was convicted or are pledged guilty to possession of a gun by a prohibited person due to his status as a drug addict under nine twenty two at sentencing original sentencing judge mcdonald gave the sixty three month sentence which is the high end of the guideline range and then imposed originally he imposed a ten thousand dollars fine payable from the i available that went up on appeal the circuit a different panel remained in saying that the qualifier if available was ambiguous and they couldn't determine what happened so they sent it back down from the sentencing every sentencing  documentation was presented to show that the ira account that mr smith owns is actually only about eleven thousand dollars judgment donald again took that into consideration in finding that mr smith had sufficient financial resources to pay a fine and again impose a fine of one half of the ira amount of this time five thousand dollars so we bring several issues that weren't addressed by the first panel back to the court the first one of course being whether the court can consider an individual retirement account from washington state in determining whether a defendant has sufficient financial resources to pay a fine and i think that is creditor in this case is prohibited or whether federal law or do we look at state laws well i think congress has addressed the authority of the government to enforce judgments that has exempted certain kinds of assets or resources but it is not exempted as i understand it so if the i r s for example were seeking to outcome here i'm just trying to understand the structure in part my question is motivated by the district court's observation that it was simply considering the ira as a resource what it wasn't deciding whether or a resource available is is making the exemption meaningless the government can't get to the back door when it can't get through the front door you can't say that a defendant has the means to pay his five thousand dollars fine when it's obvious that the only money in the past and otherwise he was capable of working and then impose they find which presumably would be collected over the period of his incarceration and supervised leaves which could be collected in installments even if he couldn't go after the ira is that an impermissible consideration well and i think that goes to the second issue in our case the first issue that we presented is strictly can the court even consider the ira as a no asset in determining whether fine can be imposed and if you take the ira out of the picture then the court the district court is left with does he have the future earning capacity and that that goes to our second question and yes the court did consider his prior employment history and our position on that with regards to the second issue is that his prior employment history was eight years ago it was sporadic even at that time it's been a long time since he's had regular employment we're talking about a period of the year and in part he would be able to make these modest payments at the oh i forget what they call that program dollars fine it didn't impose a modest fine and imposed a fine that was significantly above even the average fines of these type of situations when they are imposed so you know if the fine had then say a thousand dollars or even less than that  and he'd been allowed to pay it through the prisoner repayment program that would be a whole nother issue but in this case it was a very significant fine of five thousand dollars and you know congress has a statute the maxims that stream fine  i believe the case is rouse you versus jackson and that's a two thousand and five case now that was and i read case it was cited in my reply brief and it was a civil case it wasn't a criminal case but nevertheless the supreme court said that an ira is a future wages even though the person has the funds available and can liquidate them with a penalty but in it's not a bank account it's future wages at the point when the person can take them out without that is that you know even if you leave that i wrote in the court clearly erred and it is a clear air burden standard of reveal in finding that he had the ability to pay a fine and that goes back to the robinson case which said that when the the p i r the pre sentence investigation report finds that he doesn't have to fish now assets and doesn't have given that he could pay the court is going to give that conclusion significant weight in addition to the finding that he's indigent and has been represented by counsel throughout the proceedings when you combine those two factors that essentially meets the defendant's burden of proof by a preponderance of the evidence to show that he does not have to present a lady to pay or the future haven't given what was before the district court with regard to his past employment history and five thousand dollars over an eight year period sixty three months in custody plus three years of supervised release is not such an enormous amount of money it's beyond the realm of human capacity it's not a seven million dollar restitution for no it's not your honor but i truly believe that w he they're making like twenty four dollars a month or if even that and i'm not very good at math but you know run that six years down the road and take my take my three year through some of these five thousand dollars over three year period i have to be good at math at least on the clock statistics that there are so many people who don't get it the average finest fifteen hundred dollars in firearms cases and i think that one point to be made in that he is and in and  s we can't use statistics because we are to be looking at similarly situated defendants with assets earning capacity skills it would certainly be a firearms case if you had an attorney who made up a half a million dollars a year and he wasn't given a fine you might have a problem then the person like mr smith who has the ability to do that but only has it so how do we know when we take the fifteen hundred dollars because that may have been one five for a million dollars on a firearms case and that would certainly balance out a lot of so without some of the information it's hard to used to stick to say is this fine reasonable or not and i think that's the one point is is that how we're going to assess our fund i think the problem is is that we don't find enough we find too many cases where we're not going to find any money whatsoever and rightly maybe we should but that's another issue well the dressing i mean you would it really does come down to it's even though the district court indicated it wasn't deciding whether or not execution of this would be the ultimate way to pay off the fine it's pretty hard and live and then say in a fact we're paying out five