judgment here the district court imposed the prison term on august th two thousand and nineteen ms harrison appealed on aug th the district court then held a restitution hearing that it delayed from therefore you cannot have an extension of the restitution determination per dollar and it brosnan's a simple as that it's not a matter of convenience for the district court or i hope the parties will reach an agreement as to the amount the finding of a lack of ascertain ability by the district court upon a motion or some statement from probation or from the government that's the prerequisite for dolan to turn out the way that it did  ascertaining that had to happen here the parties were pretty far apart as of the time of the original sentencing ranging from five hundred thousand they finally wind up one hundred and seventy six and i mean so i don't even know what you mean ascertain a bowl there had to be so it wasn't like there was like a promissory note of a certain amount of money and everybody knows exactly what it is there was there was further activity that had to happen and i am not sure i read dolan as tightly as you are well i'd like to begin with the statute before we move to the construction or the interpretation by dolan and if we have a disagreement as to the amount  judge then that does not make the amount on ascertainable it just signals there's a dispute and so before the court to resolve that dispute there's nothing to say we just have no idea what it is literally so sometimes it hasn't been ascertained yet but the judges will estimate you know evidence can come in and finally there is a conclusion that restitution will be x i think was content to say the loss was five hundred and thirty eight thousand dollars for the restitution however that again just goes to the amount that's in dispute if there's no additional evidence that needs to be presented in there was none here and this does go to the statutory language that says whether the amount can be ascertained if there was a victim who had submitted a loss amount and this may be a different matter that does correctly fall into three hundred and sixty six thousand and forty five but that wasn't the case here this is simply a matter of delay that was done apparently for the convenience of the court but not upon a motion or any statement by the probation office or the government to say that the amount of loss couldn't be ascertained therefore this does not fall under the statutory language dolan's exception can't  properly in boat we have now just the necessary evidence that is to be decided by the district court in fashioning the restitution amount that already been presented by the government or was available to the government as part of the process for preparing the p s r this is not something that fits within the statutory language of three hundred and sixty six thousand and forty five dollars or within the confines of dolan if we are to disagree about dolan and how it is to be interpreted or applied here we can nevertheless look to the rather clear language of the statute dolan is a case in my view that would make attached to his blush about how the word shall is to be discerned and interpret but we can still look here because the case i a judge there and also mention into the discussion because that seems pretty clearly not to rely on this whether there's additional evidence that needs to be unfair you know found out or not line you're suggesting and basically says there are two orders you know if you had wanted to complain about the final restitution order you had to file and a nd notice of appeal yes so we do have a prob with that of course because as we pointed out my client wasn't waiver by my client such that her actions show that she didn't intend to contest that she was unaware she had a significant medical problems as the court is likely aware due to her heart issues she's out of jail presently as she recuperates from a major surgery and of course she wasn't present for the hearing and i will acknowledge that the th circuit has taken a very unique view about whether or not restitution is criminal or civil  offer that its unique view is not shared by the rest of the circuits the th circuit is the only circuit seems to follow the th in that regard but that is in conflict with another th circuit citizen in the language from past with the know and kelly would suggest that the seven circuits view is perhaps incorrect as about the difference between criminal and civil not to mention rule for has different timing provisions for appealing from a civil versus a criminal decision by the court and hear all of that suggest that the watts amount here would be a criminal matter and of course my client then wasn't present for the criminal aspect of that case that occurred in december because she wasn't present for the hearing which is a the language from the statute it does not status by we then have the fallback contentions about anything with me and wreak in the nd judgment but then we have the rule forty three dollars eighth's revile edition that's very very squarely present here restitution or this was an n p r i case judge peterson after sentencing dealt with the tax loss issue st and then as you can see in the transcript says now we're going to or we're going to go to restitution there's a difference between the tax loss number and the restitution defense counsel's attempt to try to distinguish dolan is not persuasive here's why there was a reason to have a distinction hundred and seventy six thousand dollars for tax loss and restitution those couldn't be reconciled the judge ruled in our favor for tax loss but said i'm not going to do that for restitution parties do you want some time to see if you can work out a stipulation that defense said yes we'd like to take you up on that offer they in fact did come to a stipulation the government sent fine we'll go with the one hundred and seventy six thousand dollar number instead of the five hundred and eighty three and that's what happened so the court had the right there there is no factual distinction here the court had the right to enter into a deferred restitution order see if the parties could come up with a number dolan applies and the and the court had jurisdiction to enter this this restitution or the nd point the court's bringing up is the man repay issue that knocks this appeal right out of the box right out of the gate they should have filed a nd notice of appeal they didn't this court doesn't have to write to briefs we wrote