issues on appeal the st issue i don't intend to spend a lot of time on we take issue with the way that dollars is being i just or courts and prosecutors basically they're using it as a license to hang fire and to postpone restitution terminations that are easily ascertainable at the time of sentence here the government presented evidence in advance and sentencing because the amount was disputed that is the defendant didn't agree to pay the amount the government sought the matter was now subject in the view of the core in the government to postpone it and that just doesn't sit with the statute thirty six thousand and forty dollars by doesn't say that you postpone the decision if it's disputed and says the  ascertained so we do have a problem with that the bill is i understand and i don't know oh no you don't want to dwell on it i understand your point about the being a difference between not ascertainable and being disputed but i'm troubled by the lack postponing of the rest to sion hearing i'd say that's out of keeping with the statutory language your honor and so if the district court wants to be on firm footing of the information office of the prosecutor have a basis to say the for the district court to make and it should look at statutory language and it's incumbent on the government or on the probation office to tell the district court of that basis at worst it would arise under plain air review here for us in which case i would substantial rights because now he's being made to pay restitution which is a th amendment matter because his right to property and that this doesn't comport with a valid restitution hearing by way of three thousand six hundred and sixty four d five because there is no basis to postpone the district court should have had the proceeding and gone in the ordinary course so that's as much as i'd like to say on it so that i can get to the other matters the court a myth so with that i think that the court if it were to find a guess on the  they didn't lose and so by way of an example if there was a license security broker a financial analyst who claimed to have licenses and he didn't and he made somebody a one million dollars then at the time restitution the person who is claiming restitution because of fraud wouldn't be able to claim a one million dollars loss person lost nothing it would be double dipping toward the person restitution here the people mr robo provided services or was for the express purpose of removing as fast as he was not licensed to do so if the us justice was removed from their homes they suffered no was once the value is imparted to them it needs to be subtracted from the total restitution amount under swanson and if we don't do that then we have a situation where the victims of the rod are now being compensated for him out that they didn't lose that is inconsistent with the principles of restitution we're now allowing a sort of double recovery the person has no loss but they're being paid money from my client which seems not only to offend due process but now it's going to link into the next point and that is we have cases that have been the th circuit the newman case that characterize restitution as a civil matter because it is not a penalty that's in addition to anything it's rather just compensating or a loss that somebody in erd mr hill is not for you get to the newman issue please your objection on the restitution order is it that the court shouldn't have gone forward with the rest too should hearing on the day that it was a status instead it didn't give your client the opportunity to properly object that the the amounts were not the actual amount of restitution or is it that the government didn't prove the amount and i'm trying to get a clear understanding of what the the basis of your objection is for claiming error and reversal on restitution oh well if you are so the government's burden to establish loss was not satisfied because it did not show that the people who are claiming use amounts didn't get the value of those services this is again why the complete accounting is an important thing under three thousand six hundred and sixty four and it continues to be disregarded by district courts or and wide so far why wouldn't the government's detailed submission with the affidavits with the checks why wouldn't that be sufficient from a preponderance of the evidence standpoint for the court to make that determination  that they didn't get any value so wouldn't it have been the defendant's response or opportunity or burden to then come back it poke holes into that the government is supposed to st subtract out that amount problem but conflating the guideline loss amount with the restitution but there was an objection my client originally asked for twenty three thousand dollars to be awarded restitution by the time the status hearing will be around he said it was zero but they cannot permit reasons for lying on the it had where the victim said we didn't get anything at all he did was a specimen removal and we didn't get anything so why wouldn't it it shift at some point to your client to come forward either to to challenge that in some way with evidence why wouldn't a shift at that point or why would i guess a better way to say that is why wouldn't that be sufficient for the court's preponderance determination my client was already on record saying that this amount offered by the government contains additional work beyond the specificities not compensable because the time for all of that was alleged was there anything in the record to support that yes but michael might well i mean my client lawyer made the objection made the argument that's the amount of evidence we have because the judge explicitly refused to allow any witnesses to be called in then converted the status hearing into a restitution determination this is a bit of a mess and shouldn't be done this way but it the civil in this court my client is on the outside looking in in every possible way here so he doesn't have a right to go four thousand three hundred and eighty three to be present or to have a hearing on this he doesn't have an ability to claim this under he b s because he's not in absolutely going on here in the government's response is basically to bet you don't get to challenge anything because this is civil court said so but i point the court to all of the cases that we cited from the various courts across the cou this he has had no ability to date and have no ability in the future because i said he just won't be available and under rule for procedures he's required to challenge this as a matter his criminal appeal and we've got cases from this court carrillo and word saying that restitution that was what the restitution hearing was for judge commonly held the trial the ts c two days before the restitution hearing to find out what do you have asked point blank what do you have because the government put together its submissions four months earlier with the proof the checks the check spreads the testimony from witnesses saying that everything about the argument for the calculation of the restitution amount that the fact that everything under the guideline calculation that's different than the restitution here because certainly the fact that all the services provided by a non licensed specif remover who claims he was licensed doesn't matter what he does all of that is considered fraud whereas restitution has to be the actual loss and although they didn't get a specified removed by a licensed specified remover they did get sounds value here in the court failed to take that into consideration because the two concepts were conflated and they're separate respectfully your honor they were not conflated they were not confused judge conley found all the services were worthless under alan and under swanson the judge followed the law under alan you're right under note three f to the guidelines if somebody falsely says they're licensed