three had been violated we allege that the fifth sixth and fourteenth constitutional rights of the defendant been violated and that the court misapplied sentencing guidelines one be one point one thirty one point one three one point one five k one point one hearing the magistrate judge fail to advise the defendant that he that the government had the duty to prove beyond a reasonable doubt dr quantity and also that at sentencing that he was entitled to a jury determination regarding drug quantity accordingly there was a rule eleven violation during the licola cui what this affects your honor is number one the nature and circumstances of the offense it affects also the guideline calculation and also affects the defendant's d process rights and so far as it is unclear whether or not he would entered into a voluntary plea agreement or that he would have entered into the plea agreement had he known that the government had a duty to prove drug quantity beyond a reasonable doubt secondly your honor at the sentencing hearing the government did not prove a drug quantity above fifty grams beyond a reasonable doubt in fact the district court noted that it had concerns about the drug quantity that the government asserted of two kilograms because there was no actual drug quantity involved that we were dealing with look alike methamphetamine that the drug quantity originated with the government with law enforcement that we had an unconsummated transaction that the defendant did not have the money to even  pay for the purported substance so at the sentencing hearing the defendant's counsel did dispute drug quantity the court without holding the government to its burden of proof in the government having not presented any evidence whatsoever regarding drug quantity the court found that even though there was a dispute regarding drug quantity that there was a two kilogram drug quantity that should be attributed to the defendant consequently the court applied at level thirty eight  court should have determined that there was a fifty gram amount that should have been attributable to do that to the defendant because the defendant pled guilty to twenty one u s c eight forty one the threshold for that was fifty grams that could be attributed to him without dispute however any amount beyond that could not be attributed to him without reliable evidence being presented for those amounts by the government and again the government did not present any evidence in this case in this case regarding drug quantity  in applying the sentencing guidelines the court should have started by applying one b one point one which requires that the guidelines be applied in the order in which they appear the court then would have gone to the one point one to determine what the appropriate offense level was based upon quantity government rather the court then carried by misapplying section five k one point one regarding the downward departure in this case the court character and four instances one because the court did not even address five k one point one did not even mention the guideline when it was imposing sentence and it failed to consider the five k one point one factors and i'm not saying that the court had an obligation to cite wrote each one of those factors but the court does than treat the defendant's cooperation as a downward departure to instead consider it under eighteen u s c three five five three which in and of itself requires a five k one point one analysis which the court didn't take and to not deviate from the recommendation that was made by the government the court erred because the court is obligated to apply the guideline when the motion is made and the court in this case dismissed the guard line in its entirety and in addition amount two kilos went on or what happened at the change of plea hearing was there was an exchange and his federal public defender was representing him at the time gave a series of facts that he was willing to stipulate to and then the government out of while your honor that was not the same public defender who leader is claimed to have a conflict so at the time of the change you please here he when the stipulation about the two kilos was entered into that council was not of conflict true correct then we can go all the way down it could be one gram of methamphetamine one in one gram of ice and one point nine grams one point nine kilos of mixture and under those circumstances you wouldn't even qualified you wouldn't even admit the threshold under twenty one u s c forty one for the fifty grams so that's why i have i have problems with accepting that he isn't i saw in other words or it is and it could be a mixture of methamphetamine and then when we talk about how much actual ice is attributable it was eighty seven percent of probably there was ice and it was eighty seven percent methamphetamine and there was a stipulations of t that would be one point seven six kilos of methamphetamine true it would be if there was eighty seven percent pure times two kilos equals right then  based offense level and in this case even though that that the offense level had been disputed even though the drug quantity had been disputed the court determined alternately you know the court said it would consider the arguments of counsel but the court ultimately said well there's no dispute regarding the pre sentence report and i'm going to adopt it is true i'm going to apply a level thirty eight base offense level and then i'm going to go minus three for acceptance of responsibility but then i go back and do this you hundred forty months as the mandatory it ultimately decides to give cooperation credit the court has in its mind i think that we're dealing with somebody was at a level thirty eight which is two hundred thirty five i think to three hundred something months versus if the court applied the guidelines in the order that they're required kind of pro freely then we end up in my calculation at a level twenty nine because you attribute fifty grams a day and that's a level thirty two minus three for acceptance of responsibility that ends up at ninety seven to one hundred seven months i think under a category two in the court when the court determines what the appropriate sentence would be for somebody who's cooperated and whether or not in applying the deals that occurred conviction he did and that's why we had a twenty year mandatory minimum that he we were dealing with but once the court granted the government's motion for five k one point one even though it didn't reference five k one point one and even though it said departures were largely beside the point the court had the discretion then to go below the mandatory minimum and apply whatever sentence deemed appropriate when the court downward down to that level at the time that the court grants cooperation credit and is free to then impose a sentence below a statutory mandatory minimum going back to the five k one point one misapplication have argued that the court then failed to undertake an individualized case by case consideration of the extent and quality of mr