entered on november sixteenth two thousand and nine his judgment and sentence was only for his period of incarceration and amended judgment and sentence was entered almost two years later on october seventh two thousand eleven this was for over a million dollars of restitution for a total of about twenty one victims it was extremely complicated process if the parties were not able to agree on the amount to restitution it was going to be protracted litigation in the district court all parties at the time that the original judgment and sentence was entered in two thousand and nine knew that that judgment was not a complete judgment that it was only for part  to go back and check to be absolutely certain but it seems to me that it was if it wasn't it was certainly part of the record in terms of discussions in the district court this to court was well aware of that and i think the court can so so you i guess to begin with plenary question you agree that if the twenty two fifty five had to be filed within a year of that first judgment it's late and cannot be filed if if if it if the law requires that it to be filed within a year then yes it would be untimely the first judgment entered by the first judgment and i had a line there for restitution to be filled in but it wasn't filled in everybody knowing that there would be further proceedings to determine that restitution amount yes your honor and i think that that distinguishes it from other situations that have come up and that you see in the case law and that might be part of the court's concern about sort of opening a door to providing for another exception to widen the ability to get around that one year deadline for filing a twenty two fifty five what do you do with the ninth circuit law that we're bound by with respect to twenty to fifty five not being available for restitution that that is an issue in again and i'm anticipating that when i say that this case is unique and unfortunately unique cases require some latitude in what latitude do we have maybe i mean i'm open to understanding that because we have a different set up than some circuits with respect to restitution and twenty to fifty five so you get your judgment your sentence then you have your restitution at least amount wise hanging out there if the law in the ninth circuit says you can't bring a twenty to fifty five on the restitution how do you then run that through your argument the way we ran through your honor is that the original judgment was not a final judgment it is not final and i would adopt to some extent the elegy of the second circuits and the newly the new five to deal with restitution now what you're arguing to me is you can't use it for dealing with restitution but nonetheless  file your twenty two fifty five with on within one year ought to be put off because the restitution hasn't been set if restitution can't be a basis of the twenty two fifty five then why does the year start running only after restitution has been set that's the question that's the worry that it seems to me you force me to to go through if i can't bring in twenty to fifty five to do anything about restitution what does restitution have to do with the running of the year well then your honor i think the court can fashion rule where it's not just restitution and in this case in mr gilbert's case his twenty two fifty five was not about restitution it was about a whole lot of other issues which actually well i wasn't about restitution it was about other issues which would lead us back to the idea that should have been filed within a year or so or full well known so then your honor what we do is if we  are don't like that approach which i understand where the why the court might not then i get to my second issue which is the application of equitable tolly could i just ask another question on  restitution and the application of the epa let's take something outside of restitution and i appreciate your argument that this is perhaps a unique case and that's why you'd like to analyze it differently but let's  something else that the court didn't decide for example i sentence you to the mandatory minimum of ten years but there also are conditions of supervised release and i'm going to withhold that decision until i have some more information about some of your background and some of the issues that for example on a sex offender or something else so ten years mandatory minimum and it turns out that the judge then doesn't enter the supervised release for a year final judgment or not so my my question back to your honor is to the court not enter the conditions of supervised release or simply did not address supervised release at all because generally what happens in district court is a court would say you know five years supervised release and then the court might say and conditions you know maybe here's a couple of conditions but other conditions to be term and in the future that to me would be a final judgment because the period would ensure that there will be restitution i just don't know the amount of it now there will be supervised release but i can't actually decide right now how long i want to give you or the specific conditions of your supervised release is there a difference between those t in a way probably not in terms of the defendant and his sentence because i know in terms of it if the right and i understand that in terms of it being a final final decision it's an analogy your honor i hadn't thought of before so it's new it's a new concept but i can see that in that situation they were it would be it would be very similar i mean i'd have to admit that they are very similar which is why again we we leave debating the issue of the rule the one year good morning your honour's michael dionne on behalf of the united states may please the court there is two steps to the time when us analysis in this case the first question is was the two thousand and nine judgment a final judgment and under supreme court case law in particular corey and dallen i think there can be no serious dispute that it was a final judgment dolan of course addresses the specific issue of a judgment that does not set an amount of restitution dolan is admittedly dicta but it's highly persuasive dick to this court has applied in the unpublished macgill decision but the truth is you don't even need dolan to reach the conclusion that the initial judgment was a final judgment because berman and corey other cases that we cited lead you to the same place corey dealt with a situation where the defendant had been imprisoned for basically an indeterminant period pending the receipt of a study from the bureau of prisons and then the judge could revise the sentence based on that study so there was a lot of uncertainty about probably the single biggest aspect of the judgment that the length of the sense in the co and nevertheless the supreme court held that that was a final judgment and in korea the supreme court set out its standard for what is a final judgment it says a judgment that imposes discipline is a final judgment and when you apply that standard to the initial