morning glenn garber for appellant and this appeal test the limits of the government's advocacy in light of its competing obligation to adhere to the terms of a plea agreement and it is our contention that the government crossed the line in this case and how it advocated for a stipulated guidelines for a guidelines range that was above the stipulated guideline range in the plea agreement now black letter law  position that what happened is the probation and what happened was then the p s r also urged to different enhancements for success sophisticated means that had not been agreed to by the part that's right right but the government didn't speak to that it spoke to why your client should receive the victim enhanced the net result of all of that was then the guidelines calculation higher than what was in the plea agreement but that was because the district court adopted the sophisticated recommendation right that's correct and what worked how did the government breach the agreement it is our claim that when the prepare pre sentence report the first disclosure came back and contained no victim enhanced didn't contain a sophisticated means and there is no direct inquiry about sophisticated means or a victim enhanced meant the government then writes an e mail to the probation department and advocates for the inclusion of the victim enhanced but which was in the plea agreement the net ok yes the net effect of that was to cause the probation department to ramp up the stipulated the the but what the big the the plea agreement says is that the government agreed not to in any way suggest that the probation officer or the court consider a sentence above the stipulated guideline range and the language in this are yes and ok this is language isn't just the language neither party will seek any departure or adjustment pursuant to the guidelines nor will either party the parties agree that neither a downward or upward departure from the stipulated guideline range set forth above is warranted accordingly neither party was terms of art yes this wasn't a departure well it's an it's joke it's not it it's my belief from this that this is an adjustment that they're going along with it it's an adjustment that they had always said and you would agree that they could ask for but it was in the pre sentence report that they would th adjustment was appropriate and they continued to say by arguing for the victim enhanced meant and allowing the sophisticated means to remain in the pre sentence report or at least can go into the next pre sentence report the final that went to the court it's our position that is suggesting to the court ok that the stipulated guideline range should be higher but there's another layer there's a couple of other layers to this but in their sentencing memorandum and this is on pages a one fifty seven and one fifty eight of the appendix the government then takes states that the range of either seventy eight to ninety seven which is the stipulated guideline range as set forth in the plea agreement or ninety seven to one hundred twenty one months as set forth in the probation officers report and the government goes on to say the government respect and it's not just the government's direct words and it towing you know one six starts to tow along with the plea agreement and crosses it even a little bit that is a breach my concern with your argument is that a fair reading this suggests that they could not argue for any adjustment that was not reflected in this agreement ok and they did the adjustment that added to your client's guideline range was the one identified by the district court through the probation department so while that may have resulted in a higher range than  government had agreed to it was always understood from the plea allocution through sentencing that the district court remained free to calculate the guidelines differently from how are you at correct  all right so how do we have a violation here i don't see i meet you think you think you have an agreement that the government would not urge these adjustments if the probation department or the court came up with other adjustments that brought you to level thirty two criminal history category one we believe once they got the read the probation report that they should have remained silent because they're advocacy for the victim an enhanced man had the obvious effect of raising that stipulated guideline range and they have an obligation to protect that stipulated guideline range was the essential benefit that mr coelho bargained for and then to go in in their net effect will it practically speaking is a signal by the government to the district court we're not only fine with the higher range which is beyond the stipulated guideline range that mr craig will bargain for but also go to the top and then at the s at least at the top so you have to look at it holistically and look at what was taken from mr quayle and look mr rich utah is a good advocate ok a strong lawyer but these agreements  drafted by the government and these clauses are questionable in these types of circumstances in the circumstances of this case and they push the envelope and what the defendant is is is getting from a plea agreement is  to curtail the government's advocacy in certain ways and although they may be itching to get the court to go as high as they can they have to constrain themselves if you are due to do argue for a downward departure we with the parties to greet you is that neither a damn word nor an upward departure from the stipulated guideline range set forth above this warranted damn order upward departure we can agree or our terms of war and their government did not urge an up or departure in this case correct or right them what they agreed is neither party will seek any departure or adjustment pursuant to the guidelines that is not set forth here in that's where the adjustment language is that you quote it right or right now that doesn't say that it won't seek an adjustment at odds with the guideline range discussed above that only the guideline range language agreement with respect to downward and upward departures it's that they won't seek an adjustment not set forth above and the adjustment set forth above to which you agreed is the victim and handsome and it just meant i don't to that were just me i think is problematic here because of this was just limited to departures the terms of art ok you're saying an adjustment is an enhancement under the guidelines and assuming that they are green not to seek any adjustment per soon to the guidelines no guideline adjustment that's not set forth here in that what set forth the arraign are the adjustments for offense level for the mound of money involved the last and there's an adjustment for depths i was sophisticated piece the argument is that they are implicitly arguing for signaling to the court sophisticated means is not argue for and i think that one of the problems that maybe i have is that what is there affirmative obligation to protect the defendant in this situation this is a unique situation where you have to enhance means that are in play here and if the group you