after the whole issue of the fine had come up and the issue finally came up in the context in passing of the supervised release conditions which judge burton was simply reading off are you pretty sure that's fair though in there in the reason why is because early on in the transcript pages four and five greatest things are going to go on the court asks mr steinback you know have you discussed the recommendation of probation with your client and then you know ask the past the defendant mr carty have you read and discuss the probation officer's recommendation now that recommendation as i understand it was for the fine for the fine amount that was imposed correct that was part of the recommendation are that also part of it right so there are so nobody nobody was surprised heading into sentencing that probation was recommending one hundred thousand dollars fine i know when you're with me that's fair to say this on the record your honor the question is whether or just signed back was required to specifically object to that recommendation as part of his argument or at some point during sentencing what i think was optically interesting about the with the sense that you see there was a fine itself was imposed well before the thirty five foot three a factors were discussed well before the sentence was actually imposed because it only came up in context it was only after that that there was any up to your object whatsoever in the case law that announced at that point everything is already been announced you're right so i don't it's it's really hard for me to not see this is actually waiver well i think the it's the waiver issue i think is a little bit easier to deal with for sure your honor waiver as the court knows is something that has to be explicit it's snowing involuntary so there is an interesting version of waiver here but it's not as to the fine if you note in the transcript before the discussion on the supervised release conditions specifically asked me to sign back do you have any objections to the supervised release conditions mr steinback said no no objections to those that certainly i would say as a resident objection to the fine well the fine is not part of the supervisor kno understand that but there's there's not a peep in the sentencing transcript about one hundred thousand dollars fine you've got to be kidding me but and that's i think largely going over what do what do we suppose how are we supposed to review that and that that exactly is my  situation where judge jurgens findings did not in compass anything regarding the fine all he did was announce it and say the defendant has the ability to pay that in a section of the transcript that has to deal supervised release gets the separate issue though than the waiver issue it sounds like you're running into a procedural air back to the waiver a point it's just kind of pointed out your client received the p s r at least a year in advance the p r had the recommendation for the one hundred thousand dollars fine which is what the judge stark and ultimately imposed mr stein because a very seasoned defense lawyer who certainly knows what he's doing there was no written objection one hundred thousand dollar fine in advance of sentencing in the parties were given up to the opportunity to object and at sentencing when judge stark and asked if there was any objection to the p s r there was no objection to the fine at that point and then again at the end of sentencing when the opportunity was given again to object there was no objection in addition to that but let me add the other factor because if this goes to the waiver versus forfeiture issue mr steinback specifically said to the judge when talking about punishment he was trying to keep his client on a jail under standardly and that's what he was arguing for and he said there are other ways to punish individual and he goes on to say one way is that i'm paraphrasing a bit a fine this is a crime of taking someone else's money that a response in addition to the custody that he has already served is one that has been recommended a recommended by the probation department which is a fine why isn't that a strategic decision on mr steinbeck's part to try to save his client from going to jail and have a higher fine imposed i think three answers the question general start with your last one and it was a long question and probably baltimore i've been there i think the key issue with that is when r so he was already on notice that a fine was recommended above the guy absolutely and i think that's a fair point but my point is that there's a very big difference between arguing that yes he should impose some sort of five consenting to a fine as opposed to consenting to one hundred thousand dollars fine which was not within the guidelines and in fact to have times with the guidelines was so to any extent that there's a waiver of forfeiture there it's to whether or not a fine should be imposed it's not a question of the amounts so once he heard the fine why not object well at that point already been pronounced her one course that happens all the time certainly in the in the case laws fairly clear that in situations where the there is no opportunity to object before the imposition that that does not qualify as we are for but how can you say no opportunity to object here when that precise fine is what was in the p s r and there were no  and of representation to the court that there were no objections to the p s r when the court asked about it and i i would be much more sympathetic to you if that one hundred thousand dollars fine had not been in the p s arnie wasn't on  notice that that was the recommendation from the probation department and i'm actually glad you brought that up here and there's an important distinction here is that the one hundred thousand dollars recommendation was not in the p s r itself and there it was in the recommended portion exactly and when i was not trial counsel obviously when this came up on appeal we did not have that recommendation in the record and it actually took us quite a bit of time to find out where that one hundred thousand dollars came from so to the extent that we're saying there were no p s r objections leaking one hundred thousand which are i think that's not quite accurate based on what was in front of are you saying that mr steinbeck did not get the probation officers recommendation in advance of sentencing i don't know one way or the other  know one way or the other what you actually received the paper copy along p s r that's forms wasn't that wasn't that something in the record prior to the sentencing where it was requested maybe at th consider oppose that imposing a higher fine in lieu of additional incarceration so that i could and couldn't no end of the guidelines