promise with the third i note that there are some students from mississippi state university in the audience today long so do your best advocates to keep them on track to decide to become lawyers at least some of them we do have a lighting system you're probably each familiar with a home in the red light comes on that means unsurprisingly stop and if we are going to give you more time we will do so but don't take it without it discuss with us because there seem to be about two or three different issues that all seem to be the same thing but there running back and forth about concerns about the standard of review here you are the  course the government argues plain error of course and you didn't follow reply brief unless you found one and i just didn't get one if you follow reply brief that's correct we did not hear one and i honestly your honor i and the person making the oral argument in that case in this case it was filed by one of my colleagues and you know that doesn't count for anything so why wasn't a reply in this case your honor idea the we don't have your position on the government position that it's pla we get in trouble the pleadings below that really is meaningless the word pleadings it's a very misused and narrow term and i know that at sentencing the objection would make we object for the reason stated on our pleadings that's just responses to the p s r and the government's objection to the p s r that's that we disagreed with the restitution request to be put at the figure that was determined to be the tax loss also called the intended tax loss within the so the court was placed on notice from the from those pleadings that's what we did was it this exact same argument because it doesn't seem like the same argument just seems like ya'll are were saying we should pay the i think it was thirty seven thousand that the p s r said your person expressively agreed to or admitted to and nothing else but it didn't this and intended versus actual and all the detail that we're getting now was that told to the district key level i mean you can't just say i'm jack to restitution and that then covers everything from eight is e an alpha to omega about restitution that's a little much to expect the district court to read your mind so what would have put the district court on would just call it confusion if you will you the confusion you're alleging about the plea agreement and what it means and what it encompasses where was the district court put on notice of that or even at that level your honor the government raised objection to to calculating the amount of restitution at the actual last figure that was found in the paragraph twenty the p s r those originally then translated paid paragraph eighty five the government objected to that and we then in our response spent much detail going into why that was and that information was not correct according to the plea agreement the police opened up restitution this case beyond the statute of conduct but then paragraph five was the affirmative agreement to pay restitution which cabined the restitution melt at the actions that were as a result of the criminal conduct of  knows work in filing and preparing tax returns at that level your honor i do believe that because the because of the substantial arguments that were made back and forth between the government and ourselves that that place they got in place the court notice as to our objections to the relevant conduct consideration for other employees and other and the cone ors work being applied to what page should i look at it to get this language you think that if you're on i will it would be an hour or it would be in the defendant's response to the government's objection i can get page numbers for the record on that for you when i come back for about  so to go back let's assume that player review applies on the question of intended a loss versus actual loss even if that is the standard your honors we do have evidence in the case that shows that there was here so if i can direct the court to page one sixteen of the record that's where you'll find the p s r language that deals with the amounts of loss there to keep paragraphs the court will find in the p s sorry that deal with this is the information that should address this very question paragraph nineteen of the p s r is titled tax loss for the guideline calculations in that paragraph that is where the get and that is where the p s r comes up with the two point three million dollar figure and twice inside that paragraph the p s r describes the tax laws not just as tax laws but as the intended tax laws ascribed to the entire operations that sent all of the filings from the attention then also to paragraph twenty on the same page the next paragraph is labeled the victim impact that is where the thirty seven thousand dollar figure that was originally recommended for restitution be paid came from that paragraph describes the thirty seven thousand dollar figure as the actual loss that was ascribed to miss talent he knows actions the government objected to both the paragraph nineteen which was the the tax loss calculation but they only objected to the point that they recommended a reduction from two million three hundred seventeen thousand and some change to two million three hundred twelve thousand and some change they did not object to the language intended tax loss they objected paragraph eighty five which is the restitution recommendation stating that they believe that the and that the right amount of restitution was the tax l instead of the thirty seven thousand dollars those recommended originally which was in line with what the court found to be actual the court at sentencing adopted the factual findings of the p s r th findings would include the intended loss from paragraph nineteen as well as the actual loss and paragraph twenty this is where this court is tell him that that restitution exceeding the amount of actual cos is easily distinguished from this case first of all it is a case that involves a fraudulent tax filing done by a married couple for themselves they'd then complain that the into the tax loss was not an actual loss and in that case the court shifted the burden from the government's to to the defendants to prove the tax loss was not the in that case the government or the court shifted the burden the sharma cases the government sites in its briefs discuss the shifting the burden may be appropriate where justice dictates in the case where the defendants