lopez the issue before the court is whether the government's rights and reservations portion of the plea agreement permitted the government to change its position based upon mr lopez's post please conduct the section in the plea agreement  issue reads as follows the government has reserved the right to modify its position with respect to any sensing recommendation were sensing factor under the guidelines including criminal history category in the event that subsequent to this agreement the government receives previously unknown information including conduct and statements of the defendant regarding the recommendation or factor however if we look carefully at this language it does not permit the government to change its sentencing recommendation based on post play conduct this language is a contains a limiting clause sorry where does it say that the government can change its recommendation based on a post please conduct with the cloth with the limiting language of previously unknown information if we look at this language it limits the government to come undone that's an inference to be drawn from the phrase previously unknown brecht your are saying there's anything in there that says the government can change its recommendation based on subsequent conduct it can change it can change is the recommendation only on conduct that was previously not known so we need that's the language we need to look at previously pertains to information that occurred before the agreement was made unknown pertains to something that was not ascertained at the time information is knowledge of particularly events or situation so if the government warrants for example that before plea hypothetically if he committed another crime that could cause them to change their recommendation if all of a sudden there was an offense that he was convicted of that they didn't know and they miscalculated the criminal history guidelines that would have permitted them to change their recommendation however conduct after he entered the plea that occurred does not give them that right why is that so i mean you can look at at the phrase previously unknown information and you could also interpret it to mean that it applies to information that is new to the government when it is previously though limits it to what occurred in the past now we know that the government has had changed this modifies it's as previously unknown it doesn't say previous previous events it's as previously unknown again it's a limited again your honor respectfully it's limiting to what occurred in the past that means is if the government knew something about the government knew something already at the time it can't later change its mind and say say well we didn't know this but but but we're now deciding that we're going to ask for a heavier sentence based on something that we already knew about before but but at that time we agreed to to to this to these sentencing parameters well i would agree with you on that your honor but it also is limiting to what has occurred in the past as opposed to what has occurred after the fact of when the pl entered into and once the put got subsequent to that phrase subsequent to this agreement right and that limits the government to relying on new information that was that it got that wealth were why they didn't use the language but there is a recognition by the government that this phrase was problematic and they had started using the phrase in there to include conduct in statements of the defendant subsequent to this agreement to include post please conduct so there's a recognition that there is there is problems with this language that it is unclear and we need to look at what is the understanding of the parties and how much likelihood you think like to add language to it that says when we say previously unknown information information previously unknown to the government what we mean by that that the government may not change its recommendation  because of a crimes committed after this moment by my client so that if my client then goes and commits murder as and deals in drugs the government can't change its recommendation how much likelihood this is mere clarification because you say that's already what it means so all you're doing is is adding clarification how much likelihood you think there is at the government was that yes yes that's exactly what we meant a good thing we asked who we thank you for for putting in this clarification given that we have very little say in what goes in the plea agreement as it is it's unlikely that the government would give us anything on that generally we are handed the plea agreement and we're told this is it take it or leave it and if you don't take it then we have to take our chance of about a plea  and remand for the sentencing for a different judge thank you the morning i was jovial on to represent the government united states western district new york the issue here before this court is whether or not the government violated her breaches plea agreement and then whether or not the defendant substantial right through violated by any error made by the information it receives after the plea the government relied on this british particular provision it was brought before the district court of the time of sentencing and there was no objections with respect to what the government was clear at sentencing what provision it was news relying on in advocating for the enhancements that the court eventually applied the enhancements that were for obstruction of justice and for denial of acceptance of responsibility both of those in hansoms were plied based upon the defend his post police conduct of being released after plea being modest by the court to abide by terms and conditions of his release cannot you use any controlled substances and we found out that the court found out that after pleaded defendant decided to use controlled substances on at least three occasions that he was instructed by probation to report to the office and started reporting to the office he could office and make a monitoring and then  detail in in the language just in anticipating every type of conduct that could occur post plea i think it lets the parties know that if there is some information that occurs that they did not previously know about then the government can pursu the contractors language advocate or make reference to that information however decided to do at sentencing this court judge you record your answer to judge batsman's question it relates to the next word previously unknown previously unknown yes the modifies unknown yes and but i think in reviewing that term we also have to look to what it says just prior to that subsequently so you have to read it in that order subsequent to the taking of the plea it becomes aware preceded unknown information and which means judge that how could you anticipate every action the defendant's going to partake after the sentencing and it gives the government an opportunity to advocate its position at sentencing if it if it determines later on information that it did not previously know at the time of the because as indicated during counsel's argument previously that is it's essentially a contract it's a negotiation between the parties and if the government knew that the defendant was not going to accept and explain responsibility ultimately as he did in this particular case the government wouldn't government relied on this case was relied on in that particular case and this court found that there was nothing in big us in the language regarding the language as it existed then as it existed but not all and as it existed in the lopez case and this court found that the the j believe is this court knows the law's always evolving and there's always many reasons why the government or defense requests certain things why they modify the plea plead remits look at the plea agreement that we have here it's it's up to fifteen pages because it evolved into things that happen in other cases that warrant addressing the plea why that language was changed by the office i don't have the answer at this point in time what they felt but i think what we have to do is just look at the contract that we're dealing with right here and look at the doesn't make a bearing on or issue it here if if if anything it may make it clear i have to concede that it read into the new language but i don't think it does anything to make the language in our case ambiguous so your position is then that if the if at the time of this at the time of this plea negotiation the defendant said i want to make clear to you under this agreement that i am not going to stop taking cocaine i'm an addict and i can't stop you you may want me to stop but i'm going to continue and then entered the