The Honourable, the Judges of the United States Court of Appeals for Circuit. Oye, oye, oye, all persons having any manner or form of business before the Honourable, the United States Court of Appeals for the Court of Circuit are admonished to draw an eye and give their attention for the court is now sitting. God save the United States and this Honourable Court. All right, thank you. You can be seated. Mr. Carter, you ready? May it please the Court. The 16-month sentence that Mr. Catoan received in this case is flawed in two respects. First, it exceeds the statutory maximum, which should have been just 12 months under the apprindi line of cases. And second, as the government concedes, the District Court committed a procedural error in calculating the guidelines lost amount. If we turn first to the statutory maximum issue, the Supreme Court last year in the Elaine case reaffirmed the apprindi rule in clear and unambiguous language, saying any fact that by law increases the penalty for an offense is an element that must be submitted to the jury. That rule applies in a straightforward fashion to the text of Section 1920, because that statute provides for an increased statutory maximum from one year to five years, based on the existence of a fact that the offense involved more than $1,000 in falsely obtained benefits. The government's argument that the apprindi rule shouldn't apply and that this $1,000 threshold should be treated as a sentencing factor, rather than as an element, are based on two circuit court cases, two-pone from the third circuit, and Weber from the seventh circuit. But those cases were decided before the Supreme Court's most recent reaffirmations and clarifications of the apprindi rule in the Southern Union and the Lane cases
. So when two-pone and Weber were decided, the Supreme Court's decisions in Harris and McMellan were still on the books, and those cases preserved, to some extent, a constitutional distinction between sentencing factors and elements. That distinction has now been obliterated by the two most recent Supreme Court decisions. So if you look first at the passage we've quoted from Southern Union from 2012, the Supreme Court says that the apprindi line of cases uniformly reject the government's assumption that there is a constitutionally significant difference between an element and a sentencing factor. Then in a Lane, just last year, the Court went even further and reversed Harris and McMellan, entirely eliminating the distinction between sentencing factors and elements for purposes of... So let us your contention in the statute defaults back to the list of minor penalty. That's right. Our contention is that the elements charged to the jury in this case prove only the misdemeanor offense, that to prove the felony offense, the jury has to be instructed on and has to find the additional $1,000 element. I think in addition to being compelled by the logic of Southern Union and a Lane, that construction of the statute is also consistent with this course decision in the United States versus Wilson. It's an older case, it's from 1960, but it deals with a statute that has an identical structure. Just as with Section 1920 in this case, Section 641 in the Wilson case defined the felony offense in its first clause, as long as the felony punishment. Then it used a semicolon but if construction to provide that if the offense involved less than $100, that it must be treated as a misdemeanor offense. This court in Wilson held that the $100 in that case threshold was an element of the offense that had to be submitted to the jury
. And as a result, it vacated a 7 1,500 felony sentence that had been imposed, remanded with instructions that the defendant there be sentenced consistent with the misdemeanor offense to no more than 12 months in prison. The government has offered, in its brief, it didn't even acknowledge that the Wilson cases on the books and it didn't offer this court any basis on which to distinguish that cases construction of the statute. Arthieu is that the outcome in Wilson is the same outcome that we should have here. It should be remanded for recents and consistent with a conviction for a misdemeanor offense, which would affect not only the length of incarceration but also the term of supervised release as well as the amount of the special assessment that was imposed. As a result of the felony compensation. Restitution in this case. Yes, we believe that the restitution award also should be recalculated based on and that brings us really to the guidelines issue. Because under this court decision in Dawkins, the restitution amount is to be determined as equal to the guidelines loss amount. And under Dawkins, as the government acknowledged in the district court and again here, the controlling standard is the standard of what would Mr. Catoan have received in benefits if he had been truthful in disclosing on the 1032 form filed in April 2008 about the marginal amount of income that he'd received from Angelo's maintenance. We don't really know that, do we, from this record, the exact amount he would have received? We don't know the exact amount he would have received and that I would point out is the government's burden to establish its loss amount and they've not carried that burden. I think as we point out in the briefs, the most generous construction for the government gets them only to a loss amount of around $850. We go through that analysis on page 23 of the briefs and I embarrassed to point out that there was a typo in our briefs that I wouldn't call the court's attention. We say there that the total that he received in the two checks, proceeding in the 15 month period, proceeding in April 2008 form was $1135
