the next case on the calendar is united states b gallon it's father mother and son loss within the offense of conviction if it was not then the restitution order exceeded the statutory maximum and the government breached the plea agreement by advocating for a higher restitution amount  ask you a practical question with this business about the the amount of the restitution and whether x should have been considered i forget her name this is over about four or five hundred thousand dollars this is worth an appeal with is this just your hook to try and get thee to try and get a recent incident judge korman i believe this circuit is held in case one case that comes to mind is united states vs marino montenegro that even if it's just court exceeds what the defendant's right then his rights have been violated i don't think it makes it i don't think it makes a difference if it's a dollar or if it's a million dollars we modify it could we modify the amount of the restitution to conform to the when you are saying is that that itself is a basis to set aside that interest to reverse in effect because the judge was exposed to a passionate victim impact statement and therefore it must have affected the actual sentence so we're really not talking about four or five thousand dollars when you really want his is essential he a new sentencing yes and that's what we've asked for in our brief that that the reason why we're entitled to it is because the government breached the police women by presenting this victim as some as some as a victim here i just wanted to get to what we're really looking for so determining whether the voluntary loss was within the offense of conviction and whether this person was truly a victim is not that straightforward is the typical case because the government agreed that it did not have to prove that all of the losses incurred by golan's clients were the result of fraud and the the got the government acknowledges that the majority of the clients identified in the restitution order were not victims that's a day fifty seven while the offense a conviction can include victims that are not pertaining to an earlier investment moreover even assuming that this investment was within the temporal limits the plea agreement recognise that not every client within this period of time was a victim finally there's nothing in the record in anything presented by the government or the victim that this was a situation where golan defrauded the venturis as opposed to simply an investment that had gone bad that's the fact of the fact that your client agreed at  invested i understand your argument that he wasn't saying it was part of the offense conduct but your client was at the sentencing and his lawyers at sensing in both agreed to the procedure that the district court employed so i think it would be wrong to hold against the law on his failure to really not go along with the procedure at that point the government had years to investigate this matter it came in at the eleventh hour and fifty ninth minute with supposedly a new victim th was in the gulf and had lots of records in this case so they certainly knew about this person the p s r indicated a list of the victims the them was this person was not within that the government didn't object at that point and say we have an additional of a victim and you have defense counsel is really arguing for a downward variance and now has to hold that against him because as of course been pointed out this is a loss of you know four thousand dollars to come and say oh don't look at this now it's it's i think it would be improper to do that because you're putting the defendant in in a in a bad position he's coming he's asking for a downward variance but the first time the first time that argument is made  a plea agreement has been breached and this is not a part of the offense conduct and this was done improperly is here on appeal it was also time after the senate saying part of the problem was as i did not represent to the in the district court that there was certainly a lapse that happened there because i was never appointed in this record i believe the defense counsel was relieved and you see what happened just even in the court in the with respect to the court's order you know adding the names of the victims and i never got a notice of that was the first time i learned about that was when i got the government's brief and they attached  so this what he called the victim when there was no evidence but there was that he was good morning may have please the court my name is tiffany only and i represent the government appellant here on ars it is significant that at the time of the sentencing mr go on who knows the facts of the case in addition to what the government knows and knows every individual that who who he had procured investments from he did have thought for to do to say wait a minute surely moyo that was legitimate then you know that was or either outside of the time frame between two thousand and nine and two thousand and thirteen he could have said i have she never invested a single dime with me and whatever she invested was all properly paid back indeed he had counsel with him when judge tracy proposed that with respect to the restitution order that they would say it's subject to whatever can be provided my by mr golan that was mr golan's opportunity to say i don't owe eleven thousand dollars i only x amount and here's the paperwork to show it and he never did which would make of the fact that the are the allegation that the government had all relevant material before it in entering into the plea agreement and that this was not in fact can a newly discovered evidence that there was there's an implication kind of bad faith in raising this after the fact because we do have two different cohorts we have the victims and then the people who were agreed to as having suffered some kind of loss that be subject to restitution order correct i would just point out that even the defendant's own statement as to how mr golan kept his records that the search warrant yielded a lot of different types of paperwork and not everything could be put together i know in speaking with the attorney who handled the case mr van sherry only came about after he had seen news accounts  papers that's when he kind of raised you know raise his issues and the government was unwilling to to automatically say ok someone has walked in and said i'm a victim without looking further into whatever they had and part of the problem was mrs malloy's name when she had invested with mr golan was malloy and mr van cherry had a different name and so there were there was there had to be some looking into before they were finally can you know assured that really miss mrs malloy did have a valid claim and that that did not come about until pre sentencing you're saying the piece papers were too disorganized to kind of place any burden on the correct correct and you know certainly if we had all the information and that's why in the go shooting with the defendant in the factual basis week knowledge that there could be potentially more victims we said at least you know in terms of the last amount that we counted for the sentencing guidelines we said at least with respect to restitution and the