we did the judgment we appealed the st judgment please put that stay that till we can get an order on the restitution then we'll file a notice of appeal then we'll join in brief it together so this this court granted that motion to stay then after the restitution order was entered the defense came back and said we entered a stipulation to restitution here's the number we're not going to appeal the restitution order but we are going to appeal the sentence that shows an annoying and intentional choice to go walk down one road and not the other road so they waived mandrake they've also this argument well the rule forty three dollars issue that's red herring that's their ability to try to shoehorn a new argument in by saying look we tied it to man rate that has nothing to do with man  matter the physical presence you can't distinguish man reached from harrison by single and men reek that defendant was physically present and in harrison she wasn't physically present that's a distinction without a difference they're trying to inject the rule forty three violation in a reply brief you cannot do that a new issue raised on reply is deemed waived the forty three issue should have been raised in the opening gree it wasn't that's the st or the nd point on the rule forty three issue it doesn't apply was harrison was there for the sentencing she was there when judge peterson said i'm going to do restitution but i'm going to allow that amount to be determined later maybe the parties can come together with the stipulation she entered a stipulation there was no there was no restitution hearing the stipulation obviated the need for the rest to sharing what we had under several levels was a telephone a conference between the lawyers where the judge said hey i hear there's a stipulation the and yes i just talked to my client the numbers one hundred and seventy six the parties agree he asked me is that true i said yup end of story there was no argument there was no fact finding there was no restitution hearing was simply the telephonic conference as to the stipulation the so the stipulation obviated the need for restitution hearing therefore it obviate the need for this physical presence at the hearing the other point as to why rule forty three doesn't work it's because the voluntary absence exception under rule forty three c one b you don't need to be at a sentencing or the restitution hearing if you voluntarily absent yourself she did why because she entered a stipulation she didn't need the hearing when she answered stipulation saying that one hundred and seventy six fine and you know that based on records cite number five where they come back and tell this court hey we've entered a stipulation on restitution we're fine with that we're not going to appeal the restitution number but we want to appeal  an issue that's why the forty the rule forty three argument it's been in two ways because it shouldn't it should have been brought up in the in the opening brief and it doesn't even apply in this case the last issue i'd like to point out look at the difference between the opening brief and the rope and the reply brief opening brief says we want oral argument we want to vacate the rest of to show an order and it's based on breaks and that breaks trumps everything else then look at the reply brief we don't want oral argument it's based not on griggs but on a rule forty three dollars argument and look at what that will conclusion is in the reply brief now they want to vacate the sentence and remount for full reset and saying totally new argument not raised in the opening brief about opening up for re sensing because he or she has health issues they filed a notice of appeal as to the sentence they could have briefed up the issue on here's the peterson she her back sentence was thirty six months she got twenty one dollars they could've said well at that fifteen month the crease was unreasonable they didn't they could have done all that they didn't they waive that argument but they threw it in  issue at the end to try to say hey you know here we want to make a restitution now we want to remain on for re sentencing totally new argument all the should have been brought up in the initial opening gree it wasn't it's al so what are we asking for your honor so number one this case has to be dismissed for lack of jurisdiction by this court because they didn't file that nd notice of appeal in the alternative we've asked that you affirm the judgment in the sentence based on perfunctory in the reply brief and in fact reply briefs are meant to be an occasion to respond to the government's argument the government has the burden to establish waiver we don't have a burden to preemptively establish waiver and then to try to knock a waiver argument down in our opening brief the government never wait raised waiver there'd be no waiver contention in this case we've appropriately appropriately responded in the reply brief and noted the things that are pertinent to the waiver determination  the government wants to now go on about how we should have made arguments of a different type and we could've contest different things we are in charge of our own appeals and we take responsibility for that but we don't have to raise the issues the government just listed for us to raise and when a client is not present at the sentencing hearing that is a per se violation of the sentencing requirement that a person be physically present in court for the imposition of sentence the government's argument seems to accept that that is a criminal aspect of are does not make the amount on ascertainable under the statute that is the prerequisite to get in the statutory language that's then ultimately pertinent to dolan and demand week and if the government hasn't done what is required to do to get the extension past the ninety days and be subject then to the more permissive interpretation of that language then you just don't get there you can't say because the district court intended to impose restitution we're now in alignment with man rican with the will and with the statute those things are not true the language of the statute requires work dolan and man required required word so the government's attempt to fall back on those cases is not persuasive here and it cannot get around the rule four thousand three hundred and eighty three violation by saying that the different things that were done show that there is a voluntary absence the stipulation doesn't establish a voluntary absence a client has a right to be in