can i just want to be sure you're not making any claim that he didn't that your client didn't agree to the to the to the agreement and we recognize that he  plea agreement has merit so we sent it back just for that reason the only remedy would be for the district court to expressly adopt a plea agreement so what purpose would that have your honor we would think that if  case i apologize so if you just assume for a moment hypothetically i thought it was pretty ambiguous as to whether or not the district court actually accepted this plea or not the premise of your brief seems to be that the remedy for that would be that we would declare we would sort of declare this plea agreement non binding not enforceable so that the the waiver would no longer bind your client but i and maybe this is the same question judge mots is asking if we thought it were in big u s why wouldn't we send it back and let the district court say one way or another whether he's accepted it is accepting or rejecting the but the problem with that answer is that in answer to my st question you said you made no claim that your client didn't enter a valid plea agreement that isn't your claim at all so if you can s do other than just reject all formally accept the plea agreement since you have made no claim that there was an invalid of the in the police just a simple question what could it do more i know what you wanted to do you report to review the substance of procedural reason most arguments absolutely and then the window being open if we dispose of it and you hope not unfavorable to your client in the window close this sentence is that but if we were to affirm the sentence we should still send it back and let the district court and the district court would then either accept or reject the plea and believe the window is open because  that would require a court to look at the entire sentence in other words there are challenges to other parts of the sentence we send it back and the district court often will have the authority to look at the whole  don't claim any defect to the other parts of the sentence except for this one means you instead that i didn't enter the sentence and he got the wrong and know you got the wrong guy like right you told me that it was the st thing out of your mouth if you didn't challenge anything but for lack of the district court to adopt a plea agreement for al obliged to raise all questions about infirmities of the sentence now and i'm terribly afraid i'm going to answer your question but i before the federal charges ever had really committed his whole life here in the path ology that within this is not your everyday bank robbery or other case where the motivations are just and we believe that the record reflects that the court accepted the plea agreement even if it never made an explicit statement that it had unconditionally done so if however the defendant is correct that there was no clear green and accepted recounted the fact that the parties had entered into a plea agreement that negotiated the resolution of this case from up front it details the empacher the p agreement had and the court without any objection from either party adopted the p confirmed that there continue to no longer be any matters disputed in the act and beyond that we also have the statement of reasons that reflects the district court's unconditional acceptance of the p s r you tell me when did these various statements take place  hearing obviously reflecting that it had received and review the p s r but i don't think that our argument doesn't rest simply on the reference as to the court's acceptance of the p s r we just think that that is a piece of the evidence showing the totality of the circumstances that this was an act expected beyond that during the court sentencing explanation we have the fact that the court highlighted that the defendant promptly accepted responsibility and pleaded guilty pretty important to whether or not the court accepted this plea agreement because if you'll notice the criminal information covered why i'm back down and it is black letter law that you cannot award restitution to victims who are not victims  is covered and that in the criminal information so when you look at all of that together we think that it is absolutely clear that the district court  the question is judge harris so your colleague started by pointing out that the district court wasn't the one who did the rule eleven colloquy in this case there were two different people sort of a division of labor and i will say that that's what troubles me about the case the possibility i mean i agree with you that there is nothing to suggest that the district court rejected this plea agreement and it seemed to operate consistent with the plea agreement but i worry that when you have two different people stuff can fall through the cracks and it's possible the district court just thought i don't have to accept or reject it it's already been done the magistrate get it and so that's my concern and when he says you know you did enter into a plea agreement in light of your sentence i believe that you've waived your right to appeal your sentence the i believe sort of stuck out to me like it's not obvious that he is doing sort of that careful read you would expect to be done in the process of actually accepting the plea agreement so that's my concern that there are two different people here and when you bifurcate responsibility that way there is the possibility that nobody gets around to actually doing the formal acceptance think that it is prudent for the district court has simply say i believe that based on the sentence that this would fall within the scope of the appeal waiver as opposed to telling the defendant something this court might not hold true i think that the court's law repeatedly focuses on the totality of circumstances when deciding whether to it whether  do you agree to this and we now have even on appeal it would seem to me that the defendant is not trying to get out of the clear agreement he seems to want the pl your question is just assuming hypothetically i thought it was ambiguous what happened here and whether the district court accepted the plea agreement or not i want to know what you think would follow from that because i can imagine one rule might be look at that same big us you should probably just presume he accepted it