and reasonable i'll start with the trial penalty and substantive and reasonableness arguments and then i'm going to turn to restitution and the excessive fines clause argument starting with the trial penalty in sub saharan reasonableness arguments three key points make this a unique outlier case distinguishing it from all the cases cited by the government st the government affirmatively conceded that the four russian co defendants were this conspiracies king pan's to use the government's word they were more culpable than danielle a single mother with health problems who innocently join the clinic's an initially and had no other criminal history nd daniela's twenty year sentence was four times greater than the five year sentence for vor an off the higher ranking rd in command who did not cooperate with the government rd the district court's sole explanation for this massive sentencing disparity was that the kingpins pled guilty while daniela quote exercised the constitutional rights that she has in the united states to plead not guilty on quote and is a classic example of a trial penalty that is a constitutional violation to base you i think what this court can say in recognizing that this is a unique outlier case in that you have the government making a confirmed of concession that the defendant on trial has less culpability than others who are not on trial who are the recognized kingpins for the same company ducked so in other circumstances where the government may have other reasons as to why drug charges would be being dropped or added and there's no concession when the government is arguing about the relative culpability of the defendants all of those cases would not be a situation like this where the government is coming into court it's telling the jury that daniela had a mid level role the kingpins ha change i don't believe that's correct and here's why under eighteen u s c three thousand five hundred and fifty three a six sentencing disparities need to be addressed by the district court and when the government is coming to court and saying and making an affirmative concession that others are more culpable that has to be addressed in sentencing and here it wasn't it and here the other thing about this case of course is the district court statements in response to defense counsel raising the sentencing disparity comment were that danielle exercise your constitutional rights to go to trial there was no valid explanation the government now has pointed to well maybe the two counts versus the one count could explain it but here when you have a concession that the were more culpable in the government didn't clear the kingpins of money laundering quite the opposite it dropped the count to when they pleaded guilty only to add that count when daniella did not but again the fact the fact that the district court made the statements in response to that that were an invalid explanation that alone is a basis for herschel putting aside any of the let me ask you this because that i'm still not you respond to the change question in terms of what the what the bright line is but we'll come back to that whether whether it is supposed to be that in any case where a judge says  to say it then by definition that's going to obviate any other factors and going to be reversed clear per se i'm not sure you're saying that just hold that thought now in terms of outlier certainly not every case but  many cases we're always co defendants the same judge is handling the case and so the judge is aware of the other pleas and so forth that have gone these cories that are beyond me this record just says quote by agreement other judges these defendants will handle bob you know they're of variety of different judges you know and not judge his they're here and i'm not criticizing it i'm just saying if we're talking outlier it just strikes me here the judge didn't take the police own any of these other people as paul if i'm wrong you can tell me but one question then with that is i don't know that we have before for example an exam an objection to the and part of the capitalists and not having said that then we say well just inconsiderate he said she accepts her right to trial therefore the only basis is the trap in that you can see where i'm going with it so i'm trying to see i judge knows when he makes the sentence and says what he says judge her yes and then the objections are preserved in the record at page one thousand two hundred and thirty three dollars defense counsel said quote sentencing disparity is going to be one of the main themes unquote and defense counsel repeatedly you can't back to sentencing disparity and cited case law the sentencing memo this is in the record one thousand four hundred and sixteen to twenty two and then at the sentencing hearing record one thousand two hundred and thirty one to thirty four defense counsel repeatedly brings up the sensing disparity between the co defendants and even when the district court responds that well the co defendants pled guilty defense counsel respond by setting sentencing disparity case law and then response so that the district court made its bottom line she exercise when you're talking about the disparity you have to look you have to look at what was the maximum that could have been given and bore it off got the maximum that he could get so i'm i'm and it was after and is there a sentencing disparity between the conduct the various defendants did and here they are absolutely was in the only explanation given was that daniela went to trial in the kingpins pled guilty and  thank you judge two were born of under the plea agreement could only get five years but that does come back to the point in this one in the trial penalty calculus in