plea agreement says pursuant to title eighteen the parties eighteen relevant provision the parties agree that the court shall require restitution in the amount of specific amount to be paid by investors as part of the defendant senates and then you come in and you argue for an amount above that why isn't the most natural reading of that of the supreme and that you were in breach by advocating for a figure above what you'd agreed to now because this is this is one of those ideal circumstances that falls within our rights and reservation paragraph which is paragraph sixteen d in that the government reserves the right to modify its position with respect to any sentencing recommendation including restitution in the event that including restitution just as sentencing recommendation in sentencing factors under the guidelines so why isn't the most natural reading of that provision that it's talking about the guidelines and that you didn't make any such reservation with regard to restitution no i think the natural reading a sentencing recommendation includes factors that is i believe you know defendant to serve x which is you know different from saying and deserves a fine of why and deserves a restitution of this i mean this is this is clearly this is what we intended with respect to this paragraph because circumstances particularly victims in a fraud case they will come up sometimes you know even despite our best efforts to try and make sure we have everyone accounted for and so this is you know this is why we have the rights and reservation there in order to account for this possibility and i also ask we've said that absent a stipulation a plea agreement the senate's in court can award restitution only for losses directly resulting from the conduct forming the basis or the sense of conviction and here that the district court made no finding with regard to that for the van sheri money  in which he owes the moyes as part of his scheme i mean so there is no plane error here because we're just where does he does admit that they are victims of the offense of conviction as opposed to investors that that with him that he may owe some amount of money to less than the one alleged well i think you know if you read in total he's not disputing the fact that you know that she is entitle to restitution in total it's basically his main point is that it shouldn't be that big which is on a fifty a like that's how he concludes so he doesn't agree with the amount that's being submitted by the van cheri dollar amount that i think this is in the plea agreement that was resulting from the offensive conviction if this is in g n a t of paragraph four he defrauded a total of eighteen investors out of a total of one hundred eight hundred twenty one thousand nine hundred twelve dollars and then at least thirty eight investors have invested money and that they are presently owed at least one million ninety eight and so on so there seems to be two different groups here  are ways of tallying the restitution amount and one is more tightly tied to the conduct charged than otherwise it's you can get the second number seems to be just by way of agreement and it's a little hard to tell when and what went into that pot so how do we know which pot is boy ends up in i think it's you know b because of the way the government basically stated that  moore i invested in the two thousand and nine if you look at if you look invested in the timeframe in which those who are outside if you look at  four the losses really tied to closer to that two thousand and nine two thousand and thirteen time period there were investors prior to two thousand and five and the reason why it was tied to this time period was in two thousand and eight mr gone basically i believe had been divested of his responsibilities under finra under the financial investor industry regulatory authority so he was no longer a securities broker at that point in time and so therefore that's that's where the time frame is is somewhat captured people before the time people who invested when he was a registered broker you know there could be an argument that you know the line was that these were real investments but certainly as to post two thousand and eight when mr golan was no longer a registered broker we believe that that's when the fraud truly started jurisdiction to do that and you know basically acknowledges that the breakdown in terms of the victims had not been properly filed and i think that's important you would see that as simply a clerical error it is a clerical letters from other victims and he talked about how some of these investors you know some of these funds were meant for sending their kids to college or you know it came at a time of retirement so these sort of these were all it wasn't just the band cherries the band cherries were i think representative because they actually spoke in court on the day of sentencing but there were other victims in the courtroom too or acknowledged on the record on that day too so i think he just cited the bench areas as being representative of all the letters that he had received from the victims and the victimization that they suffered so i don't believe that the van cherries were given any greater weight because they spoke they were just symbolic of all of the other letters that they had given for this class of victims who had been impacted by the con the government says oh golan should have said it at the time of sentencing that these were older loans he did say that he said these that's a fifty seven i don't recall the exact amount of tool loans but i so he did refer to that he referred to the fact that he believed that these were paid down in a way that was different from what was indicated by the venture is but i think more importantly if you search through this record you will never find a statement by the government or by the venture is saying that this was the type of investment that was similar to the relevant conduct there's no evidence in this record that the bench cherry's money was used for something else that's the difference if you look at the plea agreement i'm having difficulty understanding the argument that it was error for the district court to hear of and sherry's testimony however i mean setting aside whether there was a mistake about the findings with regard to restitution why wouldn't this be relevant background character conduct information the district court has broad discretion to hear it any information relevant sentencing so long as lawful not unlawful but it's true th completely free range there has to be evidence then trees were presented as a victim and the question is were they a victim the only way they were victim is when if it was if for example mr gillon took that money that was given to him and used it for another purpose if it was just as the government said like these other twenty other victims then he was not that we were just he couldn't pay the investment when bet and he couldn't pay them back that's not a victim and therefore the court shouldn't have heard it and the government points to the plea agreement to say oh there was a difference between the temporal scope if you look at for paragraph four h it's from two thousand and five to the present so within those thirty eight