. It was in fact $1125. That is the total of the two checks. One was for $490. The other was for $635. So that total should have been $1125 rather than $1135. But otherwise the analysis that we set out on page 23 of the brief is the analysis that I think is appropriate for loss amount and drawing some assumptions in favor of the government in terms of what his wayjourning capacity might have been, I think it gets the government only to a loss amount of $850. And so for that reason, to take one quick step back to the apprindi issue, for that reason we disagree with the government's contention that the evidence on the $1,000 threshold was overwhelming or uncontroverted. Again, as laid out on page 23, we think that in the best case scenario the government only gets to around $850. But even if the evidence were overwhelming, I'd point the court as we did in the briefs to this course decision in Macon's which holds that an apprindi error of the type here should be found harmless only if the same total sentence of imprisonment could have been imposed based on multiple counts of conviction. Here we only have the single count of convictions so his sentence could have only been 12 months. So back to the guidelines issue, the government agrees that we need at least a remand for recentencing in this case to determine in its view the loss amount or the end of the restitution amount. Our view is, so we part ways though on whether to remand for an additional fact finding hearing, so in other words exactly what this recentencing proceeding should look like. Although it's not entirely clear what the government plans to do with this hearing, our view is that a request for additional fact finding of any sort is precluded by this course decision in Parker. Certainly if the government plans to present additional evidence at the hearing, then that is exactly what Parker prohibited the government from doing
. In Parker that court held that where the government has been given one full and fair opportunity to offer proof and support of an enhancement, it should not be given a second chance to do so on a remand for recentencing. Here just as in Parker the government had its full and fair opportunity to present its evidence in favor of the loss amount enhancement that it believed should apply. It acknowledged at Joint Appendix page 343 in its sentencing memorandum exactly what the controlling legal standard was under Dawkins, it had its opportunity both at the trial in this case and then again at the sentencing hearing in this case to present its evidence. Any evidence to have some fact finding to determine the restitution amount? I think as we lay out on page 23 that would be the calculation at the best possible calculation of the government. But I think the government also has the burden to establish the restitution amount and given it's if the court looks at this record and concludes as we suggest that there really is no loss amount proven by proponderance of the evidence that I think it should remain for a restitution amount of zero. But in the most favorable case scenario for the government I think it would be the $850 approximately $850 amount. Can the district judge find that amount with what's in the record now? Yes I think for the reasons that we lay out at page 23 the government's witnesses all agree that it was not disputed that the loss amount here that the change in Mr. Catoan's benefits would have been determined by application of the Shadrick formula. And the Shadrick formula isn't some kind of mystical trade secret that's hidden within the agency's walls. It's very easily available at 5 USC 8106 section A and its most basic form and then is fleshed out in more detail both in the CFR and in the agency manual which we cite at footnote seven of our briefs. I think it's a simple exercise to take the amount of benefits that he should have disclosed on the April 2008 form and run it through the Shadrick formula and again you get to the approximately $850 figure that we cite at page 23 of the briefs. And Parker did the trial judge have the law wrong on how to compute the loss amount. I don't have Parker in front of me. Well Parker is a case that involved an enhancement not for a loss amount finding but for whether a gun possession offense occurred near a playground
. And so based on the facts presented the court found that it was a playground this court reviewed the evidence in the record and determined that there wasn't sufficient evidence to know whether it was a playground. In other words the government hadn't carried its burden of proof on that. Well in this case the district judge if we agree with your argument has the method of computing the loss amount wrong as to what you look at and what evidence is required and what the test is. And so I've got a concern that we're tying his hands perhaps improperly if we exceed your suggestion and say no more evidence when he in effect agreed with the government says here's how you figure it I don't want anymore. Well the only thing I would disagree with there I think is that the government acknowledged what the controlling standard was here they acknowledged that Dawkins controlled and how it should be calculated so the district court had the opportunity to calculate the facts under the Dawkins formula. And so it's a little bit unclear based on the lack of factual findings whether the district court simply overlooked the government's articulation of the standard or whether he made an erroneous finding a fact. So what we suggest and I think it's consistent with Parker and it's consistent with the DC circuit case and I think it's Lorenzo that followed the Parker decision and it followed Parker with respect to a loss