senate should be vacated i ask you a question about that though because just with respect to the sentence and not with respect to the restitution it seems like judge martinez said that he would have imposed the same sentence regardless  and when you go back and you look at his reasoning and his explanation for that it seems as though there's enough there for us to need to defer to that determination is there something that i'm missing is there some reason why judge martinez's statement that he would have applied the same sentence even if he had the valuation wrong is something that we shouldn't consider a couple of points on that your honor st judge martinez said that just in almost in passing at the government's prompting and gave only one reason for it is that i would have given the same sentence because it was a priceless work of art if he had kind of expounded upon that earlier in the sentencing i mean he had spoken for a while about you know you can't get another one of these this is a museum all these people came through and so it seemed as though that was sort of a shorthand way of referring to his much absolutely it would have been enough but very absolutely it would've been an upward variance thirty three months would have been the high end with the lower valuation and the judge the only explain it and this gets to the nd point i think it will address both of these questions it would have been an upward variance from the thirty three month high end of the lower guideline with the lower valuation of been accepted and he didn't explain it adequately enough the price was work of art comment he made and mr goldman sensing was shorthand for what he said earlier  variance from the guidelines when the sentencing commission already explicitly contemplated this type of a crime and created the guidelines for it so to be warned up five the theft of a cultural heritage resorts guidelines which were operating under here has a higher base offense level eight versus six on a general the general theft guideline and to be that one and the district of still even though it's already a consideration we've said previously that a judge is allowed to put extra emphasis on something already considered by the guidelines have been my yes but i think it just goes to the substance of the news and most of what he did the only reason he articulated was this priceless stolen from a museum there's a higher base offense level in the guidelines already mr goldman received a two level enhanced one as well because it was stolen from a museum another factor explicitly put into the sentencing guidelines by the senate's commission and he got another and he was the st stealing it for  guidelines should have been in this case had the bar been properly valued and exactly if we have an upward variance from that base the only reason given for it was a reason that was already accounted for in the guidelines i think that that upward parent is only seven honor and he and he mentioned that in the record in the government argue that absolutely i think you need to address restitution because i think you've got them in my view a better argument restitution yes your honor so the key in finding that he would have that judge martinez would have made the same finding regardless of the guidelines calculation as you as you noted does not could not apply to restitution where the court has an obligation to make a reasonable estimate of the victim's losses and here the court's estimate of victim's losses was based upon all is that correct absolutely or i mean nothing and she says that in the record for her prior jobs horror she says she's been here as executive director seven years but it didn't say anything absolutely right practice no further to your question not only is there a lack of any evidence of any kind of appraisal experience or even business experience on behalf of the government's sole witness here she was the executive director and when i asked she was it was cross examined and she said that's not what we do you know i'm never going to agree that the bar was worth this that's not my makeup that is not my professional background that is not my point of view so in fact there is evidence suggesting that she had absolutely no idea how to appraise this and in fact her testimony she initially testified on direct examination that the insurance company had only offered them the melt w r which is not correct when she was confronted with the insurance compan appraisal that they'd done which said that the bar was worth one hundred and one thousand dollars versus five hundred and fifty six thousand dollars literally i looked to see if the exhibit of the appraisal and the insurance company was in the record it looked like it was exhibit and it was it made it but i couldn't find the exhibit in the record and the kirks office tell me it was returned to counsel well did you find it in this yes i did you want to tell me where it is a answered the question thank you roger and yes that is absolutely right the only evidence is a witness who had nothing to do with the valuation it's she says that the investment division in the fisher told her what it was worth told about this point system your client out of jail marty morning your honour's me please the court daniel maher said on behalf of the united states with me at counsel table this trial co counsel monique botero i will start with answering judge holes question that she  posed to both counsel kendrick's qualifications i don't believe they were not talked about at the sentencing hearing about dred scott right here and i find nothing whatsoever correct i believe her or her background education was discussed at trial i don't have those transcripts with me that's my recollection that when she testified at trial and judge martinez added i looked at that we couldn't find anything even a trial in there then they're not then then i could be wrong about that let me tell you heavily the other way i know it's clear air but that's like nothing for the government i mean nothing at all so the purpose of melissa country sesamoid he was not as an expert in the valuation her that's obvious it's obvious ways st i don't agree they understand is willing buyer willing seller in her testimony correct in of a point she starts off as i read that going along with that standard which is a commonplace standard i understand your honor and i pointed to page thirteen the