replete with plain errors the most prominent of those errors was that he was ordered to pay restitution on relevant conduct which this court and other courts are held many times not only is not payable as restitution but also constitutes a plain error when such an order is admitted the tune that we've said of the actual errors in restitution is some four hundred and seventy five thousand dollars so it's not an consequential amount and the vast amounts are  payable to the i r s there are other amounts of pay payable to other agencies for example two dollars schools that were part of the fraud of which mr simon was convicted disclaimed interest in receiving restitution at the time of sentencing the district court thought that they received victim had to be paid back no matter whether they wanted to or not but the statute specifically says the restitution statute says that they can disclaim restitution and they did and so there was another plane  in order and restitution to them as well the final issue is not a clean air that was created at the time of sentencing but mr simon was ordered to pay money to the department of education the majority of which was waited six or seven months after that order before doing anything it's not too long judge that in an open an ordinary sense it would be but here's the situation we have here is sort of a circular firing squad related to waiver and forfeiture the government's claim that mr simon has waived in forfeited various things but the government has done so as well and in a case where you've got a pro se defendant litigant on one side which mr simon was at the time and the government on the other side if you're going to hold them to these high standards of waiver and forfeiture the government should be so held as well below of the government not t briefly in their in their response brief but what they say about the issue is they don't say that this appeal should be dismissed for lack of jurisdiction what they actually say is that this that they asked to modify the district court's decision meaning they have and and the reason that you should be i guess this court should have to deal with it is the government did not take that position why shouldn't why shouldn't we dismiss it for lack of jurisdiction because the government has waived or forfeited that request and rule for is not is a per female have to say exactly what it's called the rule for is a it's not jurisdictional it is a clean processing rule that can be waived or forfeited parts of it or parts of it are not you know you're you're talking to three former district judges here i know that this sort of after the fact that is the sort of thing that used to drive me crazy when if they had been timely raised we could have her dress them we could have fixed the problem i agree and  supposed trial and appellate counsel both should have done that it could have been raised on direct appeal as well as a plain error because he's clearly our cleaner's but that's what plain error not only is for litigants but the courts this court can raise plane air on its own if it sees a plane  issue of fines as part of the sentence i had you contemplated it but i would think not that that has already been issued it's all part of the sentence well and if you want to amend the judgement and say now many years later restitution is not available the judge might say well if that's not available then i think a fine that takes into account this broader relevant conduct might be appropriate i think maybe the judge could do that i suppose then maybe the sentence itself would be subject to be reopened although he's completed his sentence is custody of sentence and is out but here's what i for one thing that i think is important the government asked the district court to amend the judgment they did not ask them to reorder good for the goose is good for the gander they reopened it by asking to amend the judgment for a reason i believe that it's for their own benefit the oil for their benefit rather than for mr simon's been well but the sense of it is they were trying to get rid of or lower the amount of restitution plate paid to the non governmental entities so that the governmental entity would get paid st or infusion re with out what's what's if you agree with what's what what's the problem the problem is that the governmental entity is entitle to three hundred and eighty dollars some one thousand dollars less than they than they are claiming i gather we're still some distance away from getting in from his payments getting into any of the controversy all amounts i don't believe they've reached the what's the total payment so far on the one million dollars or so in restitution i think the government said it was up to fifteen thousand dollars or so but this is not a moot point mr simon is a businessman who made legally significant amounts of money  prosecution issue was soley taxes it was a nobody claimed that the income had was derived from some illegal source or something he can he can earned money in the future this could be very important and to go back to your point about the fines these other entities could conceivably sue him as well if they wanted to but that's that doesn't erase the plain error of restitution i respectfully this is not like you know some macchiavelli in scheme by mr simon to sit in wait to see if you could somehow attack restitution on these bases it's opened up because the government asked the court to amend the restitution order which they're now doing in the not assuming we don't have a jurisdictional issue what's the statutory authority for the judge to amend the constitution i don't know that there wasn't a regional statutory authority for them to do that the judge the government asked them to do it i understand with the government that i'm asking you do you think that story authority for the judge to do amended i don't think at the point of once it's amended so let's