welcome to the last day of our panel sitting here in atlanta it's been a busy week and there's another power going on in room three hundred and thirty nine before we start judge grant and i want to again thank judge eugene seiler from the th circuit for being with us here all week he's a frequent visitor to the circuit and has helped us out for many many years he's had a very distinguished career he served not only our country in the navy to begin you're familiar with our lighting system when the yellow like goes on that means that your time is drawing to a close so bring your remarks to a finish if we take you beyond the red light than don't worry please the court my name is dangerous and i'm here on behalf of rosacea garri this case raises two separate issues one of which is a sentencing issue and the other is a forfeiture issue mr burns will be addressing the forfeiture issue and will adopt his arguments  that with respect to the sentencing issue the issue can really be boiled down to a question of whether the sentencing guidelines commentary can add language to a sentencing guideline which simply isn't there the s at issue is the guy life or the offense of mail fraud or the guideline contains a cross reference that states that if the conduct of the conviction of the if the conduct set material false statement in an immigration application so under plain reading of the guideline the immigration guideline should actually apply can i ask you an overall theoretician certainly how does that work with grouping it seems to me the grouping principals of the guidelines all together because under normal grouping prince you take a certain set of related offenses and if they are related enough within the guidelines then usually take the higher offense level in the grouping and out and you start with that so if you do that with these offenses at least in grouping purposes you start with to be one point one correct but if you're correct that grouping is rendered irrelevant or insignificant because it to be one point one becomes the two well two point one that you contend should apply so that's just  effect are still applying to be one it's just that it's now morphed itself by the cross reference into guidelines for the immigration and that brings us to the issue of what the government's point is the language of fulford actually states that if adding language the guideline would be an improvement it doesn't matter it's not the court's function to modify the guideline to prove it so in this case i understand going back to what you just said about the grouping issue it may well be that it would be an improvement to read that after language into the guideline but that's not what the guideline says and shouldn't be added to it that should be the sentence and co up in task to amend the guy i'd like to add that language what your case in line with what you're proposing here i would i would say the full for case because it contains language that says that you're not permitted to add that let add that we're not permitted to add athlete to the guideline because it simply isn't there and if it's not there then if you read the guideline itself strictly as it's written there's no no way around applying the big ra morir owners may please the court i'm thomas barnes and i represent mr singh gar i'll be addressing both issues the government is inviting you to rewrite the plain language of the cross reference to conflate the meaning of the phrases specifically covered by and more aptly covered by misplaced reliance on cases like baldwin and aca may which are an app is that instead of cases like janeiro and cuckoo and we're asking you to decline that invitation judge jordan you asked about grouping and judge tyler you asked for the best case as to the grouping issue our position would be grouping as a general principle and this is a specific provision and you have to look at the plain language of the specific provision all we can look at is the plain language but perhaps the intent is let's take stuff out of to be one point one because we've got a lot calculation all these different handsomest that could apply and maybe that's not working but i don't really know what the rationale is it's just a look at the plain language in the plain language here indicates that you look at the cross reference and our positions we went under the cross to the other guideline when the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline there's a little bit of a rhetorical switcheroo here that's in the government's position where it's we would like to flip where the words conduct and offense are placed so then they say well because they would like the guideline to say the offense set forth in the count of conviction is established by conduct specifically covered by another guideline so they say well you don't get past the guideline because that's the day case and says well if the if the facts are stablished the elements of the offense then that's satisfied is it fair to say that although it may not encompass your entire argument it's sort of the lesser included theory in other words the conduct set forth and it's necessary for the fraud conviction that triggers to covers what might be a lesser it's i think that's a way of expressing the point and so it's like if you have a universe of facts a through and those facts a through c establish some other offense then you go to the guideline for that other  would still be you go to the immigration fraud guideline because the facts of the it's a sense of conviction stablished that other offense let's talk a little bit about this conflating the meanings of the two phrases  genoud