amount determination. As to say that if you look at the evidence in the record the government hasn't carried its burden to prove by a preponderance that there was any loss here and therefore to remand with instructions that the guidelines range be determined based on a loss amount less than $5,000 which is the threshold in section 2B1.1. I also note the government in its brief for the first time has asserted some kind of joint income theory under which it suggests that you might be able to get over the $5,000 threshold but even if that were the case the government actually needs to get all the way up to the $10,000 threshold in order to change the bottom line guidelines range in this case. So even if a two level enhancement applied to raise the offense level from 6 to 8 the end of the day the guidelines range would still be zero to 6 months and so based on that we think that there is no reason for a remand here for additional fact finding. I would point that the court to two particular facts in this case that I think it's show why there is no loss amount proven on the record. The first is, well, three facts. The first is as the government's own witnesses acknowledge the Shadrick formula would have been applied here if this information had been disclosed
. And so that really undermines the notion that he would have received no benefits. So the government's theory is if he discloses this in April 2008 the agency terminates his benefits going forward in an addition completely rescinds his benefits that he had received up until to that April 2008. The two pieces of evidence that Mr. Catone that we have introduced at the sentencing hearing that undermine that claim are at joint appendix 295 which is the CA 7 form that he submitted in March 2007 that did disclose some income received from Angelo's maintenance. Based on that information if the government's hypothetical were correct the agency should have at that point determined that he was ineligible for benefits and not paid him. Instead that formal submitted at the exact same time the agency was calculating the amount of benefits he was entitled to receive. And it factor that into the formula and then in April of 2007 one month after this formal submitted the agency began making the benefits payments. So that form undermines the government's theory as to loss. So does the appeals board the agency appeals board decision at joint appendix 311 to 316 which was issued in December of 2012 and which shows that even after the agency knew about the work that he had allegedly performed and about the income he had allegedly received it didn't even at that point meet its burden to terminate his benefits going forward. And so the agency appeals board reinstated his benefits effective September 2009. Thank you. Thank you Mr. Garvin Mr. Miller
. Thank you Mr. Speaker. May I please the court my name is William Miller here on behalf of the United States based on the plain meaning of the statute the district court properly held section 1920 establishes a felony offense punishable by up to five years in prison. And therefore although a remand is necessary to allow the district court to calculate the guidelines loss amount using the correct standard this court should affirm the district courts holding regarding the applicable statutory maximum. Now the government's argument regarding the applicable statutory maximum in this case derives from the plain meaning of section 1920 the plain meaning of that statute by reference to the language and structure confirms that it establishes a felony offense with the misdemeanor. And if you look at the language of that statute the first clause defines the felony offense it says that whoever knowingly and willfully makes a false statement in connection with the application for or receipt or federal benefits shall be guilty of perjury and on conviction there of shall be punished by imprisonment for not more than five years. That is a complete definition of the felony offense there's been a semicolon separated by the phrase but if the amount of the benefits falsely obtained is not exceed a thousand dollars such person shall be punished by imprisonment for not more than one year. And as the courts that have interpreted this language have found that first clause creates a felony offense it is a complete thought and doesn't stands on its own grammatical feet. The misdemeanor section that comes second is set off pointedly by the phrase but if which is the language of a mis of an exception. And so as the third circuit has observed what section 1920 does is define a felony offense with a limited misdemeanor exception and falls into the class of statutes that are quote felony criminal statutes that include a narrow misdemeanor exception in the event that the illegal conduct results in a diminumist gain. And this interpretation is not undermined by anything that the Supreme Court held in a lane. A lane talks in terms of separate aggravated offenses. What we have here rather than a misdemeanor with a separate aggravated felony offense is the recognition that lesser punishment is appropriate in cases where the benefits falsely obtained results in diminumist gain to the defendant. And so it's not an aggravated offense is an exception for a diminumist gain
