good morning and welcome to the th circuit we're very pleased to be with you this morning judge nelson and i would like to welcome our colleague from the th circuit the honorable eugene seiler and we want to thank him for his continued service to the united three matters on the oral argument calendar which will take in the order in which they appear so we will begin with united states versus sh morning you may please the court name is david fisher and i represent them all i'd like to reserve a few minutes for rebuttal like mr shot as convictions should be overturned because his guilty pleas were worst by th reats that his wife and his sister were going to be prosecuted for the i think what needs to be clarified is kind of the order of events because the government is claiming restitution order or do they all center around the sense that the conviction and the sentencing so yes they do involve the restitution order and the only the only basis to challenge the restitution order is that the itself was voluntary and so there is no basis to order restitution well and then ok so you so so some of them do relate to the restitution order so you think you could if we found that there was only jurisdiction to appeal the restitution order we would still need to address some of these questions is that correct yes ok and why don't you tell us why you think there was jurisdiction to for us to even to address the convict the sentencing the conviction in the sentencing so for two reasons i think you look at dolan in man reeking dol judgment that a notice of appeal has to be filed we have justice ginsburg's in her dissent i believe just outlines the state of the law after m n which is in a different restitution case a defendant has two choices he can either file a notice of appeal immediately after the sentence and then file another one after the restitution orders is made or he can wait until the restitution order is made and file a single notice challenges challenging his conviction sentence of imprisonment and restitution the government says that that's just her opinion that's not reflective of what the majority's opinion is and then when the judgment was amended to order restitution the district clerk court clerk transmitted that amended judgment to the district court and that should've substituted for a new notice of appeal that was her to send that's why she would have ruled well  and so this case is slightly different the memory because here you don't have any notice of appeal men reeky in theory you had a premature notice of appeal at least as to the restitution order here you didn't have any notice of appeal and till after the restitution order and as i read man read it says specifically that that there are two final judgments that are appealable and if that's what the majority says why don't we follow that and say you've got a final judgment on that the the conviction and and the sentencing and that had to be filed you know within thirty days after that and then you got a nd one after the restitution why why would they roll in  even though not address the question specifically seemed to undermine the argument they're making here i don't think that it does i think the only holding a man week is that if there's an amended judgment you have to file a notice of appeal and then you have dolan that says you can file a notice of appeal after the initial sentencing hearing where a judgment is imposed it doesn't specifically state that there are two specific ones in that you have to file a notice of appeal after each specific judgment is entered and i think judge  justice ginsburg's the scent just helps articulate what the rule is after me and retain which is you have those two choices you can either way till the end or not and i think alternatively if this court doesn't agree with that analysis  there is a case of garza versus idaho where mr should have asked his attorney within the fourteen days to file a notice of appeal and he didn't do it and he didn't use specific words notice of appeal but he definitely said  i want you to appeal this and what you try to withdraw me i want you to get me out of this and so without using the specific magic words please found those of appeal the district court of the eastern district of california he certainly said get me out of this within fourteen days i don't remember that there's a waiver waiver not file a notice of appeal for you in that case the supreme court said that the failure to file a notice of appeal constituted ineffective assistance of counsel but was that was that decided on direct appeal or was that on haiti's petition that they said ineffective systems or counsel that i don't know the answer of i don't know the answer that question but regarding that will to me the issue as to whether whether the notice of i'm not sure about the answer that i don't i think there are other claims that could be made for ineffective assistance of counsel i'm not sure that that claim could be related gaited you know the television about a notice of appeal on counsel did do it it really ruled against you that how can we how can we credit this when your client was put under oath and the district court examined him carefully and asked him questions has anybody coerced you know so why are we supposed to believe him when he comes back you know later and says oh i i was wrong i really was coerced sure the circumstances of the plea and sentencing itself are are one thing right you've got a fifty nine year old person who's pleading to thirty years in federal prison it happens all the time  saturday night well that was their request and then the it was