case caused a substantially unreasonable prison sentence for mr cow way first turning to the breach the government agreed to no it would not argue for any enhancements other than the thirty eight base offense level based on the amount of drugs and the government also agreed to recommend a low end guideline sentence as long as kauai did not request a lower than guideline sentence but before sentencing the government filed a sentencing memorandum that in those cases the it was very clear that the defense had asked for the triggering event of the lower guideline or whatever release the government to argue outside of their low and argued low and recommendation and that's what's missing here and that's what makes it a prejudicial plain air here is that before sentencing the government asked for in the memo it said a guy has a sense within the range which is not low end and perhaps more preacher slee it engage in the exact exactly what the defense counsel alternately did and if the government had responded after that with exactly what it said in its written work to the court that you now find a breach of the agreement fence suggest the language that you find in the government's submission that you think is the basis for overturning this particular sentence there's a few but i would like to highlight i think i'm one of the worst sentences in the the record at page seventy three the government said it's a dangerously high purity high quality large quantity of methamphetamine that could devastate a community and that's just not that is very clear advocacy that yeah yes right it's not that the government represented false and misleading information and actually i retract that the government did represent that cow way had stated things to the undercover about firearms dealing and sort of being in these other networks criminal networks but the government knew and had some its motion for downward for x cooperation they acknowledge those were complete brags that kauai was showing off to this undercover agent to prove that he should engage in this deal so i will say that they're slightly misleading evidence in that the government knew how he was bragging and he was not actually engaging in other criminal actions on the record side government knew that he was about firearms that would be was a pictures of the bundles of methamphetamine in the government's exhibits and although none of that was ever in dispute we were always under the actual methamphetamine guideline so that was just yet another highlighting and reinforcing of a fact that nothing to do with the guideline calculation that was properly in dispute about the amount of these matters the district judge determined him or herself in this case without any reference for the government about the quality of the that the exact percentage of purity in that it was ninety nine percent i don't think that was ever highlighted in the p s r and yes that the district court could believe that this is a high amount of math that could devastate community but the point is that's what the guidelines are for the guideline of thirty eight was applied to mr kelly because the dishware found such a high level of methamphetamine in the conspiracy so arguing for this devastation of a community is therefore going for a higher than low end guideline guidelines as determined by the court but the variance above the guideline range of the guideline range was ninety seven to one hundred twenty one months  and it's substantially in reasonable sentences the doctrine and the reason this case is one of those rare cases is something i'd like to highlight that maybe didn't come out in the briefing as strongly as we wanted but says narrows was undisputedly the top of the guidelines the defendant to the coconspirator who got all of these drugs and distributed it down the chain in between this underlying conspiracy and sentencing he was charged  cisneros was charged in another drug conspiracy in the state of california for cocaine so cisneros was a big time drug dealer that had picked up a new charge we had no criminal history no other arrests it's one of those rare p s ours where it doesn't even an arrest for a traffic citation or anything like that but how he was given one hundred thirty months upward variance and cisneros was given a low in sentence of one hundred thirty five months and that just cannot be reconciled will read for the united states government abided by the plea agreement in this case because the defendant did not object to the government's sentencing memo at sentencing arguments or claimed breach of the the agreement before the district court the issue is before this court under a plain error of use standard the defendant did not object to or did not claim a breach of the plea agreement before the district court because the plea agreement plainly contemplated the government sentencing memo which the defendant now for the first time on appeal claims constitute a breach of the plea agreement even if the plea agreement had not provided for the mutually anticipated arguments emphasizing the purity of the drugs and concludes by saying that a sentence with the guideline range would be appropriate in this particular case how is that not a breach of the plea agreement which under which the parties to to provide to the district court additional information regarding the nature the scope and extent of the defendant's criminal conduct as well as any aggravating or mitigating facts or circumstances the defendant had filed a sentencing exhibit which i believe was about a forty five page document primarily the substantive portion of which constituted was constituted by a self serving letter from the defendant in which he made a number of claims minimizing his role in this nine defendant title three wiretap conspiracy that stretch from hawaii to nevada to colorado claim that he basically was a victim of circumstances had been sitting in a bar when someone approached him and the next thing he knows i'm paraphrasing next thing he knows he's he's conducted  to methamphetamine substantial methamphetamine transactions for substantial amounts of money and a response like ali question are you saying that what the government's memorandum was merely a response to this letter among other