. Even if this court were to adopt the defendant's interpretation however instructions in errors and jury instructions are subject to harmless air review. That's been established by the Supreme Court and its nature decision. And in this case the defendant's argument that the air is not harmless misinterprets the statute. He argues that the air is not harmless because there's a conflict about the amount of benefits falsely obtained. But that focus on the falsely obtained language exclusively ignores the broader context of the statute. What courts have held for statutory purposes is that that benefits falsely obtained is what is in connection with the false statements. And so there this analysis that we've been discussing for the guidelines purposes about offsetting the loss amount based on what the defendant would have received had he truthfully disclosed his outside employment doesn't apply in the statutory context. And the statutory context the question is what benefits the defendant received in connection with his false statements. Well why doesn't it mean what benefit would he have received what benefit he received that he would not have received had he made a false statement. Isn't that the obvious implication of the statute? That's the defendant's reading certainly. And why isn't that the most reasonable construction? Because why would the law want to punish you for what you had a right to anyway but for your statement? It's not the most reasonable construction because it overlooks the in connection with language that comes in the preceding clause. As the third circuit. But I'm talking about logic and rational not trying to hook on to a word here and there. Why would the law seek to punish you for what you had a right to anyway irrespective of your false statement? And that judge keen and that certainly is the special rule that applies and the government concedes in the guidelines context when calculating the guidelines range
. But the government's position is consistent with the third circuit's reading of the statute. Right. But I'm not asking you about the third circuit. I'm asking you about the reasoning behind this. What's the reason why a statute would seek to punish somebody for that which the person would have a right to irrespective of the false statement? What's the logic behind that? And the logic there is going back to what I said earlier about this misdemeanor being an exception for a diminimous gain. I understand the court's perspective or your argument there. I'm just concerned. It just seems counterintuitive. Correct. Our argument is focused on the language and structure of the statute and the third circuit's position on this language of in connection with. The language and structure of the statute doesn't require this extra level of analysis at that stage. That level of analysis comes in and the guidelines calculation based on the special rule for loss calculation at that time. It just seems to me though, you know, what I don't understand, you know, just going back to like, if there's a difference between a grand larceny and a petty larceny, the government's got to prove it. You've got to prove what was taken
. Why wouldn't you have to prove the amount that was falsely received? The government's best argument on that position is that what this does is define an exception for the least culpable defendants. So contrary to a lane. I don't get the concept of an exception in a statute. You're talking about elements of a crime and what has to be proved. We're in the criminal jurisprudence. Do we have this concept of an exception that gives the government a pass on proving the amount involved? Well, courts interpreting this particular statute have found there to be an exception. And so that's the basis. Right, but I'm just asking you, where does this come from? Sentencing factors are commonplace in federal criminal law. I mean, it's not uncommon for a defendant to have the burden for certain things that impact the sentence. The issue is just whether or not this particular statute defines elements of the offense. That's where the Sixth Amendment concerns come from. Yeah, I thought a lane just, I mean, just slammed the door on your argument. Tell me why it doesn't. A lane speaks in terms of aggravated offenses. Separate aggravated offenses is the language of a lane. And here, rather than a separate aggravated offense, what we have is, and I'm going back and repeating myself an exception for, as the Third Circuit has said, diminimous gain to the defendant. Okay, so if this isn't an exception, then you lose. Is that correct? No, Your Honor, we still have the harmless error analysis in this case. And here, going with the in connection with theory for interpreting this particular statute for statutory purposes, it's obvious that this defendant was receiving $3,000 a month in connection with his fall statement in the 1032 form. And so the evidence on that point, if the court accepts the government's construction of in connection with, is overwhelming and largely uncontroverted. The defendant's harmless error analysis depends on this court accepting his construction of the statute, which focuses exclusively on falsely obtained language. And as the Third Circuit noted the poem, no court has accepted that particular interpretation of the statute. The defendant cites the 11th Circuit case in Hurn. But in Hurn, the 11th Circuit actually rejected a higher causation requirement, the higher causation requirement that the defendant put forward, and said that it's all required, actually essentially endorsed the district court's instruction, which is that the benefits falsely obtained just had to be as a result of the fall statement. And so as the Third Circuit viewed that holding, that was synonymous with the in connection with language. Well, how do you square the Third and Seven Circuit's interpretation of 1920 with our decision in Wilson, which held at Section 641, requires the government to prove the specific loss amount, beyond the reasonable doubt? And Wilson was a case as the court is aware that predated by apprendy by 40 years. And it didn't undertake this, and that was also a.
