when i may please the court my name is peter wolf i represent mr annoyed in this appeal this is what one might call sort of a fact based appeal has to do with the restitution schedule cep and the district court and  the problem as we see it is that the district court in making what it called projections of mr noyes earnings that should have been and maybe were based on the record before it made projections that made no sense in terms of what that record actually showed counts so i'm curious to know how that is prejudicial to your client and that the ultimate restitution as i understand it is a percentage so if your client earns nothing he pays nothing and ten thousand a pays a percentage of hundred thousand he pays a percentage so more prejudice so the problem comes between zero and one hundred thousand or to take a more realistic approach between zero and several thousand on a monthly basis and the reason is that if you take a percentage of the gross income based on the projection it might make sense if you know mr noir is making three four five thousand dollars a month it makes a lot less sense of he's making eight hundred dollars a month three thousand dollars a month and the other problem is it kind of reads out of the restitution statute the authority for the district court to impose nominal payments in the appropriate case and so at the point where mr noisemaking no money then there's no difference between a percentage of nothing and a nominal payment maybe even the percentage is more advantageous in the sense that eight percent of zero is still zero whereas a nominal payment of you know ten dollars to five dollars while he's unemployed actually impose a greater obligation but the problem is once you get beyond that point and a person has as mr annoy had a lot of problems expenses medical expenses tax debts obligations of child support and and so forth that setting a percentage may make maybe an impermissible or improper burden given the circumstances and invite view is that so is that kiss is complete that your your your argument then is if he's only making i guess that's very loud if he's only making a little bit of money it might have been error to do anything other than took the order in the restitution is what you're potentially arguing so first of all the amount of restitution in total are the facts right but if i think those aren't income yes yes i thought appreciate that but i'm really struggling to understand what difference this makes to your client on the one hand it seemed to me that you might be unsightly arguing that the problem overage was going to be picking away each month when he really didn't have income such that at the end of the supervised release period maybe he was worried that that would be extended or but now i'm hearing you make a really different argument this morning so you've you've lost me so the argument is that in setting the schedule of payments which is the district courts a duty and can't be delegated the court needs to act on the facts that are presented to it at the time it's making that determination i thought the judge went through the really quite clearly and it seems that that you're that the judge knew exactly what the situation was with your client and went through all those facts you've argued this is a very very high level of generality and in a particular case it seems to me that there might be some merit to what you said but given given how carefully this judge looked at these facts what's the problem here well except that the facts were this that the time that the court was holding the hearing mr noir had a felony conviction that's not conducive to employment but had a felony conviction that was for likely that he would be able to find some kind of employment in the future took into account that he'd had charge of his kids and his kids were back with his wife that he'd had a responsibility for an apartment including internet and other things but now he was living with his aunt and she took into account all of these things where's the where's the error in what the district court did because there's no basis on which one could say that one should pay a percent of one's income when at the moment the courts making that decision he doesn't have any income and when he's argument is your argument council that up that imposing a percentage is always wrong no imposing a percentage is always wrong when at the moment you're doing it your dataset is the person has no job is living on the charity of others but don't know what the expensive part is almost always going to have to make some kind of predictive judgement even if even has been fully employed and had been handsomely compensated he would have to have made a finding that he was likely to continue to be handsomely compensated to keep the job he's in which is presently employed that would be true in every case but it's not that hard to change it that's the point is that now if that's true then that's another that seems like another reason why there's no prejudice here because let's say there had been a ten dollars payment and then he became employed we'd be back in fact where we are now i don't think we would be here at all if that event we'd have the same order in front of us just in a different point of time well that's true but i think there's some of the district court do it right the first time which would and since it can be changed either by agreement of the defendant because you can file of twelve c modification of supervisor lease the ten degrees anytime and if the senate doesn't agree the matter can be presented to the district court by the probation officer and the hearing process of the taking as long as five to ten minutes would resolve the matter so between now and the time your client gets a job let's say it happened and there's a hearing to change the rate at which he's going to pay this restitution which is what the judge contemplated at the hearing would happen between now and then how is your client prejudice he's ordered to pay eight percent of no income right he's well i think that there exists a problem when the district courts follow the wrong rule in posing a restitution but i just want to give you one more chance because i am missing it how is the prejudice between now and then there is a well if you consider prejudice that you know just the question of payment of money then maybe the answer is none but if you i don't know i don't understand that answer because and i i this is a sincere question and i'm worried that i'm missing something at the end of the supervised release period or something if he meantime that you're going to prejudice him later and i don't think that's an issue ok achievement all right so let's say in six months to get said a job that's an arbitrary sort of hypothetical and he comes in to have it adjusted