i moved to the th case this morning united states  police court this court to reverse and remained the district court's restitution and sentence issued against mr draghi to calculate restitution and the loss amount underline mr greedy sentence the district court was required to make several finance one of which was to determine the scope of the conspiratorial agreement mr dewey agreed to in this case the district the district court failed to make those findings and instead adopted a one size fits all sentencing approach s greedy based on all of the losses caused by the elite conspiracy this court's precedents and the united states sentencing guidelines require that such findings be made and the lack of such finance constitutes plainer in this case play er that impact on mr brady substantial rights because in this case insufficient evidence exists to support the district court's ultimate restitution and loss amount calculations play in your home we were pretty yes there merely threw himself at the district of or the excuse me the mercy of this record however the evidence is not support such a strategic reason in fact mr draghi objected to two other enhancements in front of the district court moreover for a waiver to occur must be knowing and intentional and in this case mr greedy simply didn't know that relevant conduct findings were needed in fact the district court probation office and the government itself did it no such findings were necessary the district court or the probation office didn't even mention the term relevant conduct or mention the relevant provision of the guidelines section one b one point three all of that suggests the mystery did not know he should have objected to the lack of relevant conduct fine and further that this is the way to conceive of your argument you talk a lot about the procedural error that the court didn't make the findings and yes i agree the court was obligated to make the findings but it seems to me that really what should the gravity argument really is that this should not have been relevant conduct attributed to him this philosophy and that his counsel should have raised that argument i mean that was the error right that the counsel the seems to me like james james i mean this was accountable this was sixteen levels right of his guidelines calculation and if we say that what you're saying is that was plain error to attribute the full loss to him because in your view much of this plainly fell outside of his involvement in the conspiracy then we have to look at the court's  see whether they're playing the iranians but there are no findings for us to review because it is required to make them is that a way to kind of conceive of i think that's fair your honor yes i mean we would contend then based on what you just said i believe your question of assuming that you would not find waiver the lack of finally ends would be the procedural error of the plain error and then we will after this court have to analyze whether there is a reasonable probability that on remand the result would be different and thus it would judge's obligation at sentencing to make those factual findings the challenge as a matter of st order principle has been that the guidelines should not have applied for some reason it hasn't been outside of the three thousand five hundred and fifty three kind of guidance and hasn't been just straight on to the procedural error right because that the lack of findings matters only because you say that plainly this should not have been attributed to him right yes that's true and i guess if you know describe exactly what there is here is i think we would that as in james james it seems like this was maybe deficient performance by counsel you know james james says that if performance by counsel leaves the court with the conclusion that it would have been deficient then that cuts in favor of it being forfeiture rather than waiver and here to not raise any kind of objection or probe at all the basis for the last amount which accounted for such a big chunk of the guidelines calculation seems like cattle sh that the defense counsel's mere statement that he doesn't object when asked do you object to the offense level calculation or the sixteen level increase or the restitution calculation doesn't constitute waiver standing alone and based on all of the other facts here the facts in the manner the government views that if this court reverses on restitution and thus gives the district court the opportunity to make those are all or not relevant conduct findings but very similar findings for purposes of restitution then it should also remain for purposes of loss to give the just record an opportunity to make the relevant conduct finance and determine an amount of loss that is supported by the evidence in this case this report didn't make s r itself acknowledges that mr duty didn't start at least until late two thousand and thirteen and based on the evidence here it's reason to be reasonably probable the district court would have concluded if it made relevant conduct finance the mr dewey didn't join the may please the court bob what on behalf of the government i'd like to start with the idea of the deficient performance idea that you're on to raise it's not the magnitude of sixteen levels that would be at issue it's two levels because that's all that has even if he and the strategic reason for a waiver is one of two reasons the reverend burns and some of this court said if you object to some aspects some enhanced months and not others the ones you left out are waived that's exactly what happened here separately apology was absolutely his stretch he brought flowers for the prosecutors he left a sentence saying he all he talked about was apologizing for that he was absolutely right to object to the role and handsome and that was a big enhancement it took the court less than a minute to resolve it it didn't really interfere with his contrite strategy but he had already