the standard of abuse discretion and what standard you think should be applied on the issue of calculating the sentencing probably sentencing in this case well i think with respect to the to the value of this particular property and therefore because it was a factual determination isn't it an evaluation of for an abuse of discretion first of all no i disagree that the judge made a factual finding that the phone was worthless i think the government is advocating that position now i don't understand anybody any parties below to actually advocate that position and i think the reason and if any if the district or did make that finding it is clearly erroneous or an abuse of discretion it would satisfy any standard and the reason is at the time the offenses discovered the growth fund had seven hundred thousand dollars in cash and sixty seven percent ownership interest d d and i those assets were so substantial that the district court appointed a special master to manage and preserve them the special master then file tax returns for twenty twelve and twenty thirteen reporting almost fifty million dollars in assets taxing authorities those numbers found further support in an independent patent valuation that was conducted by an independent appraiser who found one of the nice pence a loan had a licensing value ranging from thirty to seventy seven million dollars with the lower end of the range less likely the limited partners themselves found great value in the fund because they organize a steering committee to manage and participate in the management of the funds that steering committee has now morphed into a corporation which is assuming management of the growth fund and is actively managing it to this very day the special master himself because of the substate the size of the invest the god lines in the case law don't dictate a point in time where you measure the value typically what's done is either the you assess it at the time the offense is discovered which in this case has always been treated as a time of the government's raid into the into the funds offices sometimes the courts will apply what will assess the value of the asset at the time of sentencing and that's a judgment call that's up to the district court and then it gets reviewed by your owners but i don't think it's the time of the offense because this is a this is a good time for this offense was you know and fifteen but of course on any remit the district court would sort that out the taking evidence and testimony from both sides if we if the fund has value assuming the fund has value  question is in the yard was hinting at this is the liquidity issue does the district court probably rule as a matter of law that it's irrelevant regardless of how much money might have been in the fund the answer is no this report was absolutely incorrect and it stems and he she and her husband both need cars to get to the office they don't have time to buy their own car so they go to uncle and uncle we're going to give you a hundred thousand dollars will pay a small fee will you please help us biased to b m w which want to b m w so we can drive to work i go so sure he pockets a commission and he takes a hundred thousand dollars but he knows this whole time he's never going to buy the two b m w s he's going to buy a rolls royce of vintage rolls royce because he thinks it's a better investment i think he's doing him a favor but it's not a stick because they still need to get to work so the niece is furious she says what am i gonna do with this vintage rolls royce i can't sell this thing i don't know anything about the market for vintage luxury cars i can't drive it to work it's barely street legal my husband still doesn't have a car because you only bought one rolls royce so say this uncle gets prosecuted he appears for sentencing is it accurate to say that the niece and her husband have acquired nothing from this that they lost the entire hundred thousand dollars i hope the common sense answer is no they have a vintage rolls royce maybe it's hard to sell maybe they can just take it of their sentencing in that situation you have to account for the fact that they haven't lost the entire hundred thousand dollars it's all in the vestry one and two thousand and twelve to go in and get their ass back their funds that they invest in their millions of dollars you're capital is worthless until the day gets older somebody i don't think that's true but in any event a district court could have taken evidence on it and the government could have had a venture capital expert come in and say yeah we consider all of our investments worthless until the day till the data gets sold and then mr gadget could have an expert come in and say that's not how we treat our investments we think they're valuable assets and additional court could decide based on a full developed record that this court could review but that's not what happened because the district court ruled out of hand is irrelevant as a matter of law no matter how much court should dismiss this appeal because geringer an ambiguously waived his right to appeal in his plea agreement and the district court did not revive its right his right when it referred him back to the plea agreement for his appellate rights at sentencing if you look at the words that were used in those cases in view canon the district court said you have the right to appeal findings which i make today regarding sentencing that was unambiguous you have a right to appeal in in and specific about what the right to appeal was in felix the defendant's counsel said i believe he would be allowed to appeal the sentence and then the district court said all right and then later said asked are the appeal rights we have for except i guess the issue of criminal history category again unambiguous specific language regarding the right to appeal by contrast the statements that were made by the district court in this case are very similar to the statements that were made in areas espinosa where the district court court told area sesno so that he may have the right to appeal and lopez are meant to wear the district court to also told the defendant you have the right to appeal because the defendant pled guilty without the benefit of the plea agreement to preserve his right to appeal the cour determination on the suppression hearing in those two cases this court has held that that language which was ambiguous about the right to appeal did not revive the defendant's appellate rights when those were waived