and the other issues i plan of presenting are once i'm through with that is on the court's applications and see in regards to the first issue the court asked me to take a look at whether but in regards to that i would argue that under five each one point one of the sentencing guidelines that that is one of the forbidden factors that has been used in the case law social economic status is a factor that should not be i understand the excitement of the tax case jeff so i'm trying to get the where your argument is leading us there's a there's no statement in the issue it comes up in an argument and we're seeing now that the government by failing to to be difficult for us to not tell the government they have to respond to every possible argument in any sentence whether it's included in the statement and maybe that is going to be the law even further if you could have paid for this time looking at extra record three three hundred two and you can see that in the first paragraph towards the end of the second paragraph you essentially the judge consideration in determining the length of the presidents and their families that the answer is yes because of the manner in which the court considered just if it all in this case first the defendant's ability or the court said he would have departed further if the defendant had been able to pay the costs of prosecution and this is in fact a kind of a case where the statute authorizes in fact instructs the course that it shall impose the cost of prosecution as part of  that sounds like it departed nine levels down in order to take into account that there was no actual loss once the court reached that point it did not go any further with the questions why why what the court didn't go any further because as the court says on the record look if you could have paid the cost of prosecution which is not something ordinarily under the statute would reduce the garden of use who he was saying if you if i could find you and you could raise the cost of litigation you know i would you'd spend less time in jail yes and then you're on a government position is that would be here because then you would be taking the ability at to pay the have any money it's just seems to me that it's awfully difficult to read this and come to a conclusion other than at that particular time with the judge mentor sirrah not we don't know we can't re but from what he actually said on the record you seem to be saying if you could have paid if you couldn't pay the cost of litigation i would have further decreased it's been less time in here but your position is the absolute goal to correct so you're saying that whatever judge large wanted to do he was constrained by the guidelines he could not decide to depart word by reducing or imposing a fine that's that there was obviously do not have the means of pain a high five under thirty five fifty three and here in this part of the sensing when you look at it in context of the judge's stepping through the various kinds of sentences that are available which is precisely refers to the sentencing and then the financial options which is page four hundred forty five of the excerpts of record that is precisely what the court is stepping through what are the kinds of sentences available and that is where i submit that the language that similar conduct and the other factors under thirty five fifty three eight that there are circumstances where a significant fine a substantial fine will do a better job of meeting those thirty five fifty as i possibly can be in light of the factors that it had to consider that the nature and circumstances of the infants and the real impact that this man's crimes had on the individuals who were the recipients of all of this paper including the f hundred and the follow up letters from the internal revenue service that when the judge looked at those and looked at what had happened in the other case involving pieces involving similarly situated defendants who had pled guilty to a y referring to some of those factors that are really looking at this single comment the inability to pay high find the judge a standard simply no way i can take these other options available to me and impose the sentence on you that will meet all of status as a factor in determining the length of imprisonment i mean that's we don't have better prisons anymore you can't impose a fine on someone knowing they're not going to be able to pay it and then they go to jail instead i would agree that that that is like i don't think in this case that's what the did i don't think that's what just watched it was saying you know because you are a poor person you have to go to prison for twelve months and a day i think the judge got to twelve months in a doing he said i'm not moving from there because you know that there may be these other sensing effect ok so if we were to take that statement and say all right and say you can't factor into the sentencing defendant socio economic status is it your position that there's no other basis for departure for example use the inability to pay a fine as a reason for going down that's your position can't you can't use his inability to pay as a reason for departing down appropriate guidelines for range including any appreciable departures and once the court has done that it helps terms to eighteen u s c thirty five fifty three and analyzes those factors and of course the guidelines think that any time the court on this waiver of the waiver argument your honor that even if the government doesn't urge the application of playing their standard i think frankly i talked to our public for nader and it could be argued it could have been argued as the basis for all