this case in many ways comes down to was the plea agreement and a loser and illusionary agreement was there an actuality a contract between mr suzuki and the government or was there not it's mr position that when he entered into this plea agreement he had the ability to litigate the amount of tax laws it's the government's position and in fact he didn't you have ten minutes you can use it any way you want to but if i were in your shoes i would not court he was going to be able to litigate the issue of in fact whether or not there was a tax loss because there was an agreement with regard to the amount of money that the government felt had contributed to the tax l that there was no tax it's essentially because the other person who was the one who would have been paying the taxes had overpaid for some other reason and therefore the government didn't lose any money it got everything it should have gotten on his return that was what that's one of his positions that argument was presented to the district court in the response to the probate or pre thirty two he made a finding there was a tax loss however based solely upon the information in the pre sentence report which was the information that the government provided to the probation office if he was the disputed issue in any way  can find nothing in the record the only thing that he did was suki made multiple arguments as to why there was not a tax loss the judge resolved one of the arguments by saying that had been resolved in a previous trial ignoring the fact that that conviction had been reversed on appeal because of the unreliability of the evidence that had been presented at the previous trial has been reversed before the sentencing that is correct your hon tax loss at sentencing that it may take a certain amount of time to resolve that because it's a little bit more complicated than some sentencing issues depending on the circumstances however i believe that precedent from this court makes it clear that even when you're talking with regard to a tax loss that the district court has to spend the time to resolve that question and the case that was cited in the opening brief that's the case of united states versus standard that case involves a question of whether or not referral fees were deductible and in california back in the late eighty's an unsolicited referral fee was legal but in but a solicited referral fee was illegal and the standard case apparently took three appeals to resolve the matter that the district court in fact had an obligation to determine whether or not the tax deductions taken by the taxpayer qualified as a deduction or did not qualify as a deduction and it it seems to me that standard makes it relatively clear that under rule thirty two you simply have to look at the arguments presented as to whether or not in fact there was a tax loss and resolve that issue at the time of sentencing here i don't believe that was done it's clear that that was not a centrally the same sentence and he used two different figures if it was half a half the amount or if it was a quarter of the amount and i think in essence what happened here and we have to remember the time frame of the sentencing this sentencing happened relatively recently after booker came down it happened i believe after ambling to but before and bank decision and i am a lean and i believe that in fact a district court judge was to a certain extent under the impression that booker a lemonade consideration of the guidelines and that we were very close to the sentencing before the guidelines were ever placed into existence w worry factor yes he did say that he did say that they were a factor and the significant thing about that is the figures that he used made minimal difference when you calculated the tax loss obviously if suki is right and there was a scheme where people contemplated defrauding the government out of money for some reason or other they did not go through with that scheme and in fact the government did not get defrauded out of money you're in a different sentencing position then if you in fact defraud the government out of and this case a million and a half dollars is what the probation officer interestingly that out of are earning one million seven hundred thousand dollars the tax loss here was calculated to be one million five hundred thousand an interesting calculation but clearly in this instance mr sukie did not get what he bargained for in the plea agreement which was a resolution of the amount of tax last two three one of three minutes actually i said to but i think that perhaps duty among other things there was no tax because of the taxes that were actually due and more the other gentleman and therefore the government didn't lose any money your honor it is my recollection that at the sentencing there was the p s r which was predicated on the government's figures and a schedule of the tax laws submitted by the united states review of the record i was not involved in the suzuki case i was very involved in bowl where i tried it twice but my recollection is there was no argument of the loan issue at that time  here on i think it's important to note that the issue that this court reversed all wear on had nothing to do with the tax loss figure the reversal on bull where one came from the district court refusing to allow of the jury to hear evidence of litigation civil litigation in the hawaii state court concerning whether or not h igh the property had been given to mr b where's mistress for lack of a better term it did not opine on the issue of tax loss that was not the issue which this court took issue with it was simply limited the other fifty three that the tax laws really i think his quote was i don't care if it was half as much i don't care if it was this quarter is much under the now guidelines the issues upon which the court is moving forward is the thirty five fifty three issues which he then outlined in great detail he did say a number of inconsistent things when he sees things i don't care on the issue of sentencing under the now advisory guidelines he was saying a exact term a nation of tax laws is is no longer critical it may not be critical to a sentencing judge but it could be critical to the body who has the responsibility for determining whether a sentence is reasonable and under the advisory guidelines if there is no tax finish mike i'm sorry and you can respond it may be that it district court can say i basically don't care what those guidelines say but from our point of view in determining whether a sentence is reasonable or unreasonable we have a perfect right to look to the advisory guidelines in compare it to what the sentence is especially in a case where the district judge made no factual resolution of the objections to the piece in its report footnote in that case that points out that now that we're dealing in this whole new world of advisory guidelines there may be little point in requiring district courts to engage in the purely academic exercise of resolving complicated factual questions in order to delineate exact guideline ranges if the court has already settled on a reasonable sentence in light of the factors in thirty five fifty three a nice just a footnote that wasn't holding but that hurts a little contradictory to what most cases and what the government usually would like which is you start with the guidelines and you figure out what the sentence is and you proceed from there certainly justice breyer wouldn't be very happy with that footnote well but then we can tell you what it was the problem seems to me to be in this case what the judge says is no don't want to hear about the dispute at one point because one of you to just settle this tell me what the amount is and if the other essentially amounts clear there's no dispute about the amount the defendant keep trying to tell you we do have a dispute but in the under the advisory guidelines that was that was a possible sentence your honor but in this case the court applied all of the factors not all of them since district court based on undisputed facts look to the guidelines and then imposed dissonance six times more than the lowest more of the advisory or challenge of that last figure at the sentencing mr suzuki has never said other than the argument that all of this is loans which has been rejected by two juries now by ninth circuit opinion that's not really an issue your honor there's no argument this money didn't come from loans now the exact amount of money as it applies to question of no tax loss not alone no tax while he did that your honor in three different places in his submissions what he did was he incorporated filings that had been made ball where sentencing because we were you were talking about a document stack a foot high he submitted those by incorporation and he referred to that at least two different times in his submissions he filed i believe three objections to the pre sentence report he filed that i believe in his first objection and he also filed it in i believe his third objection there was a sealed excerpt for the record that was submitted by mr sukie in this case and those submissions are included within the sealed excerpt of record showing the exact arguments that bowl where put forth at his sentencing and in his sense of sentencing memorandum which coincidentally the judge never addressed at his sentencing the first time around either  not these transactions were loans no that was that was only one of the arguments there were a total of three arguments one argument was that they were alone the second argument was that in any event taxes were overpaid and a third argument was this was a return of capital that isn't on loan pratt's action in any event because there wasn't a profit made by the corporation during the year so there were three arguments that were submitted and sentencing and actually that were submitted twice in the pleadings submitted by mr sukie mr sousa he attempted to raise that at