. Separate aggravated offenses is the language of a lane. And here, rather than a separate aggravated offense, what we have is, and I'm going back and repeating myself an exception for, as the Third Circuit has said, diminimous gain to the defendant. Okay, so if this isn't an exception, then you lose. Is that correct? No, Your Honor, we still have the harmless error analysis in this case. And here, going with the in connection with theory for interpreting this particular statute for statutory purposes, it's obvious that this defendant was receiving $3,000 a month in connection with his fall statement in the 1032 form. And so the evidence on that point, if the court accepts the government's construction of in connection with, is overwhelming and largely uncontroverted. The defendant's harmless error analysis depends on this court accepting his construction of the statute, which focuses exclusively on falsely obtained language. And as the Third Circuit noted the poem, no court has accepted that particular interpretation of the statute. The defendant cites the 11th Circuit case in Hurn. But in Hurn, the 11th Circuit actually rejected a higher causation requirement, the higher causation requirement that the defendant put forward, and said that it's all required, actually essentially endorsed the district court's instruction, which is that the benefits falsely obtained just had to be as a result of the fall statement. And so as the Third Circuit viewed that holding, that was synonymous with the in connection with language. Well, how do you square the Third and Seven Circuit's interpretation of 1920 with our decision in Wilson, which held at Section 641, requires the government to prove the specific loss amount, beyond the reasonable doubt? And Wilson was a case as the court is aware that predated by apprendy by 40 years. And it didn't undertake this, and that was also a... That is actually very, makes our position with a very very harmful, doesn't it? The reason that Wilson is not helpful in this case is that it doesn't undertake this analysis of what is an element of the fence. The analysis in Wilson was basically whether or not there was sufficient evidence. And so it didn't go through this sort of sixth and then the analysis that the court is required to undertake in this case. And so Wilson is less helpful than the persuasive authority from other circuits that have undertaken that particular analysis. Moving to the guidelines calculation here, the defendant urges this court to remand and confine the government essentially to the record evidence and to direct findings by the district court. And that's not appropriate in this case because the general rule, as reflected in the Dawkins decision where this exact same type of error in the legal standard arose, the general rule is to remand to allow the district court to make those kinds of factual findings because it's better suited to do that. The instances... In the district court take other evidence under your theory? Yes, under the general rule a remand for additional evidence would be appropriate because what happened here is the district court applied the wrong legal standard. When courts confine the district court, that's when the government failed to meet its burden of proof, so it's a different type of error. Well, why couldn't you direct the district court to impose the correct legal standard based on the evidence before it? I mean, isn't that.
.. That is actually very, makes our position with a very very harmful, doesn't it? The reason that Wilson is not helpful in this case is that it doesn't undertake this analysis of what is an element of the fence. The analysis in Wilson was basically whether or not there was sufficient evidence. And so it didn't go through this sort of sixth and then the analysis that the court is required to undertake in this case. And so Wilson is less helpful than the persuasive authority from other circuits that have undertaken that particular analysis. Moving to the guidelines calculation here, the defendant urges this court to remand and confine the government essentially to the record evidence and to direct findings by the district court. And that's not appropriate in this case because the general rule, as reflected in the Dawkins decision where this exact same type of error in the legal standard arose, the general rule is to remand to allow the district court to make those kinds of factual findings because it's better suited to do that. The instances... In the district court take other evidence under your theory? Yes, under the general rule a remand for additional evidence would be appropriate because what happened here is the district court applied the wrong legal standard. When courts confine the district court, that's when the government failed to meet its burden of proof, so it's a different type of error. Well, why couldn't you direct the district court to impose the correct legal standard based on the evidence before it? I mean, isn't that... I mean, don't you have a two bites at the Apple problem? No, because the misapplication of the legal standard, obviated the need for the factual finding in this case. And so Parker, the case of the defendant's sites there, it was actually a statutory case initially, but what happened was there was no misunderstanding about the legal standard. The government just failed to prove that the drugs was dealt near a playground. Here, the court misapplied the legal standard and so the relevant factual findings weren't made. I mean, perhaps the government could have made an offer of proof that might have been best practices, but it's not required for a remand for the court to make those types of findings. And I draw the court's attention to a night circuit case. It wasn't cited in my brief, this is in response to something the defendant brought up in his reply. This is United States versus Matthews, and it's