agreement under the plea you would then be barred because it wouldn't be proof it would be previously unknown that he's going to continue using cocaine you cou not then advocate for you would be stuck with your bargain because he did what you but you know he was going to do because he told you he's going to do it under those circumstances your honor i do agree with you however in those circumstances i can't see agreeing to accept responsibility under the same circumstances so i think there would be a difference in the plea agreement we'd be looking at under those circumstances than as we are now because we didn't have the benefit of knowing that he was can going to do this right he's right  right i think it goes to the very point of why we're here it's also in your to save it did it to raise the same argument in the district court judge yes judge sarah goes to the district court actually brought it to the courts and brought to everyone's attention we have to look at the procedural history of here of the of the application of the hansoms first of all probation found the application for the enhancement of the struction they also found that based upon their defend its conduct there was not going to be accepted responsibility defense filed a statement prospective sensing factors that indicated they did not have objections to probation finding and then after that the government filed their their statement with respect to sentencing factors that advocated for the non acceptance of responsibility and the obstruction who took it upon himself at sentencing to was to bring to parties attention the fact that the government you're making this argument to the court it wasn't a plea agreement are you violating lawler and they had a discussion on the record as to whether lawler was being that statement consider the statements by the government in the position of taking it made a finding on the record that he did not believe government is violating lollar didn't believe that they were not violating the terms and conditions of the plea agreement at that time despite the find the defense didn't object to that at all nor did they say hey wait a minute the government is violating that i believe they are violating the terms of condition to plead i believe that this term that this agreements in big us and that this isn't the type of information  substantial rights of the defendant were violated because as since there were no objections this court has reviewed the case for plain air and if we look at the case we can't say that the defense substantial rights were violated and we can't say that there's anything that affected the the integrity or fairness of the plea negotiate process especially five when agreed to them especially if there's no objection by defense and we can't say that there is anything in effect to the public reputation the judicial process one because if we look at the record judge require the defendant essentially at a one hundred nine saying you understand except the responsibility i can't i have to deny that and defended himself said yes i understand that so there's nothing anybody's going to look at and say that the government did something wrong twenty four months for those reasons all those reasons i said i respect request that the sentence not be disturbed i'm sorry you have covered this but i'm not sure i understood you said that that the judge raised the question of whether of whether the government is entitled to change its recommendation based on on post post plea agreement conduct but did they defended take the position before the district court if the defendant take the position it's taking here at the plea agreement bound you not to change your recommendation with respect to subsequent conduct none at all george was all and it was all one judge district court that brought it to the detention to court and i believe even reference and didn't argue it after the court had raised it nobody argued it even after even after the fact there was no objection would let's just point out something with the government's timeline that they raised in regard to what's happened as he's pointing out that the p s r did come up with a guideline calculations different from what was in the plea agreement we should also be noted in before the s r was prepared the government had informed the probation office that it did not intend to abide by the plea agreement and if you look at paragraph thirty seven of the part of the p s r it indicates that the government was going to change its position at sentencing one of the things that we need to look at here is what the government should have done under lollar while the just record did raise the question of all or follow it's questioning the government said that yes under law or a believe that it could change its position as opposed to remaining silent and just standing by the plea agreement there are many things the government could have done here what they've done throughout was to go against the plea agreement an advocate for a very different sentence what they could have done and should have done here has have remained silent as to the sentencing recommendation that when that was set forth in the p s r they would have been allowed to answer any questions that the court had regarding the offense regarding  the the postman conviction conduct and i understand it so the government said appendix ninety four we rely as a quote points out on paragraph nineteen dini of the agreement which authorizes the government to modify its position with respect to sentencing should new facts arise which the government was not aware in this case facts arose which was not aware that they had happened that the defendant after being released by the court to engage in proactive cooperation had engaged in conduct which is not only critical critic criminal but violated your honour's xpress conditions requiring him not to use drugs to comply with directions of the officers and to comply with the directions of probation so given that judge we believe that we have satisfied our obligation under lawler notwithstanding that we are requesting your honor sentence him to a higher sentencing guideline right or are you that the government sentencing position was in breach of the plea agreement is that correct that is correct your honor in fact it raises some questions as to whether or not retained counsel was ineffective at that time by not objecting we need to go into probably further hearings to deal with whether or not this was an effective whether or not there was a actually a strategy that retained counsel was trying to go by that maybe he was hoping by keeping his mouth shut on the law or issue that he could then argue for a lower sentence based on the cooperation that mr lopez did do we don't know that that would require probably a hearing on a twenty two fifty five petition however we can look at what happened on lawler and even the court's interpretation of lawler as to whether or not this was the correct decision for the government to change its position at sentencing i mean in terms of ineffective assistance of counsel which you're saying is something that perhaps might be looked into that's it is there any suggestion of ineffective assistance of counsel in your brief i just note that it's a possible explanation i've not raising the claim because to fully at deal with the whole ineffective a census excuse me assistance of counsel claim we'd also have to look to see how counsel how retained counsel advised mr lopez as to what was in the p grammont did he fully go ever over everything including paragraph nineteen d in the police grimm and we know that the district court did not review that at the plea hearing we know that at sentencing he came up based on the district court doing it the interesting thing is that when the district courts start to question the assistant u s attorney it's unsing he actually wants to go to the portions of the plea agreement allowing him to get out of a five k motion as supposed to focus in on paragraph one thousand d so he was a little confused as to which paragraph initially applied he that the court then directed his attention to paragraph one thousand d at this point we don't know and in doing so they didn't actually review the language on the record they seemed to be going off what their memory might be of paragraph one nine hundred eighty s so we don't know if they were in their own minds referring to the new language that's being used in the de in the western district of new york or the language that was actually in this  proceeding so we're uncertain of that as well so there's lots of questions here as to what is in the language means in this portion of the plea agreement and if we go by ambiguity and how do we