that will hear it believe the fair market value was not relevant at all in any case where the victim provided a report of their own replace us and apply that rule here even though the company provided no documentation to back up it reported costs and even though those reported cost exceeded fair market value i factored nearly three to one because the district court applied the wrong legal standard this court must vacate the restitution order and remain for further proceed these video games don't have intangible value to their corporate owner on the second precondition there is no market for the item there's no active open market where the i didn't hear and that also is not true in this case the record evidence is very clear that there is i knew we would ask the court give the instructions specifically that the court calculate restitution based on the fair market value because the evidence is clear that the two preconditions to using an alternative measure are not satisfied in this case that being against these video games video games and the second is from the website price shorting dot com which tracks used video game sales and it's very clear evidence that there is a booming market for these games if you have used the game you can sell it online in a matter of minutes and so that evidence lish that alternative measures appropriate and we believe that in this case i point the court to three particular places in the record just illustrate this report did apply the wrong standard the first two are joining the next page seventy six  chosen to replace them that way i think that illustrates why fair market value rather than replacement polls is the right measure because a company can choose how to replace just a lot of them and if we allow that choice to dictate the amount of restitution it's going to generate a windfall to the company i would point the court to the used car hypothetical that i include in the report in the reported rape as an example you know if there's a stolen car that has one hundred thousand miles it might make sense for a business to choose to replace that car with a newer version with only twenty five thousand miles on but if we allow that choice a reasonable business choice or grant choice to dictate the amount of restitution that's paid back in the case we generate a windfall of the company we put it in a car you know why not replace the last imax with a brand new role as the book watches and so it creates incentives for companies to abuse the restitution system and i think the same thing happens where the district court here except that the companies suffer pretty cost without any backup us actually don't think that much matter in this particular case but i do think it creates a bad incentive if we allow the government come in kind of ignore the governing rules not the only evidence and they get a second bite at the second time around i think that's a bad suited from an institutional standpoint and the third thing we've asked the court to specifically include in its instructions as a reminder for the district court to ensure that it takes into account all of the video games that will recover regardless of whether they were ultimately returned to the company has been highlighted the  reasonable estimate and under two people one point one as long as there is evidence of the actual cost of the actual victimisation the court doesn't look at fair market value that whole discussion the defendant never presented any district court relying on any of the cases that he presents on appeal so the district court did not have before it sort of an argument that the fair market value in the restitution cont they are separate your honor and they were not so here's how it happened in the district where the defense attorney ms taylor stood up and said here's my last argument which i guess applies to restitution but none of these cases were presented to the district court and what the district court had before it was evidence of actual loss which is the ultimate goal and purpose of the m p r a now if this court were to choose to remain and deciding that clearly error by crediting the victim's own assessment and statement of its actual loss the court doesn't always require records that's not what the district where ordinarily doesn't restitution ca it was an average of forty dollars per game which the victim said was the average cost of replacing is no question that it was a replacement cost the government doesn't intend that it was anything else but i would just know in terms of understanding the context  case and what should look like if this court does choose to remain and that this district court was never presented with the argument was never asked to in the context of restitution  which says it's an actually discretionary call as to whether to apply fair market value or replace that is not actually a decision of law it's a question of discretion which better makes the victim whole that's the question i would submit and this record in this case was never really presented with the argument that in the context of restitution you need to decide between these two things because the whole conversation was about loss and we know the last calculation all that's required is reasonable estimate it's different from restitution so i do agree that it would be inappropriate for a court to simply say that it was always replacement cost i know however that in sugar for example in the eleventh circuit and and in capital in the ninth circuit's case kaplan it was a home appliances and the court applied a replacement cost enough help that there's nothing particularly value should be considered and in this case the district court didn't have before it particular arguments so if this court choose to chooses to remain i disagree with the defendant that the government should be limited to the evidence that we presented in the doesn't