beginning of her testimony question what is the value that us the made the value is roughly five hundred and fifty thousand dollars how did you arrive at that number and then she discusses the valuation of the experts at mel fisher in valuing mel fisher's treasure she explains how this object was given a value of points relative to the whole find but she doesn't know how those points were  that's part of the problem no you're correct your honor it's hearsay and she was not if she did not have adequate foundation to a study if that would think of them you're correct she doesn't she so how can we rely on that i mean how how can the court rely on this points number that she has we have no idea where it came from we have no idea what her qualifications are she has no idea where it came from how can we rely on that is establishing fair market value that seems problematic as what her testimony was that the people that mel fisher who who are responsible for this gave her this information and that it was based on the fair market value as they determined it i don't know how they determined your honor i agree i don't see that at all fredricka let's go to page twenty six yes and page twenty six she's in the value is isn't the insurance company valuation not not just the fair market melt value it includes three different components the melt value which would be i guess if you just stuck it in an six security box right plus a factor for it being an artifact plus another factor for it having unique value above and beyond the fact that it's an artifact because it's been in this museum and for all of these years and thirty you know thirty million people have touched her however many all of those things factor into the insurance value right i mean that's what their record wealth lacked well  to your st point the melt value i think what the insurance company is saying is the bars that were stashed away in a drawer were those are the bars that went to auction bars or have been stashed away in a drawer speaking colloquially we don't know the insurance valuation it was attached to a filing by defense counsel for the other defend it was never introduced at the hearing the only reason i point that out is as defense counsel acknowledged for mr johnson sorry to start interrupt but wasn't  to on cross examination by ms kendrick i don't believe it was offered him it is a believe it was referred to she didn't agree that the insurance value consisted of whatever it was for the i think it's like sixty three thousand plus forty five percent for the artifact value plus fifteen percent for it being unique and she agreed to the number the insurance company said when her recollection was refresh us but my point is as if you look at page  it's in evidence i was just curious to look at the document itself but she testified as to what the insurance company had done to come up with this valuation correct and my point responded to that rosenbaum is that yes the valuation that the insurance company reached is but the document showing the values of other bars and how they reached it is what i'm referring to was attached to a memo but wasn't introduced and why that's important is because when everyone in this case defense counsel mr kendrick myself included researched it and it's referenced in my sentencing memo as well as cross examination of ms kendrick the bars we could find were selling for three to seven times what the insurance company claimed and so this issue wasn't squarely presented in the district court the music the insurance valuation the methodology wasn't so squarely focused on and still that might be fine i mean the one hundred thousand dollars may be low but the problem is where is the evidence the government has to support the five hundred and sixty five dollars or five hundred and sixty six thousand that that's the problem right i mean maybe if the district judge had determined the value based on the comparable bars or had gone a little over and said well i'm adding this because whatever you know there's some kind of evidence is that there should be an additional premium because of the unique value of this bar that would be one thing but we don't have that here isn't that a problem you know and i think the record is is there as to that but i do think that given the evidence that was before the district court which was the museum's valuation of five hundred and fifty six thousand dollars with the extensive testimony of factors supporting why this bar would be worth many times over what the insurance company said i think the district court's finding a five hundred and fifty six thousand dollars as to restitution merits deference the counsel you put her on to establish evaluation that's why she was testifying at the so that hearing is subject to cross examination you know i put her on for two purposes one to explain how she how she has arrived at the five hundred and fifty six thousand dollars claim initially submitted and to to explain why this bar even if the insurance company was correct that one hundred thousand dollars would be some other bars value of similar providence this bar having been the centerpiece exhibit of the world's most famous treasure hunters museum and having been handled by millions of people would merit a lot more about it understand that but she was testifying before the judge under oath for the purpose of the determining by the way yes i agree that ok i have a question about the record crime is that incorrect i think we can use that because they were kind of treated together are you saying that's not in the record either but what i'm saying judge is that exhibit eighty six that's three is a pleading that's not something that was admitted in court that was something proffered in a sentencing memorandum i'm not in again i'm not saying that the district court could not have considered it but what the district court did here was said look for what do you want to send a plating i don't understand what you're saying and of the government ever object to the district court considering that document i don't think so well judge the procedure would be for them to offer it into evidence at the sentencing at which point we we would have let me switch to another document purpose of establishing the statutory element that the bar was worth more than ten thousand dollars ok and what does that document show is that show what the insurance company pay is yes it does