running the issue in this case is whether appellant knowingly and voluntarily consented to the entry of a restitution order requiring him to pay more than five hundred thousand dollars to his former employees and i think that that question not only implicate play mr z did not knowingly or did not know that he had to consent to the restitution order i don't see how he could waive his right to appeal this plane or review is this on plane air review yes it is and i was thinking about that when you were discussing the different provisions but then it says you agree and then his lawyer said at the sentencing hearing i just want to mention that we agreed upon a restitution order when the statute doesn't require restitution and also at  the change of plea hearing the court said do you understand that you agreed to pay restitution your cream and state that you in the government agreed that this should be ordered by the court do you understand that yes your honor my understanding is he never moved to withdraw his plea agreement having suddenly understood that restitution was was required and all of these signals suggest to me that i'm playing your review it's difficult to fault the district court for not giving any additional explanation or it makes it difficult to believe that he did not knowingly and intelligently agree to pay restitution and the amount that he in fact great to  explain to me why that's not not so i am wrong yes there is that one statement by defense counsel where he talks about i just wanted to mention that agreement itself says we agree the parties agree that restitution the amount of five hundred and eighteen thousand dollars should be ordered by the court to pay back wages the employees described right ok so he agreed to pay the amount i mean it's clear that he agreed to pay an amount of five hundred and eighteen thousand five hundred and sixty six dollars in his license he agreed to the amount what we don't know from this plea agreement is whether he understood that the court had no authority to order that amount without his consent and if you look at his rule he  rule thirty five dollars motion but a week after the sentencing and he told the court in that process in motion when i asked my attorney regarding restitution i was told that this was a lawful part of the  restitution and generally speaking when you don't have to affects the sentence that you're going to receive but keeping that in mind he's asking the court to strike the restitution order knowing and he knows believe me he knows that if the court were to remand this case the district court has the option set out and shower and the the court could simply strike the restitution order highly unlikely and leave the other participants alone or the court could strike the restitution order and sentence him again or if the court doesn't choose that option the the court could simply strike the plea agreement in its entirety and they're back to square one so in the sense that he sought leniency by paying restitution if that's what your honor is suggesting the reason i'm here is that he's asking this court to remand the case to strike the restitution order and he faces he was  consequently he was sentenced to time served if he wants to be resentenced is shortly after a week later saying hey look i don't think i need to pay this let me ask you about his other argument which i think is that the court did not take into adequate account his ability to pa in entering that agree to restitution order tailored the restitution order though in some parts so could you explain that it is i i i put that in the brief just to show that i really think that this case suggests system failure agreement misstates the law when defense counsel went over the plea agreement with his client he didn't edit it and say hey look this is wrong right so this is th the courts never said by the way mr z you don't have to do this i have no authority to i have no authority to issue a restitution order without your consent do you understand that and it  really and then at sentencing it was just sort of you know the statutory requirement that the court consider is is financials status was ignored it might be an ineffective assistance authority to issue the restitution order that it did and it's clear that it did under the victim has been i think your adversary is arguing that you did but that it wasn't set out that it only had that authority unless his client agreed perhaps your honor saw focused directly on to that and i think the record is very clear and unambiguous that this was a knowing and voluntary plea agreement between the parties that these maybe could be the green itself describes this is a statutory penalty it does it has it under that section your honor but i believe there's a difference that needs to be distinguishing between statutory penalty and mandatory penalty for example there's a mention of a two hundred and fifty thousand dollars are fine that is a statutory penalty that could be imposed it doesn't mean that it's a mandatory penalty and under the restitution portion it says that the parties have agreed to this by a plea agreement between the parties it's not saying anything about mandatory and in fact when you look at the plea minutes and even the written plea agreement itself it talks in terms of minimum and maximum the court a you understand you may be sentenced to a maximum term of ten years when it gets to the restitution the language changes to this is an agreement between the parties through but it still characterized as a statutory penalty and that concerned me ability here if you know if because that speaks only to restitution to persons other than the victim so it seemed like only one of those provisions actually empowered the court and the  maxims every other item listed under as a statutory penalty has no voluntary aspect to it that the statutory maximum minimum maximum minimum here the court's authorized to impose this penalty only if the defendant agrees so it seems of a different nature altogether i do agree your honor but the argument here is that whether the court could have been imposed under the mandatory subsection of st sixty three i wouldn't say that's the government's strongest argument your honor but i i wouldn't waive that argument entirely in that section of the statute it doesn't specify or limit itself to the crimes classified in subsection c of that statute certainly the my husband agrees and also crime is not one of the crimes listed in subsection c of