perhaps this is a slightly unique appealing it comes from two directions this is actually two appeals before the court from the same case only because the restitution hearing took place at a time much later than the original fifteen order in the sentencing order we've  because i think there's a great issue about double counting double counting has been referred to in one circuit united states versus bell as taking circumstances that were previously accounted for but that the double counting would only apply to departures if the if that circumstance was used in the offense level but the heart of this double counting really comes from eighteen u s c thirty five fifty three the one which says authorizes departure where the court finds that there exists an aggravating or meeting getting circumstance of a kind or to a degree not adequately take into account by the sentencing commission period so that means double counting can apply to two departures or to a departure at an offense level matter how do you determine what is double counting what is the evidence relied on by the district court in making that decision and there i just direct you to i could read it but it's in the brief i lined up the two phrases used by the court to justify both five k two point seven which is the part which is disruption of governmental function in five k two point one four which is public welfare so you can see other languages same and basically what the court said is mr out after your fraud you harmed our hospital and our hospitals a public hospital so you've disrupted governmental functions and so he was embezzling money he's investing money from the hospital and he was laundering the money he was laundering the money destruction of governmental function and public welfare and what is the double counting that goes to duplicative or it's to placate it with embezzlement right we're not making a broad argument here but a narrow line i think in the case law supports the government the government cites a tenth circuit case united states versus fand i think it says you can have both of those departures in  case but you need a separate factual basis or a separate reason for doing so you can't use the same reason for having multiple because that's what's prohibited by eighteen u s c thirty five fifty three the one that is it would be like you could have a has been for carrying a gun you can have spent for a prior conviction maybe that hiram fiction involves a gun so in a way it could be some seen as similar welfare enhanced man is there an enhancement for each of those it's just ruction of government function under five k two point seven right and it's public welfare under the other point one four so if you have the governmental disruption over here which is basically the clinic goes put and can't keep operating yes and you have the public health over here you know you can call them two different things but they are kind of different because that one thing is the clinic you know it has to shut down so that's like this physical operation of the the commonwealth has to shut down but then there's the people who were in the clinic and that's something a little different because their health putting them at risk on their dialysis treatment is different than just simply shutting down the government operation because i think you're different i  and we don't have large funding we have a single hospital in mind is painful to the hospital but with that aspect of that ship you know so but what but what yes but it doesn't necessarily hurt members of the public right but when you have this kind of a situation where the embezzlement is also affecting the govern now it's got shut down a whole unit of the prison so but the whole prison doesn't shut down and they say well that is a governmental function that is compromised but the only way we can shut it down is to let out some of these convicted individuals and now they potentially pose this hazard to public safety because we stay sick we had to release all the prisoners are saying that is the same nucleus of facts like this and we couldn't we would be double counting if safety i don't i wouldn't use the word nucleus of facts because it's a little too broad and look at the specific language that this court used to justify these two departures they seem to be identical and that a double counting departure issue is a legal matter or a factual one because even counsel just stated we're talking about the harm to the hospital and the harm to the people well that's two different things and if you read the government i mean if you read the trial court's explanation she differentiates the government disruption is the effect on the parents you know the dialysis unit and the public health is the effect that his conduct had on the patients themselves so it was differentiated so even if he was right on the law he would be wrong on the facts for the rest of the enhancements we would just rely on the the abuse of discretion to govern the court was prevented presented evidence copious amounts of evidence during sentencing she also had the discretion and then at the last minute be the criminal participant same thing now we're dealing with the clearly erroneous standard but again the court was presented with evidence she actually took part in the wife's trial so she had sat through all of that executive from the company that says we don't get paid on these invoices now was that the total testimony and that is again they were the proponent in this context and that is insufficient as a matter of law because being unpaid invoice and getting a work from that is jumping over causation so it wasn't really shown that he caused that much harm because the invoices didn't stand yes  it's a brief but it was their accounting system their information that which was not reliable for a number of years and then they're asking for this reward award on top of that they go to the hearing remanded for a new hearing on the rest to sion as well as the other three thank you i thank both counsel for coming from side hand for the argument the case just argued united states versus and is submitted