case is the one that says specifically covered by means something different than more aptly covered by another place that you could look to for that point is merriam webster dictionary or any dictionary these two phrases specifically baldwin does and it's it's assuming that the commentary is the rule that applies and we're disputing that portion of it now it's factually very similar case but that appellant didn't raise the argument that we're raising here that's clear from both the opinion and i pulled the brakes they didn't they didn't make that argument so we think it's just both distinguishable and then of course it's unpublished so it's not binding precedent on you and you're free you're free to got boom here you go and then came down while this case after the judgment was entered while this case was pending so that you know a couple of issues like what's your standard of review under your prior panel precedent plane air we disagree with prior panel precedent but you know you're bound by it so that's the standard you have to apply the spline are there's a different standard you it's it's actually not there's so there's two statutes that are played here there's indirectly obtains language which is what honey cut was hanging it's had on the other statute the fortune forfeiture was entered ninety eight to eighty six does contain the same language as honey cut so it's it's like it's just indistinguishable and so and there's another point which i'd raise in my reply brief it's page fifteen no nine i said well the government's not challenge this so they've abandoned that argument in their briefs according to judge orders opinion and about apportioning are not even apportioning but like what was personally obtained by each defendant so that's an error it was playing because honey cut says that you had to do it the other two elements of the test are substantial rights affecting a substantial rights and reputational harm to the judiciary substantial rights are affected here it's just a reasonable probability and we say that that's that's probably it's reasonably probable because there are some facts in the record about no because we don't have findings about whether that's this is my point about the substantial rights or we don't really have findings about whether they were treating these proceeds jointly obtained or not and how it just how they were doing it so we don't know if they had separate accounts it was really going on and that's the factual finding that we say needs to happen here so one way of putting this is is this like carlisle one or carlisle two and our position is this is more like carlisle one because they're the honey cut and there's a substantial probability a reasonable probability that the forfeiture judgment would be different because of certain facts about mr singh baris involvement in the in the scheme which is minimal compared to missing under honey cut and then for substantial right it's just a reasonable probability so is there a reasonable probability that this the result would be different so it's not it's not like absolute certainty is just a reason that you're not saying there's a got to show whatever language appropriate some effect on the outcome oh yeah that's stand that's and that's what i'm saying there that that so there is in other words there's a substantial probability that the forfeit judgment if it complied with honey cut would look different from the way it looks now and i think i'm our argument is yes there is a substantial i guess i could in the state there's a reasonable probability that it would look different if there was a fact finding because  think that's not my hypothetical right if both of them were hit with the same amount whatever that amount is right if the amount were the same for both whether it's one hundred million two hundred thousand or seven hundred thousand if that type of type of provision and so yeah like they would like an offset like the one pays then it goes down for the other if they lose this primary argument that that's like a secondary argument but that the primary thing that they would like to her is that the lion's share of the liability go on to one of the defendants a minimal amount go on to the other defendant and then they pay down the minimal amount and they can go on as a happily married couple despite what takes place at the remand hearing and be able to live their lives by like renting apartments or buying a house or whatever because they can do that through one of the married couples names and not the not the other so that that's kind of like the end practically the end goal of this this argument baldwin is incorrect which i would argue it's not then the only remedy this court has a situation baldwin on bob well i i me understand and i think you're absolutely right about that but why should language guideline and the common because st of all every case that they cite about the commentary not governing if it's in conflict with the language of the gods with the exception of an out of circuit case has found that the commentary is authoritative there i rely on a full forbidden full force so there is no conflict between the guideline and the creek and instance in which is the supreme court case with the court instance who is saying is this court knows how to apply the commentary in connection with the guidelines and so the assumption in this in boardman is that the course of there is no conflict between the plain language of the covered by another guideline and here if you look at all of the conduct of it goes well beyond an offense specifically covered by another guideline this is not that's not the language