watch the clock so yes i have her questions to give ya yes trying to thank you i'd like to start off obviously with the court's order that it is you don't friday regarding the application of the case of united states versus combs to the facts of this case honor and the reason why jackson holds that is that was actually the subject of the second appeal in this case that the majority of the second appeal related to the courts that chlorination that the address that first lately was issued on july fourteenth two thousand and four i'm sorry surely jackson was sentenced on july fourteenth two thousand and four the blakely decision was issued by the supreme court  very precisely we don't vacate we remain but we don't vacate the idea is the district judge will say whether we would have sentenced differently had he known that the  that very clear the case that cited here these people don't need to be brought back from london or south carolina wherever they may be for every sentencing unless the judge says yeah i would have done it differently i want to do it again and it strikes me that your whole argument proceeds on the assumption that that's not so with the second argument they kidded the sentence if you didn't vacate the sentence the sentence was still in force and it was too late for play never for the district judge not to tell the defendant you're going to be hit with a restitution order yesterday and i think maybe it was plain ever for not to get the defendant to more clearly except a substantial basis in fact for the plea yes right i'm willing for purposes of discussion to go with you on both those things but it seems to me they'd have to be raised on the first appeal not the third appeal and on the third appeal after a remained that than vacate the sentence they just can't be raised you know the cases that say how explainer and it can be raised without objection have no bearing that's what i'm getting at and that's why i want your help yes  time of the initial sentencing answer my question focused not on the sentencing and on whether the error is preserved or plain but on whether it is waived and the district judge has no further jurisdiction to correct it after an appeal has been taken without identifying that ever yes runner in that your honor then i would i would hang my hat on this case called u s versus colmes which was the subject is different what i'm supposing and but i don't know for sure is that the the order in this case occurred on september twenty second two thousand and five which preceded hijazi and the cases that i found within a nicer to talk about what the language should it clear that what the district court did in this instance was to have an ambling or am a line however you want to say it limited hearing is that not correct i would not agree with that  sentence for further proceedings consistent with united states versus family and in the sight remanded it was a nonviolent hearing you know i find it really hard to understand how you can sit here and argue that what the district first while you're saying that the ninth circuit doesn't know what it's writing and then you're saying that the district court doesn't know what it's writing it's an airline hearing you may argue there's something in addition to that but at the very least it's an animal i'm hearing is it not yes it is i but i think the issue is whether the sentencing hair was preserved or not ok that's another that's another matter that's another matter because you were originally started out by saying that this is not an am line re man or your honor so we're in agreement on that emmeline we were careful to distinguish sending it back to the district court for re sentencing from sending it back to the district court for the judge to decide whether there ought to be a rece i think you're treating them as the same but we carefully treated them as different in significant part because of the administrative difficulties of re sentencing all of those cases and the usual lack of necessity to do so at all remained means is our file goes back to the district court the clerk puts it in the mail and then the district court is allowed to work on the file again as for what work  the limited remained procedure left no room for the district court judge to consider new objections to the original sentence dashed objections defendant could have raised the first time around that first time around that's the key passage the first time around yes first appeal my client got sentenced without an adequate basis in fact and with after being told she was subject to restitution well at the time of the first sentencing for example it wasn't required in the circuit device somebody  mandatory nature of a fine and the court failed to do that that's new circuit law and in this case the court failed advise about the mandatory nature of the supervised release and that's new circuit case and that's new law in the  case and i would point that out as the evidence that there is that there was new law within the circuit it also changed the standard in terms of the restitution it made a failure to advise of that restitution it was consider if i may start right where the court left off the government agrees with the court's observation that the combs decision effectively for close defendants arguments it was a limited analy and renamed in the columns decision make affirmative once the judge answered the question in the negative his task was complete that's exactly the there's there's nothing to review at that point that's absolutely correct sean i think that earlier it was discussed that if it was if the district court language income's was arguably somewhat ambiguous i think it spoke in the passive voice it said it said something to the effect of you know it's understood that the court may have discretion i forget the exact quote and i don't want to use my time quoting it but in this particular case this district court made it clear that it understood its discretion its a client to exercise it understood that it had the opportunity to choose a new sense and weighing everything that was input  chose not to and i completely agree your honor because of that that takes us clearly to that last quote that you just read where we are in this procedural posture the district court did everything right and  comes it is it is evident that that's the end of the inquiry when i counsel somewhat the feeling argument that there's an unfairness here because adams he never had an opportunity to invoke the adams provision which would if it had been preserved or if adams had been on the books and he knew about it on the first appeal he probably would have prevailed  are obviously argue that substantive portion of the briefing as well and we've explained why we feel that mandates mandatory restitution the there's no authority to equate that to the mandatory fine adams does does not even do that  has also pointed out and i believe the government did in its prey thing that this was a lot of the issues and those two issues in particular and others that defendant has been raising i brief we would certainly be arguing that's why i don't want to concede that there even was there at that point because we would certainly be arguing i think we would certainly have the authority to make the argument that even then his argument wouldn't  that he argues and and there is no authority to put him back in that posture and what posture we're in is the court pointed out of believe at the beginning of the defense argument is we are here after what was clearly a limit that it limited and the government has argued that the court should not hear certain certain claims but we fully briefed all the claims and we're not going to argue that there was no way for him to bring those kinds of kind of the district court but he brought them it just record concert with them comes we argue that at this point in this procedural posture the court's determination of reasonableness and of the fact that once the district court made its reasonable decision that own mind and you tell me if i've got it right and in particular i may have it factually wrong because the lawyers on both sides know the case much better than i do and the way i look at it the whole problem with the appellant has is that it's his third trip to the ninth circuit other than that he's got a great case rule eleven says the district judge before sentencing him has to tell him of the court's authority to order restitution and before entering judgment the court has to determine that there's a factual basis for the plea it looks to me as though the district or court dropped the ball on the factual basis because of the way the defendant kept sliding around during the colloquy and had this been the first appeal i'd be inclined to reverse and i don't need adams or anything else to reverse because it's open and shut and the rule at his problem is he didn't raise those in his first appeal at least they assume he didn't i haven't actually read the briefs from the first appeal you have so all we have to do with say he didn't know but let me let me keep going on it because i think this is where where we miss something at that point that the new sense of the judge imposed after new p s r and everything was identical however at the imposition of this second sentence then at that point when defendant appealed he first raised those issues that the court brought up and then it came out and the ninth circuit re man did for a limited a limited