record is clear that april first two thousand and five the court reminded the case for proceedings deemed appropriate citing united states versus booker appellant requested a full re based upon the booker case the court below simply conducted a quick look review and affirmed a sentence imposed without any type of hearing what you got what your point got was initially an emmeline hearing for animal rights essentially that's how the court construed that fact and emmeline hearing but of course that is not the case here because there was certainly no decision this court in terms of any of the other issues were originally raised in the first appeal and it was definitely you know instruction by this court in terms of other than simply citing booker which still had yet to be totally confused for the ninth circuit by the emmeline case there was nothing there were no instructions so we would submit your honor that based upon those facts the court below by the government and the burden that was to be placed upon the government in terms of handling the recent sensing but the district court simply did not consider that to be the appropriate way to handle the case was decided i think within a day or so of the rematch and in which this court basically reversed where the defendant in gunning had been denied the right  and certainly the court should consider it as a full opportunity to fully consider the issues at sentencing whether or not they were going to fight by the read meant or not the order on this here would have been no problem well your honor if that were in fact the scenario that would be the way it would turn out but even then i think we would have grounds for appeal but i think the reality is that if a regular election serves me correctly during the period of time before i'm lying three came down there were a number of panels on this court which basically applied the teachings of booker  directed the courts below to do certain things give the lore sentence because all of the facts are not been proved in terms of the book or reduce the guidelines that type of thing so so i down and emmeline was basically more of a prude in that sense a procedural type of thing in which there was a great diversions among the various circuits on how to handle the case so we would submit the ninth circuit did not make a mistake and remained in the case a list this court wants to say that all of those other cases which were really meant and which resulted in substantial changes in sentencing were also wrong in and it was a mistake so as a result of the of the embezzlement clearly that was something in which the court apparently used the idea of order of the sentencing relevant conduct  was not it was not properly ordered simply because of the way the case came up in other words the charges were basically bank fraud and access device fraud in which the allegations were basically  and yet that was somehow bootstrapped into both restitution of were seventy thousand dollars as well as used as i pointed out in terms of coming up with the role of in conduct of over seventy thousand but we want to  good morning again may it please the court last osborne from the district a voice for the united states your honor i think that the questions of the court was asking mr quanah were specifically addressed at pages forty five and forty six of the government's brief as i understand the record in this case the court indicated that it specifically relied upon the p d s are for the determination of the amount and the role of the defendant and the p s are referred to specific sections of the trial testimony of course the judge had also provided over that trial but i think there were and i think the record clearly shows there were there was excuse me specific support for the conclusions reached by the district court the finding of the seventy one thousand dollars in lost as as to the procedures that were followed not sure that the district statements by counsel for both the united states and the defendant after viewing the statements the court concluded that the sentence would be no different  simply because the guidelines were now advisory and maintain the sentence previously given that was clearly within the advisory guidelines range unless there a