morning morning please the court jodie thorpe on behalf of mr alvarez like to reserve two minutes for a bottle this case is about whether mr alvarez should be held criminally responsible for damage a rental car that the codefendant in his case was driving the despite the fact the codefendant was driving the rental car and ran into the back of the car that mr alvarez was driving the codefendant was not held criminally criminally responsible for the damage to the car and mr alvarez was mr alvarez was driving the car a car in front of the codefendant which had undocumented people in  it both cars had undocumented people there obviously in an operation together i mean there's no doubt about that the two of them are working in concert and that you know they're observed that some people get into mr alvarez's car some people get into the other car and then i guess essentially things break bad when the police try to stop them and your client then can't stop in time to not that hits that the tracks right  can you know everyone right there was no i guess training for police evasion or high speed or avoiding tracking or avoiding tire track in or something well there was there was no mr at a high rate of speed which is consistent with the road the border patrol agent also said that he placed the spike strips around a curve in the road that's an age when he one of the e r where he and the probable cause statement and when mr alvarez came around the curve in the road at that point in time the they had never been let up they were not approximate cause argument i mean you seem to your proof you're making two arguments one it wasn't sufficiently close the links in the chain weren't sufficiently close for proximate cause and then you you also made the argument that it wasn't an element of the offense so we know the transportation of the alien involves transportation so it seems like the element of  doesn't work so i can understand the proximate cause here because obviously they were transporting the aliens and one car ran into the other well where there's for the rental car company to be a victim it would have to be a direct and proximate cause and in this case if there is an intervening cause that caused the accident then there's no direct or proximate cause so here are the intervening cause was the border patrol's decision to stop the cars in that unsafe manner against its own border patrol policies without first having asked the cars to pull over or in the traditional methods such as the car the border patrol car that was traveling behind the cars never never let up the car never used the siren your view the intervening cause is the law enforcement's effort to stop the offense from happening so they were trying to stop the perpetrators and you're saying that the method they used to stop them was an intervening cause is that correct is that's correct that's correct so is law enforcement responsible for the damage than a set well i think that would be a civil issue i mean here really there's no question that the rental car company is going to get paid there's contractual liability there civil liability but it's really a civil issue as to as to who pays that money i sort of thought that you were more well that that was secondary but before that you were trying to get say that he was in advised of the restitution and therefore you were trying to that you were making arguments that he was entitled to a jury trial that that he that withdrawing of the play wasn't wouldn't have been sufficient that it was punitive and that i thought those those arguments were what you were making first well yes i do have those arguments and pretty is not applicable in the situation well it doesn't that eliminate that argument whatever i did was really rejected the argument saying that they arguments were pro forma as that seems to resolve that issue just seems directly on point well you know where they didn't adopt any reasoning for that and my argument is based on southern union alene and a printing all combined and there's nothing to suggest that they considered that combination of southern union and alina along with the prime the so i think when you look at the briefing in this case and the fact that in this case the  argument is really paramount because we have the issues of not only the amount of restitution but causation which really should go before a jury well sadly we've held that we can a three  panel disregards essentially the argument on of pro forma basis that you know that's not precedent for this court the there is no precedent for this court as to you know exact reasons that we're raising as far as the rule eleven violation there's you know the court found that there was a rule a lot eleven violation mr alvarez was not advised of the restitution where the district court made the error was that the district court said that not imposing restitution was a remedy that was is not available for a rule eleven violation and that's just not correct where restitution is discretionary it is a remedy that is available and so i'd ask that the court to remain on those grounds for the rule eleven issue and then the other issue you know the district courts say it wasn't available or just that it wasn't going to do it i'm looking for the exact language here on e r page twenty one lines twelve to thirteen the district court says the remedy requested is unavailable for an involuntary then as far as you know the other issue as whether the court could have even imposed restitution as a condition of supervised release where restitution constitute punishment and punishment and rest and the need for restitution are both excluded as considerations for any imposition of a term of supervised release our argument is that it cannot be imposed because we now know that restitution is punishment well it's not more than punishment though indeed punishment is the minor fact that the supreme court was explicit in saying that so why can't restitution be imposed for other reasons not for punishment but for restitution to make this injured party  well with you look at a he the the court doesn't indicate that it can't have that it has to be all punishment the court that it might circuit panel held that conditions may not involve punishments and that's john and mime isn't punishment there's nothing that says in it that would seem to rule out restitution altogether because the supreme court's comment suggested that punishment works in the background always that's why the excessive fines clause may kick in so your argument seems to me to lead to the conclusion you can ever have restitution because there might be an element of punishment they are and punishments not permitted as part of supervised release well in this case the language that the district court used shows that the district court was punishing m