriate remedy then is to treat the parties fairly leave it as it is where the restitution order should be at the hundred and thirty seven thousand dollars figure what's the difference in restitution pay ok with respect to my analysis of the timing of my obligation and i was there with you just simply notes and i rely heavily upon the analysis of united states versus  lot of them are not the situation but situations in which there's been some remorse on behalf of and usa about making a deal and come in to they discover something like this and they use it to kind of shade to the sentencing in other words  that you shouldn't be released but i'm going to leave you anyway now that's that's course probably not necessarily yours so i would take it personally and then you know i sit back and one of my policies as a prosecutor and as attorney is never to interrupt the court i let the court sentenced without saying i don't interrupt  as i understand it it's that there's an obligation a contractual obligation and there's a precondition and people can be in breach maybe technical groups would breaches brief and so that's the legal we just want to briefly clarify our position regarding the actual amount restitution were claiming at that issue we detail that on page thirteen of the opening brief are we we claim approximately sixty thousand two hundred two dollars restitution is implicated by that the  restitution is appropriate tied into the mortgage scheme and we are challenging that the sixty thousand dollars that issue here and secondly just to clarify our position is that the plea agreement is really an oldie a non factor an analysis at this point we're not asking for to the government's argument that this was it would have been futile and that the proximate cause of this is not the government's breach but it's the court's failure to make the appropriate court didn't make the necessary finding instead went ahead and said even if you had made the recommendation even if you had government performed would have made it difference are you saying that the court was without your stiction to point disregard the pl the court rules against you the government relies recently relies on that on that ruling and presents the evidence you still raise on appeal and ask for a reversal it's no different here than the issue of breach was litigated the court made it and wrote of this ruling on the breach and we're arguing now that