have the game that company better get it the game the defendant makes a lot of assumptions in its brief about the fact that they have this whole inventory that they can just shoot out the next one anyone who's ever bought anything from netflix or rented something that sometimes you have to wait in the queue for months so there's no evidence on this record that just company put actually wait and finds a used video game of the same approximate ag condition that would be required for a company that deals in this kind of volume of rentals so any minimum if this court remain ends the game company should be a bit allowed to present the specific documentation because this issue really wasn't flushed down the defendant makes a lot of  i think that they could present that but i also think they could present testimony about how important it was to the company to get those video games to the customer right away and whether or not they had the human to worry at the time of the loss to simply ship out another disk or whether they actually had to go out and buy a new disc right away it's the we're talking about they're almost fourteen hundred video games and the defendant is now tested testifying i guess before this court that you go to game stop and get all these games we don't know how many of the number one game that was wanted at that time was lost and i think honestly i looked at this case and i considered whether we should see it and i decided that we shouldn't we decided a government because i think that the victim said this is our laws and the m p r it's about making the victim whole and i think the district court could properly in an exercise of discretion credit that and not and it's not a clearly  really in the context of an argument about lost under to be won why and not in the context of restitution in terms of the number of video games that returned i just want to note one thing in the record the  refers to the number of games that this gentleman was able to sell or tree they found evidence that he sold or traded three hundred forty one games i think it's likely that age cabinets on the stand mixed that in terms of properly high and it's a question of whether the district work could properly say oh well you know this is a three hundred forty one but to be clear this is on plain air review because the defendant never made that are the defendant never made the argument about the repla or that came from the victim's own statement that it lost that thirteen hundred ninety games were stolen in that were on one hundred four returns so that comes from that same statement that you provided that game fly provided for this court to direct the court to apply replacement value without hearing from game fly about whether or not fair market value could actually satisfy or make it this isn't just not a question that was presented consensuses presumption is fair market value unless there is it is too hard to determine what fair market value is which could be the case in this case if we have just said we're not sure how tall they were a used they could have been practically new so it could be that it's too difficult or it could be that that simply isn't an adequate measure for the harm that this victim suffered and so i agree that it's an entirely appropriate also the company's reputation that these innocent depends upon the immediate these are these are people who want those games and want to now and so it's not just a loss of the games and all i'm suggesting is yes fair market value is yes they did in the in the actual victim's statement to the probation office it says we lost not only the games we lost good will of our customers as well as the mailing  what the actual victimisation is i mean this reports routinely routinely rely upon the assertion of the victims of what they lost this is normal this is well but your honor i think it's appropriate for a district court to rely upon victim's statement of its loss and then if the victim challenges it with which this this not victim sorry if the defendant challenges which this defend it did sort of use the word restitution so we're not arguing plain error but really in fairness never presented the district court with the standard that applies and so all i'm suggesting is that henri may and let that is report determine whether it should be replacement value or for fair market value states could also properly show that that doesn't actually make the victims whole if for example it would take them two weeks to get the discs on game stop dot com if that if that were even possible that would be a words that applies under the n p r a we made the argument to the district in the government simply didn't present their evidence so one be clear that there's no real let me just get to what miss ray's argument replacing the inventory and and so she says did you know that the particularly in this kind of sale a good situation and particularly with a retailer of the fair market value standard is deficient and basically so and a wide variety of circumstances where you have to say with regard to them well i think that it's confusing the analysis is the problem there are two separate types of cost that can be included in the restoration order there's the valuation of the lost property itself and then there are these other incidental calls in for example in this case that this report included thirteen hundred ninety dollars in mailing costs that's not part that is at least arguably included  property and then there's subsection before which lists certain incidental costs that are still really only dealing with the first of the exactly so we didn't make an objection under the incidental also the inclusion of the mailing cause i will say there is of precedents that were never brought before it and evidence it was never put forward in and that it's taken gotten much more sophisticated than argument on appeal