were the same people who benefited from the tax loss and could easily prove that they had made restitution in the by making payments the i r s already made shifting the burden on to the defendants in that case makes perfect sense for but this is something the district court would have had to parse through and on where that was put clearly before the district court i'm sorry could you the need to do this attraction i can't subtract a number i don't have  where am i if i'm the district judge or where i might put on notice that i need to do a subtraction and something to help me find that number to subtract your are going to that question the burden of proof on the on the side of the government unless the district court place that burden on significant part but the burden to object is on the party objecting and i'm looking at b response to the government's objections and it's all focused on it's not relevant conduct as she didn't know about it she only knew about her own conduct that's a different question from the subtraction question and from the plea agreement confusion question and all of the other stuff that your appeal focuses on the it's not relevant content because i don't know about it to me is a different argument then  intended versus actual or paragraph three versus paragraph five the plea agreement or you didn't subtract what you needed to subtract what we have has come up in these medicare fraud cases all the time the doctor did actually provide some service did actually provide some medications to the people while also lying about some piece of it and that comes up but that comes up at the district court and if it doesn't we review it for plain air right or is there a case  right but this isn't something like i said in my house and said you know i think it be really nice to rip off mr x to the tune of two million dum de dum de dum and that's the intended loss and well all of a sudden i'm having to give restitution when nothing ever happened here these returns were filed no question about that ok and so as a result that two million isn't some made up number now your argument is maybe the iris figured this out and came back and got the money from the people but that's not the same thing as saying well the intended loss being acquainted to the actual loss to some crazy world it makes sense here because these were actual tax returns that were filed and people got refunds that they shouldn't a gun and so yours is a theory that maybe the iris went back and caught this one we know that they have millions of tax returns and their ability to go back isn't always what they would like it to be but in this case your honor to that point more than what they would have expected to be that the investigation in the year twenty twelve sentencing in this case was in the year of twenty eight and in order for the intended last figure from paragraph nineteen to still apply in the year twenty eighteen six years later that would it mean that the i r s in the hundreds of filers who receive the benefit from the front filings would not have paid a district court i would point to i would point to the point to the the cases that we have cited especially even from the government's own for example the johnson or the bo case where that is a case where it dealt with where it dealt with the the amount of restitution in the tax loss formula and it being applied first to the government and then switched in transition make a reasonable estimate based on the available fa really but i would argue that in this case the mail it's of two point three million dollars with hundreds of tax returns having been filed and caught six years before the date of the sentencing it's not reasonable to believe the i follow up on some of this good you start there can you wrap up the government's position on what we have just been hearing why would the government when you know the practical situation that those in council just talk about some opportunity for the governor of the coop some of this why go further down in the statute to and to that part explains it any amounts recouped which recruitment doesn't have any effect on whether that wast was actually incurred in the first place that's just the i r s going back after the fact and trying to mitigate damages that is applied as an after judgment credit to the restitution amount that has no impact on the initial loss calculation the way in which such a recruitment credit be applied after the judgment does maintain a database of these restitution figures and applies the amounts it's able to recoup to those judgments and this point is that for six years between when all this fraud was going on and when we finally got to the sentencing was irish just sitting there  because i mean they have a statue of limitations and so forth i would envision that they would be doing their recruitment sometime in that six years so why don't we already have that on the computer your honor the record doesn't reflect that because the defendant never raised it as an objection in this case if the matter had been brought to the district court's attention they would have put on notice that there's a possibility of offsets that may be applied to that restitution amount but because an objection was never made and that issue was never brought to the district court's attention the court didn't have an opportunity to resolve that question so now we're looking at it for the first time on appeal without any evidence let's say that somehow i'm as tolerant to you know won the lottery or something she had them i am assuming to some degree this is a little bit it's fictional in the sense that she's unlikely to have a money but let's assume argument if she has the money and she was saying ok now i'm ready to write my check my restitution check what do i owe mr iris would they have  already on the computer that oh well john doe gave us back a thousand dollars and jane doe gave us two thousand and so we've got to subtract all of that is that already there which you have to ask for that would they do that automatically if she sent in point three million dollar check and they'd actually gotten three hundred thousand dollars and recoupment would they say oops and refund the three hundred how does that work shawn or the stock she goes for hit double recovery and it does provide that any amounts of have already been paid within be sent back to the person that paid those amounts so for example if she won the lottery and she spent sent two point three