thousand dollars in a fine in the time that he the three years he's been on supervised release so it's pretty hard to have to does the does the our work is that considered a financial resources financial asset the defense has made the argument that you know it's example under you know federal law and that it's not subject to execution garnish seizure or attachment under any form of the state but that isn't the argument the argument is is this a court looking at the financial picture of this defendant and also the other factors earning capacity future any capacity work skills experience in this case although they argue that for eight years mr smith hasn't been employed and when it was it was sporadic it's more in the nature of willful unemployment mr smith has the skills mr smith of you look at this history his history showed periods of long employment during those periods of time mr smith was addicted so this argument that it arose out of his addiction seems to have a no where using the addiction as why he can't get a job but he's been employed while he's been an addict and it also i think kind of says is what we're going to let you off because you're an addict well i think the answer from the government standpoint and i think one that the court may have considered was is clean up your act mr smith because you have the skills you have the capability you have the experience you have the history to be gainfully employed and if you get off the drugs and get out there working you can make this long so and the court used the guideline is there's i think what it did i understand but i'm just trying to get to the realities of what seemed to be motivating the judge and i think given that the government did not seek a fine take the ira out but it does seem hard to assess this record and think that the district court didn't take the ira into account with which then brings us back to the question and that's what i'm interested in the government's position on those the government take the position that if mister if the defendant here goes through the process gets his act together and supervised release but comes up short on paying off a significant amount comes up short on paying off the five thousand dollars that the government can execute on the ira to satisfy a lot of the government  i can't speak for you know what the u s attorney or anybody above my low level position would be but if this case came to me which i would expect it wouldn't ask me how we want to proceed on this my own would be superseded by your are overridden by your by the u s attorney who says no we're going to go after the ira would he then have the ability at that point to contest the government's ability to execute on  ira or do we need to decide that question now i don't know the answer that but that's what the judge what the judge really did was he kind of threw it out there and say it is just we don't well you know this is this court's going to write back saying this is one you know what you don't give it to the discretion of the u s attorney i think i see the argument being made however i don't know that the government could not get to that money and i and i will be frank with the court is this is an issue it's almost like taking tax law and law school you know only the accountant sitting next to you really understood the tax law protect the future of some one of the higher retirement programs and that there's going to be some protection over that regardless of their criminal activities in the future we're going to protect their ability to survive in the future after they are either too old to commit crimes or they get it so that we're not doing that and that's just my reading of the case i think that's more philosophical and i would think that that philosophical position would override the ability to get her in the united states position was that mr smith was not a likely candidate for employment in the future i think he has the skills i just don't think he has the attitude i don't think he has the desire to improve his situation i think he showed a documented history of taking the easy road drugs and crime and that was the government's position my position i took is you know you can't you can only bleed so much out of a turnip and that turnip didn't have much in it and so was judge mcdonald trying to h another hammer over his head with the criminal fine because it's just jailing this guy on the installment plan doesn't get innocent i think i think that judge mcdonald was offended by mr smith extensive criminal history and felt that it was time that the public did not need to be the financial bank for mr smith's long periods of incarceration that he had this history of it and he does in his opinion highlight the fact is that mr smith has and continues to be a sort of individual who is costing the government and the citizens a great deal of highlight at that feature and said i think in this case that sacked or weighs heavy that mr smith has been in that position in the past and i think it's appropriate i think you also found his earning capacity his ability to work and it was noticed bute that he had the experience the work history the capacity and the ability to earn a lawful legitimate income in the future he had no dependence upon whom there was some reliance is and that he did establish that he had been working although minimal wage for his mother that he was able and capable of doing and i think those were the factors the judge looked at but he highlighted in his opinion the court needs to decide at this point in time whether the ira can even be considered within the defendant's balance sheet but why is that a right the issue is the government hasn't gone after him yet and can't move his question and the district court cited  ok so what's this court would necessarily i see that the court could find that without answering the first question it could decide that based upon his earning capacity that fine was justified and i could see that as a way of based upon current situations and i don't think that the district court should be allowed to impose the fine in the hopes that maybe he'll win the lottery or maybe the government will be able to collect or you know maybe his mother will give him some money or something to that effect i think that the court has to take ability or the current stove so i should say also is determined with past history that's and you can't you can't ignore that past history and even though at the moment he is going to do time in the future if he chooses to do it that's correct and i'm not saying the court can't consider it i'm just saying in this case it was eight years ago and his burden is by a preponderance of the evidence so is it more likely than not that when he gets out of prison he'll so be able to