judgment in this case there's no question that it's a final judgment impose discipline in the form of three hundred months of imprisonment it ordered lifetime supervision and laid out elaborate conditions of supervision it impose an extensive and detailed property forfeiture so under corey even before dallen it would have been a final judgment and all in really at least in terms of the analysis the court walks through is just the logical extension of cory so assuming that a second circuit didn't seem too interested or well the second circuit is working from a entirely different framework because the second circuit has what i think is unique case law that recognizes the possibility that you might be able to challenge a restitution order in a twenty to fifty five action and if you're looking at the twenty to fifty five limitations period from that point of view and you're thinking that yes this defendant might be able to challenge the restitution order then the analysis is completely different because then it makes sense that you would restart the running of limitations period once the restitution order is entered because now that's something that the that makes sense in other words when you have to file an amended petition and otherwise even under the second circuit analysis you're saying they don't really need to follow cory because they permit a twenty to fifty five on restitution i think you can you could approach it a couple of different ways the second circuit could i don't know how they would play it out they could say no you shouldn't file your petition at all until after the judgment is amended of course nobody knew for sure in the gonzalez case that the restitution mount was going to be changed because the court had imposed it then it goes up on review to the second circuit the second circuit revise it vacates that part of the judgment and remands back to the district court so i don't think there's any way to know how it would play out under the second circuit in terms of exactly when you should file a twenty two but if  take your proposition them that the under corey it's when the judgment imposes some kind of discipline which in this case was incarceration and given you know this potential split in the circuits over the twenty two fifty five and given the uncertainty that the judge left the defendant in here why would an equitable kick in well i guess my first question your honor is i don't think that the judge left the defendant in any uncertainty the judge actually advised mr gilbert at sensing that his twenty two fifty five period had begun to run and that he was going to have a year to file his claim so the judge clearly put mr gilbert on notice let me rephrase it because sometimes judges could possibly be wrong about how you calculate the one year as we know from the hundreds of cases that we have that help us decide what is one year which seems so obvious on the face and then where he left the defendant in limbo as to how much restitution i mean if it's twenty five dollars to paris but if it's million you might care as in this case well there's two important points on the equable tolling the first is that gilbert and his attorneys had the golden opportunity to develop their equitable tolling claim back at the trial court level in the twenty two fifty five proceeding they knew the time when this was going to be an issue because we filed an answer arguing at length that the petition was untimely citing dolan and making all these other arguments a few days after we filed that petition there was basically a full day of depositions by mr gilbert's counsel of gilbert's trial attorneys and they explored many issues the transcripts go on for hundreds of pages they did not ask one single question related to equitable tolling they did not ask any questions about the advice of those lawyers gave mr gilbert about when he would need to file a section twenty two fifty five petition later they filed a lengthy reply brief in support of the twenty two fifty five petition this is now almost a month after the depositions no mention of equitable tolling no acquittal tolling argument at all so if you look at the supreme court decision in lorillard which says a party that had every opportunity to develop its claim in the trial court should not get a second bite at the apple on remand following that reasoning there is simply no reason to remand the case to let them develop an argument that they should have and could have developed before the trial court also even if you don't buy that if you don't buy that then i think what you do is you look at the equitable tolling claim they've laid out which is bad advice his lawyers miscalculated the running of limitations period and they gave him bad advice that's what mr gilbert alleged in the declaration the case law from this court is very clear bad advice about the running of limitations period is garden variety negligence it is not extraordinary circumstances and it does not give rise to equitable tolling this court's decision in miranda dealt with a case where the lawyer sent a letter to the client saying here's the date by which you need to file your twenty two fifty five that date was wrong the lawyer miscalculated the deadline and this court said that's garden variety negligence the supreme court's decision in the holland case said that if you're just talking about miscalculation of deadlines it's garden variety negligence the bar for extraordinary circumstances is extremely high when you're talking about  attorney misconduct the cases where this court and others have found extraordinary circumstances are outrageous cases where the lawyers have completely abandoned their clients refused to obey their client's instructions not communicated with the clients mr gilbert hasn't alleged anything remotely like that in this case he's merely alleging my lawyers made a mistake they gave me bad advice and that is not sufficient under the circuit's law un when it's a final judgment that were filed after the briefing this is the only one that we found your honor thank you very much  five i think that would be one thing but is not the petition is rife with a whole long list of erroneous advice resulted in mr gilbert having almost ten years additional external circumstances usually involve some kind of element like like the lawyers abandoning the client or affirmatively doing things that would mislead the client or you know tell the client not having files the client things like like that and is turning that of that nature and they're not in the record your honor but i do know that there are some facts that would lend to that and i just just briefly there was change in attorneys you know that you know the federal case went for was completed in the state court went forward record there are some references to it in mr gilbert stock aeration i will say to the court that to a large extent the district court was aware of a lot of this going on but it being absolutely in the record not all of it was thank you thank your honour's thank you both for your argument this morning united states versus