my name is ian lewis and i represent the appellant to martin a sales the issue today is that we believe the district court abused its discretion when it rendered eighty five month sentence a sense we believe to be greater than necessary under thirty five fifty three day the point that i'd like to make with my time today is that it is our position that the government has conceded this point to us as evidenced by their response green specifically the second point of their response brief in this case the codefendant was rendered a enhanced meant for being the manager leader and organizer of the scheme and enhanced meant that my client did not receive however they both receive the same eighty five month sentence the government's point is that the codefendant cannot show harm to a substantial rights because he got the enhancement however he got the same sentence as my client now i'm not here to argue whether or not that point is correct or not but if the codefendant substantial rights were not affected then my client's rights are substantially affected because it's almost like a law school question two twins commit the same crime have essentially the exact same criminal history regarding points not actually what they did in the past if there is one variable which is the enhancement for being a manager leader organizer what type of sentence should they receive and the answer is would higher percentage wise yes but here you have you know the discretion that the supreme court has told us we have to give to the district court the only thing that i'm not the only thing but one thing that bothered me was the district court really didn't explain why these sentences were the same i mean i it could be that he thought that to maybe get to lower sentence to the other go to van it and i do have an argument your honour's a five hundred sixty six percent increase i don't think any would argue is not extraordinary it's extraordinary and it needs to be supported by extraordinary facts and the court is correct doubt i do not know what the district court was thinking when it rendered such an interest such an increase and that's why i'm asking this court to remand this case for every sentencing now what your response to the  if i know that district court does not have to follow the four day one and handsomest for criminal history but even under the we need some sort of logical fact to get us to in thirteen level increase there isn't one the district court speaks about my client's criminal history and then rephrase that as well we want to deter this kind of conduct because he does in the past we want to protect the public because he's done it in the past but it's the same factors his criminal history if not for that this would not be an issue and i do not believe that even under a guideline viewpoint that one sentencing factor could justify such an increase especially for a check fraud case in which the last met was under six thousand dollars for all these reasons your honour's i've asked the court to remain in this case respectfully for re sentencing to clear up this record thank you thank why the basis of my argument there brothers had similar histories and different levels of involvement in the conspiracy but in reality martinez although they had the same basically the same criminal history points and were in the same category martinez had made a career of check fraud maurice was not the professional that martinez what for since two thousand and one according to martinez the sentencing transcript this is what he's been doing for a living in fact the only reason that his defense lawyer was not enhanced for engaging in this pattern of criminal conduct is his livelihood was because the government cannot prove that he made at least a minimum wage over that time period charged ok love the court of the or no or the factor which since he says we recognize playing area give relief only when within our discretion convincers why oh why should we exercise our discussion be paying attention to it because because the breaches of the government's breach will cleargreen that first of all as a serious matter it reflects poorly on the criminal justice system as a whole and it undermines public confidence in the criminal justice system and practically speaking  eighty five months sounds far outside the guideline range over one hundred percent over what the what maurice sales believed would be recommended by the government and that that undermines the request an eighty five month sentence in martinez's case but i believe that you know what we have to establish is that there is a reasonable probability that there would have been a different sentence and i believe that there would have had the government not breached the plea agreement i believe there is a reasonable probability and that's because the difference in the brother's criminal history has to do with the nature of the history as i said martinez was a professional this is what he'd been doing for a living simply criminal history he had some driving while revoked he had some marijuana possession he had some cases that were similar to that but it was nothing compared to the level of involvement that yes your honor and in the they discussed in both sentencing transcripts basically what i'd like to emphasize is that the government's breach of a clear grima seriously affects the fairness integrity and the public reputation of the judicial proceeding it's a very serious issue and it doesn't need to be brushed aside here mr maurice substantial rights were affected by this and mr sails respectfully request that he receive a new sentencing hearing or if the court first of all the government's attorney which is myself made a mistake a stupid mistake which came at the light of to say that it's as they were held back to back the first set it's which was held was the water martina sales it which the government without a five much which was above the amount that the government recommended above the guy vibrated the government's position all throughout the case had been that the to defend its are almost identical the terms of their  one that organized the people who actually went out and cash the checks a collecting the money so they work together but it won't respect marie split warga nizer of the conspiracy this he deserve the hits me for leadership but in every other respect the government felt to defend it's for the