examining danielle is sentenced pushing the analysis back and saying well under the terms of the plea agreement born of can only get five but danielle could get a lot more that still doesn't answer the fact of what was the basis for danielle is sentence you know born of did not cooperate with the government the district court didn't say that or not cooperate in the government's brief conspicuously does not say that horn of corporate wrote there was any five k agreement so whatever the explanation before why vornado sentence was kept the government still has not provided other than the fact that he did in fact plead guilty but it really is so so st of all of course you have the trial penalty argument and the express comments but putting that aside and just coming to the sentencing disparity i really do think what the difference here in the outlying situation here is you have the government affirmatively conceding the kingpins that they were more culpable for the same conduct and it is that concession not simply the fact that there were plea agreements and there weren't and then when you couple that with the fact that what was the explanation here for why danielle a single mother with no other criminal history was getting twenty years in a fifteen million dollar sentence when the acknowledged kingpins were getting significantly less even with plea deals there just there was no explanation of that that that itself would be a procedurally on reasonable aspect we think it's substantively but it certainly procedurally when the only explanation given for the sentence is the fact that danielle went to trial now that the sentencing guidelines i find it a little beginning point that the guidelines are in a real a real basis for that sentence but putting aside that procedural argument procedural argument that court needs to directly address an argument raised by defense counsel here at the sentencing disparity argument with the main theme defense counsel raised and the only explanation given was danielle exercise or constitutional rights and the kingpins pled guilty that's not a valid explanation whether that's a trial penalty error or whether that's a procedurally and reasonable error as an insufficient explanation for the sentence under call either way that would be error that would require judge change discordant non drug and santiago said that when defense counsel raises an argument it must be quote directly addressed unquote by the district court and here this isn't just an outlier comment this was the main theme defense counsel is presenting this was a  typical equivalent of an annual salary when you have those concessions by the government and you have defense counsel bringing that argument to the district court and there's your court only explanation is she went to trial and exercise your constitutional rights while the kingpins pled guilty that is an insufficient unconstitutional basis for a son's all right so your take away would be the government's key concession the sue the plus the trial judges statement these to be they pled guilty putting those two right up front those would be the drivers not pushing back in the other arguments you make but those would be the bright you obviously haven't read current script noting that he said you know he read all the letters and so on and so forth i mean you're spotting that you're saying these other fact is more personal to her the scene that is that what you're honing trial penalty is an entirely different than a substantive reasonable or less sense of being disparity argument those are two separate things and all defense counsel argued before the trial court was a sentencing disparity which is a substantive reasonable us argument under johnson and the buy in this court's precedent or that sentencing disparity is absolutely not unconstitutional tribal prosecutors there was no twelve b three motion raising improper superseding of the indictment therefore that issue was weight on appeal under johnson but in any event ample let me let me stop valid to do that but i want you to answer the question i ask you st and i'm asking you have depth and sense and i know you want to explain the hierarchy to me if you have time you can do it i want to know since counsel says the success was those wagners managerial role that steps that she took and that was the focus of this prosecution so she was not a kingpin in the entire multi state operation your honor but isolate one or two comments and need those a different context because there they are the appellant argues that support is an understanding that the guidelines were specially mary and there were a few comments that were me but the same principle applies and i'm sorry i can repeat that question i'm sorry don i got a little the judgment there was focusing on the point that i focus off of mr keller that whatever you think of these here yes your honor it would be a different analysis and this court recognizing purt disparate sentences have been all the time in these types of white collar crime cases where co defendants who are more culpable sometimes g he he administered he oversaw the houston administration but he was not there day to day the investigating officer testified that he was not in the office every single day like those wagner was again as i mentioned he provided the united states substantial of the five k one point why it's sealed but the united states but the court can look to see if you identify doctors patients to substantially help in the so i get that but how do we determine when a judge is holding it against somebody that they went to trial that was clearly wrong versus they're using language that  is slang or something else like the maximum we've been talking about how do