apply an offset credit and third and finally the district court and this court both have inherent authority to require notice to the court in council before the treasury ceases pons at d o j his request for the sole purpose of account by the treasury crank and yes yes her mortgage been foreclosed your honor she is still fighting the mortgage and still does have room i don't know that quite how i think perhaps through help it acknowledged the original sentence had two significant errors and even apologized to misuse back here of for having to reimpose it because she didn't want to do it she said it was a good admittedly illegal senate is the government's position judge brown is that  she would rule thirty six allow her to clarify the seeming self contradiction possible self contradictory your are we do believe world thirty six provides that authority and that's our second we think that you have to remain in this case anyway for the judgment to be corrected and when you were man do we believe the court should also be in total be told that she can impose a sentence that she believes is legal under thirty five fifty three and do  justice as i mentioned the second way of getting there is to the district court erred in believing it could not either modify the senate or correct the sentence we cited friday factors on which a correction or modification  possible and the government can't have it both ways we believe that they can already to treasury the misuse was delinquent in the same time are you that thirty six fourteen doesn't apply  she had not made of fail to make any payments we also submit that she had changed circumstances and that also justifies them a modification but even if you could trigger a resurfacing by not paying right require a non noncompliance in order to get relieved i think there are other ways you can get there that might be a while not if we don't have legal authority we don't have legal i've already but you would still have an option too and it's a roll the dice better ways than encouraging people to not pay in order to get restitution changes based on changed circumstances in any event even if even if there is no change or modification of the original sense we also believe that the court could have and should have applied the default judgment as an offset that was imposed against blackhawk the p s r itself said that according to the government quoting cording to the government this somehow meaning the default judgment amount if we're going dollars will be used to offset any restitution owed by the defendant person went to the j and c itself no restitution payments were even supposed to begin until after the adjustment where the fine to blackhawk will be applied the court said she should go pay fifty dollars a month only if restitution is a good and she admitted that she never believed that ms hughes was going to be on the hook herself for four hundred some thousand sick treasury on her is in comprehensible i don't know how they can truthfully have certify that the treasury we haven't seen their certification i'd sure like to see it but before her first payment was even though they had already sick treasury are by certifying she was  not misuse because she's wonderful person but with some people it would only encourage them to get back into a life or crime in a district court order know if treasury is seizing the funds they're coming to people who are under their criminal wars when the only reason treasury is going after him is the good morning may please the court a slightly raspy christopher hill and on behalf of the government i want to begin by emphasizing that the government is not unsympathetic to ms hughes or her circumstances likewise the government recognizes that sentence imposed by the district court didn't turn out as the district court intended how do you read that some of these things by the district court yes the sentence by the district court imposed that she that she was  misused was responsible for paying under the in the already the mandatory victims of restitution it before hundred forty two thousand dollars and has that it would be joining several with douglas brown and then any amount recovered by black caucus how was her court contemplated in your suit other circumstances which is exactly what may be resting on not less than being what are you going to have less than i think the not less than is clear on its face his use was responsible as judge call your point of it i'm sitting start the beginning the restitution was immediately paypal but she was required to pay the rate of not less than fifty dollars per month so i'm not sure it's very easy you're saying not less than think that there's necessarily a self contradiction i think with this record set was that it was immediately payable on this was what she said at the sentencing hearing and that controls of course over any ambiguity in the we don't this month she also said that the rate of not less than fifty dollars for month and she also said  the interpretation of the district court in this proceeding indicated that it was intending to impose so i want to get to the first point is that the district court carefully reviewed the statutes carefully reviewed the case law and reached the conclusion that it lacked the authority to vacate the sentence as it was originally posed in the course certainly could've you know dealt with these questions at the time but in the court's view the it didn't have possessed the inherent authority to modify the terms of the other was valid and on appeal the sentence the legal technicalities that the government is accused of relying on are actually congressionally mandated dictates about the limits on a district meant to correct clerical errors or clerical admissions it's not intended to be a an end run around of the you know i think well first of all that this is the first time that we're hearing that argument and so if that argument had been presented to a judge call your she might have had a different reaction but that's not the argument that was presented there was an argument that there was a self contradiction in the  contradiction i just want to point out the the limits and the exceptions under the n p r are very specific congress clearly delineated them we set forth in our brief how the each of them are not a political in this case i want to address the waiver point that the court made some sort of a factual finding that mr mcdaniel waived any issue with the court's ability to vacate the sentence where the court actually said was i will say that sitting here i thought that we agreed that's far from a waiver and if you and i would encourage the court to read the transcript carefully because there was sort of a back and forth discussion about this issue there was certainly no clear and intentional relinquishment on the part of mr mcdaniel to give an argument that the district lacked the authority  around the time when it's requirements of rule for being additionally forcefully does not stand for the idea that an offense under one thousand and one can never constitute an offense against property government the false statement that mr bruce lee made was in the f b i investigation and so the the fraud had already been committed and the false statement during the f b i s investigation didn't actually cause the loss so mr dors criminal act act and that's a totally different context that deals with what constitutes a violent felony and so certainly door sleep can be read to have implicitly endorsed a categorical approach when that wasn't even the issue that the court was deciding that issue had been briefed whatsoever nor had the issue by the way of whether the offense constituted an offense against property under the n b r a and so we would rely on the cases from the other circuits peterson singletary that do suggest that or stand for the idea that if a false statement contributes to a loss it can constitute an offense against property under the in the already finally just briefly because i'm running out of time also the top seizure in this case was proper as we point out in our brief this is an improper form this court is the improper forum for misuse to be making arguments about whether the government has the authority to seize her tax refund she has administrative remedies she would have an ability to petition this court and ask for this court