n government in their brief suggests that under eighteen u s c section thirty five seventy two dad the reference to the court about the amount of the fine is tantamount to allowing the court to look at it defend its resources and then determining the amount of the fine several circuits including the fourth circuit  circuit second circuit d c circuit have all spoken on the issue of whether or not i just found the socioeconomic status rich or poor should be appropriate and this court  statutory requirement for the court as he says you're mentioning her departure cases which is in the ninth circuit are no longer relevant because i have we only consider the ultimate sense for reasonable that's right well first of all an appropriate five to little you were lucky in the proprium would be it would be inappropriate for i don't believe that congress has allowed or authorized a court to first look at see how much the person's wealth or socioeconomic status i presenting guidelines already require the court to look at the financial ability to pay you don't look at it again for a departure so i guess i'm i'm not understanding how you can say the again congress expressively permit permits and requires the court to do that for determining the ability to pay nothing and the amount well again painter directly referenced that obviously you would have to determine the amount of the fine if the if the court wants to find someone ten million dollars and the person's income assets are five say five thousand dollars that's obviously relevant in determining the person's ability to pay and that's exactly what painter said he'll look at that only to determine the ability to pay here the district court put that on its head congress has appropriate obviously if this person we're dealing with a situation where the person is wealthy but that on its head if the person this poor and we said well he's poor and therefore we should we should do something and light of the fact that he's poor it's the same basis you can't start from the premise that the socio economic status in this case wealth determines the fine  important in this community and but the person is doesn't have really much money and that's what we're talking about the first same crime they work together they held hands while they committed the crime or they were identical twins one of them is work then million the others were ten dollars  gender socio economic status and then you have these very particular provisions in both the guidelines and the revised of the two that say here's how we figure out a fine we'll look at the amount you can pay we try to make it a community of we look at the cost of incarceration we try to find if there's any gain or loss from your criminal activity there's a whole list of things and judge level scrupulously follow thirty five seventy two and he scrupulously follow the guidelines and all the defense has is this general well just because of socioeconomic status no it wasn't it was because he had a large marijuana grow operation that's why he's being punished and the only consideration of his wealth is in determining what amount of fine kenny pay what amount will be punitive and obviously the defendant considers this amount unity and just to address this question of reconciliation the united states in no way thinks that this case in order to rule for the united states requires a conflict with the fifth circuit decision of pain or the fourth circuit's decision and graham far from based on the wrong to the community and whatnot in the second service and hold on a second that seems to be taking into account socioeconomic status but where you are squarely within the guidelines in  statute you're doing exactly what congress told the court to do and he was not nobody went outside the statute or outside the guidelines because he was wealthy much less for other investor of socioeconomic status there's no and term in the sense i don't believe that's what congress intended i don't believe that that position would be consistent with the fourth or the theft circuit or the second circuit i believe that it's simply a question o you based the fine on the criminal conduct not who the person is in our society wealthy or poor this person is wealthy just by committing a crime does not mean ok you committed a crime and now we can find you anywhere within the statutory parameters that you have in this case that's inappropriate the court said he's worth eight million dollars and therefore i'm going to sock it to him congress says that that's not appropriate the guidelines say that that's not  with if you're going to base it upon in this case the profits there was no evidence of profits my client also showed that all of his assets that he obtained were assets he obtained long before any criminal conduct was being investigated or was i believe one hundred proximately one hundred seven thousand dollars so certainly a fine of thirty thousand dollars for a concert to cover the cost of incarceration i think that would be completely we believe under booker and it's progeny that this is an unreasonable sense of the general the my client sixty five years old had no prior criminal history whatsoever we showed all those assets were obtained without relationship to any criminal conduct and aki forfeited a substantial amount of property money and then on top of that is subject to a mandatory minimum of five years even though he has no criminal history we state you take that in total and appropriate for that particular issue was your client not he's insured in oregon at the federal correctional institution him that's reasonable right the governor gets up and says eight million dollars but you figure that i'm sorry the government comes up with your figure be well again the government recommended