government is correct that the district court could order restitution in the entire amount rather than limited by the counts and they convinced me as has us versus crisis you got off of that however i don't agree with that any of the stuck with that record and i wish it was better but that's where we are i would submit that that is certainly enough to alert this record to the issue we had the hearing on it and i would submit that it's enough now in terms of the actual apparent from the record none of us really knew this was happening certainly not me not the probation officer and i think both the pre sentence report and our findings indicate that this was a total surprise i think the expectation of the government specters would simply be holding on to these fines until the criminal case in fact is resolved one way or the other if this were the case i think that's absolutely perfect pro forma and would have happened without question but what happens is to the inspectors have given a windfall here of almost one hundred thousand dollars and my client is now stuck with his very large restitution for my point of course is a registered nurse with a felony on this record the chances of him being able to make these victims whole probably order the postal inspectors to turn the money back over to the government for distribution to the victims and she declined this and she had to do that with her discretion within her discretion to do that and if if the point was to make these victims whole it made sense to in fact make that order perhaps if she made that order you can now be speaking to government counsel representing the postal service saying that was an illegal order but i don't see anything i haven't seen anything from the government that would indicate she didn't have the power  over to i guess it's actually the u s attorney's office for distribution restitution funds are normally distributed but then separate and apart from that is the guideline issue as to whether that should have been the fact that from the amount our position is that it should have been an under two at one point one the old one point one application note eight talks about recovering value for the victims here if this money the almost hundred thousand dollars had been redistributed to the would forego over it's right there and that's really the sad part of this is that victims have this money right there and it could have gone directly to them at that time and i'm fortunate that didn't happen because of the unusual posture of this case understanding from talking to the case a chance that this was in fact happening but like so much else in this case and what i'd argue on the guideline side of things there just wasn't sufficient proof to even know that the money was in fact forfeited we have no documentation the government came forward with nothing other than basically hearsay through probation through the postal inspectors and that really kind of brings me over into the guidelines arguments for the three areas where we felt we should have been gushing and i recognize that we have to win on all three of these issues in order to get underneath five hundred thousand for guideline purposes but each one of them have some merit but one certainly the judge sautner called close are pinned upon the lack of evidence that the court relied upon here and i concede that the standard has done take a whole lot but it takes more than we've seen each one of these particularly as to the refund aspect of  discovered something wrong because they asked for their money back well either that or they didn't like the program this wasn't what i thought it was supposed to be i misunderstood it you misrepresented perhaps we don't know is the bottom line is the refunds were coming back as a result of the question the our theory is that that he didn't in fact have anything to do with of the money coming back yes and this perhaps gets back to the refund aspect of things maybe these were people that he would have said ok you can have your money back but you never had the opportunity to do that because  think the application note really was having in mind the sale of property in the proceeds being credited that sort of thing value received for the victim here perhaps i'm expanding it a little bit farther than the application note intended but our theory is that the victims are getting value that they get passed back where they should have got cash back therefore much like a real estate situation where the property is sold and the equity goes over to the victims here the money is coming back to the victims and therefore under his will and why should that reduce the magnitude of the crime if you're committed by your client i don't think it does but i think under the guidelines in fact under the rule to one point one it was contemplated that  should be deducted perhaps one of that's that's one of the reasons we don't have two f one point one anymore there were a lot of problems with that particular guideline and maybe that's o itself gives an example which talks about the fraudulent sale of securities in the amount of forty thousand dollars which have a worth of only ten thousand dollars pointing out then at the last for purposes the guidelines would be thirty thousand forty thousand i think the point of the not it's pretty plain that is if the victim received some value as a result of the criminal transaction issue the fraudulent transaction at issue then that value should be subtracted and the victim or the last calculation only include the amount that was a true lost to the victim but no it was not in any way talk about some value the victim may get as a result the func some prospect of recovery by way of restitution or something else from recovery by the government it speculative the get go or where in this case where there was really no value to the victims the government recovered as part of its investigation recover some money in a seizure that's not value to the victims that's a loss for victims the victims may or may not get that back in terms of restitution as we see in this case now on that issue generally familiar but not specifically familiar with the uses that the department of justice puts the victim forfeiture funds to  i'm not using the term the technical sense but remit is to be used for restitution i think that a member was made to address the situation where there has been for future any legal forfeiture there was no authority to order those fun the fisheries of his forfeited funds seems to be the government who might be raising in this particular case to say look we have these forfeited funds over in the u s postal service and they ought to be allocated remoted whatever beef whether or not there is care for the now actually permits are you telling us that there was no authority on the part of the restitution it is pointed out while i was not specifically camilli with felt with the feldman case i was going to make the point that there are two different sentencing procedures two different sentencing options and they can fact that there was the forfeiture in this case albeit inadvertent but apparently legal does not mean that if the restitution order should be a factor that was entirely within the court's discretion to do so to order that restitution case they would have gone to the general fund or the treasury i believe that the department of justice general filing would have gone to the department of treasury whoever has control over the postal service budget which i believe is treasury so again it wasn't even within something where justice could perhaps pursue it if we wanted them if i can turn quickly to the other two components of the last issue first as to the refunds i would disagree with mr stewar to the quality of the proof as you were counted accurately for the for the panel the court's finding that these refunds were made to low or in furtherance of the scheme or to prevent detection which would a report and in a formal statement to the probation officer this was not something that the probation officer the important point being came up on her own this was something that she put in the event based on a conversation with the with the agent and the only reason it was in an addendum was because the issue didn't come up until the actual presets record have been prepared so i think it's really a stake in the nature of any other factual statement in the research report which was certainly within  credit his denial but more importantly those funds were lost by the victims as the result of the execution of a device to put in place by the founding panel pointed out to mr stewart i don't think it makes much difference to the victims