million dollars said iris they maintain the database that if we're humans have be received if joined several liability maybe they won't neighbor her won the lottery and that amount had been satisfied to maintain a running tabulation of those figures and she's not going to pay and iris is not going to double recover those amounts will they're not entitled to dishonor me a bit loose as how this actually gets  date here's where we stand as opposed to something they have to object to and raise and hope that when they send the two point three million dollar ticket and the i r s will do the right thing as we always expect them to do this you know you can if you best estimate how this works but it would seem to of the p s r the burden of proof shifts to the party who is incentivized to challenge that calculation this court's case law is abundantly clear that the burden of proving offsets lies with the dissented we don't have any place here let's go over the defendant doesn't even try to meet that burden this come under that factual finding thing that we say which i don't necessarily agree with but as our president that when something is a factual finding that it can never be plainer as your honor ok because you're saying that they could have demanded discovery of what recoupment did you get it and then put that on and then the district court could have done a subtraction or if there was actual disputes about what there you know has john doe paid some money back so so on so i ran into mr x at the grocery store and they said so much had been paid back or yeah whatever sure and again this is not this is not a record but the record but i do want to explain the process  attorney's office since periodic updates to the defendants of here's a restitution balance that would take into account amounts and if you receive from co defendants offsets that sort of thing to lynch you can also reach out to the iris directly and get that number she can reach out to our office to the i r s she can she can obtain the current number at any time this is not an issue that bears on the initial loss calculation here it can't show any clear or obvious error as to whether or not that loss was actually sustained by the i r s these are all issues that typically offset is an affirmative defense so your argument is that's true under this statute she needed to sort of plead improve it but all is not lost so to speak because even if today she wanted to write a stood them as opposed to intended was the only objection and i think it's difficult to even call it objection the record of page one sixty four is where you will find the only commentary to the restitution amount here and it was a vague statement that this amount of restitution the thirty seven thousand dollar amount is consistent with the findings in the investigation and reflected in the p s r that doesn't what you're saying they never said to the judge your honor week you can hold defendant responsible only for actual as opposed to intended loss they never said that they claimed that her the only arguments made to the district were in the scope of relevant conduct is a long speech about relevant conduct but it doesn't say intended versus actual the only arguments were made were arguments and at trying to differentiate her culpability in the office from that of her coconspirators the district court was never on notice that intended loss doesn't equal actual loss they were never on notice that there should have been offsets and they were never on notice that the plea agreement somehow created a carved out to the scope of relevant conduct that she could be ordered to pay restitution for these are all factual christian questions raised for the very first time in this court and the district court never had an opportunity to resolve them or to to review the record to see if those objections add any merit assuming you agree that generally in restitution you're only responsible for the loss you caused actual as opposed to intended just assume that how does the plea agreement get around th in this case the police remit has two provisions that expand the scope of conduct that she can be accountable for the first states that the defendant agrees that she may be were some civil for restitution from all relevant conduct the second states that she agrees she will pay losses resulting from all of her conduct involving preparing and filing the tax returns in this case on the second one sounds like an actual loss the first one is the but the best one but then  in this conspiracy each on just the plated correct line each and every tax return that's included in that last calculation had her p t i in and e f i a number on it so her number was on the filing of every but even read on its own that when t who agrees to pay losses resulting to her participation in the conspiracy it is in no way a limitation on her liability for the returns prepared by her close conspirators this is one question the court did have an opportunity to make some findings on i'll be it in reference to the guideline calculation this relevant conduct question was resolved in part on the record in the court found that she was a full knowing participant in this conspiracy that the same fraudulent credits were claimed by all the coconspirators the same tax identifiers were used by all the coconspirators that she exercised discretion in her participation in the conspiracy and that she big that but i would note that three c does say i'm sorry three that the defendant agrees may include restitution arising from all relevant conduct not limited to that arising from the offices of conviction alone so all relevant conduct so she does say that and that's confirmed as part of that and then but let's let me ask this if we if we assume argue endo that there is confusion between three and five then how do we address that given that it wasn't raised in the district court under united states versus lanphier mere a second non presidential opinion that's correct your honor but in that case the court did explain that if there's an ambiguity there's two reasonable constructions you can take the reasonable construction paper the government and say that's not plain or to them right because it doesn't demonstrate a clear or obvious error in the reading of that  give it the construction that she advocates even if we look at her conduct in preparing and filing surely wants you to look at preparing she only wants you to look at the tax return she prepared but it