offense conduct there was no especially complex offense conduct here the type of conduct was ordinary for the type of offense in particular when determining the put the bill in the the enhancement courts look to couldn't assets are required for the most part it's among the things that the application note talks about and i think that it is dispositive here if those hiding of assets  smaller than ten thousand dollars also intended to make it harder to trace i don't think so your honor we have an offshore account in his own name easily found if the government has a record search and it's because in the chicago metropolitan area and the receipt of the money in the amounts that i was the government throughout his brief refers to that as structuring he wasn't charged with structuring he was i understand  t following the orders of his employer to receive the assets in the amounts that the employer told them to receive and draw from that what you will but that is very different structuring offense that's proven by the government that never happened here as for the second issue mr jar was convicted of a title twenty six offense and so restitution cannot be quoted for title twenty six offenses under section thirty six sixty three a or thirty six sixty four the end by ordering restitution to be paid pursuant to thirty six sixty three days is clear from the judgment that's at appendix page fifty one it's also referenced in the p six sixty three agreement to touche and since he agreed to pay restitution and use that as a factor in mitigation he still agrees to pay restitution but i don't know that that is the appropriate vehicle to make the change in me responded to that and i reply brief i think that rule thirty six is for clerical errors sensually and that's not what this is this is a substantive provision of the plea agreement that needs to be changed to reflect what the wall he has no alternative but to take that rest because we're asking for a separate is alternative is not to raise this point he is going to be agreeing to pay restitution which i understand the principle reason oh look i'm not going  it is not a means of a simple correction however and so for re sentencing would be required under downs forth the district court erred in violated the fifth amendment want to use my client's silence against him as a basis for imposing sentence the judge essentially created consider the lack of cooperation in the silence to be aggravating factors in imposing the sentence but it dead and the judge is not allowed to do that it was clear on page twenty seven through twenty nine of the appendix that the judge was doing exactly that what do you were a defendant is arguing i mean changed me and i'm humbled i'm going to go straight but i'm not going to tell you where my money is  that i'm not going to be forthcoming about the details of what i've been doing last fourteen or eleven years and can the judge consider that no the judge can consider it all now because it's the take the defended his word now the judge can say what has come across is a failure to express any remorse remorse is in essential or very important consideration for the court to make as part of imposing sentence however judge my client given the opportunity knowing how this played out i think will take the opportunity to allocute about the existence or not existence of any assets this judge thought that my client was  living the high life because of this barry's travel that he took and it took he was a couple hundred dollars to the tune of maybe eleven hundred million airfare for these trips while he's living abroad i don't think that he has any assets but he can have that opportunity to explain and  be given it now that we see the judge penalized for not explaining it so what do you think the judge can and cannot do you know dealing with this question of remorse and being forthcoming about one's criminal conduct and so on without violating the fifth amendment the judge needs to be clear that he is taking the silence as a failure to express remorse and he is not drawing adverse inferences from it on the topics that are expressed noted here about lack of  right details that might implicate others details that might make it easier to collect on fines penalties restitution and so on might not have come out so easily and so the link between remorse and being forthcoming is a pretty tight one yes far past that line is something they run a probably never did and that is say i'm going to punish you because you didn't cooperate with the government because no cooperation is dangerous but we did get he did deal acceptance of responsibility or great i find extraordinary under the circumstances in agreement by the government we're pleased that they honored that and that was i think the reason we had to come in for a second part of the sentencing hearing and the government to their credit i know that the whole way through and it's something that the judge could have decided against but he didn't and could revisit and some of these other points could cause a judge to revisit a lot here judge much needs to be revisited but restitution my client we've said in the briefs i'm saying it again is agreeing to pay the rest of the things that were mitigating getting we're just asking that the right legal principles for imposing restitution be applied here because that's what the law requires we're not asking anybody failed to take notice of many important fact for good or for ill in this case we're just asking that this case goes back to be reset because of some of the errors and this is one of them but restitution my client's going to pay that as much as he can with all the earning potential that a recently released convict in his seventy's will have he will come out and make his best efforts for all the wisdom of imposing somebody for a lengthy period of time in their later years he will do his best but there are other areas that need to be accounted for and so i'd like to turn to the last of them and that is the imposition of the fine the judge made no record about why the fine should be imposed didn't consider the eight statutory factors the seven guideline factors it simply impose a five thousand dollar  her or displays an additional level of concealment beyond that in the usual tax case council has it wrong in the facts in the lower court defendant denied ownership of the particular accounts and argued to the district court that the enhancement did not apply because there was no proof the account was in his name in fact he asserted it was not in his name on appeal he is suggesting that there's no concealment because it wasn't his name the record does not bear that out the court got this right the district court found that in an effort to evade detection the defendant moved his operations offshore only after the internal revenue service discovered one of one of his large betters issuing checks to cash it was clear to a particular currency exchange in chicago that protect the i r s contacted that particular better in the effort to find out who he was issuing the checks to the better notified the defendant seasteading with that particular better about