ready they please the court my name is thomas seti of counsel to law offices of richard palmer c j counsel for mr melich the district court here declined to pose a blow guideline sentence not because of any circumstance of offense or other legitimate thirty five fifty three a factor but because the government opted not to seek forfeiture of profits the government conceded it could not prove in pleading to conspiring to traffic in contraband cigarettes mr melich admitted no more than that his plan was to resell them in its sentencing memorandum on and mission that he profited at some level from the scheme council did state spontaneously and there's no indication that profit motive is that correct he stated in his plea that the plan was to sell but not that the plan came to fruition he was charged with conspiracy pled to conspiracy doesn't matter under the guidelines whether the profit is actually defraud people out of millions of dollars that the that the amount that is that is significant to the amount that that that governs the guideline is the intent to profit not the realization of my wrong no interest in selecting in in determining the guideline sentence to court looks to under the cigarette i think it's too we went to the contraband cigarette section the court is the court of the referred to the tax  in section two t and that depending on the tax loss that's how the sentence is set but here it wasn't about the tax loss it was the court focused on the our clients ability to the property i don't believe that he considered so much that he profited from it as that the government did not the government let him keep those profits and i can go ahead see that it's the government's decision whether or not to pursue this you have to be happy with it but the fact that the government did something inappropriate or i think the government is circum it's illegitimate prosecutorial choice to decide whether to seek forfeiture or not i mean i can quote the government the plea the sensing proceeding began with a three who misunderstood the fact that he did or did not profit affect the calculation of his not the calculation not how it's just procedurally an error because the probation department record minded a nine month sentence in the courts pacifically question before you hear no i'm sorry you are and how does that affect how is that a procedural defect as to the calculation that it's not a procedural defect what is the grounds for reversing it's an impermissible factor under it there are guidelines factors and there are thirty five fifty three a factor is it and you say it's an impermissible factor because the government didn't process not because the government didn't press press it because it was the government's decision whether or not to seek forfeiture our client has no control over that i said i'm just trying to figure out what the rule of law is that you want to start to kill so the rule of law is that it's procedural error if the government chooses not to  says geez you could have you could have software for sure there were profits here and the defense attorney says yeah there probably were profits we just disagree on how much the court can't consider the fact that there may have been profits well i think the case it's most on point here as i'd like to direct the court to united states for is a simple question could the court have considered whether you made a profit or not could the court have considered whether what it is that inappropriate under thirty five fifty three for the court to have considered whether they made a profit or not you're saying yes yes i am and that's all i want of that all right i'm sorry i'm sorry it's a trick question i'm nervous i know you are and i'm not trying to trick at oakley's i'm just trying to understand what it is we have to say to accomplish a government shutdown the district court sentenced the defendant to a below guidelines probationary sentence because they believe the government couldn't afford the cost of incarceration during a government shutdown the government appealed the government's argument was the cost of incarceration is not something that comes within section thirty five fifty three it's not a legitimate thirty five fifty three factor so then the the district this court held that the district court did error and  holding it noted that eighteen u s c thirty five seventy two the fine section specifically considered the cost of incarceration and because thirty five fifty three was meant to cabin a district court discretion in setting a sentence and  factor was listed in thirty five seventy two component of sentencing it is a component of sense isn't that different from this case that you sign this is your case i mean this court's case and what what the hol was is that if it's being considered in the thirty five seventy two context and thirty five fifty three was meant to cab in a district courts discretion in arriving at mcarthur retore sentence you shouldn't here exactly and that and that's exactly what happened here is here the court considered the need to deprive the defendant of illegally obtained profits gain from the offense now there was we're going back to morning your honor may please the court my name is andrew thomas i represent the united states here faced with a defendant who participated in a serious way in a year long high dollar high volume on tax cigarette for not seeking forfeiture that is absolutely true that also happened but for the sentencing portion of that proceeding judge paul then went through all of the thirty five fifty three factors as they applied to mr melnyk and to mr monex offense and he imposed a sentence that was eminently reasonable in all respects and the courts are different with respect to the argument that it was the government's choice alone that forfeiture wasn't sought that's not entirely accurate here what the government it  perhaps poorly tried to articulate to judge solvent and it's reflected throughout the record is that the particular quantity of profit could not be established the fact that mr melnyk profited was not only conceded by counsel but abundantly clear from the fact pattern these are cigarette transactions conducted one after the next after the next and they extend over a great period of time there's no reason to do that other than the profit motive that the court point to would it make any difference if the if the fact rather watch if the government simply simply decided in the exercise of prosecution tauriel discretion we're not seeking forfeiture that's our decision that make a difference he would still be exactly the same case yes your honor would make no difference to the reasonableness of the court's ultimate calculation i say it only to frame the issue and to respond to my adversaries point i think here alternately the crux of the cases was judge s permitted to take into account both the monetary component of a sentence as well as the incarcerate torrie component and that's a proposition the court has repeatedly confronted in the case of fines that are vacated arrestor to sion orders that are altered and again and you say that he could have in his calculation of the appropriate sentence consider the fact that he was not subject to or picture yes your honor insofar as the fact the total incidence of punishment that was being inflicted or imposed on mr melnyk lacked a monetary component forfeiture in this respect it's no different than a fine or restitution and judge your honor well how's the district court judge to know exactly what he highly profited i mean the government the government someone that comes up this is just we don't know and judge saddam was not policed as you yourself character disappointment with you somehow relevant to all melnyk is how much time is necessary for a moment to spend in prison no absolutely not what judge belvin was entitle to do and what he actually did was not to visit upon mr melnyk punishment for the government's inability to investigate or develop facts about a specific specific aspect of the scheme but rather to hold mr melnyk responsible in a way that accounted for his conduct and the fact that he profited although the judge said which was an accurate reflection of the record he didn't know how much he profited and also to send a deterrent signal to others i mean if the if there had been a forfeit and the and that and the defendant had paid forfeiture the forfeiture had been collected somehow or other under those circumstances it would have been inappropriate i think for the judge to increase the sentence by reason of the fact that the defendant was getting away with profit that had been disgorged when it had been discord that would have been a different case that would be a different case your honor i had eight here the government's point is mostly that the sentencing judge has the discretion to combine the monetary and incarcerate her components and that's what judge solvent did here to judge wesley's question i think there's no there's no suggestion the record that the sentence imposed actually was a reflection of the judge's view silly the supreme court's decision in honey cut for closes that possibility here we needed to know more than what we didn't know which is that the scheme was profiting at a particularly at a particular level we can estimate but we need to know how much the defendant obtained and those facts and that's correct your honor those facts were not on available to us and not presented to the court and so couldn't form the basis of a forfeiture or and this is plain our view with respect to that  study just very quickly want to because there seems to be some dispute over whether the sentence was based on mr mel nicks ability to profit or the government's refusal to recover those zero four of the appendix thank you very much when counsel was arguing for below guideline sentence the court said i have no idea what the profits are all i know is that there is no forfeiture nobody is taking credit for the profits here i do think that's a relevant fact then later in stating it's reasons why it was actually opposing it since the court says specifically at page s sentence thirty eight one eighteen of the appendix thank you i'm sorry one of the factors that i just can't get around or one of the facts that is really significant to me is that mr melnyk profited from this crime and he's going to get those to keep those profits in thirty five seventy two in the fine statute in determining whether to impose a fine it's pacifically states the need to deprive the defendant of illegally obtained gains here the court considered a fine and opted not to impose one so i don't think he's allowed to consider the fact in the context of a deciding going to car satori sentence something that specifically he rejected in the fine context so i mean to me to us it certainly appears from what he said that