say mr simon had filed a notice of appeal immediately after the amended sorter he would put i'd have the same question for your answer please i don't know that there is a statutory authority i'm sorry i thought i said that and i see that i'm running into my rebuttal time but just one point i would like to make is that the amended restitution order reopens that issue for mr simon to challenge that the statutory authority was the original authority to order restitution not some amending restitution date they thank you your honor may please the court nathaniel whalen here be at the united states of america before i get any further judge hamilton to answer your question as of yesterday mr simons paid back seventeen thousand four hundred and forty eight dollars and the total obligation  total obligation remains what were the total obligation by left as one million thirty eight thousand and twenty three dollars sixty five cents i think you're honest with your questions of hit the nail on the head which is just because the district court amends the restitution orders to that times doesn't entitle the complete pre opening to all aspects of it doesn't entitle reopening as to the victims whose restitution was unaffected i guess conceivably defense counsel is conceded to or could the judgment be amended and indeed the court's order says that quote the restitution order is amended right open the door in any way to the types of restitution challenges that he's making your honor there's no authority that amendment to one part of the restitution order opens up the entire restitution order to a challenge that this court has held the district court may not reduce the prioritize different k b s and so it struck canterbury as an immediate pay restitution around it then altered the amendment up front of coal st that the clerk of the court was going to collect to that forty eight thousand number and so that's where we think the statutory authority of the just reported lies under k under k r yes i think that's probably the best place to find it well that would be b b eighteen motions challenging the various aspects of the restitution order so did you wage map in any way  your honor we certainly didn't waive the argument there was an intentional rethink which meant of a no right i don't think that we could assert timeliness on a motion to reconsider that's filed seven months after the fact because the defendant is entitled to file a motion to reconsider the point is under this court's case thought that motion seven months after the fact doesn't told the time to appeal so if he filed the motion to reconsider within that fourteen day window it would have told the time to appeal and at that point he could have challenge the march two thousand and eighteen order i do think is notice of appeal is timely as to the court's two thousand i'm sorry february th two thousand and nineteen order and that's the order that's in case and again this court squarely addressed the issue these are arguments i think judge over correctly pointed out that the defendant could have and should have made two thousand and eleven instead when he was dealing with the education and the i r s restitution amounts are at all fact and by the district court's order it didn't touch those it did make canterbury no longer an immediate pay but mr simon doesn't appeal that decision he's fine with not being canterbury  and so really what we're left dealing with i guess is the culvers order the culvers order still is a subset of the restitution that it was order the district court said they were going to collect forty eight thousand dollars upfront of the thinking about this should we think about mr simon's quote motion to reconsider is a motion to reconsider at all i mean it wasn't questioning the relief of the or any modification the government sought it was seeking something entirely different i think that is the correct way to consider both of his motions he filed to right he filed the motion to reconsider and a motion to reduce restitution in his motion to reduce restitution he says get rid of the department of education restitution altogether in his motion to reconsider he says judge you've ordered an improper amount this forty eight thousand restitution because it constitutes what he described as nine to ation restitution and the court appropriately said that's you know we've rejected that argument long ago the restitution is for the rest of us and now he's coming back on appeal and he's attacking the i r s portion of the restoration he's attacking more of the department of education restitution  and your honor as i guess importantly in terms of the department of education order the government's not seeking a windfall as to that amount of restitution he presented which he believes is evidence that he paid off the loan subject to restitution we reached out to the department of education they said they believed it was a different loan and i to the extent that he really believes that he is paid off that he should get credit for that this court in article economic circumstances neither you or the government or through or the friend has suggested that to the court so i just don't think that that's too slender a read for me right now and it seems to me we have to confront what authority the district judge to do anything here i understand your daughter's point i think the material changes we've rely on is the fact that there's a change in the restitution owed to the individuals up front but i do appreciate and understand your honour's point and that's kind of where mr simon's appeal runs into a bit of trouble because if he thinks the district court didn't have the authority to do what it did in the march two thousand and eighteen order i guess this court's if it is truly a jurisdictional doubt not a jurisdictional problem i mean the district court has the jurisdiction consider the matter but doesn't have the statutory authority