appeal the sentence exceeding the statutory maximum punishment so before we move on to the nature of mr winchell's appeal and whether it does impact challenge or sentence in excess of the statutory maximum punishment it may be helpful to define the statutory maximum in general and with regard to this case in general a statutory maximum is the harshest penalty the text of the law permits and a hard limit on the since the court's discretion now rather than set the statutory maximum amount restitution and a specific number of congress has instead limited assistance in court's authority toward restitution for declaring only certain losses compensable in this case title eighteen united states code section twenty two fifty nine sets the stage to a maximum of the full amount of the victim's losses which the statute goes on to define is those losses approximately caused by the defendant's oftens conduct the text of section twenty two fifty nine thus sets two hard limits speak to the failure of the attorneys below to address the para line issue and i was planning to address the appeal waiver before moving on to the merits thank your honor with regard to that appeal waiver i think th published decision in chemical and medical partly chemical and metal industries incorporated resolve that issue mr winchell's faber and i believe this court's unpublished decisions in d'souza jones gun stolen campbell provide persuasive authority and each of those cases the defendant argued that the district hording north of one of the hard limits on its discretion to award restitution those challenges did not contest the facts found by the district court but instead challenge the district for restitution of the full amount of the big losses as a german by the court the court did not make any finding regarding the amount of losses in that case but nevertheless ordered two million dollars in restitution on the face of the record the court's legal analysis was flawed and the defendant's challenge necessarily implicated the statutory maximum similar results the court similar results in the susan jones and d'souza the record establishment thousand dollars  are the difference is that a challenge to restitution necessarily implicates the statutory maximum whereas a challenge to improper guideline finding does not  by the defendant's office conduct here the district court ordered mr winchell to pay for the entirety of one victim's losses despite the fact of the record establishes that he could not have caused all of those losses on his own the reason the record establishes that is because mine requires a district court plying section twenty two fifty nine to take into account defendants who have previously been convicted for possessing the same images and this case that the demand letter submitted by the victim in this in the series of images noted that there had been numerous convictions in the past and that they expected that there would be conditions vidis no convictions conditions in the future given the existence of these past affinis we know that mr images cannot even cause the entirety of her one point four million dollars in losses i also know that mr which was not contesting the factual sufficiency of the district court's findings because there are no findings to contest the district court did not engage in the instead we're arguing that the record establishes that the district court's order exceeded the limits set by congress on its discretion to order restitution accordingly i think the court should follow c m i and allow th briefly i'd like to address the cases cited by the government those cases involve a different sort of argument on appeal and one that does not challenge a district  plea agreement to compensate a victim for additional losses and that's allowed under the relevant statute in frasier the defendant agreed in his plea agreement to compensate victims for losses caused by relevant conduct the court made factual findings regarding that relevant conduct and then ordered restitution consistent with those findings on appeal that if it wanted to fight about those factual findings but that's not the side of the same kind of argument we're making here and it's not the same kind of argument the court dealt with  next question on appeal involves a plane or review the government concedes that there was air in this case that the air was clear and obvious and that the air affected the definit substantial rights the only issue left to decide is the fourth prong and that's whether th exercise its discretion to reverse that because the air seriously affects the fairness integrity or public reputation of judicial proceedings now unfortunately much of this court's jurisprudence regarding that fourth prong  doesn't doesn't provide much analysis or going the facts of each individual case but i think two opinions from last year help resolve this case in mr winchell's favor the first one is in cruise and in that case this court extracted a measurable from other cases involving the fourth prong were instructed the panel to consider the particular facts of the case along with the degree of the air and then to compare those factors to other similar cases involving some lawyers that also turned in the fourth prong the most similar case we have is the united states first minutes case it's an unpublished decision but it was issued last year there the defendant was convicted for receipt of child pornography and there was a demand letter requesting one hundred  twenty five thousand dollars for five different victims the court imposed part of the guidelines in that case suggested a life sentence but the defendant stashed twenty knots and term in prison was twenty years he received a twenty year sentence and the court imposed the requested restitution without engaging in a pair line analysis this court reversed on plane air review and with regard to the fourth prong it noted that it would exercise its discretion to correct the air because the air potentially resulted in a restitution award greater than the loss proximately caused by the defendant mina's is dovetails with a line of authority with this court has been willing to exercise its discretion under the fourth prong  statutorily or cost only improper words of restitution but typically finding that such words implicate the fairness or integrity of beautiful proceedings those cases include austin mature in imminent hickman and again while the analysis in an individual case is typically not link the were involved the idea seems to be that because the statute said strict limits on restitution the excess of a war in excess of words cannot be excused by harmless error when we allow restitution order in excess of the statutory limits to stand we're allowing it in totally illegal since stand for allowing the district court to be go beyond what the statute  a factor for the court to consider it is not a factor that has changed this court's opinion in previous cases involving constitutionally or statutorily in improper awards or restitution and in the  seen in crack cocaine cases mr mitchell could apply for a lower sentence and perhaps that might be granted now the federal question is what remedy to order or the scope of the remedy