unlike you to assume for purposes of my question that they're right i want the forth crying of the test for plain error is that the error is seriously affected the fairness integrity or public reputation of the judicial proceedings assuming that's the standard how does this fit into that because very simply we have very clear unequivocal case law that says this is what has to be and here the court simply disregarded the case law and i mean that's kind of like saying that every error seriously affects the integrity of the proceedings which can't be the case well and as a result of course ms quark was ordered to pay restitution significantly higher than what she was legally obligated to pay the government i think makes the argument that that ok if that's the case it's still restitution of amounts that she won flee got whether it was within a particular county not anything that's there can argument for the contention that this doesn't affect the seriously affect the integrity of the proceedings what would he have to say about that well your honor i didn't like the case in our brief there's a seven circuit case united states versus randall three twenty four fed third five fifty but is the citation arendal in front of us at the moment it is not around i'm happy to provide a twenty chain letter this afternoon that's the proper method to handle newly cited cases absolutely absolutely or are came across the where it says that it is claims their game waived or forfeited not arguments earlier this year in a case united states versus walton that had happened to deal with whether as a violent felony qualified under the on criminal acts and there it was a similar situation where on appeal the defense raised a different argument that had been prevented that had been presented below and this court said plainer does not apply what this  quote the government nevertheless argues for plain error review because one fail to raise the clinic dancing is open brief before the district court this is incorrect well known argued below they did not have the required number of violent felonies necessary for and has been under aca and while he did not make the precise arguments that he makes on this is claims that are deemed waiver forfeited of what was argued was any argument made about restitution in the district court here yes your honor the argument was made the alternative argument was made is that in fact she had actually of the money she received she had provided much of that money to her children and to her parents on behalf of her children and that therefore the restitution that should have been paid was should have been seventeen thousand nine hundred seventy seven dollars and ninety one cents that's one pages seven hundred seventy five of the excerpts so she had in fact objected to an order of restitution that the that had been proposed in the present report is it doesn't sound like very similar to the quote that you read from them from the case about the violent felonies in other words it's a completely different ground was what happen in the one case it was a completely different i mean the objection that had been made in the district court was that didn't apply and on appeal the objection was aca didn't apply but for a very different reason i guess my point is it sounds like from what you quoted from the excerpts of record in this case the argument wasn't that the district court couldn't give the restitution it's at the district court shouldn't impose the restitution because the money had been used for other things now you're arguing couldn't does opposed to should and it's strikes me as a difference i know i see your point your honor not that that's certainly true though the argument was that it should have been a particular amount of restitution that it should have been less than what had been proposed by the probation officer else i just saw understand your contention is that the proper amount of risk to sion should have been three times twelve twenty five plus the thirty seven thousand five hundred  the morning your honour's and may please the court actually all for united states this is a case about planning our review and in order to establish clean air review defendant bears the burden to demonstrate both a clear obvious error and a serious detrimental effect on the fairness integrity and public reputation of judicial proceedings defendant can establish neither of those you cannot step partly she cannot establish the former under joe and she cannot establish the latter under cotton and judge  only go to your question cotton forecloses a finding of plane are under the fourth prong here cotton sided at our brief cotton is a supreme court case the procedure really is very very similar to what we face here cotton was a case after a in which a defendant claimed that because the indictment did not properly plead a drug quantity that he could not be subject to a mandatory minimum based on a finding that the district court made it sentencing it came up to the fourth circuit and the fourth circuit found plain error the government in fa conceded clear obvious error in that case under a plenty of course it got to the supreme court and the supreme court reversed under the fourth prong alone and what they what the supreme court reasoned was there was no serious impact on the fairness integrity or public reputation of judicial proceedings here the evidence was overwhelming as to this reporting for their drug quantity and so it didn't matter whether or not if it was prejudiced or that the error was even clear obvious which again the government conceded there because the evidence was overwhelming that this was the actual if a pretty were to apply however my reading of the cases is that what we're limited to is the specific conduct underlying the offenses of conviction i believe that's what hew in may he says and then they adopt it what we have in this case and what i think distinguishes this from those cases is the defendant's conduct is a single course of conduct that she admitted that led to the l joe and joe there was a broader indictment and then a narrower admission at the plea here we have three particular counts and then a very broad admission at the time of the plea and it later in my