says preparing and filing and her tax identifier was on every single tax return filed that is included in that restitution calculation tell me about that because i couldn't vision that somebody just start signing my name stuff you know signing off on pinions and i have no cost knowledge of  versus i give my signature stamp back in the day when we had that which i would never do i gave my signature stamp to someone else and say go for it just sign off is that the distinction you're making between her just having no clue that people were using her number versus she using that number together claiming the same fraudulent returns following returns out of the same office the government if you look at page one hundred fifty eight of the record did a calculation for just the breath of this fraud the number returns that contained these false education credits that comes out to seventy eight percent of every returned they filed had fraudulent education credits attached to them for every single year of the conspiracy that we're looking at this was not  situation while she was off at a desk in the corner preparing returns and they were running wild with her tax numbers she tried to make those arguments she tried to say i didn't know i was just a low level and that's what's in here right and this report as what the district court evaluated and disagreed with and found to be said to would give top credible well which would give some deference because that is a fact finding like did she know that people were using her number fraudulently or did cheap think they were all honest ethical people and she was the only products are correct and the district court made those findings and it was well supported by the record the record shows that not only was she a full participant in the conspiracy that she acted to try to further it there was a situation where substantiate the fraudulent education credits that had been claimed that's in evidence that she attached to her objections to the district court so she's a full participant that she's running the grand prairie office by herself for the last two years seventy eight percent of the tax returns have false education credits attached to them for the last tax year alone she generated over six hundred thousand dollars in lost to the odd arrest of the other twenty two percent just refuse to be involved in the process really they've been honest taxpayers are so the district court's fact fine in this regard is well supported by the record and her burden is a show that it was implausible you can't find that that relevant conduct determination was somehow implausible when the record fully supports her participation in a signed for it in her factual resume or is said that she would be responsible for restitution arising from all relevant conduct and it's even in the p s r the p s r affirmatively states that towing teano agreed in her plea agreement to pay restitution for and in fact in her allocution to the district court she said she asked for probation but said please hold me accountable for every penny i want to pay back what i owe and make no objection whatsoever to the fact that she was being held accountable for the conduct of her coconspirators out prison now that's correct and if she goes into making any payment i'm not aware of that the order i believe called for restitution in the amount of ten percent of her gross income or fifty dollars a month so presumably i don't have and our court is bouncing more of these not even allowing them to be fall so you might take that into consideration and look at route twenty eight ga and talk about it with the folks in your office twenty eight days aren't meant to be another b two or to page three or something like that because i know why you make the argument is to get us oriented to why you are citing this case but the problem comes when the lawyer lea tendency to move on and keep going and that's the found by the p s r as a factual finding those accepted by the corps the awesome amount applied was an intended loss figure of two point three million dollars that two point three million dollars included right but what about the government's argument that her number whatever the technical term and was used on all of her term so the way that the evidence shows is that she was an employee working at the grand prairie office the grand prix office was one of two offices at times the first choice out of one in fort worth texas and one grand prairie separated by thirty miles give or take those two offices each had eventually eventually eventually both had an even number of even number what is used to electronically file tax returns from the office and it's the i r s the pizza number is ascribed to every person it's supposed to be ascribed to every person who's paid to prepare a tax return there are multiple people within the within first choice who have p ten numbers she was one of them but other people did as well in fact both of the co owners and the other codefendant that was in those in the case all four people had p ten numbers but for the years two thousand and nine two thousand and ten and up until forward started funneling things from from its location in twenty eleven every tax return that was spiled by this entire company was filed using her pi the restitution and what did you say about the pin number i would have to check i would have to check the record on that your honor but we pointed out the the challenges of the challenges of distinguishing between and so she knew they have her number and she's not at all looking into what's going what or who is using my number one how i how it you know whatever whatever your honor is an employer the judiciary the judiciary has all sorts of numbers for myself so i can find myself with my employer does the same thing in this case her employer have those numbers because the employer is the one who filled out the application to help her obtain the pizza so it's very reasonable to expect that you know anything in her response that i did not know mop it in them was being used for all of the following actually on her own in on the memorandum discussing the her memorandum recording her discussion with the investigators there is a reference to one incident where she learned that one time her piece had had been used by not the cohen or but the other filer from the other office and so became said that she became very angry and warning and then what was the but is that in her objections yes are any comments made