and i think this court's decision to be a lobos and a minister provide the same answer and i think it's the correct answer in this case as well which is to remain and with instructions to conduct a proximate cause analysis and to allow the government to introduce additional evidence if need be  be lobos that the general rule is that the government if it had an opportunity to present evidence below should not an opportunity to present evidence again on remand would be a love those of men as seem to carve out an exception to this rule in cases like this where the harm from the failure to present sufficient evidence and yours to a blameless victim rather than the government it's also true that the court probably would be an able to conduct a para line analysis below without additional information so you don't have any objection to the may please the court hamburg ran for the united mistrial in shell's argument depends entirely on his claim that the restitution order here exceeds the statutory maximum however if you look beyond his nomenclature to the substance of his claims it becomes clear in the facts of this case and this court's existing precedent to feed to waver does bar the claims here today it's actually most helpful to look at what he doesn't claim he does not claim that amounts  awarded that exceeded the temporal limitation of his often says he does not claim that victims were included in the restitution award that were not covered in the offices of conviction he does not claim that the types of damages awarded were improper under section twenty two fifty nine and he does not claim that the victims here did not actually sustain the lost is that they claimed what he does instead is challenge the district court's exercise of its  apportion harm to him on the range of permissible damages that type of challenge that type of challenge to his exercise of discretion was waived voluntarily and knowingly by the appeal waiver in this case no mistake mr winchell receive the full benefit of his bargain here not only did the government agree to forego dition charges based on his conduct but count four of the indictment was dismissed at sentencing count four involved in addition possession count of creepy bes child pornography and those counts actually detail video images that portrayed sadistic conduct that would have added an additional twenty years exposure on top of a much larger restitution award because you're not dealing with still images still images instead of a video so those count that count was completely dismissed greatly reducing his exposure it's insane on top of that mr winchell argued absent saying that he should receive a downward variance because he had pled guilty he had saved the government and the  case the court looks first at whether that waiver was knowing involuntary and then it looks at the plain language of the waiver as applied to the claims to determine if waiver occurred his knowing there is no contention in the record that his waiver was involuntary  unknowing but the fact that he did plead guilty and receive the benefits of that bargain of course play into the fourth probably analysis as well i don't think we even have to get there i think this case ins with the fact that his appeal waiver directly covers the claims that he makes in this case and if you look at united states versus frazier united states versus pena you have very similar claims those were fraud cases not child pornography cases but you have claims by the defendants that but in pin you you had a different you did but you also had this core say even if there was a reservation for the statutory maximum his claims would not fall within that reservation of rights within that same opinion this good didn't explain what it meant when he said that there was no explanation in that opinion  have these claims by defendants who after the fact want to challenge the district court's exercise of discretion and how it allocute allocates harm at senate same the second line where the appeal waivers have been found to not apply and i'm talking about chemical or metal sharma oftentimes you either have a government concession that the appeal waiver did not apply or you have a complete absence of evidence to support the last calculation that's not the case here not only do we have to victim impact statements that were attached to the p s r supplement but we have a case agent that testified at sentencing about mr winchell's conduct as it pertained to this specific victim seeking restitution that testimony went to a number of caroline factors it went to the number of images that he possessed and went to whether they were full sized images or thumbnails and went to whether he traded those images in exchange for a benefit he in fact achieved v i p status on this child pornography website because he uploaded so much tiled pornography to it and exchange for accessing additional materials those factors even if there wasn't an explicit para line and alice's by the district court on the record that is evidence in support of the last amount that was interred in the restitution order and it removes this case from the umbrella of chemical and metal and sharma and jones and put it puts it under the umbrella of frazier in pena because now you're talking about there's evidence the district court heard that evidence they consider the your honor the government although not specifically raising para line did have victim impact statements that you can to account causation and did present agent testimony on those factors we do can see that the lack of an explicit analysis was likelier under him and as judge fitzwater did say on the record at page two nineteen that he was going to forego a lengthy explanation of the order because he wanted to spare mr one shell further embarrassment that he was happy to elaborate if the parties wanted them to and nobody took advantage of that offer so we entered he adopted the p s r and sentenced him accordingly however he did acknowledge that there was an additional explanation possible and didn't want to further embarrassed mr one shell in that particular proceeding honor go ahead a debt the probation officer does have the obligation to include that analysis but the victim impact statements here the vicky series the government inspiration did not make it into the paginated record but it undergoes a detailed caroline analysis the very the victim number one in this case jane doe one was the production victim where it's the exact type of yes however the probation officer will also convey that restitution requests of the victims even if it is not necessarily in line with caroline i obligation of the prosecutor in the probation officer to convey to the court what the restitution request is and then it is an issue between the parties and the court as to whether a portion of that award is proper and what the analysis would be but yes that that would evidence that satisfies the parallel where don't the government concedes that the explanation at a minimum was insufficient it's more in line of a concession as to a procedural error and a failure to explain because we don't have that explanation i don't know what went into the district court's determination and that