sentencing and because the threshold is the conduct underlying the counts of conviction here i submit that we do not clearly and obviously have a deficient record with respect to the conduct underlying those counts again that's the conduct that defendant admitted and frankly her conduct isn't really divisible between the counts at all something that also distinguishes baker and huey is that in those cases there were there was a multiple count indictment that involved different categories of conduct across different counts so in huey for instance there were multiple credit cards and the defendant ultimately pleaded only to having misused one credit card and what the supreme court held is it was improper to order restitution with respect to other credit cards because that of course involved different conduct that did not underlie the particular count to which the defendant pleaded we don't have well first of all defendant plead guilty to everything here second of all there isn't the same kind of divisibility the guilty to everything because the specific you know the court says are you pleading guilty again the there is no doubt that the loss here is tied to an element of the offense right we don't have a problem that this court addressed and read where we're looking at related conduct in a broader guidelines type way we're talking about the conduct that underlies those offenses of conviction the only thing that distinguishes the losses related to counts one through three from the total losses is just that there were additional deposits defendants conduct was exactly the same single victim here so we're not even statutorily in the area where we would look as a surly the mother the pattern or practice here what we're looking to do is just the conduct and i would submit that particularly under a clearer view the conduct the defendant admitted in this case is not clearly obviously deficient under this court's precedent how can you conduct beyond that charge in the indictment because a pretty doesn't apply if a printer were to apply then certainly you would be bound by what was pleaded and admitted with respect to the element of the offen but we're in this area here where there are certainly limitations on what a court can look at under human and under the in v r a but it is not a strict application of a pretty the government is definitely not limited to what is specifically pleaded in the indictment and either admitted or proven those were dropped so this proceeding and i meant is limited to those four counts that she then pleaded guilty to that that's correct but again it's a little bit it's a little bit of a strange environment because that doesn't apply does mean there is more play with respect to what can be proven sentencing there's no doubt that for instance when you're looking at say consequential damages that get that broad and restitution that those don't have to be pleaded in the indictment and so it can't end so i don't see how the print it helps you here it pretty helps only insofar as it doesn't apply and not not affirmatively here again i would say there is no case that addresses a factual situation procedural situation like this one a defendant admits in connection with a guilty plea a set of conduct that is identical with respect to the three counts which he pleads guilty and with respect to the total amount of restitution that ultimately she's ordered to pay to a single victim it's the inverse of the show and there is because but because there is no precedent that demonstrates clear obvious error defendant cannot establish plainer but moreover even if she could she cannot get past cotton and so i would urge the court to affirm with respect to the fourth prong of plane are if not to the second very briefly with respect to whether or not playing our applies we're in a situation that is somewhat akin to the difference between a procedural and a substantive challenge to a sentence defendant certainly challenge the particular amount of restitution in the same way that a defendant can ask for a particular sentence but there was no procedural challenge to the authority of the court to impose restitution no challenge anchorage the  decided i was counsel in walton and in walton there was a challenge to the number of predicates under aca but shifted was the arguments in favor of there being the wrong number of predicates under aca here there thank you're honest what the government is essentially arguing here is the argument that the supreme court rejected in huey there the fis are going to show that the statute permitted restitution beyond the offense of conviction quote when there is a significant connection between the crime of conviction and similar actions justifying restitution the supreme court rejected that very argument and said the rest to sion must be tied to the specific offenses of conviction what about the or the not a pretty argument the cheering from the government doesn't apply here whatsoever we're dealing with the specific offenses of conviction the offenses of conviction charge specific deposits on specific dates and counts  one two and three the government could have charged and ms clarke could have then pled guilty to multiple additional counts applying all of this conduct then as as judges had noted in the original indictment in fact the government had charged two additional counts regarding social security fraud that applied to thirty seven thousand seventy five on behalf of the child had those been part of the first superseding indictment that ms clarke pled to then there wouldn't be any issue here then clearly that would have covered those amounts but that's not what was charged here and so ms clark and can we take into account that difference between the first and second diamond well i think you can certainly look to the fact that i'm not sure why the government dropped those two additional counts i think ms clarke would have pleaded guilty i mean she pleaded guilty to the entire indictment right so i have no doubt that she would have pleaded guilty to those additional counts had they been part of the indictment that she was pleading guilty to the only issue is here the government is asking that relevant conduct which applies to the loss calculation