we make that determination when we just have the full record and the words that we have while you're out if you have to look at the cases that we  and we do not have back here because they were in response to a sentencing disparity argument and i would urge the court to take a look at johnson and apply because those two cases explain the difference and there is a huge difference plenty of cases in you know this where even in the rule eleven context judges get thousands a guilty plea take thousands of but in given case the judge gets off script having done it in ne times don't you know put filled the perfect in the rule eleven you know we reverse them we say the guilty plea is so important to the process it's got there's a way it's to be done you know we but when the records clear we say we reverse no allocution even though we might be able to divine or figure out whatever the drill is within a bank so my point is that they're arguing from the side the heavy united states you know when i was a judge and even now when somebody comes in and says i makes wisely and i represent the end state it means more than we ought to win so given the constitutional implications then the right to go to trial  congress approved disparities for those who do not plead guilty and enter substantial agreement and those who do so with judge it was asked your honor there's a seventeen disparity he made a correct accurate it's improper to hold it against somebody went to trial and i don't think there's a dispute that it's proper for people to really feels and plead guilty that maybe they would have got the worse deal if they'd gone to trial and and been found heard that part of the or the maybe what your response my response your honor is that the court articulated on the record every single possible thing that it could have honestly believed that she was participated earlier than that but they were the benefits out and save down the time to the time that she admitted that she participated in the conspiracy on the  restitution being joint and several it's consistent with this court and she there is the court considered her financial circumstances as he had me the court was not required to consider financial circumstances an amount of  of the law but did so whenever a plaintiff schedule there is no there is no caroline argument your honor because caroline exists or cases where there is no concert of action here we have a concert of modified the amount down from one billion to fifteen million defense counsel still objected to that so all of those arguments are still for the court today and on the restitution paralyzing point the point there is daniela does not have an ability to see circuit after paralyzed and for some reason the government in this case is saying that there is a right to contribution but there isn't and that's what is giving rise to a significant constitutional issue on restitution  if i can come back to the trial penalty point and judge james in analyzing the record and of course you have to take everything into context but when you have a line in a sense in transcript in this it record  counsel raises sheffer ranko and boring often brought ski and the sensing disparity in the court responds quote but again bottom line counsel she exercised the constitutional rights that she has in the united states to plead not guilty when you have that as a factor at all in a sentencing that is invalid that's unconstitutional and the best case explanation for the disparity now if there were some other explanation the district court didn't give it and i would point this court to the cases we cite in our brief a twenty nine to thirty five for other circuit cases that are very similar to this particular the mo and the th circuit's hernandez case and months of fair you had the prime mover with a criminal history he pleads to one count he gets ten years lots of pharaoh the defendant played a minor role went to trial on two counts got twenty years the st circuit said we don't even have an explanation there and it found a trial penalty in reversed here this record is even stronger for trial penalty because there was an explanation the explanation of the kingpins pled guilty and danielle exercise your constitutional rights ts what their products meant was that just as it would have been within his power to do that in addition to that though there would need to be had been a valid explanation for the sentencing disparity and when you had a situation like that where you knew there were going to be other co defendants who the government said were the kingpin then by the way the government's explanation today of all the kingpins they were national well that just makes it worse that makes their conduct even more egregious and here we have a single mother with health problems with no criminal history seventy thousand dollars in back child support with an ex husband who is a registered sex offender she joins us clinic innocently when this fraud had been going on for three years prior and against that backdrop the government's response is well these russian kingpins they were national daniela was just caught up in this in houston that doesn't make any of this better that just makes it even more egregious there's no questions from the pound judge dennis to change a questions from this to go for a sentence and that's exactly what happened here to danielle all right i think there are thank you to all counsel for bigger it's been very helpful oral argument in the case the briefing is  enormous we will work our way through it all and ultimately we will decide case appreciate the the assistance that you've given us this morning so that concludes the argument in this case they say the no thank you thank you your honor