is a rather unique situation and i feel won't come before the court very often you've got a really intricate sentencing if you hear let me ask you a couple questions that are on my mind yes one is i wonder whether we can treat ever assuming there is ever as invited because the defense suggested eighteen months and that is in excess of the six to twelve months i believe your honor in order to do that you would have to couldn't see where the sentence available under the guidelines on the first run through with fifty to twelve months that was based on stealing six thousand dollars but under fine at the relevant conduct would add up to one and a half million dollars and the judge would be required under the relevant conduct guidelines in our oxygen and find the sentence and the first time through for one and a half million dollars not six thousand dollars so i don't really understand why we're looking at six to twelve months while we're looking at that because that's what he was sentenced hunter had to go it was in the state right right had the court gone back and actually looked at reason i say it's unique it won't come back because the laws since been changed but at that time no one was available was able to to to no case law went to the statutory sentence you simply brought the individual back i mean when months court upheld that sentence because that was in the range of they will at the time he was originally sentenced and that's what the language said that's what the statutes and that's what the cases will say so i don't believe that that that they time and and pre nine hundred ninety four pre that september thirteenth date the statutory penalties were not available on pro ana probation revocation i could find no case and a nice circuit place else  that would apply allow the statutory penalties to be polite apply before that amendment to the statute and the amendment was done so this physically and the legislative history that you read about it was done specifically to address what the time of the original sentencing but the sentence available would include relevant conduct and would be thirty three to forty one months i believe so you're stuck with that i think i think i'm stuck with that i can see that point i would not appellant that it should not be considered by the court because the chapter seven policy statement was not in effect that time however that should make a difference because what the court is really looking at is the statutory revocation stat was so much money involved there's so much fraud and deception that the defendant was so involved in this fraud scheme and it went to the heart of the justice system i would argue that these factors that she's articulat first of all go to the initial sentencing itself but also votes to whether she could have departed upward and that can be found at the excerpts of record page twenty six or the government's excerpts that forty seven she also says that at the few thousand and one sentencing that she had made a mistake that she should have given him substantial jail time at that initial hearing if you go from white correctly fares that the revocation hearing the judge can consider the conduct while on probation decision to upwardly depart what she has that ability to upwardly department is no sense in guideline ranges and she hears the ability to go all the way to the statutory maximum and then your review would be whether that was reasonable and whether she abused her discretion  out when she's focusing on factors at the time of the regional sentencing because she's mostly talking about this after the original sentencing well i think actually if you take a look at claims that were submitted to insurance companies she said that he was still intimately involved in this fraud scheme and it went to the heart of the justice system all of that relates to the original sentencing itself if you look at also the nine hundred ninety nine sentencing when she she indicated at that time that she had some doubts about whether she should go along with the government recommendation of probation again in this is that the supplemental excerpts of record age of six and seven she said in one thousand and nine this is a serious crime there was fraud on many segments of society it strikes at the heart and the fabric of the social system and it would ordinarily just buy jail time also at that initial sentencing hearing the probation office in its present report  likely if that was if that was the direction that you were heading i think she could probably provide more specificity but there is certainly enough in the record that you could look to see what her mindset was back in is they are combined together and i be honest at this moment i can't tell you when she uses the term up or departure how she connected it up but she said enough at that sentencing that made her show that she was looking at what she had done before and that it really wasn't that they're not only free to ignore the policy statement range but also the sentencing guidelines so long as the information is available for them to allow her to do that us vs today of says a similar sort of thing they goodness knows how many convictions and everybody had money back and they go to great lengths to let him withdraw from a previous cleanup he had pled previously to the one point five million dollar issues and and they let him withdraw from when you come back to to whether this whether this of men did anything at all i think if if you want stuck with the language are we are stuck with the language that says if they done what the court did its pre that date and i think and keep in mind that statute thirty five sixty five eighty two was was a mended and it was a minute specifically to allow this and i think