because now we know what his actual income is going to be and they pay good at that is your argument of it that there's a problem then because eight percent is an incorrect percentage the problem is we don't know whether eight percent is right or wrong because we don't know what his actual income is going to be and more importantly we don't know what's actually expenses are going to be in the statute itself requires the court to take into account the defendant's obligations to support his dependents  district court of done what should she have imposed i think the district court should have imposed nominal payments of but it nominal payments might have been much greater than what he's currently obligated to pay council so that you would have been right back up here saying he can't possibly pay the defendant should be ordered in this case to make nominal payments until he became employed at which point either he had his probation officer should have agreed as to some amount of restitution or if they were unable to agree the determine projected earnings right so what's the point of doing that in their heads in the context of pretending that we're not going to sign anything until we know all the facts  seems to me that it didn't anticipate some level of educated estimate well that's but there's two points that we a situation can come up and one is at the time a sense in what has to come up and generally the person is being sent to some term of incarceration so the court knows ok this guy's going to prison for some amount of time so we have to make some projection of his earnings and set a schedule now because he can't delegate it to the bure prisons and he can't delegate the probation but when it comes up in this context and the supervisor released violation the court knows a lot more about what actually happened to the defendant and when you know the defendant in front of you is unemployed is living on charity of his relatives and has legally obligated spence's for dependent care and so forth that he's unable to meet to just say based on that ok well eight percent and don't worry by the way  nothing is still nothing it doesn't deal with the problem of what happens when he gets employment unless he instantaneously gets employment where it was obvious that eight percent would be ok because it doesn't take into account his actual expenses and his legal obligations to meet those which are also part of the judgment and in the order of supervision which requires the defendant to pay to towards the care of his dependent children may please the court i'm ron johnson i'm here on behalf of the united states of america with respect to this case your honor we believe that the court has kind of crystallized the issue there appeared to be a distinct disconnect between what the judge was trying to do and that was project forward conditions that the defendant needed to abide by his supervised release and his circumstance at that particular moment the judge took into consideration that previously because this was a revocation proceeding previously he was ordered to pay ten percent of his income after this proceeding take into account the circumstances that mr wolf brought to the court's attention the court did a detailed analysis and judge him always in effect excuse me an excellent job in a twenty six page order so this is not the the judge was absolutely correct and issuing an order for eighty percent which was a reduction and not requiring payment until he was employed the position that was taken below was taken by the assistant the trial attorney in the case and it was during a process through which the court mr wolf that attorney and our office was looking at the restitution provisions and how they applied to individual revocation cases and sentencings in the district court i believe that that attorney  became confused and did not fully appreciate the thirty six sixty four s two provisions specifically the projection in the record she repeatedly brings back the point that the person is engine i don't see how you can project but the judge in this case made the ruling in sentencing and this is my explanation and any sentencing if we were before the district court and we recommended as the assistant did in this case thirty days incarceration at some point the assistant says we recommend thirty days the judge didn't give the defendant thirty days incarceration the judge gave him one day as a matter of fact he didn't even serve a day judge it was just my way it was very considerate of the circumstances let him report to the marshals consider it a day and then go to try to earn a living and make restitution payments now could mr wolfe have appealed that could we have appealed that we asked for thirty days could we have said that we disagreed with the court sentence objective at that point and taken a position usually we we don't usually we come in and we end up regardless of whether a sentence is harsh or or more lenient we support the district court at the point in time that the judge made the ruling we made our position known and the assistant said she believed that he was absolutely indigent and incapable and she harped on the fact that there was a negative cash flow she wasn't looking at the projection when we come to this level the sense imposed by judge molly with respect to the sentence restitution payment schedule is now before this court and the standard of if you apply it is abuse of discretion under that standard our office and the department can't say that the judge is wrong so we're here because we believe we need to support the judge's decision despite the fact that our assistant at the trial court level objected to the imposition of the eight percent because she believed that the defendant was not going to be capable of paying it so yes we did change our position but we we believe at this point that we're in a different procedural posture where before the court the question for the court here is whether the court abused this discretion and issuing the restitution payment schedule is there any way that the defendant is prejudiced i have by having a number defendant or two defendants in that case there was approximately two million dollars in fraudulent proceeds that they got they returned according to the facts in the opinion approximately five thousand the court in that case the district court ordered five hundred dollars restitution per month it didn't make it didn't distinguish and say we're going to do to pass on a percentage basis it said we're looking at your obligations we're looking at your earning potential and we think you can pay this and this court review that and said it was not an abuse of discretion so we do believe that there are going to be circumstances where a set number can be upheld on appeal and were a percentage to be upheld