of the guideline you could have a guideline that it could be elements but the guidelines could have been elements based in other words a sort of block burger double jeopardy elements test and if the other guideline is only a lesser included then you don't apply it but that's not the way the language and then i'll stop because i know your argument is old one binds us but that's not the way the guideline reads i would just respectfully disagree that the guideline is ambiguous as to is to be read it and to give you an example let's say there was a mail fraud scheme a giant mail fraud scheme involving lost hundreds of victims and millions of dollars of lost and one aspect of that offense involved one filing of a false immigration documents so if you applied the sensing guidelines under the fraud to see guideline their guidelines would have been life and again consider that when this inherent conflict between the interest of mrs and doris of mrs singer i cannot say she was sent substantially prejudiced simply because they both stand the same if the argument if the argument survives the argument is that you need findings and they both stand in the same shoes with regard to lack of findings they do stand in the same prison block of fires which i will disagree with about the lack of finding an address in a nd but in terms of substantial prejudice she has to show the outcome would have been different if if the court had taken into consideration and made  court specifically found that based on the evidence presented at trial as a result of the conspiracy and fraud offense the defendants receive criminal proceeds in the amount of seven hundred and forty thousand eight hundred and eighty dollars acquired in honey so she found the district court judge found that the defendant both received the entire sum of the proceeds and honey cut does not cleanly extend to  the facts of this case two of where defendants jointly obtain the same proceeds honey cut just says a defendant cannot be forced to forfeit property that he never purse but here the government's position is that both parties personally  false immigration applications the p s r also doesn't show any other source of income or cigar journeying this time period and shows and the testimony at trial is that there were four bank accounts into which cash was being deposited daily one was an account for the business one was a joint account between mr that was owned by mr mrs and garri and two accounts belong to their church and so there's just nothing on this record that sh have access to and personally benefit from all the proceeds this offense they were travelling to italy they were travelling to c s to cuba they were going to do how is that being paid it had to have been paid for out of the pro these offenses and certainly when the burden is on them to show a plane error they cannot on this record show that either one of them didn't personally obtain and benefit from the proceeds of of of this is it your position that this was and didn't decide to use you know or that baldwin didn't decide when considering the same arguments that you're making they did not decide the issue period because nobody made an argument in that case concerning whether an athlete should be applied whether that he would be weighing these weighing the grant i think the way to express that concept is that baldwin assumed without deciding that it that you go straight to the the commentary so that's why it's not binding here because that that issue that legal issue has just not been decided by a binding presidential opinion of this court that the the decision that does address it is janeiro it's out of circuit but it explains why there's a conflict between the guideline and the commentary and so that's one of the cases that we're hang our hat on another one that we mention is cuckoo and it cuckoo involves a very similar situation but the difference between that case and this case now is that the government kind of changed its charging theory so it's not make is i guess two points about forfeiture so one is that there were factual findings made i think those factual findings pertain to what the scheme obtained not to watch each defendant personally obtain that still hasn't been done and that's the that's the type of evidentiary hearing that we would be asking for on remand just figure out how you're going to divvy this stuff up under a plain error so there might be enough assign each of those dollars and then the last point i want to make has to do with carlisle one carlisle one didn't involve preserved air except that the air there wasn't quite like a honey cut type of argument there the defendant had argued in the district court look i had agreed only to six hundred thousand dollars forfeiture and you've tagged me with one million eight hundred thousand dollars and that violates the excessive fines clause and some other provisions so it didn't really involve a honey cut type of argument where i was like i was only responsible for this and my husband was responsible for this it was just more like you know i was play dreamin and you've gone way above that so it's not it's not preserved in that sense and still the court in carlisle once said well look we need to have findings according to please go do that and then we had you know that hearing and came up to carlisle too so that's what we're asking for what kind of ruling in carlisle one all right thank you very much mr burns you mr chase mr burns we know that you were both court appointed for your clients and we want to thank you not only on their behalf but ours for your service we really appreciate it  our next case is number