essentially as whether or not the requirement in rule forty three dollars a the district court refraining from sensing a defendant in absentia extends to the whole that the government has argue i'm sorry see specifically says that for president provisions of this chapter rule thirty two c of the federal rules of criminal procedure shall be the only how under that statute would rule forty three apply to restitution and i realized this wasn't briefed so if if you the opportunity to submit something afterwards you certainly may but it seems to me that the statute supersedes the rule here discusses the information that is required in the report right and that's not what it it's an issue here you my specific question misery may as you have argued that the failure of the court to hold a hearing with your client present for purposes of determining restitution violates federal rule of criminal procedure forty three dollars a my question to you is section th versus newman which is the case that you are asking us to overturn i think here that case talks about the civil nature of restitution award and that's what we've held in the past and perhaps this rule judgment there is really and not be enforcement mechanism issue the question is are all will be your position that all penalties that flow from a criminal conviction and only occur because of a criminal conviction are criminal in nature so all licensing requirements you know your friends if you're convicted of a crime and you're a doctor and you use your license to commit your crime the medical board polish your license is that criminal in nature because it flows from the criminal conviction later the medical board still has the option in tin you going to you know while your license in the medical board then operates under its own rules and its own procedures and so on and evaluation of you it as opposed to a board separately ordering it if it was something that automatically was triggered would that be criminal in nature i think and i think that it is long and it's you know it it's thank you mr ackerman you've you've now had the advantage of hearing some of these questions and the ability i'm sure to take a quick peek at the statute but if you would perceive please yes your honor thank you thank you ma'am please the rule forty three because route forty three does not require the defendant to be present in the courtroom when the court issues a restitution order nd even if it did violate rule forty three the violation was a harmless error not requiring vacating enforcement of an order of restitution the provisions of this chapter and rule thirty two dollars c at the federal rules of criminal procedure shall be the only rules of political to proceedings and sixty four absolutely applies that's the statute that governs all things restitution orders so since that statute applies section c of that statute also applies which essentially says that rule forty three does not apply to just maybe the underlying question the court's question is why did we not argue that and i think that you argue that and we'd be happy to provide additional briefing on this point if the court likes but it reached that there isn't even a conflict between ru happens in his case it's much more narrow than that it says that but even that it did with that matter given the snatch it because under the rules enabling act you can't create new substantive rules sentencing sort of an event happens no matter how important it is to the offending if it doesn't fit into one of those five categories he does not need to be present at that event so the question is is restitution order given after a sentencing hearing is that one of those five bets and the answer to this is absolutely not it is not one of those final event so he does not need to be present so there's no conflict between three thousand six hundred and sixty four and two or three you can still comply with forty three and three thousand six hundred and sixty four with no conflict we know that this court that congress to find restitution or something distinct from sentencing something that happens after sentencing months after sentencing it is not a sentencing so therefore he does not need to be present and to address my colleague argument that in some it sounded like she was saying that they are well the restitution order is inextricably linked to the sentence or it's a part of the sentence so therefore he should have been present when the court docket it's amended judgment and that just reads in to will forty three requirements that simply aren't there rule forty three dollars does not say any time a judgment is docketed that states a part of the sentence a defendant must be present rather it says the defendant must be present at sentencing and so the way that works typically practice is the court holds a sentencing hearing which the defendant is physically present then later maybe a day later maybe a few days later the court will docket a judgement saying what the sentence is and the court dockets that judgment outside of the defendant's presence days after the restitution they talked about an amount yes so the at that discussion between the attorney and the judge that the trying to raise an objection that he admitted he just kind of stumbled across just before the hearing and he said he had concerns that the victim had already been possibly had already been fully compensated so there was some back and forth on that issue and the judge said that she would like additional briefing on it and she cited  which allows that to happen under section five and then her his counsel stivers counsel said thank you appreciate it and basically assumed that they were going to resolve this through briefing and eventually order we're going to three thousand dollars how did that victim suffered from this crime or were accurately accounted for whether she had been fully compensated and issues about whether the expert used was reliable and the court arrived at its three thousand dollars after basically finding that the expert cited by the government was reliable and his damages estimate could be relied upon for the victim's damages for this crime so there's a three thousand dollars no the at the amount is not at issue the only question is so as this court has held in many cases that it's considered rule forty three violations which is silverstein patterson presently been eighty all those cases considered a rule forty three dollars violation and said well that was a harmless error so we're not go vacate so this is to give an example of that for example in the silverstein case the district court held a jury trial in which a member of the jury asked a question and the judge answered the question outside of the defendant's presence and that answering  present in the courtroom winds of change the court's analysis in any way because the court likely would have answered the jury's question the same way let's see when else this applies here the question of how much was owed restitution really had nothing to do with the defendant or particular circumstances it had everything to do with the victim of his crimes and whether the victim had been fully compensated so having the defendant physically present in the courtroom just so the court did tell him face to face how much he owed and restitution would not accomplish anything and his presence there would not have changed anything in the court's analysis because it was focused on the victim just because the answer would not just because it's presence would not change the outcome here this violation if there was a violation was a harmless error not ing the court must for any dispute or portion of the pre sentence report or other kinds of matter which this there restitution amount was real and the dispute or determinative ruling is unnecessar