at 279 F-380. That's a 2002 on-bomb decision where the night circuit goes through this analysis and distinguishes this between cases where the government failed to meet its burden, where that was the error, and cases where the district court applied the wrong legal standard. And it actually distinguishes Parker and other cases like it, where the error was of a different character. And it also just briefly point out that the defendant's lost calculation. How was it determined what the test was going to be? Is this a theory that's advanced by the government in the Senate's thing, or is this information or a standard established by the judge before you even begin your testimony? In other words, is the judge buying your argument and going that way, or is this his idea, independently of any suggestion by the government? If I understand your honors question correctly, the lost calculation in this case is the function of a special rule within the guidelines. And so that sets the standard
.. I mean, don't you have a two bites at the Apple problem? No, because the misapplication of the legal standard, obviated the need for the factual finding in this case. And so Parker, the case of the defendant's sites there, it was actually a statutory case initially, but what happened was there was no misunderstanding about the legal standard. The government just failed to prove that the drugs was dealt near a playground. Here, the court misapplied the legal standard and so the relevant factual findings weren't made. I mean, perhaps the government could have made an offer of proof that might have been best practices, but it's not required for a remand for the court to make those types of findings. And I draw the court's attention to a night circuit case. It wasn't cited in my brief, this is in response to something the defendant brought up in his reply. This is United States versus Matthews, and it's at 279 F-380. That's a 2002 on-bomb decision where the night circuit goes through this analysis and distinguishes this between cases where the government failed to meet its burden, where that was the error, and cases where the district court applied the wrong legal standard. And it actually distinguishes Parker and other cases like it, where the error was of a different character. And it also just briefly point out that the defendant's lost calculation. How was it determined what the test was going to be? Is this a theory that's advanced by the government in the Senate's thing, or is this information or a standard established by the judge before you even begin your testimony? In other words, is the judge buying your argument and going that way, or is this his idea, independently of any suggestion by the government? If I understand your honors question correctly, the lost calculation in this case is the function of a special rule within the guidelines. And so that sets the standard. It's not a suggestion of the government, it's not a suggestion of the defendant, it's not the court's own determination, it's provided for in the guidelines. Ordinarily, the loss amount is the greater of the intended or actual loss. But when you're dealing with government benefits, there's a special rule that requires this offset based on what the defendant would have received had he been truthful. And so it's a function of the guidelines and as interpreted in this decision in Dawkins. And so the government highlighted the correct standard in its sensing memorandum, but the error came here when the district court adopted probations articulation of the standard. The presentance report said loss amount equals what he got and what the forfeiture order was. And the court, when it made its rulings on the objection, said probation is correct on the law, essentially. And so that's where the error in the legal standard comes in in this case. It's a function of the district court adopting probations, mistatement of the law and the law, the law being that which comes from the guidelines and from this court's decision in Dawkins. I don't know if that answers the question. And as for the defendant's guidelines, loss calculation, he points to three pieces of evidence. And again, the government's position is that it's premature for this court to engage in this type of fact finding at this stage. Mr. Carpenter referred to the defendant's joint income theory
. It's not a suggestion of the government, it's not a suggestion of the defendant, it's not the court's own determination, it's provided for in the guidelines. Ordinarily, the loss amount is the greater of the intended or actual loss. But when you're dealing with government benefits, there's a special rule that requires this offset based on what the defendant would have received had he been truthful. And so it's a function of the guidelines and as interpreted in this decision in Dawkins. And so the government highlighted the correct standard in its sensing memorandum, but the error came here when the district court adopted probations articulation of the standard. The presentance report said loss amount equals what he got and what the forfeiture order was. And the court, when it made its rulings on the objection, said probation is correct on the law, essentially. And so that's where the error in the legal standard comes in in this case. It's a function of the district court adopting probations, mistatement of the law and the law, the law being that which comes from the guidelines and from this court's decision in Dawkins. I don't know if that answers the question. And as for the defendant's guidelines, loss calculation, he points to three pieces of evidence. And again, the government's position is that it's premature for this court to engage in this type of fact finding at this stage. Mr. Carpenter referred to the defendant's joint income theory. That was not a theory that the government's urging upon this court. The purpose of putting