and i will be doing that in reverse order starting with the argument about victim restitution the invalid judgment but with the secret curative understanding for and on that i think if we can imagine a at all parties including the court understood that wells fargo had been compensated for the bank fraud in this class committed when another creditor conducted a foreclosure sale and the excess proceeds were sat well the court is not in the position of as part of a sentence in a criminal case it's part implementing the victim restitution statute implementing civil guarantees against future civil with litigation real action  those good intentions are not reflected in the judgments we see what happens we saw just sentencing what happens when paperwork goes astray when computers go astray we saw what happened with the world fargo computer system that recognized the f honor i'm not sure how to know how the the judgment could be modified the judgment could be the government could be ordered to file the satisfaction of judgment or whatever the comparable procedure is in federal courts for evicting restitution order but if you look and prison i spoke of it's a little it's a little outside the record i spoke to this last probation officer and i explained that the money had been paid long before the order ordering it paid had ever been entered and she appeared to understand that and she told me well i will have to speak to the financial litigation unit and you know it's been a month and that hasn't happened and i understand things move slowly but one of the things she said to me was that you know with the government things don't always get to where they need to get so when you have a judgment that doesn't reflect the reality of the situation you have judges who retire a guy tourney's who retire or die you have reporters who destroyed their notes it was ridiculous for the courts for that water when argument under the restitution statute parties have sixty days if they discover new losses so present them to the district court and and the city and establish their own title much a victim restitution they have to show good cause i think there can i that is what i want that's how the structures are supposed to function your honor and in terms of the reality of whether there was a loss understood wells wells fargo had the money and in terms of even if we consider that the government is entitled to destroy just burden of showing a loss for a potential loss by talking about this litigation this last was engaging in you know tilting at windmills and cursing the universe doesn't cut it what was going on in bankruptcy court was was that her attempt to overturn that automatic state was out the door in the bankruptcy case itself had been dismissed when i'm with the one hundred eighty day bar against refiling there was just no legitimate reason to think that that money was was that was in wells fargo's accounts was at risk no the restitution award would be reduced to that extent well that i think that is a vaguer alternative outcome then just ordering asking the government counsel whether he's going to order  the judgment to be declared satisfied i think from the position of the government in this case as reflected in the argument i just read it seems to contemplate a neverending risk that mr glass will say whatever she's going to say and the impossibility of ever declaring government hasn't bothered to defend the decision i go that the government rest its case on binding precedent but i used government attorneys come into court and say we have an ironclad case on forfeiture but if you disagree we have an ironclad case on the merits and  accidentally is a little less clear i know that higher courts typically benefit from the input of lower courts so to my mind it makes sense sense for this court to reach all the arguments as to why mccormack was incorrectly decided why there is no ambiguity in the guideline why there's a clear difference between exclusions and credits and how they apply and why whether the last in this class caused whether it was intended or reasonably forseeable you still have to apply the credit for the full amount of the money that the matter where competency to stand trial was was was issue the court would have to say what happened here there should have been serious doubts nobody dealt with automatic reversal but we have probably pretty close and one principle that came out of the animal line case and i know you're on as we're involved in that was cautioned against reading too much into what a district court judge says or doesn't say when he's unreasonable behavior that the defendant was engaging in and think that the prospect of this person representing himself was going to be a complete disaster and if you review all the all the allegations that this class was making against against her not making these scattershot arguments he was making a bad jailhouse lawyer argument that he was maybe pathologically convinced of but still the court looked at what he was doing instead of just record had the benefit of e because seeing her for three years three three years he didn't diagnosed her as depressive psychotic possibly paranoid and she was on a battery of medication that he was taking pains to adjust from time to time  sell at that point he was of the opinion that she could defend herself with the benefit of continued treatment in allowing her and her mental state to stabilize i think if you would look at what the district court would have done at the very get go if he had the benefit of edwards he might have ordered a competency referral because he was very concerned about the way this glass was asked was acting but he was not going to say that  competent to stand trial which is a tougher standard this class didn't state that she was not competent to stand trial the whole issue is now under ferguson and edwards was she competent despite really wanting to represent herself to be able to carry out the duties of self representation and it seems clear to me that if with the benefit of edwards the district court might have from the get go found dr shrank instead that there is a huge doubt here about this person's ability to represent herself i don't want to represent abuse of discretion what have you nonetheless we do think some clarity perhaps is warranted as as to what the appropriate standard of review is and as to this issue and edwards based argument on and we do disagree more difficult