the benefit of the percentage forgive me for interrupting but my question went to prejudice so if there's this number that's been imposed and he doesn't get a job let's say and there's an average accruing the only thing i can think of that it's possible i suppose that that someone could if there was such an allegation and if there was a finding that that he wasn't making good faith effort to make the payment that tensely fit the period of supervised release could be extended or something on the back end could come back and but if that's the case i'm not sure how that would be right at this point i just can't think of another way this prejudice this event so your honor if the defendant's before the court asking that nominal payments be made interest going to interest will accrue on the outstanding balance at some point and so that's going to occur and the defendant will have to pay that money if the defendant pays a percentage now interest is going to accrue and the judgment remains the same i don't see how the defendant is prejudice in terms of monetary contributions towards restitution i appreciate that an unpaid balance but it's all sort of a fiction that if you're if you're right that he doesn't have the income and there isn't a finding that there's a lack of good faith and in paying what it is he owes so it doesn't appear as if he will suffer any prejudice because when he's unable to pay and he's without employment he pays zero when he is employed at such time that he is gainfully employed he will pay eight percent of his gross income and and his expenses have increased significantly at that time sammy cahn for an alterat judge molloy several times in wrestling with this went through that process and at multiple hearings was very concerned about that issue and she said in several different places that you need to tell keep in close contact with your probation officer you tell your probation officer if you're having difficulty we can come in on a modification by consent or we can have a hearing on the matter and that would be eighteen c thirty six sixty four k that provision is specifically should be read in conjunction with thirty six sixty four f two which is the projection so the judge projects makes a best estimate of where they will be and then probation through the constant monitoring has the ability to come back to the court or any of the parties can bring the matter back to the court for a revision of the payment i would just like to to note that the the court in this particular case went through again a comprehensive analysis of the factors and the district co utilized the correct legal rule or standard in applying the rep in reaching her restitution order and that she applied it in a way that was logical plausible and supported by the inferences in the record and under hangs and then  there is no abuse of discretion and we believe you should affirm the court's order and we recognize that we did take a different position although however this court can entertain our position at this point contrary to what the consul has argued in terms of waiver in a stop or because we didn't prevail on our argument below we under armstrong and  defendant has suffered no prejudice and when the issue presented is purely one of law and either does not depend on factual record developed below or the pertinent record has been fully developed which we believe it has been here the court can entertain the argument and affirm the judge's order and you counsel will  in looking at as a substantive matter the brief filed by the united states in this court the amicus agrees completely with that brief and has almost no disagreements with the substance procedurally however the amicus which represents victims nationwide who experienced trauma every time they drag back into court to see that their case has not ended and their anxiety over it and their losses not been handled frankly they're not particularly happy about the procedure the procedural posture of this case because they think there's no jurisdiction they think this case amounts to the defendant getting two bites at the apple when the defendant in twenty chan negotiated his plea bargain he specifically waived any objection to the sentence or the manner in which it was imposed and he got quite a bit for it at that very time as the defendant's current brief points out in his opening brief and his reply brief he already had negative income stream defined it makes a point that it seems to me that the defendants m o is that he operates with a negative income stream  and that's clear when you look at the record the record that was developed here at the hearing he owes eight hundred thousand dollars to the internal revenue service but he hasn't paid it he owes five thousand dollars in medical bills but he's not paying it he listed no expenses for child support his children all living with his ex wife and apparently there's no child support order involved he has always nine hundred dollars on the telephone it seems like the only creditor who actually took action was his landlord who was  victim everybody else is left holding the bag but he's always operated with a negative income stream yet he did not decide to appeal that at his original sentencing  now the united states and elsewhere your if there's been an appeal waiver here well i think that his way out of here at this is not here on direct appeal this case is a it's not here on direct appeal and it is not like the booth case procedurally which both of the parties rely on the booth case was a direct appeal there was no plea bargain and i totally agree that if the defendant wanted at the time of sentencing to complain about a percentage of his earnings be imposed being imposed to pay restitution he could have done it at that time just as in both he chose to accept a percentage of his earnings at that time and now the way he wants to bring it up and get a second bite at the apple is he doesn't pay and he lies to the probation officer while when the probation officer filed two charges on this probation violation the first charge was that he hadn't paid a percentage the second was that he lied to the probation officer the defendant pled guilty to the second charge there was no action on the first charge the judge imposed one day of incarceration only on the violation of lying to the probation officer percentage of restitution was not a basis for that violation so how come the court reached it well defense counsel brought it up all the parties with there and the only way for legitimately brought up is as an eighteen u s c thirty six sixty four k modification and that was always arguments made about why it should be modified and actually the judge did the judge gave a reduction well first of all a reduction is not adverse it's not  us a reduction but not as much as