well here the next case united states says steve stevens raises to challenge was on this appeal one that the restitution order was invalid and the second one that the guideline loss was overstated and i believe this one common floor that runs through both the district  courts terminations which is that at all times throughout the property was collateralized by a mortgage and it was that mortgage which compensated the victim this collateral is directly relevant to the  money there's no question about about that but the question is is a specific offense of conviction here on the of their fence or conviction in this case was bank fraud and the only victim of that the government never the government and it's a brief concedes that the bank itself at that ca exchange for that and release it was then and that since there was an exchange they the bank they paid money to the bank and the bank we leased the mortgage had they had you know and one of the district court in rejecting stevens argument reason this is a three seventy two kept it can pick could easily have decided having already sold the property and given that the defendant was already on the hook for the fraud to have just walked away with the ten million dollars that was wrong because they never had ten million dollars of cash in their pocket as soon as the bet as soon as the property was sold the first person that was paid was the bank one what happened then and the law was in exchange we gave you times the money go to stevens or the money going in i believe the money went initially you can hear there was an allegation by the government that at least some of this money then was diverted to stephen went into his pocket was only the million dollars which is another basis why the district court's finding what we're wrong because one of the things that the district wants all this all these other losses that stephen cause and therefore you can't use the settlement agreement to offset it well some of those losses were for example the million dollars of wealth from the bank to stevens you can say compensate him for the taking out the money and then compensate him also for taking the money twice that's two million dollars for the million dollars so mr conway whether your client agrees with the calculation of intended loss and specified the guideline range and he said on both occasions we agree we agree with their calculation the quote in a case involving collateral pledged or otherwise provided by the defendant the amount the victim has recovered at the time of the sun sentencing has to be upset well said there's nothing that can't be anything clearer than that i think the lawyer may have dismissed it but being discovered in the defendant comes in and pays down the loss now the guidelines recognise you can offset that it's too late but this is from the second the loan was taken last the bank had the collateral they had they were over collateralized and therefore they were fully compensated so i think this is a case yes there is an appeal waiver but when you talking about such a dramatic era i think it just can't be a nurse ignored whether it was a miscarriage of justice or that the plea was just not knowing  pleased to court good morning my name is martin coffee and are representing government and important facts that needs to be emphasized and reemphasized is that the collateral here really wasn't collateral there was a defective pledge of collateral from the outset and it was a defective pledge of collateral because stevens lacked authority to post and pledged the collateral he needed the approval of the provider of compensation in the way this court has defined it they could be a victim to an hour but the first victim is due back because the bank was pledged collateral that in the end if they had litigated it there would have been a dispute over whether or not there was a legitimate pledge of collateral or was a defective pledge because stevens lacked the authority and the consent of his partners to pledge that collateral all there was a civil litigation they entered into a settlement agreement mr stevens gave up his fifty percent interest in the partnership the partnership had some value the properties were worth ten million dollars and they signed the game each other general release this why does that not preclude a subsequent restitution it would lead to the odd and inequitable result that he looted the partnership so he looted the partnership of eleven million dollars separate and apart from the bank for life of five million and even assuming that's true that's not related to the crime of expand the restitution the court the district court but in terms of what i'm hearing is they had a settlement but because there were these other claims of fraud the district court was entitled to provider of compensation should have been given the restitution the argument then was advanced in a district court that well he should be given a cross suppose it was given restitution already in effect and the warrants if it was already compensated for its injuries before you got to the sentencing then would it be entitled  can tell you know they would not if they had gotten if they had taken on these facts doesn't it sounds like it was already compensated for its injury that flow from  capital one fact alone or what they were trying to do is they were trying to give an offset that's not provided for in three six six four j one to a provider of the to the defendant as to offset the loss  restitution and he was looking for an offset and the way the dish to quote got into the subject matter of all the losses was not to say that should be part and parcel of somehow connected to the restitution the district court got into that discussion because he was looking for an offset because i released my share with a partnership in the building but the district court was saying that would lead to an inequitable unjust result because you did but if some of the compensation that he gave  to reimburse can get from paying off the capital one should he be receiving a credit for that sentencing in terms of the restitution calculation as a matter of equity i don't see it in the statute as a cough be there being a specific offset provision like there is in the sentencing guidelines for an offset for collateral held as a matter of equity and is not not makes us human and also defacto that this was and that was collateral that was not really collateral he was relinquishing his share of a partnership but he engaged in fraud on two fronts he posted that collateral as collateral which he did not have the authority to do and then he simultaneously was deferring the partnership of eleven million dollars so the partnership is left with the choice do we deal with the eleven million and try and pay that loss or do we pay the bank so they took the high road and paid that way you would agree that can not entitle to double paned correct i agree w double payment if they were given something when stevens released his interest in the partnership they were given something on account of a lo and now he's being ordered to pay the full amount of the loan again why is that not a double recovery will he profits by is wrong then he he as the perpetrator wrong on two fronts gets to satisfy himself by not having to  bank loan and can the just require do that analysis and saying he profited by two wrongs because one of the wrongs is not the conviction in question correct i graded one of the wrongs was the eleven million not in the in the count of conviction but he and the district court after that it only took this restitution decision only to rebut the argument that he's entitled to an offset he was she was addressing the district court was addressing the fact that the three six six four j she's trying to craft on some kind of an offset to that provision he says if it if it's kept strictly to the premise that principle that as a provider of compensation should be given the payment that it made rich should be given as restitution a payment that it made to the bank and that's analysis should stop there but they try to advance that and craft on two three six six four jan one merged into one loan so the analysis the district court engaged in and did not expand restitution to include eleven million and did not expand restitution in fact or in other claims and there were no on the means by giving up his fifty percent interest in essence he was giving up a five point the five million dollar loan by in essence he was paying that back more he could have been giving it up with the choice being left to the partnership to decide how to use his fifty percent share they did not have to pay the bank they could have paid more satisfy the eleven million dollars of the losses some of which included costs that he encouraged in obtaining the loans and course attending to those loans legal fees foreclosure fees so the settlement agreement did not solve for himself the best we were able to ascertain as he took the five point two million in it's entirety because he he made a representation a statement this record that it was in the high six figures that he kept for him which he takes the money for example from that account he shouldn't shelf a one million dollar check from that account he puts four hundred thousand dollars and then takes that out so he's looting the campaign account and that  gone spent so you know what a question your honor of staying on the government's brief here the a collector on as far as how much was taken there's no evidence that all five point two million dollars i don't believe was traced it went into stephen's pocket because the government constantly talks about a million dollars that went and there  not in that as far as the five million dollars i think it went to dorm which would use did for repairs to the property for the management of the property and the disputing that five point two million one went into mr stevens pocket ah yes you you admit that perhaps a million yes yes thank you thank you