well it's the first one it edwards does involve a heightened standard of competence where the court is looking has now has the discretion clearly had it before the district court recognized but edwards makes clear that it had the discretion to deny defense request itself representation but discretionary review i think is appropriate because an abuse of discretion standard is big because edwards and determination first and foremost you must have evidence in the record to establish that the grey area defendant is in the gray area specifically that the defendant has a severe mental illness in the absence of that you  get into an edwards inquiry without committing ever seems to me the district court has no legitimate authority to deny a request for self representation unless there's clear evidence in the record establishing severe mental illness in edwards just seems to understand what the criminal process is all about but if i let this guy go this is really going to be a massive that's going to take a long time to do that in trying to with the fact that  me the trial process nor did that wouldn't be enough it would have to be a mental illness or a sort of summarizing edwards it would have to be a severe mental illness that was severe enough  raise serious questions about ultimately a due process issue about whether the resulting trial was fair at the time of fun the other point raised in the reply brief i want to respond to the defendant suggests that edwards unequivocal request and it was now in voluntarily made before granting the defendant ultimately the right to proceed as room counsel of the defendant was asked if you have any problems are you treating with psychiatry as to taking any psychiatric medication etc she specifically told the district court at the first hearing the first reading hearing and we cited that in our papers that she was not to know your honor was the answer that she was not under any psychiatric care and not taking any psychiatric medication moreover the district court asked of the defense counsel not the best you know sort of a front row seat as to whether or not the defendant is in a position to represent herself effectively if sh to be permitted to proceed without counsel and as to that the defense counsel or first defense counsel said they weren't inclined to make any such motion court asked me i wasn't inclined to make clear he completely contradicted the defendant's plans the claims that she made on the first day of trial he made clear that he never told her to not participate in the trial or to forego cross examining witnesses and he also denied it vising her limited proposition that intuit when evaluating intended lost collateral pledged collateral collateral that's pledged to security for a loan fraudulent one in this case is a factor that should be considered the consolidated with the theft guideline to be one point one it's still all the fraud issues would be resolved there's nothing in the legislative record amendments to the sentencing guidelines specifically to the one point one that i have been able to find a case where the defendant had every intention of keeping the money she made that clear even through the last very last end of the sentencing hearing she made no effort to repay the loan she continued to maintain that she was not obligated to repay any of the money to wells fargo bank but more importantly just in the in the way this particular thought scheme was orchestrated it presented her with an opportunity to simply do not to claim that she was a bona fide repaid but it presented a circumstance where she was able to continue for thinking about a two or three year period for stalling foreclosure proceedings and presenting a record where she would have been able to argue in civil litigation or bankruptcy litigation that she was not obligated to repay any of the money and that the lien that the bank held as a result of based on that fraudulent loan should have been extinguished altogether because she was not a party to obtaining that reasonable this regardless of the offense level that was not the position that the government or the district court took at trial they were very concerned when this this potential reconvince came up to explore whether it was legitimate or not because  calculation of the loss to the bank everyone agreed made a huge difference in the sentence that was going to be imposed on his attempt to defend mccormick it sort of sounds like a little limited defense he made in his answering grief  and it essentially borrows language and reasoning from the cases from the one nine hundred ninety s construing the prior guideline where collateral was linked to the definition of actual loss was not really linked to the definition of of the credit you know as opposed to a panel saying it should be heard i'm back no your honor i wish i were i think the general language that one sees is that if there's an intervening u s supreme court case that w prior panel decision if it's if it's clearly on point but i wish i had a case that you're talking about but i don't i do want to talk some more about briefly mr t his comments on the competency issue he doesn't come quite out and say it explicitly but it sounds like he's saying that a defendant has no standing to complain about what the district court does and credit proceedings about the issue of competency to represent oneself and i submit that this court is already in ferguson explicitly or imply italy either as a matter of constitutional law or as a matter of supervisory authority or over the district courts decided that defendants  have standing to complain about being allowed to represent themselves when they are incompetent to do so otherwise they remain and would make no sense because it would be an academic exercise about what the district court might have done and we really don't care about that unless it ha personal consequences to the defendant there are other cases there's a connecticut supreme court case where they took the supervisory authority of you there is florida rules of criminal procedure i believe that at the district court level with a of now and grafted on as a matter of procedure doesn't address the issue in the defendant is going to thank you that i was totally impaired i really wanted to represent myself but i probably should have been allowed to do it in this court is going to have to apply appropriate standard of review which is either be going to be something