are raised in the brief i want to advise the court that i filed yesterday and served on counsel an argument or an a request to brief the question of whether blakely applies here i don't think the panel needs to reach blakeley if it resolves the matters in our favor as of the sentence and he gave up his right to appeal the conviction and both of those items are listed in the appeal waiver there's no mention anywhere either in the written appeal waiver about restitution and there was never any reference to it obligation to understand that argument but i also understand that to the extent there's a lack of clarity the document was like resume negotiated by both sides it was but i don't think there was ever any intent on our part to give up the right to a we were not giving up the right to appeal the restitution and i suppose you're right that we could have negotiated that but i suppose that that would have then put us in the position where the government what is that well what's your way that also and i sort of was going to raise something that i thought that i that they were not making me wave so that they would then turn around and say ok now i want you the district court judge used the wrong measure of restitution i think is what the fundamental problem is the statute says under thirty six sixty three a that the measure of restitution that the courts use the value of the property and what judge globally used instead if you look at page one seventy one of the excerpts of record judge for will says the measure of restitution is the lost opportunity to spell the shares at a higher price and then what he says is that you know he i read his order and he stressed that what he wanted what he's trying to accomplish was to essentially make the victim whole that's correct consistent with the statutory purposes of restitution i don't believe that it is what the statute says is that we have a formula for determining what the what the restitution is and it's not make the victim whole and it's not how much was  the greatest loss or it's not make the victim whole it's the value of the property and what judge focal then did was vice by using the wrong measure of restitution by saying what's the lost opportunities going here he then used the wrong  that have to be obviously in a case where the victim doesn't know that something's been taken as of that time isn't aware of the loss doesn't become aware of the last until some time later so it's not in a position to act in a way to cover the situation can that can acquire the shares in question for the future for example he doesn't know until a later i think that that is exactly what's disco argued here and that's what the government argue and it doesn't matter just listen because the statute says it's got to be one of two  because when you use the measure of restitution which is the value of the property then you go back to what the date that the property was lost the date that was taken that is what we use in every other item of restitution or all the other stocks that mr gordon took they didn't know he took those stocks and yet we use that same measure of sushi united states versus rice which is another the only case the government relies on actually use the data faking it and the government uses the financing the data taking can't be good thing the last one tells us that's the only thing that can be the day that it was taken because otherwise you're going to have to speculate of dates people are going to say well i didn't find out about it with two weeks and you're going to end up with this situation here we can have these complicated restitution hearings that are really not suited for this kind of a for the certainly has the right to go after these additional damages at another time but in the context of persecution statute the statute makes it very clear that formula supposed to be used and this is a there's a number of good reasons for that in one of them is so they can lawsuits get settled but we have trials for the rest you settle most of it that didn't resolve all of it and i mean again i see the statute the statute speaks of days of lost and i still haven't heard why there's only one possible date of last why the district judge doesn't have the discretion to adopt other dates for data loss i think that when you use the statute says you got to use the value of the property in any question is what does that mean when was the property lost the property wasn't lost when they lost the opportunity to  salary and i think just the common definition of the word with the date that the property was lost was the davis recording took it that's when they didn't have it doesn't say when they discover the last or when they find out about the last war when they could have mitigated damages it says the day of the cases that a lot of other things going on but this is supposed to be a simple straightforward proceeding that can be taken care of easily we didn't have discovery we didn't have an opportunity to issue subpoenas none of those things were available to us they can still go after them in the civil case but this is question very well you're going to let me put it this way it seems to me that in your approach that if somebody steals one of my six of diamonds then i get to look to some kind of date later after the taking but if he steals the mall there's a difference or maybe vice versa i don't quite understand why when somebody steals my diamond or my share of stock or my car the date that i lost it isn't the date that the person stole it whether i know about it or not and whether i see my stock other stock later or not so maybe you can explain this theory that the principle is going to be if it's not just catch as catch can whatever district judge did not stop it got very specific and another part of the theory was it didn't want big complex long civil trials because it was just make the victim whole i don't see why the defendant signing title to a civil trial was civil discovery to decide what it means to make the victim whole just like it means in the civil case the question is it's not quite so simple to say well the purpose was to make victims whole i know that you on a specific day they had not by definition in seoul but the court did not just give the restitution for the wholesale value of the fastener sitting in the warehouse it gave restitution for a book value grant grumman was not in a position to know whether the which grassers for suspect and which fastens were ok and as a result of restitution for all of them i think that's an example of a flexible application of the mandatory they can restitution that's but that's not picking a factor as you did in this case where the court didn't this day three well it all depends if they sold the stock it's one thing if they didn't sell the stock at something else now suppose they hadn't sold the rest of the all but maybe it's the school had sixteen thousand more shares it would have sold fifteen thousand and that's certainly true but i think we would have been in a much more speculative fiction though it's this go had one hundred thousand shares and this guy peck you lated fifty thousand and then cisco's sold forty eight thousand shares retaining two thousand of them then you say well it's the it's the retained at the end then i think we actually would have been a position to make the same argument but what made the carry on equities different was that we were able to establish beyond any doubt that cisco would have liquidated all of the shares if it had not if they had not been sitting in unknown to cisco in mr gordon's brokerage account you didn't have to make that showing for other stocks so that i think it was the value actually went down after he took it and as part of the agreement he made some additional funds to reflect the reduction in value cisco gets the full value as of the date of the taking even though there's no evidence and indeed it's plainly not the case that it was cisco's plan to sell the stock on that day i mean isn't that something inconsistent about picking and choosing amongst the different items of property whether or not you go by the date of taking automatically or whether you look at the date that cisco would have sold because in the case of broadcom there's no evidence they would have sold on the date that approach that was taken for the others that's using the date of physical taking is that they think sisko didn't have control anymore that's sort of the default situation or a case and i can i said i do understand the argument that  somehow lost more than that but cisco's got still romany's available to it as well is there anything that suggests that the statute which speaks of the property singular is meant to allow the victim to pick and choose amongst the items of property what the date of last will time that mr gordon's investments were discovered then we went with the greater of the the date he took them or the date at the time of sentencing in every case the date of taking was higher  civil case spend spend thousands and thousands of dollars and try to get the remainder one spends a hundred thousand dollars in a civil case because one has to come in and prove in great detail what tractors interest bearing asset or an interest bearing concept let me be a little dissenting there's not much time lots of cases on loan fraud cases on stealing see the we have a case now on went down so sisko really gets the benefit of the forced liquidation thereby saving it from the loss plus interest from a sale they never would've made on their own if left to their own devices and there's something a little position thank you thank you very much either mr cowan or myself addressed the the investigative cross they don't think that would be proper rebuttal so i don't want to address that now because he would have a chance to gossip and i and i believe the court is aware of the recent case that involves the child support recovery act which