obligation the government never move to modify the judgment and it must live with the terms of the judgment the government claims make claims to be all or this court but it can fee no in your view is it too late now for the government to make the motions that you say they should have made in order to excel or a payment or avail themselves of the remedies that they thought my view was that it you know how many years it would take to pay best the amount that is due and owing on the resume and schedule more years than anyone can reasonably be expected to lead nowhere more years than four hundred and fifty  allows the government to garnish substantially more money that's owed to it under the plain terms of a judgment that's one page at eighty three dollars a restitution water that expressly imposes a payment schedule and even though given the option that's his view and that's an rebutted he put in an adage that is that the same thing as saying he doesn't owe them money well i understand your honour's point but i would say look if you take a home mortgage you owe act large sum of money but that doesn't  title in terms of oh i meant what does the government entitle to by the terms of a mortgage contract they're entitled to payments every month and they can be accelerated if a default is shown well but if we're talking about but if we're talking about the countr steps they could face the collect the debt well that two things st that the plea agreement expressly contemplates a payment schedule and what it says is i r s or other governmental actions and what i understand that to mean is the justice department is saying that they're not barring the i r s from pursuing money not it not garnished or not ordered in the restitution in this case but the justice department is certainly finding itself by the plea agreement and terms of what it does in this case on the criminal docket sheet in this case and moreover it's that this is a charge bargain eleven c one a plea agreement it is the district court judgment that ultimately government and the government certainly could have been perhaps should have language in the judgment combined with the plea agreement well the just report is one of the at least language in the judgment was copied from the p s r and it makes sense as recommendation to the judge to impose a payment schedule police five hundred dollars a month what it means in the judgment having been copied into it i think is that the guy is free to pay more there was a time in this circuit when a probation officer could alter up a schedule that ambiguity in the agreement would have to be construed strictly against the government who drafted the agreement and if that language meant that the government could completely exceed the payment schedule  appears to have happened here is the dish that the government realizes it should have moved on to rule thirty five to amend the judgment as a defense lawyer typically will if they see a mistake after the judgment of docket it but the government never directly appealed it more than one year has passed since the appeal became final ordinarily the government at this point would be talking about the analogy of the judgment that had an opportunity for the district court expressly to make something mediately do in the government no you aren't so you are arguing  dollars a month and the retirement account is no inflexible that that's the terms of the judgment and again that was that the government has to think that's what the believe what the judgment imagined and from templated that the plea agreement with negotiated between the parties and given the we can only speculate but the context that the government did not include a list of assets to restitute or for that as an ordinarily would and did not immediately restitute an asset noted in the p s r and did not challenge the discretion not to so impose that obligation on direct appeal i think that the record is clear that he did know that's what the judgment says in the judgment is clear it's not even opportunity clearly to say a lump sum immediately do the government probably wishes it had asked the judge to do that and it wasn't done and there was plenty of time to correct it after the judgment was docketed but in terms of modifying the judgment there are still me to be the more reasonable part of your argument to be asking to be transferred to philadelphia are you planning to talk about that yes your honor the statute is clear that an action shall be transferred discretion to retain the action even though the supreme court in case after case says that shall it's mandatory not discretionary language and the government can hardly defend that position on appeal and so for the st time raises  forfeited that and invited the magistrate judge to rule on the merits in term of the policy of transfer and i think it's perfectly reasonable for a fair debt collection procedures act to determine that the united states should pursue these actions where people reside if you have someone in california and it's commenced in new york that's an extraordinary asymmetric vantages the united states attorneys that have offices all around the country not pro se li and in the six circuit case that found it harmless error not to transfer it wasn't part because the government paid to have the defendant transferred to the district to litigate the case the government starkly could have raised the timeliness objection below the also note i'm sorry i am not sure i follow you did you say a moment ago that you that in spite of your motion to transfer to do to eastern district of pennsylvania that you say that we should rule on the merits regardless whether we properly and for orders of garnishment against mr o'brien tarmon account to provide timely if only partial satisfaction to the losses suffered by this particular event the trust of o'brien's argument is this corn observed in the case of u s c calling the district court may entertain garnish garnishment other collection proceedings to satisfy restitution orders and the court noted that nothing precludes the government from initiating collection  cases where there was an argument made that seem to the one in this case that there is a repayment schedule and that interferes with the government's ability to do that well the e com cases and the shoest well there's a huge problem with relying exclusively on do immediately language and that's sort of the policy that the court was pointing up earlier which is if you take the payment schedule and you allow this particular defendant for example to simply make payments five hundred dollars a month for the entire liability of the judgment which is twenty years going forward at the end of the day he ends up paying one hundred and twenty thousand dollars  i don't understand why you should be entitled to prevail at this point on a claim of untimely notice which appears to be clearly merited if you were allowed to raise it why should you be allowed to raise in the court of appeals when you never raised it in the district court with respect to his request to have this transferred to pennsylvania and and nd part of my question is why doesn't the statutory provision that says that it shall be transferred upon the request of the obligation for to the government why doesn't the i mean what it says it shall be transferred it's obviously a provision that makes perfect sense that the government can can can and can argue any place in the country that the defendant is entitled by statute to have efforts to collect against him by the government take place the defendant may or done or makes the request within twenty days no yes but you can waive that you can waive that and you did forfeit it well it's true your honor that we shall transfer as meaning shall transfer unless the district court would like