that in the brief was simply to point out that that type of fact finding a defendant asked this court to engage in is premature at this stage. Under the standard, the court needs to find what was the defendant's wage earning capacity. And equating his wage earning capacity to those handful of checks is a flawed analysis in this case. And the pieces of evidence that the defendant relies on are not unreliable. They don't foreclose different findings at the district court. The appeals board decision that the defendant cites. All that found was that when the workers compensation, OWCP, when it terminated this defendant's benefits, the doctor that it relied on didn't meet the standard, its report was, was equivocal. And so it wasn't finding that the defendant was entitled to these benefits. It was simply a finding that the government hadn't met its burden for termination. And so that's just an example of why fact finding at this stage is inappropriate and why the district court is in a better position to sort through those types of matters. And I note that in the defendant's opening brief, there was a Brady allegation, my sense is that that has since been abandoned by the defendant. And unless the court has any questions on that particular issue, yield the balance of my time. And ask this court to affirm the finding of the statutory maximum and remand to allow the district court to make the appropriate findings under the guidelines
. That was not a theory that the government's urging upon this court. The purpose of putting that in the brief was simply to point out that that type of fact finding a defendant asked this court to engage in is premature at this stage. Under the standard, the court needs to find what was the defendant's wage earning capacity. And equating his wage earning capacity to those handful of checks is a flawed analysis in this case. And the pieces of evidence that the defendant relies on are not unreliable. They don't foreclose different findings at the district court. The appeals board decision that the defendant cites. All that found was that when the workers compensation, OWCP, when it terminated this defendant's benefits, the doctor that it relied on didn't meet the standard, its report was, was equivocal. And so it wasn't finding that the defendant was entitled to these benefits. It was simply a finding that the government hadn't met its burden for termination. And so that's just an example of why fact finding at this stage is inappropriate and why the district court is in a better position to sort through those types of matters. And I note that in the defendant's opening brief, there was a Brady allegation, my sense is that that has since been abandoned by the defendant. And unless the court has any questions on that particular issue, yield the balance of my time. And ask this court to affirm the finding of the statutory maximum and remand to allow the district court to make the appropriate findings under the guidelines. Thank you, Mr. Miller. Mr. Carpenter, you have some time remaining. I want to start very briefly with the Brady claim that Mr. Miller just mentioned. It's not a claim that's been abandoned. I think it's fully covered in the briefs. But I'm certainly happy to answer questions about it if the court has them. Otherwise, we'd be happy to rest on what is in the briefs on that issue. Now, I would turn to a question that you asked us tracks about how legal standard was set by the district court. The government's response as well, the district court deferred to the articulation of the legal standards set out by the probation officer. It's not a really 100% accurate because the probation officer doesn't set out a legal standard. In fact, if you look at the PSR at Joint Appendix page 325 in calculating the loss amount, the probation officer refers to section 2B1
. Thank you, Mr. Miller. Mr. Carpenter, you have some time remaining. I want to start very briefly with the Brady claim that Mr. Miller just mentioned. It's not a claim that's been abandoned. I think it's fully covered in the briefs. But I'm certainly happy to answer questions about it if the court has them. Otherwise, we'd be happy to rest on what is in the briefs on that issue. Now, I would turn to a question that you asked us tracks about how legal standard was set by the district court. The government's response as well, the district court deferred to the articulation of the legal standards set out by the probation officer. It's not a really 100% accurate because the probation officer doesn't set out a legal standard. In fact, if you look at the PSR at Joint Appendix page 325 in calculating the loss amount, the probation officer refers to section 2B1.1B1F of the guidelines. That's the loss amount provision. It's where the commentary comes in that says we calculate loss amount based on this differential analysis between what he did receive and what he would have received if he'd been truthful. So it's sites to the right provision, the government sites to the right provision. That's the distinction we have with dockens where this court did remand for additional sentencing. In dockens, the government's argument throughout was based on a legal position that under the guidelines, the loss amount should be equated to the forfeiture amount imposed in administrative proceeding. The court rejected that in dockens and it's now been rejected since then by the guidelines commentary as well. There's never been any dispute about what the legal standard is in this case. To the extent that the district court wasn't clear in articulating what standard he was applying, that might be a problem, a procedural problem. But the government was never advancing some legal theory that would have obviated the need for it to produce evidence in order to support the loss amount enhancement that it sought to apply. The government had that opportunity both through the evidence that was elicited at trial. It could have pointed to that at sentencing. It could have pointed to that evidence. And it's appeals brief if there were any evidence in there that supported its loss amount theory