in this case it is certainly an atypical award but this is an atypical defendant judge fitzwater observe that it was one of the top five worst defendants he had seen you have over twenty years of conduct that was taken into consideration you have a terabyte of data that was involved that had to be that couldn't possibly be analyzed by the agents in this case and you had the victimization of members of his own family so we don't know what the district court took into account i would also point out that the city series letter specifically said it did not include damage amounts for future therapy education expenses and that it was therefore not a sum total of all of her damages court's allocation of harm is is unclear because we don't have that explanation but i can't speak definitively to the propriety of that award given the facts that we do have on the record and that's what brings this case  the appeal waiver this is not a case where we have zero evidence in support of his determination this is a case where the court exercised its discretion and because of that the bargain for agreement to waive his rights applies in this case and he's not allowed to bring bring these issues up for the first time on appeal he had every opportunity to challenge this award if he thought that it was unfair the the the plea agreement specifically references restitution a number of times judge fitzwater address it at the rear objections to the p s r at the sentencing hearing there was no objection at that time or after sentence was in order after he offered to further explain the outcome in this case that was mr wynn shells opportunity to raise the any issues that he had with the calculation here anything beyond that was waived by the appeal waiver and it should be enforced by the court in this case if the court does want to look beyond the substance of the to the substance of the claims and get past the appeal waiver the government does maintain that this is not a case that dictates the exercise of discretion in the fourth prong mr winchell bears the burden of demonstrating that it's proper to exercise discretion here has not met that burden has essentially collapsed the third in the fourth prongs and said we have this big obvious error so you should reverse escalante ray isn't on diverting yoko require more there is a separate and distinct fourth problem analysis where we have to analyze if this this specific case the facts of the case and the degree of the error require an exercise of this discretion this court's discretion to reverse the degree of the error in this case as a failure to explain does not itself require reversal we should have had a more definitive explanation of the analysis of the restitution award on the record the government conceived as much but a failure to explain or in essence a procedural error does not require this court to intervene on plain error and we've gone through the facts of this case we've gone through how egregious the office of conviction is i don't have to go into those facts again but they weigh heavily against exercising discretion under the fourth prong so you really were no your honor it is required to do the caroline analysis but in this case we don't have a complete absence of those facts we do have some evidence through the case agent's testimony at sentencing and through the parallel analysis a least one of the victim impact statements parallel analysis would not apply to the other just to the production victim impact statement so you have one of the three we have a potential caroline error but even as to that award we had evidence presented by the government a sentencing that went to the para line factors so even though we're admitting the failure to explain occurred in this case this is not the case where you have a complete absence of para line evidence such that it flies in the face of the supreme court's decision and would require reverse it's certainly helpful to have additional guidance as well as to what quantum of an explanation would be appropriate but again that's not the type of error that requires this court to to statutory error because then you would at least have concrete record evidence that he considered the factors but i think that that outcome the outcome is the same where you have the record evidence even if you don't have an explicit reference to caroline and this court s there were you don't have an explicit determination by the trial court and this court is permitted to look at the record as a whole to see if there's a basis to affirm the award so we're not limited to his explicit paralyzed explanation we can look beyond that to see that there was evidence presented at sentencing evidence attached to the p s r supplement that supports the award in this case the threshold question here being the implicate realty of the appeal waiver is easily resolved on the line of cases under frazier and pena given the nature of mr wynn shells claims should the court choose to look the factual findings of this report made reference to sousa jones and the other cases they're not fighting about the facts the factual record is undisputed therefore they're arguing that the district court exceeded its authority to award restitution based on those on this now that the government brought up another issue that came up in this brief scene which is an attempt to distinguish this case from see mine by pointing out there is a complete absence of evidence regarding the amount of loss and see my there was a dead body the victim had died the problem was not that there wasn't evidence of laws it was that the district court had made no finding regarding loss as a result of that it's awarded restitution exceeded the findings which are necessarily tied to the statutory maximum some loss in jones so there was not a complete absence of evidence in jones case involving counterfeit drugs there was evidence that the pharmaceutical companies had sustained an actual loss once those counterfeit drugs were placed into  commerce however this court found that despite that the defendant's challenge with an appeal were similar to here was allowed to proceed and that the district court which it ordered restitution in line with the potential loss which would be relevant for guidelines calculations no ultimately the count the court found that was not a basis to distinguish this case from see my the probably that case germans and the government also brought up the issue where there's an implicit procedure by which just records should apply paralyzing but some analysis is required and no one else's took place here and with regard to the fourth prong i just know that in this case is original opinion noted that jimenez was materially materially indistinguishable from this case it's important to the degree of error here is likely to be well in excess of the degree of error minutes there the district court only ordered a hundred twenty five thousand dollars in restitution equally a portion amongst five victims here we have one victim whose aggregate losses are one point four million dollars mr paralyzing should have to pay the amount of loss that he profit his office proximately caused we know that he was not involved in the creation of these