eight months versus six to twelve months the fine was so far outside the guidelines that it is almost impossible to justify without knowing why that specific number was picked other than out of thin air because probation recommended and that's been the most the most difficult part here because justin was so careful with everything else in this hearing why go so far outside of the guidelines to impose this wildfire that's not justified by anything in the record particularly in reference to section thirty five some detail and with that i'll use the government ok thank you very much here it seems to me contradicts every statement by everyone on the record regarding whether this case warrants is a sentence outside of the guidelines the sentencing recommendation appropriate and necessary the p s r says says the probation officer has not identified any factors that would warrant a departure from the applicable sentencing and then when no explanation other than quote he can afford to pay and the court imposes a fine two and a i honestly i think the best explanation for it but st i guess number one let me just say that i would like to speak to your initial observation that there was no evidence in the record to support an above guidelines sentence of and then he was callous and greedy and they did not need to have created the sense that he tarnished the integrity of the of an important federal agency and that his crime was exacerbated by his attempts to cover it up which included potentially making the victim undergo a body search while he held her money and his and his pocket then it talked about with respect to the characteristics and history of the defendant that if the court noted is harris meant of his wife and his and the good judge durcan could you know gives the same sentence exactly but he will have to explain more it seems to me that he can afford to pay well that's me i see what you're saying judge but i really think it's unfair to just to take that one statement out of context and not to view the record as a whole in which the district court explains in chapter and verse why this was a unique situation why this was not a normal mirror after embezzlement case which it was absolutely not and also take into account the fact that i you know i understand that you and your earlier  said that the defense counsel is comments could be taken to mean that he was requesting this result we think that is the only in the most natural understanding of what mr steinback actually said and if there is a balancing consideration he specifically goes to the idea of the levers that could be applied here between the term of imprisonment and the and the fine please strongly consider answering the question of what is sufficient with the response that the time has already served as an up and that there are other ways to punish this individual and then immediately directs the judge to consider punishing the individual with a fine and not only th but that any fine but a fine recommended by probation so to lock i think what you have here is a situation where a defense lawyer very reasonably attentive to keep his client out of jail by suggesting that the court accept the only probation officers recommendation of a significant fine you know by an above the guideline reigns and the court accepted that really you know he's been doing it all his life but country but then contrasted that with his experience thus far in pretrial detention where he had it where which he described as the defendant dwindling away both emotionally and physically the issue of the procedural error here was also way not only by the defendant's failure to object to the to the recommendation prior to sentencing during the sentencing hearing but the defendant's answer to the to the judge's question are there any arguments in mitigation that i have not addressed and the defense defense counsel said no your honor i believe you i've got a quote here but i believe you  would be appropriate well and i don't see anything that leads me to believe the council agreed to that heavy fine even if the court imposed additional probation office did not recommend and handsome for obstruction but when that was added by the district court that implies the guideline level so it was greater and the sentence was lower and also probation recommended a sentence at the high end of strategic decision in order for there to be waiver because what it seemed to me mr steinbeck was doing here was saying give him a hefty fine and order him to time served i don't know reading the record and i wasn't there but reading the record it seemed to me he was hoping that his client walked that day i think he was surprised that he got a guideline sentence he was hoping for something much less which judge  steinbeck's argument essentially let him out give him a shorter prison time he's too when dealing away and there he's having emotional trouble in there with a large find that's not exactly what he got he got a higher sentence than was asked for and the same fine does that matter for purposes of boy for if a court does not fully atop the strategic approach no i don't think it does matter  particularly here where even though the court did not fully adopt it it adopted that approach and the approach that was are so that i mean so to me i don't think this is a bargain being made by between the defense counsel and  judge the judge exercises his or her discretion which is and has wide latitude to do so to impose a sentence that the court deems appropriate and above and above guideline fine  one so in this case where the court does explain why he considers the crime so agree just and imposes a sentence even if if we've used this as a ploy for to rather than a waiver there's still no pla thank you so much so the court has no further questions the government would request at the judgment in this case thank you transcend you have any parting thoughts for thirty seconds or so to sensually the same there with i think two different sets right but to an extent your honor and i was just looking back over the statue while the government is talking and the four factors that they discussed that justify this fine that it was callous and greedy that he was a law enforcement officer that there was recommending eight hundred thousand give one hundred thousand and eight lot today that's not what he said he was talking about a fine so if i was up here arguing there should be no fine whatsoever i think that that would be a definite waiver but that's not what we're here to talk about it's whether or not the one hundred thousand dollars fine which is so far outside the guidelines was justified and if there are no further questions from the courts i would ask her to respect thanks thanks to both counsel he says submitted