by imposing the restitution the fact that you said a few minutes ago the right of car companies going to get made whole why isn't that the judgment of the court that the proper party to make them whole is the defendant as opposed to the border patrol and that has nothing to do with punishment or just who should who should bear that cost right well that sounds like a purpose of restitution separate apart from punishment well that's a civil consideration as to whether the odds are restitution usually  to make the injured party whole help however in this case an imposing supervised release it's at it's explicitly excluded restitution is excluded from imposition as a consideration for imposition of a condition of so understatement is excluded there's nothing that says you can impose restitution for purposes of restitution under thirty five eighty three d where the punishment is excluded a seven is also excluded which is the need to consider restitution for a defendant i see that my  please the court daniels up on behalf the united states your honor in the united states the money in the united states that's in this court held that the supervised release statute on ambiguously authorizes district courts to order restitution as a condition of supervised release there's nothing in the supreme court subsequent decision and para line that is clearly irreconcilable with that prior decision and the district court in this case was authorized to order restitution let me ask you this that it would appear that restitution wasn't mentioned when due to the rule eleven on under rule eleven so is there how do i know from the record that the district court did not misunderstand what options were available and because it's one thing to say hey you're going to pay restitution and so that you know homey don't play that we're not we're not having that situation so if you want to withdraw your play withdraw your play if you don't like it and he didn't want to withdraw his plea but what if i think are as sure as counsel for the appellant argued same well the district court just didn't seem to understand that it had the option not to impose that's one should follow the other there's no indication if you read the entire statement of what the court said is not the case in that he felt that he was obligated or bound that he had to give restitution that it was mandatory he simply said rightfully so that there's a significant disconnect between someone not being advised of a ruhleben right and what the rental car company should be paid for the more this court has held that as long as the  a court didn't understand that it had the option of going forward and not imposing restitution as a response and you've made an argument as that the district court understood that by its actions even though the just court didn't specifically say that so as it's an excellent points if you can look at it one when you can look at it the other way who wins well i'm not sure that that is i the entire point of the hearings that the court held with to decide whether it could even give restitution in the first place there was never any discussion at any point about restitution being mandatory or that the court didn't have the discretion not to give restitution i guess what i would sort of you know and maybe if i were in your position maybe i would say well the district courts pursuant to understand it's just pression you know absent and a showing to the contrary like an argument i might make if i were standing where you are if i looked at it as an expert boies then even if it is i don't know i'm that's i'm sorry that i think there's nothing in the record one way or the other  the court felt that it was bound and felt that the didn't have the discretion to order the restitution here and i would agree your honor then even if it is equally balanced we have to presume that the court when he's holding these hearings has understands his role as a judge that he can as a matter of discretion order restitution or not order restitution in fact you asked for more than what the court ordered and i don't recall offhand your honor but what  temporarily or factually in this case the defendant's crime of transporting aliens was directly caused the damage to the vehicle even in cases where there was an intervening cause the courts have held that the only showing that we need to make is that there was that it was directly related that the intervening cause was to real directly related to the criminal activity and here obviously the border patrol stopping criminal activity is directly related  on that point throughout the opposing briefs make frequent reference to the fact that there's there's no evidence that he was speeding that this was a blind curve that they were the border patrol was negligent none of that's in the record if you look at the restitution at the initial sentencing hearing it was only after the defendant himself offered that he needed to pay restitution and the court asked the united states for supporting documentation and even if they had even if the government had made a are all the issues if unless anyone has any further questions it could be not you know where we left it i guess four seconds so you can have a whole minute it's a gift i think he just wanted to point out that it is in the record that the spike strips were around the corner if you look on page  not slow down enough to avoid the spike strips because of problems tailgating which are to the second driver following too close well i think the second driver had the same problem the second driver comes around the curve as well and then sees that there's a car says she braked as well but couldn't stop it was first thought of the first car stopped the second car didn't sound like the second car was trailing too close the first car stopped because the spike strips stopped it that's how the first car stopped the second car comes around the corner and then there's a car stopped in the road and although she tried to break she could but ten evenly having been an old traffic judge many many years ago you're supposed to travel at a speed that will allow you to respond t things that are in the road that like there could be a box in front of you there could be any number of things and if you're going around a corner that is blind that you're not supposed to go zipping around and soon mean that nothing would be there so if they're all this is all part of let's get the seven people out of here and there an essential a like a like a motorcade as it were an alien motorcade why now why is it that they were both going too fast well well again if the codefendant was going too fast and was following too close behind it really doesn't make sense that the court would impose restitution for mr alvarez and not for the codefendant who was engaging in those you know