me one is the cross referenced in the guidelines which was addressed in the very first chorus and the second has to do with standards of review for what used to took the funds and bought listen to what he thought was the security in his own name imprudent to use what's the difference between you know under the the pay what he thought was necessary for him to make money not because he stopped to make money yawner that but the difficulty there were two separate things involved here there was the nigerian but what's looked at in the nigerian scam where he was  of the fact that they were becoming more and more prevalent popular more countries are using it appeared that the investment would be something that they could pay off that was a issue on appeal even with the nigerian scam that he used the line of credit he was named on that line of credit whether or not he could have used both spawn is something that is not really an issue here and he did agree to restitution for the law because any way you look at it none of this was very bright and fact i think all of us and hindsight and this is not the only case that i've been involved in where this nigerian scams come up and i think we all scratch their heads and say how could someone believe this was real and it happens over and case that you've heard on the deal with it and yet there is the issue of how can people believe this is real people do well ming posture of this racket i think the best you can say in this record as i am saying that i don't agree with the analysis and repeating the two are really the dictionary definition of misappropriation which means making the property one's own and u below the advisory guideline range and i think there were several issues brought up in the district court in an appeal that would make that reasonable one of them was repayment of restitution one of them was mr stone assistant prior to any investigation some two years before the government got involved with investigation he went secret service provided assistance the district court stated very did it saved other people falling into this trap that would be a basis for departure these statutes talked about considering the need for restitution and if you know the district court was very concerned about that and was skeptical  that mr stone was ever be able to pay the full amount of restitution and i think that's probably a reasonable skepticism one hundred forty five thousand dollars plus or minus total rest tousen mr jones mr stone is approaching sixty years old his employment possibilities are very low at this time but pain as much restitution the possible should be a concern and again situation have to be reviewed including those reasons for sentencing above allow or within the dad line range should we defer the submission until  come out yonder under some circumstances i would say yes the problem is mr stone if he were sentance well within the guidelines range that we were arguing the right of six months or the parker found that that you know he's he has served at this point approximately eight months i believe and with every passing day by the time think that that at some point this court and probably eventually this or this brain court is going to have to answer the question of what is the appropriate standard for review and what be reviewing court look at and terms of determining whether to to i well whether to look at what a district court guys with respect to the advisory my my time is much more than departure as long as the court of knowledge is that he has the authority you know of course that's what happened in this case judge lodged acknowledge that he had the authority to now or depart but declined to do s offense of conviction as a false document that mr stone gave to an auditor of the esau or of the pension plan and when mr stone was terminated they found various iterations or copies i'd like to just get back briefly if i may to the departure issue the lin decision and we believe with smith that still the law is the court's aware pre book are when guidelines were mandatory the court found that in fact there is no reason that this court should review those decisions post book or when they're simply advisory when it wasn't doing it prior to the the advisory nature of the guidelines in addition the courts issue what has been argued either defense in this case like you just briefly addressed the first issue raised by mr stone the issue of the facts and whether the work properly used the cross reference to increase the at the just miscount sixth and there are series of transactions that mr stone was involved in basically in asm and personal application of corporate funds was personal use for his personal benefit purchase of items