argument we are by necessity permitting the defendant to hang on to some or all of the money that he illegally or by virtue of his position as an elected official in this case federal that allows the government to even proffer to the court that you just scorched from a public official monies that he got from some unjust enrichment or to discourse and from that is that the court  sentencing any convicted defendant have that power inherently as part of its ability to do justice in a criminal case and if they do it by that in the form of punishment as opposed to taking money from him  suppose we could do it by way of imposing a fine although as you pointed out the guidelines impose a restriction on the amount of the fine depending upon where you fall on on the scale and i guess we could we could permit an upward departure but even that would be limited by whatever the statute provides if it does provide a ceiling on fines and that's why i started my argument in terms of separating the guidelines from punishment for know i need some help from you if you can with regard to my more general philosophical question and that is in criminal cases where we are dealing with inappropriate honey shouldn't whatever we call it whether it's a fine  well something must have been law the court could have taken the time the probation department or the government could have taken the time to structure where this ill gotten gains came from for there is no i think inherent power in the court to say give up that money from the standpoint that you need to pay restitution to the city i'm going to punish you i'm going to find you i'm going to take whatever i can where the defendant has used his position as a california elected official to violate federal law what's wrong with looking to the california statute in order to determine the appropriate punishment remedies to fly why shouldn't that going back to the question honestly as wrong why shouldn't we do that here the california legislature is just round some points out as clearly declared by statute as a matter of public policy in the state that public officials are in fact employees and we've got another statute that says employees basically take this money and it wants to their employers what's wrong with looking the california law in the context of sentencing  ordering him to give that money to the city i guess in terms of the definition of the loss for what we have in this case v there was no proven loss to the city of colton from the haleigh support that you can make the assumption but you have to have proof that back something sentient and you're not me that he has a right as a public official to take even a dollar to influences official action are you absolutely not are so i guess we're back where we began which is what's wrong with asking turn that money over to the city that you serve because it's it's you can i call it restitution are well  examples the government official has paid twenty five thousand to name a park after him or someone has now lost in the city twenty five thousand is to vote for redevelopment project the project is advantageous to achieve th telling him to give that money to the city rather than to keep it for himself regardless of what we call well cases like presumed can't be remanded on his theory that there's no loss to the city but i'm going to discourse you  investing restitution order orders courts can use common sense practical ways to come up with a reasonable approximation of the the amount of restitution and the government certainly suggests that that i'm asking you that you are seeking make the argument in the same way that you are this morning to tell you the truth i can't i can't i can't i can't recall whether i actually played it precisely that same way but certainly the short your honour's the defendant gain money in exchange for exercising is his official duty as an agent as an employee as an official of the city of course and he should be able to keep that money