ms cole was originally charged with the about one hundred thirty six counts we're not sure because we have no indictment as part of a large health fraud scheme subsequent to a plea agreement she pled guilty to three counts count one fifty and one hundred one as an element of the reason removal the removal statute makes an alien removable for having been convicted for an offense with a loss to the victim of more than ten thousand dollars argument is that the government is not met its burden to prove by clear convincing and unequivocal evidence that the record of conviction demonstrates this specifically with the record of conviction is is is is analyzed the government submitted two documents which are which are judicially noticeable by the court includes a judgment and a very long and elaborate plea agreement you know the plea agreement lists the elements the factual basis for the plea and it however the relevant offense upon which the removal order is based is the conspiracy charge count one the conspiracy charge specifically in the pretty gloomy creed remit the scope of the conspiracy in the office of conviction is limited to or very specific words physician progress notes and under this charge there is no amount there is no amount of loss to the victim or any amount alleged at all this however isn't in conflict there appears at first first  first view in conflict with another part of the plea agreement in which she pled to the last of the victim for sentencing purposes it says here specifically on a one twenty seven the united states will make a non binding recommendation refer to the overt acts which are discussed in the plea agreement well i mean just if you had one of those overt acts one point five million and then used attracted the amounts we know charged indictment of all of the counts because each one of these where this actually is the looked at every one of each one of these boards you know it's was for billings in the mount between two and eight thousand dollars and six thousand dollars missing that had three point one million when the overall amount well is their various amounts through i've gone through it and we can't really tell the whole amount but it was originally was a four hundred percent report is all we have unfortunately the government didn't provide it's fairly clear that that amount is in conflict with what she has pled to the issue on it is what is controlling on it and we believe that the plea to be elements  we do use because we have the amount for the other two charges do you agree that even more narrowly the question before us is whether because there's evidence to support the conspiracy fine even if you didn't want to look at the first count of conspiracy but even if you look at the second and third count to which he pleaded guilty they add up to ten thousand they add up to ten thousand and it's ok to aggregate those two so even at the very joint and several liability so if her coconspirators don't she was responsible for the entire amount which is well in excess of ten thousand dollars so  and even assuming that she didn't you can aggregate the other two counts to be over the ten thousand dollars when that is true in the definition of aggravated felony intended to allow aggregation that most clearly could have done so by putting a fence or a fence they did not do that and this is a statutory interpretation it's interesting that in fact the immigration statutes have there is another statute regarding some multiple convictions which allows the use of language in terms of for all of the in terms of multiple criminal convictions however in this it should be the statute has to be taken on its face but if congress had wanted to they would have put it on the house or in other words or offenses in there and i think i think it was correct in noting that these are not only that these are separate offenses they're under separate statutes that that would render them to be notes the conspiracy the scope of conspiracy to which she pled to in which the conviction is limited to constituted one point five million minus nine more than ten thousand for the other two i think it's that and it shows that that in fact why restitution amount is not reliable to show for what she was convicted the second thing about the restitution is that it's not an element of the conviction shepherd the u s supreme court sheppard dealt with this in when they when they noted that  you have to be based the determination has to be based on what was necessarily depend what the plea was necessarily dependent on and for example in this have the alleged if the statute had had reference to certain amount it would have like conspiracy for more than ten thousand then the they would have had to allege them out however you did not so the amount of conspiracy could change on this plea agreement and the plea the conviction would have still stayed and under that logic we believe that it's that it's not i think the parent league contradictory we believe to say that or of these constitutes if we have a total of six ports progress notes in this in this plea agreement four of them constitute one point five million and the other two constitute by the more than ten thousand dollars and that's why we believe that the scope of the conspiracy to what she pledged to pass the control over the amount of restitution on