you think your title to where that doesn't count as adverse eve even assuming that the court views the fact that any percentage was imposed since we heard here that's the argument that's being made no percentage should have been imposed at this time the position that the defense council is taking now we summed up in the last sentence of our brief is called put it off let's put this off well that is not the some reason well i think it's both your honor i think generally i think the court has to be aware that we could find no case in the parties have cited no case where thirty six sixty four k modification is appealable and in this case at this defendant has changed jobs over time and he's changed a lot of times there could already have been four or five thirty six sixty four k hearings and if if that would be appealable and there's no statute that makes it appealable it would come up to this court five six times in the same case how does it become appealable a defendant says i'm going to take an action that's going to result in contempt he doesn't pay judge holds him in contempt and punishes him and then the punishment the contempt punishment makes it appealable but this court hasn't done that this district court forgave various times when he didn't pay low what it specifically said while you have no job the percentage are going to be paying is zero set it in the record so it was clear that the court was not punishing him at this time but that the quote was recognizing that victims have a right to know that there's going to be some progress and that's because the crime victims rights act which is thirty seven seventy one eighteen u s c thirty seven seventy one a six requires full and timely restitution can't be put off and the restitution statute the procedure agency thirty six sixty four which we're talking about refers to eighteen u s c thirty five seventy two d to both sides of mention that too will be to also says the judge shall order restitution in the shortest time possible and that doesn't allow for putting off restitution the people who are clearly were made homeless in this case with the victims because they lost their home and they lost their seventy four thousand dollars of equity in it and that's not millions of dollars which realistically could never be paid back that's an amount that they could get paid back although they haven't been much progress on it because so far the roughly fifteen thousand dollars that's been paid back just barely covers the interest that's a growing  fact it doesn't cover the interest that's a growing by statute and the judge did not waive the interest they'd like to get their equity back so maybe they can buy a new house but to just put it off leaves them with respect to a fraud that occurred in two thousand and five it leaves them in two thousand and sixteen with nothing and the reason we're here is because victims manage to get mandatory victim restitution act  is thirty six sixty four that crime victims rights act eighteen us c thirty seven seventy one and they want to support judges like the district court here that said yes there isn't going to be delay we're not putting it off this is my order the day you bring home a salary a percentage of it goes to restitution and ok i have listened to you i listened to all the or various other debts that you haven't paid they don't detract because you you haven't given me any indication you're paying them but i'm still going to reduce from ten percent to eight percent and the defendant has the right actually he has the burden if you look at thirty six sixty four iii the defendant has the burden when restitution said issue not the victims not the court not the government to argue that the restitution should be changed so if the defendant want to come in when a circumstance changes that's fine but putting it off the case isn't particularly helpful for resolving this matter because the court this court in both didn't articulate any of the factual circumstances upon which the lack of any abus discretion opposing five hundred dollars a month was concluded by the appellate judges and i just looked and none of your honors were on that panel so i think we all don't know what the facts were in booth and it but it's obvious that it's abuse of discretion is the standard we've said that i think this just tones argument that there's no final judgment here which could be appealed which he sort of implied we may just wrong there is a final judgment it was it's in the excerpt a record at page two thirty nine if i'm not mistaken and that was a judgment on judgment in a criminal case on the revocation i don't see why that's not a e under section twelve ninety one of the u s code just like every other final judgment is and and the problem that judge moore way was trying to deal with was that the original judgment back in two thousand and ten impose restitution the restitution payment schedule in a way that clearly was improper given that this court's later decisions in the coming case that the case we've cited because it told mr noah he had to pay according to the collection policy of the united states probation office and that's the very delegation that was the issue that this court said in gunning you can't you can delegate so just mo was trying to do the right thing in this revocation when it was brought to our attention and that you know the earlier schedule wasn't legal anymore and so she had to do something i don't think ms lee who  say in this case was confused i think the government just changed their view of whether they want to support the district court or not but there is a different question the house and the district court they issue for  test for you is what do we think use the best outcome and the issue here given the range of discretion that the district court hand even if it wasn't the preferred outcome was has a different i agree that's different task and actually the government and i agree on one thing which is that the peel waiver provision provision the original plea agreement that applied to the sentence imposed in two thousand and ten isn't resurrected to bar this appeal but i think there's a difference between saying to the court district court well of course iran has discretion this will be our view we agree with the defense counsel as to what the outcome should be in your discretion that is exactly what they said they said we object when judge molloy indicated what she was going to do which is the same thing i said and but you know maybe it's neither here nor there that particular point i mean the court has to get to the merits of this thing i think that the district court's order in this case on the factual record it had at that time in twenty fourteen when these hearings took place was itself abuse of discretion not to be reversed on that basis thank you