yes so exhibit fifteen was introduced at trial the fifteen was refer returned to defense counsel i can't find it in the record so the trial exhibit fifteen i just need job to get together and give us a copy of whatever exhibit fifteen  you can use that percentage think so i don't understand why you're saying we don't know what an insurance company did sixty three plus point forty five posts to fifteen whatever you know i again i must have misspoke i'm not saying we don't know what the insurance company did what i said was just martinez was not presented with that document at sentencing as judge look at this methodology this is the right way to do you just said it was in a sentencing memorandum two and then you said but that's not evidence then we have hearing i understand i don't know so just turning to the keen finding issue i think the key finding here was as clear as any case in which the encountered a keen finding as martinez clearly said he would impose the same sentence the only other factor that i would point to that your honour's didn't point to one question of defense counsel was the destruction of the gold bar that's a factor that's not anywhere accounted for in the guidelines and judge martinez in rejecting the defense's request for downward variance specifically said that's a bad crime this is that page six to seven of mr goldman transcript th they resulted in the destruction of an artifact that is priceless i really believe it is priceless that's the problem so i think the destruction alone would merit a seven month upward variance and that's clearly a factor that was well established  government should have said your honor you've got to break it like judge i understand your point i think it would be would be cleaner if we had that but in my research the case in which this case has in this court has dealt with keen findings it exactly this way the district court articulated the sentence articulate the bases why and at the end says i would impose the same sentence anyway for the reasons that you but usually but usually discussing the purposes of said the nd becomes clear let's put it this way either that or the are that the fed the fact i understand what you're saying your honor but i believe that what judge martinez did here was make clear that the guidelines didn't adequately encapsulate the harm honor so to turn to one of the points that was being discussed earlier and i think this is an important point to make here the government bears the burden of proving very market value in the sentencing hearing and we learned in preparation of this hearing you provided and i was doing direct examination you provided me with some other gold bars that have been sold some of them are on the same size as this bar and they sell for much less than five hundred and fifty six how do you explain that says well a couple ways you got willing buyers and willing sellers fair market value and those bars are separate bars being sold at auction so the government had did look at it similarly sold bars and yet chose not to introduce any of that evidence they could have put together a spreadsheet of what those bars were worth and it sounds like since they were of comparable size the reason they might have sold for more than the one hundred thousand is that the gold bar and once your honour's find the mill fisher i mean the insurance company valu you'll see the chart of the five comparable go bars in there the the fisher insurance company only used the latter three gold bars i think this is in the briefing this chart is definitely the briefing it will take a look at has the three components that you need that you noticed just rows and bom they took the three gold bars sold most recently in time i believe they excluded the st two because they were sold in seven hundred and eight probably in deteriorated market conditions given the nation's financial crisis at that time but the government did look and had missed kendrick pull similarly sold gold bars and chose not to introduce any of the evidence of what those might have been worth at auction instead the only evidence that they use to try to meet their ponder hearsay evidence for a witness who didn't know anything about this point system the point system what we do know about it and you also see in the insurance memo one of the st lines of the insurance memo was we've asked you to provide additional information about the point methodology you have not done so we ask you to provide additional information and how the point methodology is used unfair with in relation to fair market value you have not done so we've done our own analysis here are three separate gold bars that we've looked at that were so rosenbaum they looked at the value of the low bar given the price of gold at the time of the sale at auction look at the difference between what it sold for at auction determine that that was the historical value between its pure price of go and why someone would possibly be willing to pay more than this year price of gold that showed the historical value of it and then they went ahead and added an additional fifteen percent premium because of the iconic value given how important it was to the museum as your own invention it was the center ece so the question then becomes how much is it sent this gold bar at central a to the museum justify you know it's does it does that justify a valuation of over five times what the insurance is that already baked in historical value as a nd component and iconic value i mean in fairness he could if there were some evidence that was reasonable to support it the problem here is that there is no evidence other than this sort of vague statement that well we assigned to you know eight thousand one hundred and twenty dollars points or whatever it was and each point has a value of this so the total value is five hundred and fifty six dollars i mean there's nothing else might be based upon have they and they introduced a spreadsheet similar to the insurance companies that came from the fisher museum explaining the points that could have been a sufficient basis for the judge to value the bar at five hundred and fifty six thousand but as  to point out it's not there in the record the government didn't meet their burden here and the judge did not have a sufficient basis in the record to find the value of five hundred and fifty six and for that reason the sentence should be vacated and the rest