not very their request was to do it as soon as possible it is possible and the court was open that day was put on the record that the courtroom was open that notice have been given the public was in the building shit is it is a little unusual but i don't i don't know why that why that affects the coersion and then your client says he's offer and then you have a plea agreement where there's a promise not to prosecute his wife and prosecute apparently put in at the request of the defense counsel right got the government's answering brief where it says they don't dispute the fact that this conversation occurred and then you have your one hundred and seventeen repeat on six where the government writes in its brief under the circumstances it was smart for the defendant and or his lawyers to independently identify this issue and seek the immunity provision so this is not something where this is just something made up in the after effect it's something where he says they threatened me the only reason that i did it is because they are going to prosecute my inviting now to be to get out of the play but what except a conviction for perjury yes so that that would be and if you given the circumstances of what happened and you look at the totality of the circumstances  this is what he felt he had to do to protect his wife protect the system but for those threats of prosecution of them he would have pleaded guilty he would have gone to trial the morning honors may please the court christopher hill strapped we the united states i was also one of the counsel for the government and the district court want to respond briefly to a couple of things that mr fisher just said and then answer any questions that the panel has st with respect to mr shahid asking his counsel to file an appeal i do want to know that the letter that has been cited in the in mr shade is brief for that is dated april th which is approximately two months after the plea was entered on but it was not the docket the court's docket it wasn't filed until march nine two thousand and eighteen so what is not clear is at what point the court received it or at what point defense counsel received that letter in time the only thing tying it to february nd even assuming we have jurisdiction at all do we have jurisdiction to determine or would we have authority to determine the ineffective assistance of counsel claim or does the have to come on a collateral attack i think that would have to be raised on collateral attack your honor we is this an amended judgment to the restitution order tell me what that means by being in amended judgment does that amend the initial conviction and sentencing judgment you know the sole thing it does is add restitution to the judgment and that's it well but if it if it amends that original order then why isn't it a new order that would then make the entire the entire order appeal you have to file an appeal or you or you're going to lose it under under your theory he can to be can appeal the restitution but he can't appeal anything else that doesn't really make much sense otherwise he had a file to notices of appeal and really seems to permit the filing because the st judgment is final an appealable and the rule requires the filing of a notice of appeal from that judgment i so i tend to agree with you until we see amended judgment and is that really how courts are supposed to slice this is to say well this is an amended judgment but we're only going to look at what was amended you can only appeal what was amended within the fourteen days once you issue a new amended judgment why doesn't that just reinstate all those issues i mean the alternative was a district court could have just entered a nd judgment right and i mean couldn't of it rather than issuing an amended judgment why didn't you just issue a nd judgment i think well because what it needed to do was put restitution and the judgment form but what it could not do was change the conviction or the custodial sentence at that point for the reason stated in the government's brief there are only certain circumstances where that can happen and none of those were identified here and on top of that there are the deferred restitution statute actually uses the words after sentencing so what is happening when that restitution is added in the nd judgment is you know the sent has already happened and it is final and it is appealable and the only thing being added on at that point is the restitution amount so and the government's position is that the defendant must file after the sentence is imposed even before even before restitution is changed none of those were present here i mean i have to are looking at memory kate looking at this question i thought it was a very interesting question i was just it was really surprised that we were unable to find any case on point in this circuit or any other circuit  and is the practice is the practice conform to that that you that sentence always take another appeal after the sentencing even if that restitution is to be imposed at a later date i mean i can't speak to the whole country your honor i can speak anecdotally from my experience that i haven't seen the situation arise that often and so is the government prejudiced in any way by by waiting to get in those fields after restitution i think they are not is it prejudiced anyway i mean in the sense that the defendant had filed a notice of appeal time i fashion after the sentence would that deprive the district court of any jurisdiction and go after the court of appeals had made a ruling because it would have the case a more right i believe that's correct your honor