of the other branch of the leadership i understand your honor and i guess as to that point if that's that's how the court statutory question then i guess no one has raised that issue in a timely manner well but i think we were required to just as we were required to you have to require we're required to look whether disregard as a statutory authority to enter any any order i mean it's to rhyme but if it's derived from a restitution and that's what this is judge i guess i would question whether this court does have an obligation to look at the statutory authority to consider an order that's not in front of  prescribed issues that can come before it and i only k arguably for me looks like it's in the zone sometimes which i understand i guess my point would just be that i'm not sure that this court should engage in the process of looking at a statutory authority to enter an order that's not being appealed and that order isn't being appealed but i guess to the extent this court does review that order and it doesn't think there's statutory authority the appropriate remedy if it finds that order was in error would be to bake a cake that march two thousand eight hundred dollars order which puts mr simon back in a position where he is paying up front cover in canterbury he has not asked for that remedy  but i do understand your honour's but either of your concern of mine i understand your honor i share those concerns as well and i guess what if there is a genuine dispute in essence just an accounting dispute credits and payments and so on doesn't it what there's got to be some way for somebody to to resolve those disputes right now i agree that as i understand what's our bill is k our best source well restitution in this case that's just i think what happens is these actual payments are so rare that step gets ordered a lot that's correct your honor and as i understand what happens is in the situation when a defendant believes that he's paid off part is restitution of the court is essentially the bank it's keeping the running total as to the credits that the defendant's entitled to his to his restitution if he believes that he is as paid and as entitle to credit for amounts that haven't been adjusted in this restitution order he can file what i've heard don is a motion for accounting essentially with the district court and i understand your honor's question which might be where's the statutory authority for that i think you usually these are all dealt with pretty amicably we may be with you know parent authority at some point to say i think i think that might be right you know this is a strange situation where the government tried to amend the restitution order in a actuated you know and the defendant kind of saw that opening and here you are below the doors all right but i do think to the extent that the defendant believes that he's paid off a governmental entity like the department of education what they do is they'll reach out to us the united states attorney's office with evidence and say yes the defendant has paid off the loan at issue in the restitution we will then file a motion or somehow notify the clerk that that amounts been paid and the court won't reduce the total restitution figure what it will do is it will give them credit as chewed restitution that's been paid to the government or it's an interesting procedure all around like you unless this court has any further questions your best ask in their motion or any want to anywhere else and no one ever said in the its part of these pleadings that this was a reordering rescheduling or any of those sorts of words regarding the restitution and of course the district judge said he was reducing the amount of restitution he said he was reinstating the restitution to the department of education and to the i r s that is an amended order which the defendant would be entitle to appeal the  just frankly i find it we have the language of what the district court said i don't know why you were here now saying because it was reinstated yes because he didn't submit it wasn't silent about those issues he reinstated them at the end and he used the district court at the government's request this is not a situation where they ordered or requested some repayment and what what what i really find to be somewhat just personally aggravating is that you know the errors that a defendant commits or his lawyer commits or he does when he's pro se get held against the defendant and he's on the hook for an additional three hundred and eighty dollars or four hundred and eighty thousand dollars look at whether he had the authority of the district judge to enter the it's our position that you should look at what he did nobody challenge oh i understand we're looking at what he did and i'm saying what statutory authority did he have to do it as i said before i don't think there was any of the government didn't cite any two and keep in mind the order was issued the very next day after the government's request this is not simply with all due respect some accounting issue where they're saying he ordered who gets paid st that's if you can look at what the judge said that he did you can look at what the actual order you can look at his decision on mr simon's motion to reconsider he said the opposite of all of those things he said he's reduced that's why one of the reasons the district said oh you didn't get notice but it's ok was i reduced the amount of restitution what are you complaining about the fact of the matter is that it was the aggressor in order was wrong in the st instance and the amended restitution order is similarly wrong because it's based on illegal restitution and that's that's the position  here the government also indicates that they could have been raised on a twenty to fifty five restitution issues cannot be raised on the th five that law is clear it doesn't have enough effect on the person's custody so it's not reasonable