he is in custody so i certainly have spoken to him about this but since the court has brought it up i think that it would be a mr blake's best interest to in fact reserve that issue for collateral review rather than in the procedural form that he had brought it before the trial i don't know procedurally how we do that in at this stage  bifurcate the oral argument and allow us to discuss the sentencing issue but yes i agree that that is how this should be handled in terms of the ineffective  money that mr blake received in response to his filing in two thousand and eleven with the i r s the problem that we have raised with the court's calculation is that mr blake thirty exhibit two that he found several issues in dispute that he believes showed that he had not filed that those three filings but ultimately the court never solves that disputed supreme court precedent the only way that it could be harmless error is if in fact there is a clear understanding of the basis upon which that that non guideline sentence was imposed judge van backlund did not announce that the sentencing impose of thirty six months with a clear understanding of how he reached it he did not specifically discuss three thousand five hundred and fifty three a arguments in terms of the appropriate sentence being thirty six months he did not explain to us exactly how he reached that figure as i point out in our brain had in fact the court used actual law the guidelines would have been lower information to really understand what the court was responding to and mr whalen asked that question i also think that we have to be very careful if if the court is going to find that there is harmless error simply because sentencing judge says i would have done the same thing regardless with now to understanding the error that that the court made then the defendant is deprived of the fair review of his saying in order for the district court to make its understanding clear and to make sure that the judge did not make an error because as i said the one million five hundred thousand value way sent is simply not these are findings of fact that the district court made a mistake and confused about that if he had made the findings the problem is in the transcript it seems like he's made the findings and then he goes back and says no i haven't made findings on  objection and says i didn't file these returns on page nine of the sensing transcript the district court overruled that objection and adopted the position of the government of probation then when you get to page thirty four of the sensing transcripts so that's a finding right there but when you get to page thirty four of the sentencing transcript well the court's discussing the three thousand five hundred and fifty three a factors it again says mr blake filed separately bogus returns for four years prior to the instant offense that could only be the two hundred eight thousand nine hundred and ten returns there were no other returns that could have stayed within that category now at the end defense counsel does ask the court whether it made a finding as to those return and the court said it did consider those returns and then i think we've reconciled that in our briefs as the only real way to understand what the court saying is the state did not make an independent finding which is true it doctored the position of the probation  government that he filed the twenty thousand and eighty nine and ten returns and so i think that's the best way to interpret what the district court said but judge barrett to your point i do agree that if there was an error it was harmless case and what the supreme court in molino martinez said is that you do after correctly calculate the guidelines st instance and the court can presume prejudice if you don't correctly calculate them but then what the supreme court later says and what this court has said time and again is but if there is an error in calculating the guidelines in the st instance an error can be harmless if the court signals that that error in the guideline calculation did not affect that sentence and that's what judge van bachman did in this case he was asked about one guideline in particular this wasn't a question and judge if you miscalculated the guidelines completely and you messed up every single guideline would thousand was intended because that was at a state amount and mr blake made that argument to the district court on pages nine dollars ten cents of the sensing transcript the court rejected it said that the state theory was bogus and that mr blake was fishing for whatever he could get and know when you do the calculation you try to figure out what the judge gave it in the guidelines in the framework of the guidelines look at what he actually posed well your honor i think what he actually imposed was i think what he actually imposed was a sentence based on the three thousand five hundred and fifty three a factors and so the court imposed a so i think it would be a mistake to try to reverse engineer what guideline range the court hypothetically going to come up with and where the sentence fit within the hypothetical guy because what the court said is the guideline was based on further proof that judge van bachman did not basis sentence on the guidelines itself i think i would direct the court to pages thirty three dollars thirty four cents the sense of transcript where the court really talks about what's driving his sentence and judge  and doesn't talk about intent he doesn't talk about the guideline range he talks about the fact that areon blake stole one hundred and fifty thousand dollars from the federal government he talks about the fact that he was defrauding the i r s there's anarky on the tax code and he talks about the eighty nine and ten tax returns the number of returns that mr blake filed and that in addition to the court's comment at the end that it would have imposed the same sentence regardless of the godlike explanation i think to the extent this court has any concerns about the initial calculation should levy a this court's concerns they weren't to remand to judge graham he would impose the same sentence regardless and that's the harmless  the we are forced to gas we're forced to guess how the guideline calculation ultimately was was determined by the court and why the sentence of thirty six months was imposed it's a very generalized statement by the court that it considered three thousand five hundred and fifty three and they do reference the letter from my client's wife however there's no specificity upon which the thirty six months is actually determines if in fact the court was using before you run out of time here you know mr whalen pointed and pages ten and eleven of the sentencing transcript when judge van backlund goes through his guidelines calculation and he does reject mr blake's arguments that this was you know really that he was duped by the sovereign citizen you know that he found in internet chat rooms etc page eleven and he does say this calculation is derived as follows you know after after saying he found the intended loss to be one  adopted the finding in the p s r and then the muddy the waters only get muddy later when judge went back and says i didn't make independent findings why shouldn't we interpret the sentencing transcript that way because it does seem to me in but again your honor i believe we were forced to guess because as i cited in my opening brief the judge talks about all kinds of different things is confusing whether he's talking about loss or is talking about restitution at times but  significant reasons and mr blake was very specific about what he found that was not consistent with his filings on the two thousand and eight through two thousand and ten the government only relied only relied on the