i don't believe that he does and i think he would say that this court could would could find that judge shaab went through the appropriate calculations and there's no need for agreement i would like to indicate why i think that argument is inappropriate and is not well taken and the reason is because the calculation of the loss in this case was done in an reasonable fashion just like in aniline where the court recognized that someone had a defendant has a due process right to an enhancing factors mr martin is entitled to a reasonable calculation of what the real losses in this case what the intended loss is what the out of pocket loss was to people and that calculation really never has happened what happened in this case is that there was a sentencing hearing where agents laney took the stand presented this spreadsheet and said this is the amount of loss what we would strongly dispute the calculation method of essentially what delaney did was he added up all of the invoices for all of the computers some of which were circular transactions where there was no where there was no loss and said the loss is ten million dollars mr rational basis to come to sentence someone and in this case there is there has not been a rational a basis to calculate the amount of loss there has only been it's almost as if people threw up numbers and tried to see what would stick that's not enough there has to be kind of a rational organized fashion where people have to say how much was invested how much was lost how much was distributed to people as this court previous decisions recogni big difference between a case where someone tries to take the money and run away with the money then it's easy to calculate both the actual loss and the intended loss so what do you anticipate you're asking what do you anticipate happening when you g testimony of agent de laney and said well the lady says there's about ten million dollars last set the guidelines at about four million dollars because it's in the middle but he didn't explain his reasoning as to how he came fan i think if you look at the last  mark oh that's the problem we're facing not only here but everywhere i understand it in the last line of the opinion of the court i'm page twenty six of the second opinion  court it states that it is also the court is discussing what cases have to be remanded what cases should be addressed under the harmless error standard and in that case it says it is also because in cases not of valving a sixth amendment violation whether restarting is warranted or whether it be instead be sufficient to review a sentence for reasonable that's made the pend upon the application of the harmless error doctrine well in this case there is as clear sixth amendment violation because going harmless you know if we had proceeded under the new who regime one test is is it likely he would come out of the same place right in that case it seems to me it's harmless should conduct a very careful sentencing hearing over a day and a half period for testimony that yes included the testimony of special agent delaney but also included direct testimony from one of the victims who alone that his loss was three point two million dollars which is well over what what the judge found the loss not to be sentencing procedures and determine whether or not they comply with the requirements of the guidelines and if they don't there's some reasonable i wouldn't say it's a straight line determination i life being unreasonable if well in some cases i think that could be unreasonable if the judge is just obstinate and says for no apparent reason i choose not to follow this guy what about if if all right if you have the same hearing now firm we would affirm that as well correct well hard to say so is what we i mean arguably if there was evidence to support that one way or the other so wouldn't that be you know i'm hearing you say in the one sense that  maybe you know cognitive been missed but he held the exact type of hearing that he would have to hold on a rematch so be futile to send it back the only question i have just do we know that he would do the same thing and is the defendant entitled or their talent entitled to make that argument because now he could in fact possibly get last on this record i think that's fair point but i think what we know is that it's highly unlikely he will get less because the takes outside disparate the law then that's where an appellate court may say you're you're stepping over but the courts are going to allow a lot of deference to the judge that's actually hearing the evidence and making those well i think the point you make is correct and it was actually made in the first opinion in this case the district judges are closer to the evidence closer to the defendants the come before them day in and day out and they c criminal history category correct and you know under the i think it to protect act amendments that would have been subject to going over review but but that apparently also now is a matter of reasonable answer is that right i believe so and in the first opinion in this case the panel said that it was appropriate to give a different that the danger of recidivism is a separate enhanced from the under representation in the criminal history so it's theoretically appropriate given enhancement for each and it's said in martin one that if the judge wanted to do that the record would clearly support that and i didn't authorize that in advance but it certainly seemed to say that it was a reasonable thing for the judge to do so reasonable review reasonable review right  i think to a certain extent mr mccann his argument is tougher feuding he's basically saying that he didn't get a fair shot it at the sensing hearing and going over the last time out what he's really saying is and i think we argued this on both sides in the brief there doesn't seem to be much argument about the basic underlying facts of the last mr can and simply thinks that his client should have gotten some credits in today's argument he mentioned  of pocket last that's not the standard because certainly norm champ one of the victims out of pocket lost was reduced by several million dollars only because he was able to get an insurance recovery and he was able to sue curtis martin for the losses and round out some property which he was able to sell but that's not reasonable that's not a reasonable diminishment of the amount of restitution we would need to go into those things that we're talking about the the loss for guideline purposes for calculating the guidelines then no that's and those are not issues we need to go into i got less than a man i just want to reference the fact we