let's suppose hypothetically not necessarily the case that sitting judge has before someone who's engaged in a very sophisticated very difficult very complex and very profitable white collar crime could have sneezing judge in that circumstance said base that a restitution award on the theory that if the same sophisticated efforts have been made in the legitimate business world that this individual could many times the money of the words base the future of the most need to pay on these individuals sophistication and not necessarily judge departure separately now given the flux in the circuits sensing jurisprudence not following booker that's certainly an open question and the reason because if the guidelines do not include departures that as mohamed seems to suggest that has great implications for your review on one  hand and seems to be the defacto practicing of many this records may start with a guideline as to the presumptive sentence and the use book or factors to decide whether or not one should vary from that sense now that on lot more sense under the book or rationale if those guidelines sense is in fact include departures because now we've included a much larger universe of factors that are in compass by thirty five fifty three x and that's certainly the argument that the guidelines for the most part in compass are thirty five fifty to be a factors but they do that through the neck isn't departures if separate departures from the guidelines and there's no longer that relationship and that makes that no longer makes any sense and that's what happened in this case the court indicated that it was willing to consider that as a factor in mitigation if she would give him credit for that if it was  record of the defendant's ability to pay because this court has made very clear in his curious prudence there is no requirement that the district court make an expressed finding and i think the record here certainly reflects that the district court knew of its ability to have to consider the ability to pay and the district court also had a record before it that suggested that this defendant would have the ability to pay he was healthy he had a degree in business management the sophistication of the fraud that he carried out certainly suggests an ability to make money and there was evidence before the district court that he had in fact been the c e o of two other organizations the kids that connect an office an office video online he was even named business innovator of the year in two thousand and one this is all sufficient for the district court to have crime that was charged and found guilty for he raised about two point three million dollars between that period one thousand nine hundred four and one thousand nine hundred five of which he pocketed five hundred fifty six thousand dollars the district court also didn't know that he made i believe it was his own defense counsel's own statement that he made substantial t so on the restitution issue we would simply say that there was no air here certainly under the plane or standard when this defendant has had every opportunity to previously challenge the restitution order he didn't do so he's done it very late in the game here and it seems that fairness and the integrity of these judicial proceedings are not compromised you want to talk about post defense rehabilitation i will your honor it seems frankly here that there's no dispute that yeah at least under mohammed which is the law of the circuit that it would just be unitary view of reasonableness it also seems that there's no dispute here that the eighty seven month sentence here was reasonable there doesn't seem to be any dispute there so the only question is is what is the continuing viability of applied here the district court had that discretion however what the district court decided not to do was to give the defendant ultimately any credit the district court was entirely clear at the beginning of the sentencing hearing when the district cour i am not bound by the guidelines and at the close of the sentencing hearing in the district court said i'm aware that the court could have sentenced outside of the guidelines i'm looking at what the district judge what you saw the sentencing and she says  purposefully have indicated that i couldn't address the sentence for a post offense rehabilitation you know further along she says i haven't done that here so that may be an issue with the one circuit review but certainly if that's what most that the district court made those statements but in that same hearing the district court was very clear that i know i can sentence outside of the guidelines and i have discretion to impose a reasonable sentence which you may be very clear that her state of mind is that you cannot consider post offense rehabilitation right now she goes further to say that if i could the sentence would be different not might but would i think though if we read as a whole and the district court's comments it has to do with her consideration as a matter of departure i think the court needs to look at the comments by the district court taken as a whole it is certainly is that as the as the court pointed out possible to read those statements somewhat inconsistently discretion and i choose not to exercise it completely different story but she says i don't think i have that discretion but if i did the sentence would be different i understand you're only ignore that i think it's not that you can ignore it but i think when also coupled with the fact that the district court says i understand that outside of the guidelines i have the discretion to impose a sentence that's reasonable and she ultimately then decides that she is not going to with the court just needs to look at whether that eighty seven month sentence was reasonable and it was reasonable on the circumstances there seems to be no dispute as to that fact here and moreover it may have simply will be that the district court because in one in two thousand the sensing commission changed it such that host sentence rehabilitation can't be considered at all just a court may have found it's a reasonable determination of what a good sentence was or that eighteen months was reasonable is that ultimately even under booker she's not going to exercise that discretion because for the last five years she had not been taking have taken into account that the sentencing commission said in two thousand that it is an unfair undo windfall to reward those defendants for that for whatever reason get a reset in saying that they should also then be able to get the benefit of any post  rehabilitation and that also could have clearly been in the district courts mind when it imposed reasonable he said my sense that it did so i understand the court's concerns with what the district court did say about the ability to give a departure but ultimately  under mohammad looking at the ultimate reason oneness of the eighty seven month sentence it is clear that the district court understood what it could include not do and she chose to nonetheless impose eighty seven month sentence which by the way had this gone the way of an ordinary am line here yet quite a bit of fortuity here for the defendant i believe it was remanded in may and emily came down in june the government at that time by the time i only came down did not have the opportunity to petition for a rehearing given that it was too late determination but it's relatively clear from the record that she did not specially given probation officers a very strong statement that she did not have any ability to pay and all the evidence in the present report indicated that you bring to the tension of the court that she was using the wrong criteria from around you you know right i didn't try this case blowing out your office to our office did not but on the other hand  be given him credit for that and for that reason it was fair under the law not to do that thank you both for your argument the case just argued will be submitted for decision will proceed to the last case on the argument going to this morning which is herring