constitutional unfairness implications considering mr mcgrath's arguments on their merits is not only legally correct but doing so leads greater certainty and clarity to the criminal justice process a criminal justice and has been and is still sending people to prison outside the federal bench his control has led to very little exercise in the defendant's constitutional rights over the past thirty years review of these claims because no meaningful harm to the government considering the limited scope my asked and i just don't know if you can make a constitutional error off out of this sentencing proceeding and i would think you could make a constitutional claim of constitutional asked any sentencing proceeding and they hope value of zero plea waivers appeal waivers which often work to the defendant's benefit likely well your honor as to the boiler plate language respectfully i had this argument based on the words of the trial court and the argument that this is bo since based on the guidelines in the factors more specifically the factors is important to address on the merits because we do not argue this in a bull play manner that it's strictly based on the principles set forth in the prece court and that supreme court decision of the trial court should not be made based in any way on the religious principles in the court said it and of course says that there would be doing standards whether or not this religious police principle or any other appeal waiver that is part of the plea agreement the argument is not going to address these are just we have two arguments on appeal the st argument is that a due process violation of this nature does not fall well i would go back to the cases and in these things are reviewed for essentially on a contractual basis about consideration and the only really the difference between the contractual type review here is that defendants are given some deference because they are not quite in the same position as those in normal contracts and because of the the type of serious seriousness here i do not see i would argue  that there's no provision for that says he is right to be since by court by a court that doesn't consider religious principles again not understand the court has to make a decision whether or not the comments in the court see rise to that level but just as a matter of public policy and the literal language of the waiver if it's not explicitly included then it should not fall within the waiver that my client signed that the  well not my concern was with the language in the waiver that says waiving any constitutional challenge to the calculation and imposition of any term of imprison and so if you could tell me how you get beyond that language that would be helpful type of fundamental protections from intrusion of religion into all facets of our government are important and to that extent that type of application to an this court and so i think there's a lot of just very practical problems with not addressing on the merits i don't really think again these types of i'm sorry i want to yeah i follow that that impact of that level of improper sins they say can you point to that and so far you know the reference to things like but for the grace of god in some references to soul in those things but what would you have yes your honor i appreciate the question and i do credit the government for bringing out these other cases and essentially the argument is in other instances this court and other courts around the country have seen arguably stronger language more mention of religious principles in the tenant thing and still upheld it as every time i mention in my brief the standard in any direction and i'm not i don't know the facts if they did it didn't seem to me that this was a religious kind of sensitivity degree that they worked in any direction they worked probably in your favor in the direction of mercy wouldn't think that we would want to eliminate mercy from sentencing proceedings a lot of defendants  stretch frankly of that when we when we get a so called constitutional claim that is such an incredible stretch i wanted to come back to judge c point which seemed to me to bring it within the scope of the plea waiver and once again and the clear waivers are an important part of plea bargain and you may not like them but sentence and so it seems to me you're working against the interests of the defendants in both of these ways one by compassion out of sentencing hearings and that can't be right specifically christian and more so protestant but it is a christian st and mercy does exist within the factors of three thousand five hundred and fifty three dollars a through the characteristics of the defendant and all of the factors that was noted by the trial counsel and in my clients and to the extent this court reviews these things i guess the question becomes the language of type of remote argument may be losing track of time but i did want to address the procedural issue with the nd argument since it was such a contested issue on this constitutional claim i know it's a concern of the court on this procedural reasonable whether or not this course is addressed the procedural reasonableness of the sentence mr mcgrath was already at the high end of the guidelines therefore the court actually normally  i know the court has reviewed these plea agreements and the waivers is that if it's above a certain gallon level well then the defendant can appeal if it's below then the government could feel but on the nature of this plea there was nowhere to go above so essentially there would be no guideline calculation that would mean that could have allowed for any kind of the peel and as mentioned in the paper that i listed in my reply brief this court should consider the consideration that given asking the court to consider the consideration given to each portion that it relates to something he did the defendant give up something did the government give up something and respectfully there was never going to be a situation where mr mcgrath could sentence because he was already at the astronomical lifetime sentencing and so because there's a lack of specific consideration i would respectfully ask the court to consider the merits of the procedural reason those arguments specifically because it's so important as we move to a more science based or data base and then things since we really several to typical arguments that come not from lay out their sources they come from the federal government's own is a very serious issue so we would ask that if we are going to move to a more science based decision making process to have to six be considered because that was one of the founding principles of the guidelines themselves that they took this data to pornography would be dropped and exchanged for a police station of a minor along with a simple child pornography possession and he notes that the original mandatory minimum was fifteen years whereas the minimum  waiver and in fact what the defense did was trade a mandatory minimum of fifteen years for the maximum of thirty years for a mandatory minimum ten years but the maximum of life in prison and i type of challenge is outside the scope of it is within the scope of the waiver it's not in one of those narrow exceptions that would be outside the scope of the waiver and the court  connection would apply that's where we are in the framework of the court your honor and let me explain why the government doesn't believe the facts that are presented here that they forward the st claim in this appeal has to do with the statistics aspect of this which goes to essentially whether it was procedurally whether the judge considered  is the type of guideline consideration and proceeding within sentencing that would be within the scope of the waiver and there's many cases for instance the general case in which some i didn't argue that those were things that would be subject to the waiver but there were three issues that would be subject to way when they had to do with how things were considering at the hearing itself guidelines calculations and things of that sort this client with respect to st the circumstances in the show and i think that's exactly where the court is in this case and should be in this case your honor here the defendant put his best foot forward cited the baker case but didn't but in baker as a legal matter there were two things one was there was a judg expressly identified with the with the religious group expressed their religious orientation with respect to the facts of the case a and b then punish the defendant with  and therefore your honor is based on the fact that this doesn't even get to doesn't certainly doesn't get to mr carriage of justice no showing of the miscarriage of justice and it's and there was the potential perhaps that this would be a case in which is in the end permissible factor like race that was considered but once the facts are put forward by the appellant as it would have been a response a motion to dismiss so i don't think that's really an issue here appeal should be dismissed because the waiver still operates against the arguments that are made by the defendant and the apo lo i pretty much covers it client for permissible raising such as religion or race i don't know how we parse can parse that out and if the conclusion is that it is contained within the appeal waiver then the the court because of the serious nature of ensuring that the credibility not only to those observing the proceedings are participating and those who are subject to it that the corridor decision based on the merits of the cl from the bench that show these are the types of things that make this serious for example the trial court was at length to mention psychological harm the court's experience in reviewing kind of what happened to the victims there were victims letters that  they themselves shared the harms that happen that are not short term they can definitely be and are long term but the dimension of the soul is not required and i guess the kind of mentioning of that it can make a point but these points that are made in this way point to the idea that there is a manner in which the court viewing the events that are directly to the baker case that was over the top but there are clues that are given by people that make decisions as to what guided them and certainly people have a right to  punished so that they know that what they are being sentenced for are perfectly usable factors and not based on in the sentencing courts of the world to a religious and it's important for the credibility of the judiciary and its are as we become more diverse and and that's where the argument lies with respect to that and i think that's the argument on the the court will take a brief recess before hearing the next case