to theo's that it should go ahead and take to handle the case itself well the court  number while we started to us be back to which is the case which collects several other cases which provide notwithstanding the mandatory language in that particular statute the court still may  i mean that's all well and good but it's a little hard to get over to make the means and then if it's appropriate but not if it's not appropriate it says no of course as you said earlier there and then there would be a question of discretion if the issue was here's a poor man in san francisco and there's no offer by the government to pay his fare back to new york that would be oppressive if it still adelphia maybe not so much  that would be if the motion was not finally and i guess what i'm asking you is do we have this threat in the government's view to over look before the future and say that at least given that i mean there are cases with a also a problem with saying that sometimes it's harmless error not to comply with the mandatory statue i'm not sure that's right either on the other hand if the question is shall we overlook the is that some part of the government argument but it is to the extent that the government may all waive this body fine not having raised it to the district court it should be excused given the circumstances of just how the coming back to judge lynch's question to you why does why is scholl less applicable to us than to the district court if if the argument if if if the argument of untimely this was simply not properly raised was not brought out in the district court we are in appellate court reviewing what the district court did why are we in a better position in a more authorized position to say oh well we're not going to treat sheil as  mandatory where it wasn't raised in the district court although nobody nobody raised that question in the district court why is that an option for us just because notwithstanding the hot the argument wasn't are you arguing that there's no prejudice to to o'brian i would argue that there's no prejudice to a bra and why is there no prejudice to somebody who is an indigent person who has to travel ninety  miles rather than i mean that the statute is the statute is designed to allow a person against whom the government is trying to collect to do so at his home place rather than have to travel to do it and and he's indigent  the expense of a train ticket or a bus ticket from philadelphia to new york is not huge but that depends on whether you've got money or not well i think i think  the statute simply says he's entitled to have the proceeding take place in the his place of residence no your honor in order for him to get a hearing he must articulate a reason for h admits that he was one thousand two hundred dollars behind in his maybe that's right but he also admits that he had worked out as scheduled with the probation officer and he says that there are payments that are not reflected in the record the next day the district court holds a conference and and you file that it's month but then when the judge said ok here's the big fire objections you fail to yes reach mention the judge gave him an extension of two weeks and he fell to do so again so i don't understand how that  order and then i do think it's notable that affirming the judgment would require that to lead to waiver only against the on represented party and not against the united states but in terms of his objection there are substantive disputes and his affidavit but keep both parties can see if they should have complied with judge pitman's water it's unclear from the record why there was that mutual failure and maybe it's an explicit bill but it was mutual  after there were substantive contentions put in and so when the government did not oppose the motion to transfer it knew that there were substantive disputes the government seems to be saying that when someone says they're not in default and put forward bac hold a hearing of course that it was necessary to hold a hearing in order to find a default on the freeman schedule you win anyway because that is your argument on the ultimate merits that absen behind or four thousand eight hundred dollars behind or not the hind at all if the government is right in the substantive infer persuasion of what they were that they were entitled to do what they did which is what the district ells then these issues about d should there have been hearing for defendant have to buy an impractical or not are entirely irrelevant because that would be resolved on papers it's a legal question it's not a question that requires an evidentiary hearing or anybody's presents of course the government never made a motion to modify the judgment on the basis that mr o'brien is not in default and so to  on that is quite mistaken and i think it just gets back to for trying to put a square peg into a round hole here when we have a situation with a judgment most many other judgments as we noted  conservative that the logic is quite compelling when a district court has not returned to impose an obligation and explicitly declines to that must mean something there's a reason why there are different boxes on the schedule in make to take such election effort would ordinarily be taken with a debt and i'll see how you can say it's not that the man doesn't owe a debt to the government when the four he owes the restitution of will be of over two million dollars well there is right there is the broader debt but then there are terms to the debt collection and eleven see one a charge bargain this is a charge bargain it's not a normal eleven c one b plea agreements a contract it's a far right it's an agreement but your honor it's a charge bargain that says it's mostly agreements to that sentence will be determined by the court and then separately says that it will be that it contemplates a payment plan if and then separately says in the immediately following d sentence that the payment plan does t and if the judge went ahead and ordered immediate payment in a situation where the government had already agreed that he wouldn't immediately and that there should be a schedule the defendant would be entitle now but this is not about recommendations and you know that what your honor is saying often comes up in recommended guidelines ranges but this is not about the recommendation the government is saying  that it is not bound by the final judgment because there is a separate agreement even though this is not a breach of contract action right even though this is brought on the criminal docket sheet to enforce the judgment right not as a breach of contract action to enforce  separate agreement right which i would you never see the government is clearly manifestly trying to enforce the court's order the court's judgment the judgment that it up hand with what it presented to the court and i and you know i understand why the government may have buyer's remorse and i certainly sense the court's lack of sympathy here but i also think it's important we very frequently have it as more than one year after the final appeal that it is the defendant coming before this court and trying to find exceptions to banality under circumstances where matters were not sought to be corrected under rule thirty five where the district court's discretion and imposing the judgment was not directly appeal by the government right where other avenues to modification remain open to the government to this day but have never been pursued by the civil division and it usually would be the government coming before this court and talking about the importance of finality but case right other actions but in action on this docket she the criminal docket she to enforce the criminal judgment that has been final with the appeal more than five years since man de right both parties