the fine for two reasons one because the court didn't make the necessary findings on the record to show that meant to us allege that mr hernandez had an ability to pay the fine and part of that was that he wasn't given the opportunity under rule thirty two the position i find a little odd is that it was your client who asked for immediate sentencing and in conjunction with the police a minute now you're complaining that you didn't have a pre sentence conjunction with the rule eleven plea and retry it is evidence with regard to the circumstances surrounding your client's crime can't we find as a factual matter that the record is adequate united states versus valon teaches that we can in fact do that that we can look at the entire record which would consist not only of the verbal statements during the plea colloquy but also the carefully drafted plea agreement that your office and the united states attorney's office negotiated that the court carefully went through when it accepted the plea in the request for a waiver of the p s r here you're on i don't believe that that is the case that one doesn't apply that it doesn't say that that i'm wrong that's that's not what the supreme court told us when it reversed the ninth circuit for it hearing strickly to a rule that requires only the oral colloquy and nothing else  hernandez had an ability to pay the fine and i believe if the court does look at the record the full record then it will be satisfied that mr nemesis does not have an ability to pay the fine well we know that he had at least three thousand dollars shortly before his and that is the only information that the district court based the sign on what more do we need to know i mean the the fact that he's going to have to pay the fine in installments during the period of a supervised release it doesn't seem to me to be a stretch to say well if you ha his defense attorneys the fact is mr hernandez basically cashed out his entire life savings and his every ounce of his work and had three thousand dollars in its possession fifteen hundred of which was promptly stolen so when he arrived in the united states he had a pact merely fifteen hundred dollars the purpose of a fine your honor is not to impoverish mr hernandez for the rest of his life but we don't have it there's nothing in the record to suggest that the imposition of a five thousand dollars fine with impoverish you know is there we know that on one occasion he had three thousand dollars in cash on his person and i don't understand how you can leap by inference to the conclusion that a five thousand to pay the fine over a period of time is not the way that usually works it would your honor if he were going to be in the united states however he's probably going to be deported upon his release from custody to mexico a country may never collect the f recommend five thousand dollars that's the trouble of court there's nothing in the in the pre sentence report as a basis for any kind of an imposition of a monetary penalty it's just within the guidelines and it's within that to a degree it's within the discretion of the court this court can look at the entirety of the record the entirety of the record shows that mr hernandez is indigent the only fact that is before it regarding any amount of money that he's ever had is that at one point in time prior to hi conviction it did you are so he does have a fairly substantial record of engaging in drug dealing doesn't mean he has prior convictions that's questioned him but that those were not at issue before the court and we have to find and the judge thompson was clearly erroneous when he relied upon that record has to make clear that the court consider the other factors listed in thirty five seventy tale prior to establishing a fine record in this in this case is only that the district court looked at the fact that he had money happy and that's how we ended up with the thirty month sentence the six and the twenty four at the same time the plea agreement recites and the governor and the court in this colloquy during the plea covered the maximum healthy for the wanted to include a fine or had even thought that a fine was remotely possible in that case it could have easily put it into the language of the plea agreement let me turn the question around why didn't you or your office negotiate over that point if it was such an important issue  of the terms of the agreement was not contemplated by either party and it was not expected by mr hernandez which is why that he agreed to mediate sense and now i don't why don't we find a waiver from the fact that the district court that's all about unfortunately that is the reality here i'm just a root it's just a ritual we go through that makes us feel better and that's the reality of it so all that language you probably doesn't understand half those words or maybe more than half i would agree with that your honor and why you wanted the probation report after the finalist and the judge said no and he's  that it's true and i firmly believe however that the record shows already that mr hernandez cannot afford even the five thousand dollars fine he believed at the time of sentencing and i believe now that  actually i'm sorry that's incorrect in in our district when someone is charged with being found in the united states they are not required to fill out the financial affidavit the attorney at the time of our remit simply has to interview is it like to go through these in a hurry because they've got so many of them tests and am i correct in reading paragraph eight of the plea agreement that had the district court imposed a higher sentence than thirty months which it was entitle to do the defendant would not have been permitted to withdraw the police because the sentence was within the sole discretion custody and i believe he's been making payment i'm not exactly sure what is what has done with his money and leave it on is booked with him in custody of the prison yes you know and again he would be willing able to perhaps pay that amount of government that's correct and i imagine that is what would happen i believe the procedure when somebody is about to be released is that they can he can the government can seize that money and then there are some obvious divil a civil message methods for of receiving the payment the period of his confinement which he was available for work if he had been given the right to a forty hour a day full work week which is you know not be true the maximum amount he would have been able to pay towards a fine was around one hundred forty dollars which is send not the testament of conviction but that the sentence imposed send it back for a rule thirty two required pre sentence report and you finally get an opinion about six like the sword of damocles hanging over this guy's head so that when he comes back across the border and gets caught dealing drugs again you'll be able to violate them on the supervised release because a five thousand dollars fine when he's on drugs will viol because we've got the federal protective service around the building when you're not leaving