same and should receive a similar set it's that being said there's no excuse your honor i'm conceited acknowledge that governments mistake and i regret it tremendously because i suspect that if i had not made that mistake we would not even this case were not of its argument but that being said i go into the second argument after the judge has already sentenced a person that i believe is substantially similar to the second man to eighty five months and i fail to acknowledge or fail to remember the agreement my requirement that i had to ask for said it's was that the guidelines bridge that's my fault i should have taken more care and not rushed into that second hearing to ask the court to appoint pows proportional such that's a mistake and i could understand the court may decide to teach a lesson to the prosecutor to remain and but the court doesn't have to that's the point i made in my brief we acknowledge that played error took place but played error a load is not enough as a love judge case believed these two defendants to be equal in terms of their involvement and their culpability and he made it quite late the record disgustedly criminal activity of memory sales at the fed his decision to give it happened it would have made the defendants even more similar not less similar even reinforce the position of judge a case at the site it's a should have been the say they should have received the same type of sentence and that the third argument of course the argument concerning whether or not these strategies are a reasonable it of themselves because they are above the guideline rage as a state or that the court has to look at terms of did the court the below make an accurate and adequate record to out other criminal history categories they had criminal history categories of six i believe one had a criminal history score twenty seven and the other had a chemistry score of twenty eight i believe mr and i say mr martinez sales had a score twenty eight of the other had a score twenty seven it is church look at pointed out while their crimes are differ to some degree they were also some other martina sales his criminal history was as big already educated what primarily a forgery  counterfeit check writing whereas murray sales had some history of drug activity at his criminal conviction but he also had a history of i believe of forgery type convictions as well so they were similar terms of their criminal history a judge case pointed that out and he beat quite a lengthy record about it in the record in the record what he discussed their criminal histories which i think supports his decision to upward depart eighty five mo let me ask you this one thing that does bother me here in addition to your violation the blue green was the district court did not in my opinion explain very well the difference in the sentences or the order of the substantial  received numerous convictions of the past are not received any substantial prison time for them and he felt judge casted that the more convictions you get the greater your punishment ought to be and he explained that that should actually certainly respect that but i don't believe the judge cases tried to hide them all here he made it quite clear that the reason that he was sad to see these defendants to above god might say that is that both cases it was because of their lake they had extensive criminal that a court have an opportunity to remain and the case should reset its with the devoted with the government making the right argument that it's supposed to make a god might set its argument i also there's also a second subsidiary question that was mean maybe they're not there maybe they're not asking to be voided but right that's true your honor and that certainly i don't have case law to support my argument so i do acknowledge that i could be wrong but i also understand the idea of contract law is to make right what the breach made wrong what this breach made wrong as i did not argue below first that it's authority what if when he won my office that's what i should have argued for that was my mistake that because it was a it was a mistake as last i ask because i think parties can agree on it on a question around yeah even if even if the law might take cord elsewheres right right exactly so at the end of the day your  i mean you have in your hands the opportunity to make right what you think was made wrong here the government clearly conceives its mistake and i regret it tremendously i wish i had not done it i wish i had moved more cautious at that time what i had to gauge to that action still not the less as i argued in my appeal brief the real issue here is not the government's mistake as much as whether or not that mistake it of itself requires us to go all the way back to the beginning of th and i don't think based upon the record that was made by judge caves that we need to do that a lot of this case which was the case cited by the defended himself and his pre back court did not find that particular breach which was just about a severe  did require remade back or set aside all that issue because there was no way to show that there fed it would have received a more favorable sat it's if the government argued for what it was supposed to argue for were you aware of the mistake before the appeal was pending i'm defense attorney that's my fault and i've got to take responsibility for that so i don't think i have anything else to add your orders if you have any questions i'll be happy to entertain them about the other issues of the case thank you  going to do something different than what the parties agreed to i would like to point out that santa bellowed also requires that the resounding be in front of a different judge that's the language of that case that i suspect we would not follow that's that's clearly not mandatory i be understandable and i believe it is i understand a bad santa belo i believe that it is the language that although the fairness of the sentencing i just want to reiterate that i do believe that there was mister morris sales substantial rights were violated here by the government's argument and i don't think that just by looking at martinez sentencing can determine that that was not the case i think there is a reasonable probability that absent the breach an argument maurice would have received at different times and i think that to dismiss this breach and brush it aside