well or is it treated sort of like an attorney's fees claim where you can you know you can you can divest the district court of jurisdiction over the sentencing of the conviction in the sentencing but then you have a remaining kind of restitution order that would be ancillary i think that's the confusion here i'm trying to look for analogies where you have two separate appealable orders coming out and can we look to civil cases where a district court amends its judgment you know down the road say six months later it amends its final judgment doesn't that make the whole thing its final judgment with respect to a civil case in a different situation is going to arise there didn't research that i can certainly file something supplemental of if it's well i don't need certain elegance now that i'm thinking about it because you have to i think the criminal rules of civil procedure is slightly different but maybe not when when you're talking about a notice of appeal i'm not sure why there would be a reason to have any difference and so that that's what's causing me some question here is if it's an amended judgment it's all odd to have multiple appealable judgments like i said i think with the attorney's fees that's one example but usually you wait till final judgment to get everything up  understand your honor i think another thing to consider in connection with this is what happens if the restitution issue is abandoned and no amended judgment is ever entered then what happens you still have that st final appeal without any court response i don't i don't think further action would have to be taken at that point because the judgment the original judgment didn't impose any restitution none was being sought and so that a point at that point the judgment was in the sen defendant as well yes so he knew there were going to be further proceedings in his case yes your honor ok so and if you had if you had then told the court that you were no longer interested in seeking that and you had waited till after thirty days after the sentence is just out a lock i mean this is going to be part and parcel of your argument that he must appeal after the after the imposition of the sentence yes and that is what i'm saying that he would be out luck in that situation because he's had a final appeal judgment go and it says what his sentences and it can't be changed now the only thing the statute deferring restitution allows is for that restitution amount to be added it says it's happening after sentencing and so yes it  because the rest of the resolution is based on the is based on his play it is based on his plea i mean with respect to coercion i would submit including based on questions your honor asked and mr fisher earlier that there the record is clear that i got that part of your argument but my question is is different doesn't the question of coercion go to the lawfulness of the restitution when he pled guilty he admitted his guilt for purposes of sentencing and he also admitted his guilt for purposes of to win on the coersion question and we were allowed to withdraw the plea he could go to trial but he would still have to pay restitution even if he was acquitted that doesn't make any sense does it counsel or you say in the reverse where if if we said that the plea was involuntary he can't challenge his conviction based on the involuntary plea but he can challenge as restitution correct which is also odd but i guess you would say has waived by now filing the notice of appeal yes your honor and also the clearly there was no coercion that's part of the court's inquiry any further but basically you've got mr shadow's declaration in addition of water that he filed in file anything specifically with the court because he had a lawyer and he told his lawyer to do it and assume that his lawyer would take the appropriate steps that  remorse a question of coersion something else entirely right no it's definitely coercion i mean if he that's the only reason they're the only difference between the plea agreements is the one where they promise not to prosecute his that was not what caused him to change well and there's evidence was additional that the fact of the matter is there was additional evidence there was but the only difference between the two is the promise not to prosecute is family and then you have this occurring where his defense counsel absolutely was you know interested in wrapping this up quickly by suggesting that they do an initial change of plea and sentencing hearing on the same night one proceeding now may be that people plead guilty and get sense of thirty years quite often but it doesn't happen on a saturday night it doesn't happen on the same proceeding that i just never happens where somebody just comes to federal court and pleads guilty pleas no problem you know and there's evidence in the plea agreement don prosecute my wife don't prosecute my sister and then get sentenced to thirty minutes on i'm sorry thirty years just as you know if he wins this case it goes back that plea agreement you're off and the wife in and whoever else you look at like the claim that they gave money to this guy the guys in jail they're giving him five hundred dollars over seven months and it's an increment of three hundred and four thousand and fifty in the most common amount is like twenty dollars so when you look at those things and you can say wait a minute this is not witness tampering this is not any of those things course he wants to go to court because that's what the guy like rage on is on his crime the well for what he pled to the mandatory minimum sentences thirty years according to the