will move the microphone closer to me now is that better or it was even better when you were leaning to right so i think a better you're out of we've lost your picture here a little bit too far to the right to be on camera here you go case in this case at the sentencing hearing that district judge committed procedural error when he imposed a fine of five thousand five hundred dollars on james flannery he did so in that he factors and he failed to give any explanation whatsoever as to why he imposed a fine on james flannery during the sentencing hearing but judge calculated the advisory guideline range of imprisonment to be eighteen to twenty four months the judge did not state at that time or at any time the advisory guideline range for the fine which was five thousand five hundred dollars to fifty five thousand dollars the judge then heard a from the defendant regarding the sentence and the defendant argue that a sentence of probation was satisfied to three thousand five hundred and fifty three effectors the judge then stated on the record that he considered the pre sentence investigation report flannery's motion for a downward variance letters of support the government sentencing send memorandum flannery's history characteristics and he stated at for imposing a sentence of twelve months on the day and he in not his reasons for imposing a fine the judge then went on to order the restitution in the case and it was then that  from the guideline range of scuse me the guidelines by the one two at that time the defendant specifically objected to the imposition of the fine calling upon the judge to give reasons was found to be indigent by the magistrate judge and the office of the federal defender was appointed to represent him that the find in addition to this large order of restitution of three hundred and eleven dollars plus one thousand dollars it was excessive in the case the likelihood that he'd be able to pay this fine since he was going to do a year and a day in prison he would lose his business which was a pallet business and any way for him to to make money when he came out of prison he would have no business he would have no way to make to pay that restitution and pay the fine at that time the government at that time had no response to the objection and the only statement that district judge made it is was the court will overrule your objection i don't think it is excessive i think that it is appropriate in the situation but nowhere did the judge address any of the factors that the defendant stated in the objection he didn't respond to the objection in any way he didn't respond to listen factors and three thousand five hundred and seventy two addresses income as earning capacity the financial resources that he had and the fact that the restitution was ordered in addition to this fine thus the judge failed in any way to explain the reasons for imposing the final mr flanary and now this court as a name is unable now to engage in any meaning review meaningful review of this part of the sense as a district judge has committed procedural error in this case i'd ask the court to remain on the case back to the district judge to explain his reasons on the record from closing a fine and the amount provided a financial ever david to the magistrate judge and it was determined to be ended jim this is the same information that was in the pre sentence investigation report as to his his financial assets and liabilities and perhaps really can't say but perhaps the judge using that same information now found he had the ability to pay but it was the same information that the magistrate judge used to to find him to be in the gym it remains unclear on the record as to the reasons the judged used to impose a fine so under the abuse of discretion standard of review the court failed to consider the relevant factors in this case his income as earning capacity as financial resources and the amount of restitution ordered in addition to the fine when the court imposed a fine on mr flannery and what is the some of my argument your honor liggett question and i understand your argument that the fire is excessive is not supported by the various factors but are you do you also to make money and that mr flannery was indigent so i wasn't lighting the court to have that discussion i was inviting the court to state the reasons on the record as to why the court was imposing the fine the amount of the is that you disagree with the fine art itself i think in making the objection i was asking the court for the explanation in the words lack of explanation did not know it's not in the transcript but just calling upon the court to engage in this conversation to to give the explanation i mean just in objected to it i'm asking for an explanation if i gave the reasons why while the concern we have sometimes though as the court of appeals as you come up and you don't necessarily appeal the fine you feel the fact that the judge didn't give further explanation and the question is whether you need to put the judge on notice that you're really making a discrete objection about the sufficiency of the explanation as opposed to the find itself your honor i would say that the judge said nothing i mean i i made an objection to the judge did not respond to me he said nothing on the record about the fine why he's imposing it i mean there is nothing for i can't answer this any further than to say he never responded to me and we're we're you know it the procedural error is right there because court chanting gave unity meaning and a full review of the fine because there is no reason on the record you may proceed thank your honor may place the court my name is diane clocky i'm appearing today on behalf of the united the government's position in this case is that there was no procedural error and at the fine is substantive air prisons report was not objected to and it was accepted as factual findings of the court earlier in the sense a hearing also earlier in the sensing hearing the defense counsel specifically stated you mean that the judge made a general statement that he was considering all of those items you know driving the sentence without tying them specifically to the fine but you think we can attribute that show that he had an inability to pay a fine in this matter in fact the finances as laid out so that very much where's the specific passage of the transcript if you haven't hand the error in to when you say the judge said that he was relying on this financial information in the p s r and so forth  well all he's doing there is making a finding court doesn't know the reasons that the that judge white imposed the fine or how he determined the amount of firing while the burden is on the defendant to show that he does not have the ability to to pay the fine that's a burden that the defendant accept however we can't even get to the issue of the burden because the court never stated on the record the reasons for opposing the fi so that the defendant could then try to meet the burden to show the court that is the inability to pay a fine it's not likely to be able to pay a fine in the future this court cannot review the sentence of the fines because the judge never gave his basis for the fine thank you