calvinist cooperation now in this case the amount of cooperation was disputed neither side presented evidence only argument regarding cooperation what the court did in this case and i submit that this was inappropriate because sentencing policies and sentencing practices and failing to apply five k one point one in just generalizing and deferring aren't appropriate in applying the five k one point one departure is that the court said departures are largely beside the point number one number two the court said that it felt that it had to defer to the government on matters like this that it did not want to second guessed d n a in the first  court i say has to do is the court has to take an individualized examination of the value of the defendant's cooperation and cannot defer that that consideration to the government or to d which in this case it did with no evidence and what come compounds this year honors is that the government itself as the record i say route shows was not familiar with it was not completely familiar with the extent of the defendant's cooperation when asked questions by the court we have responses like i don't know or it very well could be or this is the first i'm hearing about either comments that are on the record that we've started in our brief that the government answers in response to anecdotal experience that the da is going to presume to pursue zealously any leads that that a cooperating defendant may have well that that simply was when the court i don't think can do that we had a visiting judge from another district to to give them cooperation opportunities it is a real problem the court in failing to look at mr cal those case individually violated the sentencing guidelines and also violated  believe the circuit's law and i believe i've cited cases to that effect in addition the guidelines require and also the cases require that when you are looking at a five one point one downward departure you must do that independently over a section three one point one acceptance of responsibility adjustment and in this case the court subsumed in the government subsumed the two into one and the court did not separately  the court subsumed the two and that was improper and finally the court expressed that it lacked jurisdiction to depart downward under absent a government motion and the fact is that that's not true because the circuit has stated that that the court has the authority under certain circumstances to sue sponte depart downward when the government for various reasons does not and when the court makes statements such as it did in this case quote the only entitle to is what the government offered which is to say well make the motion to get you out from under the mandatory minimum or not for the motion on the part of the government my hands would be tied and the only sentence i could bring house in this case would be the twenty year sentence that's not correct because the court had the authority transcripts that the district court you would have the legal authority to depart downward into five k one point one in this case again the court didn't even apply five case one point one but the court in addition the court did have to the court was required to at least demonstrate that it knew it had the authority to depart downward and its case it did not we've also argued you are your honour's that mr colville sentence was imposed in violation of law since the district court failed to determine the nature and circumstances of the offense properly in this case what the court did was it adopted the pre sentence report at the end as factually accurate even though issues of dispute arose in the midst of the sentencing hearing regarding offense conduct drug quantity  rt i'm going to adopt it is true and then it apply to sentencing analysis and this is not proper because number one there word speech that were raised in the midst of the sentencing hearing number two when a defendant does object to statements  the pre sentence report the burden is then on the government to produce reliable evidence to establish proffered facts and in this case and there is no presumption that factual statements in the pre sentence report are accurate to the point where you then shift the burden of proof to the defendant to establish to disprove them in this case what had happened was that disputes were alleged in the government offered not one shred of proof or evidence regarding any any matter contained in the pre sentence report as yet still the  basis of materially false and reliable information when this happens and it's made and this demonstrably made a basis for the court sentenced then remount is appropriate vacation of the sentence and remember is appropriate in this case we cite for areas where the court relied upon unsubstantiated unreliable or false information number one was mr cal those alleged history with the confidential informant now your  honor again there was no evidence whatsoever presented to the court at the sentencing hearing regarding any alleged history with the confidential informant the defendant made admissions at the plea hearing regarding what do you admitted to but beyond that between these two individuals in the past in fact what the government admitted at the sentencing hearing was that the that the confidential informant failed to keep accurate drug records that the confidential informant didn't have pa so there was no evidence for that regarding the government's representations concerning the purity of ice on one of the percentage of addicts on one the government said that i thought it was ninety seven two hundred percent pure it's instantly addictive addictive addicting and that fifty percent of the population is addicted to it i was on guam for many years and fifty percent of the population i can tell you was not addicted to ice one in two people in your time is running a let me ask you one clarification question where  one can you clarify whether he has or has not completed the drug rehab program does he contends that he has and he contends that he has not used the i'm a little confused on this question based upon my discussions guilty to the charge without benefit of the plea agreement and that is exactly what he did but there was no plea agreement to cooperate with the government there was no plea agreement for any other factors he came in and he pled straight up kilos and that's why in subsequent hearings the government did not attempt to prove the amount because he had already pled guilty to that amount before judge manapul if this is anything  it is the motion to vacate the conviction and this is this is mr calhoun her attorney what he wants to do is take another bite at the apple and hope for s based on what he pled guilty to and that is more than fifty grams what do you do with the argument that mr vandervelde representation was a conflict it is irrelevant because me sometimes you can't tell exactly what a conflict will produce and to have someone representing simultaneously the criminal defendant and without revealing the conflict representing his supplier has clearly