ambiguous then geringer would be asked to be released from it because it was annoying involuntary and clearly he still he still wants to get all the benefits that he accrued from the plea agreement and he's not asking to be put back in the  calculation the district court i want to talk first to because you raised the question the standard view on sentencing and i would argue that this the district court's last calculation was a factual determination which this court should reverse review for abuse of discretion or clear error the very facts that guarantee or just counsel just pointed to show that this was a factual  your honor that statement is a statement about what the future value the defendant and the victims might be able to realize from g l are the district court quite appropriately was looking at the value that the victims had at the time of sentencing regardless of what they might be able to achieve or to recoup later on in fact the district court allowed a continuance in offing but parents are never took him up on that because as we have seen in the course since the sentencing that sale was never going to happen and indeed to my knowledge has not happened and certainly nothing in the record in the case of the has happened in the year plus since sentencing so the district court did exactly what mr johnson just advocated that it should have done which was to allow time probably well if it could be a form of restitution if it could be sold after sentencing at any time in the future geringer could ask for that amount to be credited against his restitution order that's all that that means it doesn't mean that it had any value at the time of sentencing or your program let me be clear the district court did not give him credit for the deed devalue that any value of deny or the g r fund in the restitution order merely he was saying as the government urged below that if some money could be returned to victims through the sale of d n i at some point in the future that guarantee or could ask for that money to be counted against his restitution order so that he would not have to earn separate money to then satisfy the restitution judgment but that that money could be used to offset the restitution that he had been ordered to pay the victims so for example he had a lottery ticket and he said i think this is going to hit this record judge could say well maybe it does maybe it does we don't know that now if it hits could take it down to the used car lot and get some money from it or he could find a seller somewhere but in fact that's exactly what the victims in this case have been unable to do they haven't been able to just take their shares down to the used car lot and sell it and they haven't been able to find a seller somewhere despite years of trying and lots of of money invested in doing so so i think that that argument that the that that rolls royce analogy actually supports the government's position in this case and supports affirming the district court's loss calculation here but the judge also indicated later on from where was not legally relevant to the analysis in the sentencing structure why did he say that if it was a factual determination why did the judge say  previously found that the government had met its burden of proof or loss and the loss was more than fifty million so clearly here the district court had already made the factual determination that the loss was greater than fifty million to the extent that the that the district court was then speculating as to whether or not any value might be realized in the future as with the lottery ticket analogy from the funds from the g l our investments it did fine with those that was more appropriately placed and legally placed in the restitution column even if this court was to find however that this was a legal determination i would still urge the court to affirm because the district court's method of valuation here one a reasonable estimate of loss given that the g l are fund could not be divested of by the victims at any time up until and including sentencing so that was all that the district court was was required to do was to make a reasonable estimate of the loss and clearly here the district court did so by looking at whether or not the victims were able to sell their their shares in the g l are funded by the time of sentencing and what they had contributed into the fund and what they had received back by the about so called value projects when they have value when they don't whether it's something that could be valued from anywhere from i see i'm over my time but i learned i think and i think that the district court did here make an adequate record about how he was making the last oscillation here  talking about you know using the the government's and the probation offices method of last calculation adopting that and finding that that that there was more than a hundred think you hit on the head when you point out the district court's quote what the district court did the best explanation we have what the district court did is that he found any value of the fund to be irrelevant as a matter of law that's what the discourse judgment was and we don't know exactly how he got there because he didn't to present testimony or evidence about what the value might be in the eyes of the venture capital community eyes of anybody who was involved in private equity so he didn't know because he shut the door on it so all we have is the district judge saying it doesn't matter and the district judge was essentially the rationale the government's rationale as well if you don't get a cash for cash return before the offense is discovered then it's all out the window which is flatly at odds with the long list of what i'm calling  victim benefit rule cases which this court and the second circuit have decided which say that if the victim gets something of benefit you offset and you make a good faith estimate it might not be with surgical precision what's the asset worth stolen how much it's investor got for it and he's going to go report back to the district court there's no mechanism in place for that the district court didn't make an order he didn't set out any way for that actually happened his order is his ruling in this case is essentially a factual impossibility mr so it's not really a lottery ticket your honor it's just ignoring the fact that the investors were sitting on something of substantial value and so what i think is the last we'll make then is that companies can be valued so it's not