things that the defendant already produced in part you aren't a defendant also he had not filed a sentencing memorandum making the specific request in looking at the pre sentence investigation report he had made a request filed objections with the the probation officer and had requested a below guideline senates it is appropriate in the defendant's case and explained why that was on september sixth the sentencing hearing was on october thirtieth the government found it syncing memorandum i believe october twenty sixth so in addition to his letter that he made a request through the pre investigation report which goes to the district court so that it's in response to all these things out there plus that the plea agreement provided for the government to allow for the government to provide additional information when the five k motion by the government is not great at the knesset it's appropriate essentially the government concludes this five page memo with well in the government's assessment a sentence with then the a political guideline range as calculated by the district court would be appropriate is that the withdrawal of the low end offer i don't want to say all that just mistakenly typed in here i don't know exactly what went through the mind of the the prosecutor who filed this and i don't want to sail too close to it but it's within he asked for within the guidelines and it's technically i would submit he's not asked for anything above the guidelines and then i would submit if that indeed is characterized as as a breach at that point which for the reasons i've previously attempted to submit to the court was not at the sentencing hearing the prosecutor multiple times asked for a and sentencing made a low in sentencing request from the district court of ninety seven months there's no dispute before this court that that the defendant's sentencing guideline range as determined by the district court was ninety seven to one hundred twenty one months that the prosecutor asked multiple times for a low end sentence of ninety seven months so if indeed i was and it was not a breach to ask for within guidelines minutes after the defendant had submitted his his letter minimizing his conduct and had through the p s r asked for a low in guideline sentence then the government within the plea agreement was permitted to ask for anything within is a political guideline range but stuck to the low end sentencing recommendation before the district court and i'm just wondering if there was a mix up with mister because it sounds like the sentencing memo the government put in was very much responding to the this conspiracy so i will from that point of view that wasn't anything more than the district judge already had it they need to emphasize it and is it a breach to emphasize that when the fairly nominal on facts but this very extensive facts and and the district court had that information from the plea agreement and from the p s r but i would submit that the government was entitled to  to point out these aggravating facts and circumstances in response here to this defendant's letter primarily where he minimized claims that he was  sentially sitting in a bar when somebody needed to counsel with respect i think you said that letter was dated november i'm sorry september sixth the plea agreement was dated september thirteenth  and sentencing memorandum was after that so whatever he said in the letter that you found to be highly realistic and it had to be responded to presumably that was taken into account at the time the p s are the objections to the p s r were made on september sixth ok so let's take that the objections were made september the sixth plea agreement was the thirteenth of september so statement i think if i understand your honor's question i think there's the defendant entered his plea on september thirteenth two thousand and sixteen and i believe that the p s r what i'm if i may be confusing nine defendants and probably a complicated case from that since where but the district judge made made it clear that he was intimately familiar familiar with this case had been resting with him i think he said for over three years he was familiar with all defendants the nature and circumstances of the defendants this defendant's conduct his role and he imposed an appropriate substantially slightly above guideline reasonable sentence so let me see i just want to get your are going to hear you have two reasons why the government didn't reach for not asking for a loan when that one and that  he wrote a letter saying you know i got caught up in this mess and there was to the probation people he said i really would like a guidelines  low lower base offense level based on his involvement in the amount of methamphetamine he claimed is only ten pounds the government wanted him held accountable for seventeen pounds of methamphetamine  cisneros pleading guilty so that in itself shows that he is he warranted the three level departure downward for that substantial assistance but then the district court basically eviscerated that three levels by the airing up one hundred thirty months which was five months below the original guideline and i think that's our strongest substantial and reasonable he got the most levels for cooperation and got absolutely no benefit for that at sentencing i want to ask two  sentencing memorandum did not reflect the plea agreement so where's the where's the plea i know argued that the interactions with probation is not the same thing as formally asking in either the sentencing memo or at sentencing for the district court to impose a below guideline sentence you can argue and try to hedge your bets with probation but that doesn't mean that that's going to be your position at sentencing and under the plea agreement where are we with the amount i take it seventeen is the conspiracy amount and you are going seven is what he's responsible for yes based on the finding the district court only ever held that she was quote how he was aware of the other ten pounds and that's under relevant conduct not enough it needs to be something as part of cow is agreement with the conspiracy argument is unless we have a breach of the plea agreement those arguments are way yes you're on to that p yes thank you