can't consider that an aggravating factor so there are ways to to complete that delicate balance of considering victim impact listening to victims in hearing how maybe even if they are guilty if there's a verdict made off situation and someone has made some plea hole in the future it doesn't mean they didn't have emotional distress just because someone receives restitution doesn't mean they didn't have months or years of emotional distress they still may have lost their home it may have been their family home there can be lots of ways that someone can have a horrible victim impact and still be paid back so that's where we have to draw the line between victim impact and ability to mitigate their financial l me ask you a more foundational question you're here on a twenty two fifty five k b s petition alleging ineffective assistance of counsel under strickland vs washington as i understand the timing when the appeal was filed it was before her groom had issued so that the consideration of inability to pay restitution as it might influence the length of the sentence was not obviously a permissible as a address the issue at that stage did it it amended the opinion on a different ground but didn't say anything about the issue exactly the panel ignored it as would be expected because it's  raise that kind of issue you know at the thirteenth alex so if if if we were to agree that there was a problem the one violation it would have to be on the basis of of beard as opposed to b that's if it's ok to say they'll never get the money back what's the difference or anything the victims will never get the money back and saying this defendant will never be able to pay them back that those two are the same right no one else is going to give them the money back the difference is he's saying it's a factor that aggravates the sentence he cannot say that well and he would think intrude on the victim has got to be influenced in part by whether there is any collateral source an insurance policy would be the best example i can think of that mi heart here we don't have that there is no insurance and the amount of money that's taken is so great given the resources of the defendant they're not going to get it from him so i'm still trying to thread the needle here and understand why it's error for the district court to take into consideration that fact which is called for under the statute thirty five fifty three a because thirty five  period thirty five sixty three does not allow a district judge to punish someone for their poverty thirty five it's a three day does not allow for a judge to say you can't pay him back i'm giving you more time in prison that is in permissible  majority didn't understand my thought process and very razor sharp you i think you are you're reading a footnote in out of context the first two lines of that footnote text is it is difficult to conceive circumstances when a defense inability to pay a fine would ever justify increasing his or her sentence the court in them presumably would be punishing the defendant the i want to focus on what i think we're arguing about here that the language in bergen versus the language in this case and i think the best example of why the defendant can be seen here to be trying to place a square peg in a round hole it is on page thirteen of the defendant's reply brief there they put a table together showing the language and bergevin the purporting to show the language in bergen not all of it as it turns out in the language unquote there's no such language in this case where mr nathan since finances works rationally referenced his financial condition or an inability to pay a fine expressed reference to his inability to pay restitution to the specific comment by the judge carney in this case was i'm not quoting all of it but the key language quote realistically is no possibility of restitution in this case and he goes on to say that the victims are quote not going to get their money back that's the two main observation described as one of the aggravating factors saying no possibility of that's because he had debts to do so i mean if he had plenty of money and no debts right presumably some of the money would have gone to the victims that's true but there are other reasons on this record to doubt whether or not the drugs were trying specifically to the inability mr bergen's finances financial condition and inability to pay a fine were really the aggravating factors that caused the majority in bergen bergen to say we need to remain him because we're not sure what he means by that no judge harney means by that so to sort of acknowledge at least one aspect of the defense argument here that it's difficult to talk about that in some cases without brushing up against the fact that the defendants on able to repay them that the permanent nature of the restitution  the victims harms is often i think a consequence of that it's not clear on this record for the reasons i mentioned earlier there are all sorts of reasons why restitution wasn't available and wasn't ultimately even ordered but in other cases it i scheme for several years involving several companies where the last amount was depending on the point of view either twenty two million dollars or fifty million dollars which is what the government argued at the sentencing hearing but it's a significant harm to a lot of people victims of fraud case you wind up somewhat brushing up against about the of the fact that the defendant is unable to back in some cases so for that reason i don't think it's inconsistent and it certainly doesn't reflect any and i would prefer the court respectfully to your three and here are four where the court says that he's identifying aggravating and mitigating factors on your three lines ten and then reading through on