certainly are the problem in this case with the restitution issue is that both the court and the probation officer in p s r confuse the concept of restitution with the concept of loss although related to what loss substantially reduced it was based on the fifty three thousand was based on a total of twelve checks deposited in that credit union account now i know not all of those checks were parents that's the parties were sort of operating on assumptions at last and restitution were sort of the same issue and of course that is really not the case here but i think it was an oversight and it's not so much that the objection was waived or was just sort of lost in the shuffle so whether that's preserved and i think is a close question but in any case even understand or playing there it's clear that there is nowhere near the amount of loss for restitution purposes as was ordered it is pretty guilty and may include losses arising from counts dismissed in charge is not prosecuted pursuant to this agreement as well as all relevant conduct in connection with those counts and charges the parties currently account were illegal proceeds the bank is out all of the money from the twelve checks that were deposited into the count but look at money in the account just from this ski or was there another scheme she was involved in that accounted for part of the money in that account which would involve restitution for the other scheme but should we so it was not an actual laws for this scheme should that be counted the other team is not relevant here as because it's not charged the scheme here it was dealing with the mail and what we have in this case is actually deposited all the accounts it did it that checks got the benefit of the money in the account and w stated in at the sentencing hearing the defendant of the court made a ruling or any pronouncement the court asked a question and i gather you feel it is plain there are obviously you heard from opposing counsel it is not help us sort that the government presented evidence at the sentencing hearing to show that there were more than fifty victims and therefore the plus one handsome that was properly applied finally the case is the twenty four month sentence in this case was reasonable we have one the one point three which is the relevant kind of provision of the united states sentencing guidelines there it says that you can look to the same course of conduct or comment scheme or plan moreover in the plea agreement it also isn't a store now it's part and parcel to the bank fraud it is therefore it therefore counts as relevant conduct and you are arguing the court made specific findings with respect to the number of victims and so forth yes the court did look but clear about one thing this account had two sources of funds and funds that were withdrawn by the defendant in this case came from the source that had nothing to do with this case i love the government how do we know that well we know that for a couple reasons one the checks will return although the government has just asserted that the funds were deposited and they were available for media outlets well there's certainly no evidence of that and in fact if you look at governments record one thirty two which is the page that shows the part of the just months and i don't expect anyone can sort this out now but the checks and the dates there show that they were debit on the available for withdrawal and it doesn't it doesn't count against your credit against the restitution by virtue of the fact even that you let you later have a return  check which the bank is luckily able to have against the account normally we do give credit if there is a loss let's say it's a fifty thousand dollar loss and the bank nevertheless and it's a fully recognized lost in the bank nevertheless gets a payment from the defendant partial restitution outside the judgment or justice system or is able to recoup in some fashion we normally give credit for that i would think in the the last in the sense that that's beside the point because that last result from the starship armory fraud if you track as best you can but that's exactly my question if if the recoupment that the bank got was from other illegally obtained funds we would normally not give credit to the defendant for that amount against restitution right if it's a recruitment question is the old lose any money with respect to the twelve checks that we deposit in this case and your answer is it didn't because it's got money out of the star shield fraudulent le never credited it's possible that they could have exactly the same drawls not i can't say that we're certainly but i think there needs to be certainly more evidence more evidence on that because it certainly