seen every one of the cases already seen that the last calculation should be protracted it took a hearing followed by briefing earlier in the case other defendants noticed this in objected to it he had to his counsel this as a good well regarded coun who surely knew about this but the context supplies all the knowledge that is necessary and he chose not to object to last and i think that makes a lot of sense and before i get to a couple of other things i'd like to clarify that the government doesn't concede the fact that he is not responsible for all of this we have conceded for the sake of argument not conceded we're giving him for the sake of argument the room that he asks to breathe with sixty thousand the eighty thousand and it's just not enough to get him where he needs to be even if you take the roughly four hundred thousand dollars of that mystery identified in his reply brief the last amount in the p s r was two million dollars subtract that that wasn't really the focus of the case right and it was not the focus of the case all the cases that mr greedy cites for the mandatory nature of making such findings are either post book or cases and those cases the baron in line that he cites so in white the two cases that so the issue was raised in white st of all right and then there are two cases cited in white and i believe i think i can confidently say the least one of them the issue was raised i can supplement because yeah just like reading it but you know he states burns and dean different and it took a big degree on the terms of burns this is a waiver case and if you look at the facts they're just not the same and it was difficult for the court so it was a very close call even probably the best case for this that cited in waiver could apply here it's not mandatory in that sense and said you know on the facts here it's just not waiver the government's argument to distinguish figaro is both that it's out of circuit but also and consistent with at least that line in white and i get if you the district court yes and there are all sorts of procedural obligations the district court undertakes right where this court has said that's not play right and so this is that this kind of goes back to the framing issue right he's framing it not as it was a plane  attribute this relevant conduct to him but that it was a plane air not to object to the lack of findings and you're framing it as it was a plane air about whether he forfeited or waived his objection to the relevant conduct that was attributed to him right  bigger identifying slightly different errors right i think what at least the reply brief was trying to or our response was trying to do was to say he's identified a kind of combined error and we're going to treat this as there's that procedural error not to make any relevant content findings and there's the error so you have to view it kind of two ways there's the error in the findings themselves right or the dovetailing nature of those findings as it relates to the plane or on the procedural question like as to whether or not he can establish a reasonable probability within the plane there are framework so i'm not exactly sure how we tried to respond to it yet every which way including by saying that if you look at the facts it's waived but if you look at the claims our really the limitation of our claim their argument on just th land question is if this court has spoken in a recent published opinion and indicated that those findings are necessary only when that issue is contested and the rest of the law on that issue is kind of mixed because most of the time it's not a plane or review issue where the words imperative and acquire are used then it's hard for the air to be played but at the same time because i've been here a plane or a cases  for you have the arguments you have we thought that to give plane or some meaning because the underdeveloped nature of the record is on the way plain or views review views that is that responsibility is borne by the defendant not but so we supplement of the record without any objection or litigation or the just to give the court some comfort that there's nothing to see here so almost all the losses that were put into evidence were very late in this our framing of his time again trials don't go into time they're going to get their innocence sentencing issues can go into standing mr grevious decision not to object sends it back for a full hearing with evidence on when he joined everything because of the fact that he joined in early twenty's or thirteen he was a confidant of the bosses on the fr for all of it if we were to retailer all the evidence by dates because i understand that saying that the district court failure to make any what relevant kind of findings with nothing in the p evidence the government introduced at trial regarding mr duties involvement in the lender fraud which makes a substantial portion of the last year before i run of out of time i'd also like to say this court has found waiver in similar circumstances or susan has found forfeiture calculation and this court said that a forfeiture occurred and actually found a plane error that impacted substantial rights in jackson a similar occurrence took place however this court said that although there was a plane  didn't impact substantial rights so the idea that this this court should even if mr greedy failed the objection find waiver is not supported by past cases in this circuit  finally the government has said that it's very likely on remand that given the record mr green would receive the same sentence based on the evidence and based on the record that's just not true it's the government's burden to prove by preponderance of the evidence the last amount and the rest to shim out and there's just not and there's not much here about timing about when mr dewey agreed to participate and about what he actually did and for that reason this court should reverse and remained because the lack of