the mandatory pled guilty pursuant to a plea agreement to a misdemeanor for making a false statement that was after a plea agreement included the dismissal of three felony counts against the defendant and those three felony counts any one of them would have carried with it a mandatory restitution provision the court upheld the condition in the written pleas grammont that provided for restitution under the mandatory act not relying on the on the voluntary act will the victims act so i don't i don't believe that it is entirely waived however it falls squarely within the v w p a where i believe the government strongest argument lies and beyond that however your honor has already pointed out that the record shows that the defendant was aware that it was voluntary so even if there was confusion about the statutory references in the written pleas grammont there's more cont from the record that we have that shows that the defendant knew exactly what he was agreeing to as the court pointed out there's the allocution during the plea where the court asks is this an agreement and the defendant responds yes  there is the one who's that that doesn't speak to that doesn't really reflect a deep understanding that this was totally that he had the option not to agree and the remit could be just to the amount rather then you know i know i have to pay something yes i will point out though that in that written agreement it also specifically mentions that the restitution is to pay back wages of employees described in the indictment there's no employees specifically described in the count to which he was convicted of the employees to which he's making the payments to our employees listed in other counts of the indictment this shows i believe that there was clearly a contemplation of payment to individuals who are reflected by counts beyond the count of conviction which is entirely what a plea agreement for restitution would entail it's restitution in connection with conduct that's not specifically the conduct of the charge and crime of  conviction it's not just that one factor your honor we have what the court has already pointed out during the sentencing minutes that counsel for the defendant argued for a more lenient sentence because restitution was not a mandatory component what the minutes say is that counsel said i just wanted to mention that we agreed upon a restitution order when the statute doesn't require restitution that seems very unambiguous to me that counsel knew it was not a mandatory condition and as we often infer statements of counsel to statements of the defendant and knowledge of the defendant the defendant knew and we also know that the defendant was involved in this proceeding was listening a tentative attentively to the proceeding because he references words that his counsel said during the allocution during the sentencing for example  the defendant in speaking to the court prior to receiving his sentence he says as counsel pointed out as my lawyer said i am i'm a family man so that demonstrates to the district court and i would argue to this court that the defendant was listening and in tune with what was being said at his own sentencing what do you make of the letter submitted proof say that your adversary referred to  in that letter it also indicates that that the defendant didn't know it could be any impose even without consent and it's a misstatement of the law as well as a misstatement of the facts represented by the record again not only a sense and did they talk about the mandatory nature the lack of mandatory nature of this but also in the p r it was mentioned not once but in two different paragraphs that this was not a mandatory condition of the plea so the defendant not being a lawyer is now arguing and sitting things which aren't supported by the record what this case is about your honor is a plea agreement reached between the parties part of that plea agreement included a promise to pay restitution agreed to by the defendant in exchange the government which included nine counts of aggravated identity theft which carries a mandatory sentence of two years and also dismissed the count of conspiracy to commit wire fraud all of those would have mandatory restitution attached to them in any event so what the court here did simply was honor the plea agreement and the bargain reached between the parties based on the written plea agreement the change of  sentencing which all indicate the defendant's knowing and voluntary agreement here could you address the ability to pay argument yes your honor that nd circuit has held previously that when there is an agreement to pay it can be interpreted by the court as a seaman ability to pay as well i'm sorry when there is agreement between the parties as to restitution it can be viewed as a statement by the defendant as an ability to pay so that the court wouldn't be required to look into that you know nonetheless affirmative act yes your honor i believe the nd circuit authorizes this court authorizes that nonetheless i think the record also shows that the court had ample information about the defendants financial status to impose this the court did impose a fine having heard from counsel about the defendant's lack of financial resources at the time but as indicated in the p s r the defendant certainly was educated had run business multiple businesses in the past had obtained a lick liquor license and engage in other activity that showed he had certainly the ability to make more money in the future in which case the restitution order would be supported thank you thank you thank you very attorney didn't know what the plea agreement many obviously didn't explain it properly to his client the government refers to minatory restitution when it doesn't apply the court doesn't those mistakes when at the change of police hearing nobody got it right and it all falls on mr z and i think it's important generally speaking that the court this court not allow the kind of shoddy behavior that obviously happened in to a moment ago my client was charged with wire fraud and identity theft both property crimes under title eighteen and under the mandatory victim restitution act there was a way to have that statute apply in this case if the plea agreement specifically stated that those counts were being in a separate paragraph if the those counts were being dismissed so that the defendant could plea plead to the title a defense and then it could have been could have been put up but they didn't do that no one