can swing the microphone sorry about perjury sorry i'm at a loss the government is simply acknowledging here that it's going to be one of two guideline ranges either the one they're submitting to the court or they realize that the court has before it a probation report that's got a different recommendation it's going to be the court's choice it doesn't advocate for the second there the case law i think helps me a lot on lawyer and these are cases that are cited in almost every breach of plea agreement case where they talk about you have to look at the at the conduct and you have to look at all the circumstances and although the government not explicitly be advocating for sophisticated means it's walking a fine line and it's our position that across dead under these circumstances by saying to the court hey you now have options and we're going to be we're not allowed to say anything about sophisticated means but you know what you could do both ranges and if you're going to do either do the top of it have a new language you have a new language where the government advocated that the court adopt the higher of the two guideline ranges specifically saying adopt the higher range they're using ever words in whatever words do you have any language where the government advocated that the court go with the ninety seven to one twenty rather than this over the years to the ninety's that the government consistently talks about the a pleasurable guideline range and then once the sentencing happens and judge sullivan is right on sophisticated means right in the beginning the government is then in that range and is advocating for the top of that range so it's using a political ball and i think that it's cognisant at the rate the sentencing plea agreement or the plea agreement rather expressly allows them to do the parties reserved the right to argue where within the range decided by the court the defendant should be sentenced didn't it didn't once the court settles on a certain rein right they are allowed to  government's sentencing submission the one we were talking about a moment ago reflected a breach of the plea agreement well it's contained in the in the statement of facts and i believe it's in my in the statement of facts  said what happened but i don't see any where in your argument that you argued that that manifested a breach i mean you know we're here with the government arguing that you failed to trace any of this below and therefore that we aren't best was in that sentence that you pointed us to in which they said the guideline range would be either what was in the plea agreement or what was in the p s r and i didn't see you arguing that that was the breach in your in your brief with the wraps i overlook with the breach starts with the email and the breach starts with the advocacy to the probation department about the victim enhanced me without saying anything about the sophisticated means building off of on top of in my reply is this is a holistic approach and you have to look at all of the governments conduct to understand whether or not they're sending signals to the district court that this is a request for a guideline range above the so highlighted that part more in my in my arguments probably and i guess maybe a dawned on me last night that's significant it's important i don't think that you know i'm not it's not raised a part of this record but i do think it's something you should take into consideration and shouldn't ignore because with them when the the government goes in at the sentencing and says at least at the top of the political guideline range and reiterates what said in that  sentencing memorandum so construing strictly against the government grave constitutional rights are taken away by a plea agreement they have to walk a very fine line and i think that they crossed it in this case and you should find accordingly thank you morning i'm assistant united states attorney daniel merchant i represented the government for the district court i represent the government on appeal i'm going to be brief i just had a question for you at the outset quite a bit  i had a little bit of a problem with the fact that you argued that you argued for a sentence at least as high as the top of the guidelines range which inferentially is asking the judge to go above when you say at least as high as saying he would do well to go still higher now i must say i am somewhat puzzled by the meaning of the plea agreement the plea agreement says first of all one side says need to party w seek any departure or adjustment pursuant to the guideline range that is not set forth here in and then it says either party may see a sentence outside the stipulated guideline range based upon factors to be considered under under section of what set me does that mean we want to argue for departure but we can perfectly freely say to the judge when you go above call it a variance under booker kim so given bro and dog don't call it departures out that means that we're free to argue for the maximum without any limit as long as we don't call it departure we just call it variance is that what it means in short your honor yes and that's true for both sides though you groom and i think your honour's referring to a eighty four that's page for the plea agreement is very very clear about two things and they're distinct under the sports case law it's fine if if if if if if  the people you bargain with of the defendants understand that but is that readily understood that as long as they don't call it a departure i'm free to argue for any higher send the judge this is a really bad guy give him life put him away for ever and with no restrictions continue no restrictions resulting from the neither party that language is just meaningless if that's what that means but we disagree it's meaningless belonging to step back for one moment i can't look in mr so i can't comment on what he subjectively believed but i can comment on what the language means and we were director on or to the colloquy with mr quayle at the time of his plea when judge sullivan in great detail went over the plea agreement went over what it meant went over who would bound and who did not bind and specifically noted it did not bind him that is the district court that mr quayle might well receive a sentence above the stipulated guider on range that the just the court might well calculate a guideline range of there's no question that he might receive a sentence above it's a question of what the government will argue for that's that's the issue if you're telling me that this plea agreement means the government is absolutely free to walk in and say to the judge judge this is a bad person you should argue you should you should sentence him to the very very maximum that you possibly can yes the government is free to argue for up to the statutory maximum pursuant to the second full paragraph in the first full paragraph on page sides it's equal we're free to argue for sentence below the range that's fine if defendant so this is i guess this is a standard form and that it is a standard form your honor and it's plain that in this particular case the defendant's