i think for purposes of my oral argument to you this morning i'm going to make certain assumptions first of all that ryan properly preserved the sentencing issues both originally on appeal and on remand secondly  think i'm going to assume that the scope of the remained on the resurfacing and they were after the original appeal was not a limited scope and i think those are terrorists on the record that's been made in this case and you know the address again so what i want to do it was address the fundamental issues in connection with the sentencing aspects of rheims case stockpile payment he didn't know what it was they told him so he put together a list of truck trips in trucking invoices that was comparable to the amount of asphalt that would have had to have been trucked to the original invoice or claim that he submitted was hundred seventy six thousand the agency reduced to two hundred sixty three thousand and paid him and paid him so they they were out one hundred sixty five thousand dollars approximately so that's their is because the standard is for purposes of restitution and determining loss although they're not necessarily the same but in this case i submit they are is what would have happened  but for the fraudulent act and how would the transaction have been handled yes ryan had submitted the proper invoices in other words the standard is to compare with the fraudulent result was and then to compare the result if brian had acted lawfully now when we when we have dressed this you have to remember that there was no stockpile contract it was a supply contract it's little bit different when the government terminated that contract for the convenience of the government s s i and ryan were entitled to receive certain determination of contract benefits that's the law thousand seven hundred fifty two dollars without any indication without any left indication in the record of offsets credits overhead expenses anticipated profit or anything well these these were prepared and offered your honor but judge downstream declined to accept them that was an author of proof needed re sentencing we had attempted to introduce that if the original trial when we offered the instruction to the jury to find actual lost of the government that's an instruction i'm talking that facts not legal theory no no these are facts  we had we had cross examination regarding overhead expenses and materials like that because ryan did not testify we could not put on a defense of the first trial at the seriously however your honor we had available  ryan's father robert zimmerman who testified about average profit based upon the contract amount we also have actual physical evidence of calculations of overhead prepared  to consider blakely on the lean and when they came down booker in san thing from which i deduce that the purpose of him to remain and because it hadn't come down yet but it was the same kind of animal another words we left the sentiments in place and sent it back to the district court to consider intervening authority and see whether the sentence is reasonable and that's the question we've got now was the sentence reasonable you know i disagree or i don't i think that that is not an accurate reflection of how the because at the oral argument and in the supplemental brief in this case it was conceded by the government that we had raised proper issues on the sentencing and that sixth amendment grounds but also understand that that that wasn't a look that was not the limitation because we had also raised these other issues including the announcement improper enhancement i believe and the and in fact the resurfacing issues that had been preserved earlier should be addressed under rule thirty two and in within the scope of the remain in other words you do not waive sentencing error when you return example that if you point enhanced meant that was imposed for more than minimal planning or concealment which i do not believe are borne out by the facts that i would make and just a nominal difference also that the government takes a look at our original sentence then under the mandatory guidelines now under the advisory guidelines the district judge is duty bound to address the legitimate claims of the defendant that a i have property to return of the government and i should get credit for it be if i had acted lawfully i would have received an overpayment but not the entire amount of the pay so the government is not entitled to a windfall government is not entitled to present itself as a contractor that say we're not going to use it and then reject the materials that's not fair i having trouble with your  for all fraud that's for them that's where the underlying convictions are of rice and then in the course of events your client also represented to the government that some of this material had spoiled in a way that he had to dispose of and that turned out to be according to this record falls also that was the father gifts and then later on saying it was all had to be disposed of and that was costing bring something in cruise there was nothing there and anything that you're trying to tender for the government either came into his visitation or came into the ash fall was a reference to a letter that was written ever sound and it was not a defense at time of trial and it was a mistake there have been sludge taken out the year before and that was documented through the north dakota  thousand and one and two thousand and two saying we still have asphalt remember this is a stockpile request so they have to have material now the seasonal nature of asphalt says you buy it dollars i know what you all know you know stockpile quotes someplace that somebody can go look at and that was the remarkable thing about the entire transaction because an asphalt supply contract does not lend itself to the concept of stockpiling because you do not stockpile asphalt change stockpile gravel or other prominent materials that's why the  never was and everybody knew that but but that was rejected as a defense by the jury because ryan threw up a bunch of trucking invoices typed up a list and  is these are these invoices a representation that in fact they were bought and paid for and they were a symbol and none of that is true that's why the jury found me guilty no find your client guilty now never existed until well after this conviction let me explain just very briefly the nature of this little asphalt company and how it works it is a seasonal purchase at the time that the stockpile request was submitted a season late in the season the reserves were drawn down most of the asphalt was probably not there but  certainly after the receipt of the payment it would have been pretty well used up but the contractor recognized them as did the government or should the government should have is that you don't hold the asphalt in your tanks over the over the seas it's too costly too expensive out there you got to keep it hot to use it so you drive down as far as you can than the beginning of the next season you drop out if it does not make a difference that contractor making in korea of the when they would be wanting to accept delivery that the i have said no we don't need it that happened in two successive years before the indictment now that the letter that you ha they wanted to perform now that was a letter that was never sent and it did have faults states senate there's no question about it of but that was consistent with their course of conduct for the second for the two succeeding years in any of them i'm just about out  time yes in summary with a contractor who submits simple basic and this was a simple basic fraudulent claim he's entitled  within itself form of reasonable range which is based upon the findings in thirty five fifty three as we've all been through this many times clearly the guide like calculation was an issue in the first sentence of that guideline say there is then what is your argument what i've taken from counsel's argument is that they preserve the notion that the law it was over stated as found by the judge that there were legitimate claims for reimbursement from the government for activities materials whatever that they had incurred that were fundamentally illegal and th over paid by whatever percentage was attributable to fraudulent manipulation of invoices and the like except if you may disagree with that but let's assume that with the fact that th the district judge didn't properly recognize that and therefore calculated the guard line range from some whatever on a full hundred sixty five thousand wonder should have been fifty thousand dollars less declined to consider our son material or declined to consider the argument that our sets should be it's now non binding guideline approach to sentencing in it we're in it has some discretion and here it has a defendant in front of it that is trying to tender to the government some wealth that the entirely did it not get it either go beyond an offer group but i think you are it's fair to say that the issue had probably been raised in the first sentence saying but i think that  based upon some effort we don't know the extent of it on the part of the criminal to try to make restitution make a difference so it shouldn't make a difference because we cases would involve reparations after the fact that would have to be introduced at sentencing and would reduce the defendant's liability under the under the criminal law and we don't feel that that's an appropriate rule if there were extraordinary efforts made while the criminal conduct was are going and prior to the time it was detected and convicted and prosecuted well then i think you're very correct your honor but after that time as occurred in this case i think it very clearly is not something that's relevant well first of all on dresser attention to the appendix reference in the government's roof that material was prepared in a series of alternative copulations and it was utilized in the cross examination of the contracting officer to show that if there really was a stockpile of payment for that and we were expected to stockpile last fall this would have to be heated and over after three years the cost of stockpiling would have seen the entire amount of the contract and that be a contracting officer novel because that's what emmeline and booker says the judge has to go through a fact finding process part six and part five if you don't go through the fact finding process court not consider the you say made it an unreasonable sentence if considered no evidence at all on proof of loss from the government or the second thing everybody knew a stockpile on asphalt the fiction everybody knew that it was a seasonal situation everybody knew that these people came to the government  university of washington but if you want to hang around for a few minutes judge levy and i would be happy to chat with you for a for a brief period of time if you want to