the book that the victim wrote a book that chronicled his son's successful fight to overcome brain a brain tumor instead the brits wasted the most of the money on his personal lifestyle i can't defend  that i wouldn't even try that the principal focus of our peel is how the district court handled the fact that the brits did pay four hundred thousand dollars approximately about two thirds of the amount of restitution prior to being sentenced and we think under indictment when and he was going to have to pay full restitution so either way they're going to have to pay the restitution to the judge's reasoning and that was one of the reasons that you point out the judge said it was because the brits didn't pay it back his one million dollars ed the reason the judgment was one million dollars is part of the default judgment was a punitive aspect to the judgment and in the judge's eyes this was really he paid it  was just a big win for him and a good business deal we submit that was not an appropriate basis for the court to deny the brits any credit for making the that the payment of restitution we think one of the goals of the guidelines  sentencing is to encourage restitution denying him credit because the money came from the family is not going to influence others to pay restitution to say it's not voluntary is nothing more than to say that well he committed a crime he owed restitution in every case it's not voluntary the defendant owes it and should pay it and in many cases he does not that was why he was there because he owed this money with respect to whether it was a big win or a good business deal i think the judge was focusing on the fact that he paid four hundred thousand and the fact there was it didn't cover the entire amount that he owed it didn't compromise what he was going to have to pay in restitution in the criminal case because under the n v end of the mandatory victim restitution act he was going to have to pay the whole amount regardless of what he said the civil judgment for so it didn't make any difference it wasn't a compromise what he was going to zero in the criminal case lawyer said at the hearing below that in his experience he found a four hundred thousand dollars restitution payment to be extraordinary and we agree with that assessment it's not hard to find criminal defendants taking every step possible to avoid making any kind of payment to hiding their assets didn't do that with his family's help he paid now the fact is one might say he was fortunate enough to have family they could come up with money to help him pay the restitution does that mean that rich people get lesser sentences are entitled to lesser sentences sentences then people that are less fortunate there's all sorts of ways for people to show their acceptance  this is just one of them one of the cases we may look at and i'm almost has it in to razik judge gainey because it was the warner case and i know you were the author of that opinion he received some benefit because he was able to make extraordinary charitable contributions that he received credit for the court didn't say as it might have that it was unfair to credit warner for being able to make contributions when another defendant wouldn't have the amount of assets he had and they're able to take advantage of that might have made a bunch of great many charitable contributions if he had that kind of money in other words every avenue of acceptance or of responsibility is not open to every person we borrow quote from judge s against an indigent defended as i said before we think paying restitution should be encouraged not giving credit for such a substantial payment is counterproductive there was a case this court decided not long scheme for thirty years he didn't start out with that intent he inherited the scheme when he took over his father's business and he didn't know how to extricate himself eventually turn himself in to the government gave extensive cooperation provided the government with evidence fifteen twenty and thirty years old that the government probably would never have been able to prove had historically not talk handedly he still was  government i think agreed to something in the neighborhood of sixteen years the judge gave them thirty slowly deserve does that service but and the sentence was affirmed but what that teaches people in the trenches the defendants and their lawyers is that this sort of open cooperation and providing candid information about yourself may not be such a good idea it may not be such a great benefit not giving cooperation not given consideration of that discourages cooperation in this case i'm a financial that i want my money back i may want to see the defendant in jail but i also want my money back sometimes people turn themselves in when they see the inevitable coming  government didn't know the extent of to store all these crimes because it went back thirty years in this case future defendants heeling this case if the defendant is not given some credit for his restitution it's a warning to other defense lawyers and criminal defendants that making a substantial payment of restitution is not worth making because it may not positively impact their sentences i see my light  morning jason bomb on behalf of the united states council district courts are required to address mitigation arguments they're not required to accept mitigation arguments here the district court addressed and rejected the mitigation argument regarding the restitution payments the district court did credit restitution it reduced the amount of restitution owed by that payment it just didn't find that it mitigated its conduct or that it required a reduced sentence and if this court were to require such a thing the lesson that would teach wealthy defendants is if you make the payment you will get a reduced sentence and we restitution in that case he has to say that i think wince when the defendant makes a credible argument as to why there should be some consideration given for restitution the porch of the dress why the court is not giving credit for restitution and the court did give the reasons in this particular case and i just think that the reasons were not valid reasons the fact that the it was it voluntary that sort of thing he did not give them valid reasons for that i'm not saying that under no circumstance than under every circumstance the court must give credit for restitution it's going to depend on the particular case in this case it was the court gave no reasons why he was not giving the reasons he gave were not a judge but it it unfortunately the district court didn't i think it has to go back to the district court for him to consider the fact that there was restitution and consider how that would apply to sentence the defendant didn't ask for any anything great he said whatever points you could give the defendant you know based on the fact that he made the restitution whether he gave them credit for two points or three points or four points whatever it is it was going to have a significant impact on his