.1B1F of the guidelines. That's the loss amount provision. It's where the commentary comes in that says we calculate loss amount based on this differential analysis between what he did receive and what he would have received if he'd been truthful. So it's sites to the right provision, the government sites to the right provision. That's the distinction we have with dockens where this court did remand for additional sentencing. In dockens, the government's argument throughout was based on a legal position that under the guidelines, the loss amount should be equated to the forfeiture amount imposed in administrative proceeding. The court rejected that in dockens and it's now been rejected since then by the guidelines commentary as well. There's never been any dispute about what the legal standard is in this case. To the extent that the district court wasn't clear in articulating what standard he was applying, that might be a problem, a procedural problem. But the government was never advancing some legal theory that would have obviated the need for it to produce evidence in order to support the loss amount enhancement that it sought to apply. The government had that opportunity both through the evidence that was elicited at trial. It could have pointed to that at sentencing. It could have pointed to that evidence. And it's appeals brief if there were any evidence in there that supported its loss amount theory. Let's go to your Brady claim this briefly since the government didn't argue. Sure. That form CA7 was prepared by your plan. Yes. And he obviously charged with knowledge as to what he put in it. It was also readily available from the agency if you just asked for it. So how is that a Brady violation? We're going to our position on that would be that there shouldn't be in the context of a Brady claim a due diligence requirement placed upon defendants to go out and seek this information. And you're on I think there is some stray language and some of the court's previous cases that deal with that issue and seem to impose a due diligence requirement. I think if the I would point the court and this is a case that I probably should have cited in the reply brief and I apologize for not citing it. The sixth circus decision in United States versus tavera. It's at 719 F third 705 decision last year. In that case the court rejects an argument that the tenant must exercise due diligence to bring a Brady claim. And it was that requiring due diligence on the part of a defendant quote relieves the government of its Brady obligations. So if the point of Brady is for the government to provide the information it has in its files
. Let's go to your Brady claim this briefly since the government didn't argue. Sure. That form CA7 was prepared by your plan. Yes. And he obviously charged with knowledge as to what he put in it. It was also readily available from the agency if you just asked for it. So how is that a Brady violation? We're going to our position on that would be that there shouldn't be in the context of a Brady claim a due diligence requirement placed upon defendants to go out and seek this information. And you're on I think there is some stray language and some of the court's previous cases that deal with that issue and seem to impose a due diligence requirement. I think if the I would point the court and this is a case that I probably should have cited in the reply brief and I apologize for not citing it. The sixth circus decision in United States versus tavera. It's at 719 F third 705 decision last year. In that case the court rejects an argument that the tenant must exercise due diligence to bring a Brady claim. And it was that requiring due diligence on the part of a defendant quote relieves the government of its Brady obligations. So if the point of Brady is for the government to provide the information it has in its files. But the government can get out of that by saying well you could have went out and investigated and found this stuff all yourself. That really takes away the point of Brady in the first instance which is to ensure fair play on the part of the government by requiring it to turn over. I didn't know that the government was going to rely on the CA7 to prosecution to be clients. Well that's the thing they didn't rely on the CA7 and to the extent they were even aware it's unclear from the record and it doesn't matter for purpose of the Brady claim whether the prosecutor himself was aware of this form or not. But as we point out in our brief the CA7 form absolutely undermined the theory of intent that the government advanced. Their theory was Mr. Catoan all along had planned to do this work for Angela's maintenance. He had planned to not disclose it so that he could double dip so that he could receive more benefits than he was entitled to and also work on the side. The fact that he disclosed this information to the agency in March 2007 when the agency was in the midst of calculating whether he was entitled to benefits and how much he was entitled to absolutely undermines the theory that there's some kind of nefarious intent that pervaded his actions throughout this time period. If it had been disclosed and it had been introduced at trial it could have absolutely supported the defense argument that the omission of this information in April 2008 was mere inadvertence and wasn't knowing and well full. So that's the reason that we think it could have been used at trial had it been disclosed timely by the government in connection with its Brady obligations. If the court has no other questions I would thank you for it first time. Thank you. We will come down to greet Council and then go into the next case