to look at that particular decision if it ended up being a nurse this is the thing this far as i'm aware misuse could to this day still petition which every ministry of foreign is the proper for saying you can come back here in this kind of proceeding or are you in the district court correct right that's i think that's right there and yet she could petition not exhaustion before you go back to the district court it's it's a separate consider to be the notice that she was doing this case which is part of the reply brief it was a notice of intent to all of said and it's in i believe it's in the record i think it was attached as an exhibit to misuse reply brief but the it's called it's called the top's notice so that's how i think of it and it provides the specific mechanism so for example i'm just quoting to avoid referral of your debt to the treasury offset program within sixty calendar days from the date of this notice you must one pay your debt in full to enter into a repayment agreement and that would be a repayment agreement with which whichever certifying agency was the certifying agency in this case it would be justice or three percent evidence that all or part of the criminal or the civil judgment debt is not passed to or that the judgment has not been stayed are satisfied in other words there are there are mechanisms that were that are in place that misuse could have followed and they could have avoided this entire proceeding th but i think that thirty six fourteen does provide a sort of perverse marijan very odd provision i try to make sure and i'm reading it the right way yes or no i was just looking at that a moment ago and i think what the provision says is that only if there is a recent it's in the district court is allowed to resentence misused to any sentence which may have originally been imposed and so and we also submit that the district courts you know it lacks the authority under thirty six fourteen you know that again i don't know i think that those are issues that could be briefed by need these the implication of the provision is that he could impose a new higher sentence for failure to pay restitution but the phrasing of the provision suggests that you could impose any sounds including a much lower sentence right one that may argument that the last wasn't ascertainable by the district court is flatly contradicted by the record tot seizure doesn't seem to be particularly related to the sentence that the district court it have any effect on the amount that the government has already seized and then i again i just i don't know the answer to those very technical questions there are people in the department of treasury probably people in the financial litigation unit of the u s attorney's office who could answer that specific question but those are issues again that can be brief that if there is a remain in the court is inclined to remain and those issues can be briefed and fully fleshed out but those were not the issues that were squarely before the district court is that it's difficult to fault the district court for not answering these questions or not asking for additional briefings when those weren't the questions and those weren't the specific statutory provisions that misuse relied on below so i think that to follow on judge brown's question i thank you so you don't know the answer but i want to play this out if the re sensing they didn't pay there's a reason saying in the district court in the recent scene impose a zero restitution could she then file for a tax refund to get the money or a refund of some kind to get the money back  already seized in i think you're saying you don't know the answer that would shock i understand why you would know the answer to that sherman i will say that you know they are that people file civil lawsuits against the government all the time and as we point out in our brief  in this case even misuse could affect the civil lawsuit arguing that the seizure of the t o b refund was not done in accordance with the appropriate regulations and we submit that that's the that was the proper lose their suit though right i mean you're you're throwing out a option of losing in a different form under the terms of the district court sentence as it stands  i think that the government would have strong arguments on appeal that the seizure of the top seizure was appropriate and again i just want to point out that the top program is not a function of the government it's a that sort of the floor that's not the only means of and that the government has at his disposal that's something only to a little box that the government has to recover these kinds of restitution obligations certainly if there were a major corporation in the court dakota just record case buell t v you eat l k e the u s attorney's office the government in that case when through that process but there's nothing mandatory there's nothing that requires the government to go government is able to simply assume that what she meant was the whole  death you know maybe that process is one that every district court in every branch of the government should abide by in every case that the court that this court is you know sort of going to enter maybe make sort of such a pronouncement you know maybe that will change talking about the enforcement of all of that where we are talking about what happens when there when the basis of the seizure is something that a court has this is that many women and other words this is a that's absolutely correct your honor we submit that the district court's sentence was absolutely clear about what the sentence was what the amount of the restitution was and so it's unfortunate that blood that the government was unable to saddled with the entire amount of the dead because the assumption was that the government would recover you know some amount of money from blackhawk that and for as it turns out didn't happen in this case and so the question before this liable with blackhawk that would be where she was only jointly and severally larval with brown who was for all intents and purposes judgment proof and she set the payment at you know at least fifty dollars which doesn't say you know i mean there were different ways for her to do it so why is that unambiguous i think that that's your owner's question makes my point which is there were different ways that she could have structured the s and the structure of the sentence is the problem with the way that with the sentence itself if if the if miss if the just record in the first instance wanted to say to apportion liability you know ten thousand for mr brown ten thousand for misuse and the rest as for blackhawk and if the government can recover it great and if they can't that's the government's you know issue but that's not the way excuse me that the district court structured this sentence in this case and so we're you know where we were where we could have been a year ago is not where we are today and so the government would submit the i mean well to let the district court reviewed all kind of a strange way to interpret what happened in this case when you started off by saying the government is not unsympathetic to be seizing her assets i probably would have stayed in the case but i didn't know i notified the government that i was out but as i did i told them this money is not yet do justice was told that specifically and yet they proceeded with the seizure anyway how they we still don't have the answer how the injustice certified less than thirty days after the says it that she was the point when in order to say to be on her i don't know but i can tell you that while the theories the whole things do on day one well i understand that's their theory but but you know he procedures require a certification of delinquency and she was not to link point as a january thirty first of two thousand and twelve and i can tell you this for what it's going to get and for this to be particularly happening to her and maybe just look at the character letters and there was a lot more that could have been said of the sentencing hearing she is a genuinely truly nice person and for them to now be saying that she may even be subject to social security withdrawals because of this judgment is outrageous i appreciate the court's time and attention and i hope that this court will remain in this case of the justice can be done