amount of loss could be as high as four million dollars this was contrary to the factual basis that ultimately was agreed to by the parties this was never admitted whatsoever by the  million two hundred seventy thousand the government ultimately agreed to we contested that act the sentencing and his mother got presented substantial information with regard to set off and it ultimately came to a figure of seven hundred thirty nine thousand if we looked at the entire gamut of properties or as low as two hundred sixty seven thousand if we only looked at the properties that were pleaded in the original the court in fact based on the state of the law of lately at the time of the sentencing the court should be limited to the properties that were admitted in the indictment the sentencing at the time of the sentencing if they were they needed provide an admission or a finding beyond reasonable doubt as to what the amount of loss would be the core of  or clear area owners because the the court it seems to me that there's two ways that you can look at this and if were analyzed to pre clear air there was a lot of discussion your client was there was some indication that there would lost she contested the one million two hundred seven thousand the only reference to the one million two hundred seven was in a equivocal estimation of what potential restitution would be she always reserve the right to challenge that leader in sentencing in fact the district court himself stated that the amount of loss would ultimately be determined at sentencing the district court was clearly erroneous the court came up with a variety of ways of trying to  appellant provided substantial information substantial itemized economic analysis of why that approach was the correct reserve the right to do it in the plea agreement and it was no meeting of the minds whatsoever for the district court to embrace the restitution amount and for the government to do that at this point would be contrary to the canons of contract law as a what what essentially was agreed to is that at this juncture the parties believe that one million two hundred five thousand was approximately the last but we reserve the amount to challenge at a later date which actually was done counsel you just said a moment ago that the district court did not make quote in the made no analysis and quote what precisely do you feel that the district court should have done in order to make what you would consider to be the proper analysis my review of the record indicates that there was over fifty pages of the colloquy that went on the district court judge went through the different a loss amounts actually calculated on the bench with the calculator potential amounts of loss and front of everyone how is that not to be considered an analysis from the perp from the purposes of reviewing on a clearer standard at this point well at the analysis with regard the calculators with the district court did is it took the eight properties referred to in the indictment took his calculator and added them up and said this could be the potential loss this is absolutely contrary to what was more than just simply adding up  them correct he had to be much more extensively provided a alternative analysis as to what the loss would be the queen district court provided no and yet no sense on the record that it would that is up to one million five hundred thousand or i can accept the governments of a calculation of loss there was no independent review going on by the district court other than in all due respect to the district court the ludicrous detail look at what the potential set off would be in this case what the loss would be in the government admitted that in its presentation of a million two hundred seventy thousand right i think you are at your last little less than ten marks you wan good morning stephanie mccaffrey on behalf of the united states good morning first to address judge fractures question with respect to the amount of loss that the district court considered the district court considered the twenty  properties which beat would be an additional twenty properties on top of the charge properties in the indictment finding those to be relevant conduct and the district court had every right to do so under the guidelines and the of those properties and all the properties went into foreclosure foreclosure which caused a loss to heard and falsified information was found in each of the loans for those properties the probation officer found that to be relevant conduct because that  two hundred seven thousand dollars the government's calculation was the same as the probation office officers calculation and x that the government's calculation took out taxes sales and neatness expenses and the defendant is correct that the government is not relying on the defendant's admissions at the change of plea or in the plea agreement the district court was doing an evaluation of her admissions during the change of play in the plea agreement in anticipation of the potential that blakeley would apply to the sentencing guidelines meanwhile what the district court has to do post broker in evaluating last calculations is to rely on judicial findings for guideline the in the twenty four twenty eight properties and the probation officer agreed with that the district court found that deal last after evaluating the defense position regarding last the p s r the government making its finding and in fact the district court against any now says it didn't just rely on what it found to be the potential intended loss as far as four million dollars or approximately one point five million dollars the district court make sure that the record is clear the defendant some of the credits that the defendant argues for is a credit for the mortgage insurance premium and the mortgage insurance premium should not be credited to the defendant a mortgage insurance premium is simply an insurance premium  insurance premium the defendant should not get credit for the payment of the mortgage insurance premium similarly the defendant argues for a credit for deposits on cancelled sales or credit for extension fees again your honor these are costs that if the court were to look closely at the defendant's argument there are programs where hud sells properties to charities and other non profits for a discount with respect to the government's loss calculation that the that the court adopted the government doesn't subtract the fifty percent price it subtracts the one hundred percent price so there's no harm done there and the one hundred percent price is based on the appraised value the government does not believe that the defendant should be able to come back in hindsight and say well this was the market value this is what height should have sold the property for instead what hud is basing its loss amount on is the appraised value an appraisal  done when hired to possession of the property and the government believes that that would be a more accurate reflection of the amount to offset the losses with well so i mean essentially they're taking that had just taken a position that they're not going to be micromanaged by someone in terms of what they have to do after that when they're left holding the bag correct your honor i do have a question in terms that if the panel were to find that there was today admitted loss of not less than one point reliably determine from the record whether the sentence imposed would have been materially different had the district court known the guidelines were advisory the district court gave an alternate sentence of this case of fourteen months and specifically stated that that district court the district court would actually have more discretion to depart downward in the absence of the guidelines than it would in the context of the advisory guideline system but even even given the extra discretion your honour's this court is not the place to determine whether the said office were appropriate this court is not the place to turn about late fees and foreclosure fees where the record is absolutely devoid of any analysis by the district court what this court should do is really in the case of district court for the court to make a finding of which analysis of lost is correct counsel you've indicated just again that there was no one else was but the last time you were here you just said that it was incorrect analysis of the district court make an analysis that you simply disagree with now i think it's generous to say that adding the properties of the indictment constitute an analysis i would then is to determine whether the government's proved by a reasonable doubt whether there was harmless error and we have preserved this record by raising the blakely issue in the district court and the district court was tethered by the guidelines in this case that this well said even if the guidelines are found to be unconstitutional this would be my sentence how you respond to that your honor this alternate sentence was nothing more than a rubber stamp there was no analysis of the three five five three factors in fact the district went and felt that it could not truly analyze the issue of family responsibilities because it was hampered by guidelines and statutes reflecting the feni amendments and that this was a discouraged area for departure and that that used its discretion in that posture but the reality is now today district court had the ability under three five five three to look at the history and analysis saying this was not extraordinary to day when the focus of the guidelines is but one factor and all the other three five five three factors should be considered equally the district court may come back in and review it in a