nine months later the defendant reproach that better suggested that he had moved his operations offshore and now he should issue checks to odds as craw in a period of two years that particular batter issued six million dollars worth of checks that all six million dollars yes your honor it was an indiana resident your shriner and those six checks bore the endorsement in the back cash or to cash that self the checks issued cash were in the amount less than ten thousand dollars it was taken to a currency exchange a negotiated net fashion after discovery of the individual larger better in indiana the defendant still managed to take smaller bettors cash for which there be no record and smaller better subjects written to cash which he deposited into one of two accounts and there's a quote noted people underreport their taxes all the time but if you take the extra step to involve offshore accounts and it's the sub illusion or transition in response to the discovery that's key to showing that it was a deliberate step to take and make the detection more offshore accounts in which individuals or entities can set up accounts which are concealed from the united states government in which they can place wagers maintaining on winning funds place them to bet again the better does that or the book eat us then both can do it in this case the large particular batter that we were talking about he only knew the defendant the defendant went to indiana collect record is clear the court was authorized under thirty six sixty three small a subsection three in which a parties agreed to expressly make restitution the defendant a foreign but this was a voluntary a payment of destitution because he entered a plea twice and in both pleas he affirmed when the government stated payment was being bound terrilyn made and he agreed to voluntarily make restitution he affirmed that as he was under oath at the time the defendant cited his willingness to pay voluntary restitution which is permissible under thirty six sixty three eighty three has an effort met a gate mitigation the court did not address the specific statute whether it was big a or small a in suttons and the defendant says now he still agrees to pay and the judgment and commitment order did not specify which section it was under and thirty six sixty four small items provide him no relief that's just a statute which provides a procedure for the priority of payment in this case both the state was owed taxes and the federal government and that's what thirty six sixty four i addressed on the judgment commitment order did not address whether it was big a or smaller the only place that it is mentioned in error was in the pre sentence report and no one seen it didn't bring come to anyone's attention everyone in the plea agreement the elocution everywhere else it's all talked as voluntary restitution and it couldn't be clearer in the plea agreement it was subject to a three that being sad the defendant's agreement to pay the district court order was therefore permissible if we move on to  the silence the defendant was not punished in this case for silence he was requesting an extraordinary benefit he was denied the extraordinary relief that he requested but that's not the same as punishment question the representations made in support of that request that he was an old grocon man that he could barely support himself in the fourteen years that he was a fugitive that he was in one thousand ar'n't salesman that he was a mere small middle man with no real connection but more importantly now he had seen the light and was going to do all he could to remedy his wrongs those proffered circumstances were invited questions by the court who supported you how did you do  how did you move how did you travel extensively the defendant never asserted it as a fifth amendment right to alert the court that he would somehow feel that he was not able to say in fact what he was telling the court as i lived illegally when i was fourteen years a fugitive and i had a lawful business when i was there but i'm just not going to tell you about it he denied that he had any interest in the accounts that he just the accounts belong to someone else with enormous amount of money went but he refused to tell them whoa with respect to the fine the court didn't plainly air here they gave him a below guidelines find the court  is directed to impose a fine unless the defendant establishes that he cannot pay and this he did not do the court was not required to make an express finding unless it was inconsistent with the pre sentence report and this it was not inconsistent the defendant in this case he said mid that he had more money that he had seventy eight thousand dollars in accounts in love and not at the time of the sentencing the pre sentence report identified it as such but the accounts that the guideline range was seventy five hundred seventy five thousand the defendant did not object to the imposition of sentence even when he came back and had chance to reopen the sentencing hearing it was the defendant's burden to and we think that that would also be appropriate i don't know of any guideline enhanced but when it's subject to review once it's been objected to that isn't subject to do novo review and such is the case here the government provided more details about the offshore escrow account but something that caught my ear is that it said the identity of the individual can be concealed i think it needs to provide more information to the district were so that the district court to determine if the necessary things the necessary facts to impose the enhanced may have been established the additional details that were provided here i don't think are reflected in the record for the district court to have relied upon to make a decision on that and of course it is the government's burden to have supplied those facts and it didn't the p s r paragraph five that wasn't objected to by the government had the opportunity to object the judge relied on the p s on p s are referred to thirty six sixty three eg i think that shows the district court imposing restitution under thirty six sixty three a lastly i was misspeaking earlier referring to thirty six fifty three i meant thirty six sixty three lower case three and that's in the p s are six right then we have inconsistency is in the p s r and if it's going to go back potentially and i don't think that thirty six to where we need to be because this is beyond the scope of rule thirty six this is something that there should be a forty sentencing for when the government can present its evidence my client can present his in the proper determinations can be made in light of the necessary evidence that is not comes in and says i'm indigent i can't pay anything therefore please change the amount of restitution and the fine well the only reason to make an argument about restitution in the fine that the person is not in otherwise it's a total waste of breath i disagree ron if the law doesn't allow it it shouldn't be imposed that's the case here the necessary favor of wastes of breath even though they have no effect on anything i'm in favor of appropriate proper up application