professional you cannot deduct for services provided of the guidelines but alan also said your honor that if the gloss computation mirrors the restitution computation then that kind of analysis can take place that if the court finds all the services were worthless then you don't do that the doctrine and that's what judge connelly found he had that discussion with counsel during that t f c where he was saying i thought all the services are worthless or there's no reason to drag all these people in and cross examine them if they were all obtained by fraud in the  st place because these people thought they were hiring a licensed professional number one number argument that the it's the same assessment for actual loss and the guidelines and the restitution no no i'm saying fact the factual situation here judge conley said look the government pivoted away from its number and went with the defense number where the defense said look we're just going to use the numbers of the checks made to the company all the company does is its best this abatement it doesn't do anything else that's all obtained by fraud because he should have been able to do that he was enjoined from doing that he couldn't do that but just all of his argument is that the company did do some additional things beyond the a specified removal evidence that actual value for that no evidence of that in the record your honor all the evidence i presented was to the opposite i have nine people testified at the sentencing hearing going the opposite talking about how the i had any employees testifying about how they were meth heads not providing the proper services the p s u are included the defendant's admissions to law enforcement in his confession where he said i knew i wasn't doing it right i knew it wasn't following the proper procedures i knew i was defrauding people i knew i had lost licenses and i was doing people with false testing reports that i was duping people with i knew what i was doing wrong but quote what the hell else can i do and quote is where his response to law enforcement during his confession that's the evidence in the record your honor and that's why judge conley found all the services were worthless number two under swanson if you look at swanson it says mr swanson couldn't take a couldn't take advantage and prove up his value deduction claim because he didn't give this tr court any evidence to parse out legitimate versus illegitimate services and he didn't give an alternative restitution about to the court same situation here mr braun will know when we had the ts c defense counsel never when asked three times by the judge what do you have they never said hey judge i got five people i'm going to put on in two days and i got that i provided weren't correct i'm sorry i will pay everybody back he never says in his allocution letter earlier in his oral allocution of the court hey i provided good services to these people and they deserve nothing that pivots to this new and point where the defense is trying to get out from underneath knew him by saying hey we understand newman is a civil remedy not a criminal one because under criminal rule thirty four rule thirty one or thirty two and forty three would apply so we're going to cause we're going to say it's not so it's criminal because there was some sort of unjust enrichment to the thems that's simply not the case there was no i'm just enrichment they received worthless services they were hiring a professional who who light was said he was licensed to do as best as a bateman's and he was not licensed in fact the state of minnesota enjoined him from doing it because of fraud so those people every penny that those people paid was obtained under false pretenses and he doesn't get the de any of that and there was no unjust enrichment from that your honor speak us those people he should never been able to get those jobs and get those that money from those people in the st place if that had evidence that he had actually performed some legitimate work or that they had received some abatement evidence to agree that that should have been subtracted i know you're saying that evidence was given but correct that that that correct it was on him just option he had a contested sentencing he had disputed last amounts he had a p s r saying i've got two different versions it's got the parties are going to different versions the victim in comes victim impact statements don't come back yet he does the right thing he acts he tries to bend over backwards in fairness and sam going to give this guy three months to come up with evidence the kind of evidence judge you're talking about and see and he tells the parties at the end  fine that stuff see if you can come together and give me a stipulated amount they had four months to do that judge and they came up with nothing and at the ts c judge tom he was asking do you have affidavits do you have and he pointed out the one person that would know all that is the defendant and you didn't give me anything from that and the defendant never did and this last point i guess which is the st point counsel's making that was somehow we were abusing the dollar and deferred restitution invoke and be able to use that offering there is a difference between not ascertainable and undisputed or disputed be troubled if a district judge did this over an room for confusion in certain front cases between the guideline last standards and statutory restitution standards i understood paragraph six of the clear agreement here to go some distance in bridging that gap standard paragraph that we do to do exactly what you're talking about allow us to have restitution cover more than the count of conviction cover relevant conduct and say to the judge we're going to try to agree on the number and if we can agree to the number we're going to punt it you and that's what happened here and he and his discretion said given what's given the contested sentencing situation that i have here i'm going to take the off ramp and see whether you two have more time to get the victim impact statements back get more evidence and see if you can come up with a better number for me that's all me that's all the time i have your honor sank you all right thank you mr gruber i think we're used up your your time but if you need a couple minutes for re the basement i'm trying to think how i would explain the best as work to potential buyer easy judge you would ask that you have a licensed contractor come in a debate this and then present that as loss evidence for purposes march st hearing was converted into a restitution hearing itself so my client never had the opportunity to argue any of these things himself and as though that's an ability as a lawyer it is lawyer tell the judge that he was going to be ready to testify about these things  i don't believe so judge but this was supposed to be a status conference my client's lawyer was pulled over in her car on the side of the road dealing with what she thought was a status conference that then gets converted so we've got a problem then i got about notice and opportunity to be heard a status conference comes in back the ultimate hearing and restitution my client wasn't prepared he wasn't present he couldn't do anything if he was there at the status conference i'm sure he got a piped in and said i have information i would like to speak which would have been his right under ordinary circumstances under will there be two and a rule forty three dollars but he's being denied those opportunities here and that there's even a court with due process of the matthews versus eldridge when the person whose property is at issue isn't afforded the opportunity to appear to be hurt so we have problems with lots of these things we've asked the court to strongly consider them and today kate remain and probably thank you very much thank you to both counsel for and the case will be taken under advisement and the court will be in recess