trial advocate which was not mr garber understood that and the reason i say that is because he initially asked for a sentence below the guideline range understanding he was free to do so the government advocated for a higher sentence as is quite common for the district court i do want to respond though to the point about a pluggable vs not a political and what it means with with two points so first what this appeal is about is whether the government's conduct violated the plea agreement not whether it could have used better language here and there but if there was any doubt about what that language meant it's result by two things first the footnote that mr garber left out of his argument which makes very clear not only is the government merely pointing out the fact that there are two ranges one of the plea agreement one of sentencing proceeding itself in which the government was talking about its position and it again used the phrase that the guideline range of the political range but so that there'd be no doubt about what the government was in fact saying it talked about the top of that range being ninety seven months that's the top of the government's range that's the top of the range in the plea agreement there was no doubt before the district court what the government was saying even if the government sentencing memorandum devoid of context might have left some doubt there's no breach here because the let the parties are decayed for whatever sentence they thought appropriate they advocated for very different sentences there's no question mr quayle preferred a lower sentence but the question is did the government breach the plea agreement by advocating for a higher one successfully and the answer is no there's nothing in the agreement that prohibited what the government did but even if one were to say perhaps there could be because it is construed against the drafter mr wouldn't it be a violation of the plea agreement for the government when the government has agreed based on certain certain adjustments basic offense level and certain adjustments to a guideline range of nine he said of seventy eight to ninety seven and then the probation office probation office inserts another upward adjustment so that the guideline range will now be higher than the one that was agreed to in the pleas grima and wouldn't it be a violation of the plea agreement advocate the court to adopt that higher guideline in front of a district court as to whether that was appropriate yes and that's effectively what happened in in lawler but it's not what happened here and it's important to recognize this is a dynamic process the probation office and it's a draft  so it says nothing about sophisticated means the defendants free to say something or not say something it's his choice the government stands mute on that issue the probation office alternately agrees with the government that is the enhancement the parties agreed to as appropriate it also continues to include an enhancement to which the parties didn't agree the government didn't ask for it to continue to do that it shows independently to do so when sentencing comes the district court has an obligation under this court's precedents to come to its own independent analysis of what the probation office felt sophisticated means was appropriate he asked if the government had any comment the government had none zero again stood mute there's just no breach but i want to make two related points it's absolutely correct playgroups must be construed against the drafter here the government but this panel here in plain error of you even if one could argue that maybe there was a breach under some construction of this language it surely was not plain or obvious to anyone before the district court and therefore it fails the first step of playing or the second point i want to make is even if this court were to assume argue endo that there was a breach and that it was in fact plain mr quayle cannot show prejudice on page those co defendants and the facts of this case and he made an independent determination it was warranted here on this record where mr quayle was the leader of the scheme it is not possible that anything anyone the victim in hands but for what he speak charged is government breach the district court would have reached the top guideline of ninety seven by  facts of the case and it doesn't fit the facts of the case because mr quayle was sentenced last and this enhanced mint was included for by this to be precise i'm referring to the victim announcement was included in the plea agreement of all defendants and was assessed by the district court against all defendants and by the probation office and so the argument that if the government had not pointed out what was apparent on the face of the plea agreement and it happened with respect to every codefendant judge sullivan wouldn't have realized that the leader also deserved the same enhanced men we submit just doesn't fit the facts of this case i may have over emphasized ok the part in a statement of facts about the sentencing memorandum however this at least as at the top of the a political guideline range that is not only stated in the sentencing memorandum but it's reiterated at the sentencing and i do highlight that in my argument section of the brief but i do i think that it's very important to understand them together coupled also with the e mail because what the government is essentially saying we'll use the term  pluggable guideline range but we all know here that it's above the stipulated guideline range and then they went further by saying at least as long as the top and i think that that is problematic not only for the sentencing memorandum but the sentencing in the way the government made those arguments because their signal to the court look we're ok with your higher ranges and even higher and even higher government is saying that they were perfectly free to argue for a higher for out for a certainly when judge sullivan is to addressing the agreement speaking of the mike i apologize for that usually i'm not accused of talking too loud but there's a big court room my my apologies clearly did not address that aspect of the plea agreement clearly did not make that apparent and i do think that that is problematic and i've been doing this for a long time i don't know what that language means exactly and what the government can or can't do in this context but i do think if they go beyond what would be the expectation of mr quayle oh which for the defendant or you're in for a downward toward his family circumstance primarily what was the justification in terms of the plea agreement the plea agreement said that under three five five three they did if any can ask for a downward variance and i believe the terminology that the defense use was downward variance but i don't think it's clear exactly what that means from the government's point of view least for the defendant how far they can advocate for was completely aboard with the proposition that either party can argue for above or below without any limit as long as you don't call that departure but very the defense took that position in the