because he didn't reject it one rule or or you might say well if it's ambiguous then i guess you can't enforce the agreement but send it back right now to the district court before you reach the merits and let the district court clarify the ambiguity and say whether or not it's accepting the plea agreement and then i guess another result might be well if it's ambiguous don't enforce the plea waiver and go ahead and reach the m an agreement or not and i think it's very clear that the parties operated under the belief that this is the plea this is an agreement between that you again this from the beginning was a guilty plea to a criminal information the parties negotiated the charge and everything else practice for it to be an explicit statement i am now and conditionally accepting the p s r but it's your representation to us that this is his usual practice and he doesn't circle around and make a specific statement  statements during and after the sentencing hearing as well as awarding quest to victims beyond the counts of conviction all of this shows that the agreement was except at and i think also the parties conduct yes i just i just have one question and i may have may be misremembering or have misunderstood the record so set me straight if i'm wrong but does the font does the final judgment say that the government is not with the play agreement and i would certainly also suggest your honor is that if for example we had failed to move for the rd point of acceptance of responsibility of all this that and we decided we wanted to bring related charges i would s nine hundred images of child pornography and ninety six dollars videos of child pornography were a small percentage of your overall collection we think that that misses the mark we think that the court responded to the heart of the defendant's argument there which was an attempt to minimize the scope of the conduct and the court responded to that the court responded by saying this is extremely serious you have an enormous number of images there are fifty seven known that downs and countless more whose lives are forever changed by your conduct beyond that the district judge specifically responded to the part of the guidelines policy are the way that the defendant frames his argument i understand your arguments about other judges varying freebies for various reasons i don't think that is appropriate here and he goes on to say which i think again reinforces the idea that this was a very individualized  thoughtful explanation the judge goes on to say each case is unique each case is an individual case with an individual judge who has to determine what sentence is the mission but not greater than necessary for this person in light of all that there are fifty three  situation condition that was almost somewhat compulsion pornographic those type things beyond just rehabilitation but the whole a bit of the minute here was you very fragile profile person who was who led him to be wall to this type of behavior where did the court addressed that aspect of yes that's different in rehabilitation this goes to the mind of the person before that in terms of whether or not it was an impulsive type of behavior based on a problem now i don't see where in the record that the court addressed that aspect of that argument seven team this wasn't an average period that rehabilitation did not start until after he was caught and the court was convinced that the defendant knew his conduct was wrong  absolutely but he doesn't have to reach the mcnaughton rule in terms of not knowing the difference between right and wrong for at this stage to consider a mitigator that he had problems that led to this being a hook of a somewhat impulsive if not directly come policy of behavior that was his argument and that and that does seem to be frivolous i mean people very intelligent could be under these type of situation w dealing with and you're right maybe i was being arrested and convicted mismated land to rehabilitation but that doesn't address is and take charge if i may add to that i think that we have a combination obviously of a court acknowledging his intelligence and his awareness of it being wrong i think later on that same page however the court doesn't that there were gaps in his collection of child pornography you have activity from two thousand to two thousand and two and he goes through and he had knowledge is that there work out so to make then i think that other defendant conduct over a very long period of time record reflects that there were gaps which would run counter to the idea that this was that the child pornography collection was a composer that he was able to manage and  both sides it means that your client doesn't have a plea agreement at all now because it wasn't ratified that's the case because this is a contract that contract between you and the ratification is necessary to that degree then somehow there is no contract overweight we just believe that the issue before the school right now is is the waiver effective in its effect if the district corps accepted but it did and as a result the said you leave yourself open for getting a much bigger sense that we would still that in just a court would conclude is appropriate and we would affirm so we looking at sort of all of the risks here you still are pursuing this argument right you know i mean he served about twelve and a half years he did not manufacture i'm not terribly concerned about worst case scenarios i would so i'm sorry i'm just having a little trouble hearing you did you say that i did did you say that his on the exceptional rehabilitation and recovery was the central thrust of his argument and then what did you say after that  that is also how i read the both the district court transcript and your brief that the thrust of this mitigation argument was about the concededly very exceptional rehabilitation recovery effort did the was there a separate argument made either before the dysart court or in your brief an appeal that put to one side the recovery and the rehabilitation just that the argument the judge gregory was outlining put that to one side  this is the product of a mental issue and a composer and and the sentence ought to reflect that as well because i don't see that as a separate argument before the district court but if there is somewhere where it exists i would like to know