receive full benefit of acceptance responsibility as provided in three one point one and the second was his age and health concerns that he suffered due to c o p d generative conditions and  consider anything that could have an impact on sentencing including why the government doesn't file or her point in this case is how we can textual because it's a procedural history leading up to the sentencing that creates a problem and that's what the grass where the again i'm not considering that he goes back to that he started at the beginning of my argument whenever i got up to present my basis for the variance after i was complete and the government got up to present its argument he said again i'm not considering that was going to give any particular credit to the fact that the link the guilty plea was due to the fact of the delay in the in the in the deciding of the case if i remember the record correctly want to file for a third point and as i say it is not appropriate for me to come to the court and ask that you order them to do that or to grant a variance they still lean on that basis that's not what's going on here a guideline require the defendant to waive a constitutional right in order to waive not just constitutional rights  way motions of any type in order to obtain the know to comply with the gut and in what the problem in my mind but the only way that the defendant could of oid that is by pleading guilty of mediately because otherwise you don't know when the court really have what happened in this case is we had a collision of three compelling legitimate sources we had the court schedule which has to be up to standard we had the government's need to prepare for trial and we had mr johnson's desire to protect his constitutional interests and those three things came to a head this is a case where everybody did it right and this situation falls outside of the heartland of  run because he gets a census twenty two months longer that's why we moved under thirty five fifty three each because the procedural history in this case moved very rapidly we filed a motion to suppress nine days after the indictment came down that one of the guidelines if that's correct go ahead mr johnston after reviewing the discovery decided you know what all i plead guilty i don't want to go with the motions yes that would have been the effect but on the flip side of that coin as we pointed out earlier finding motions and fully litigating his constitutional protections sometimes may have the effect of not getting full credit for acceptance responsibility even though he did it and i said so is that a case of first impression is because we had had to prepare for trial and to try is that the basis of the trial court agreed with the government and not grant the point i don't know your honor but i thought the answer to that question in his discretion and not as a a reviewer of all the facts i have a question about why couldn't you have informed the government that your client was going to plead guilty if he lost his motion to suppress which would have given judge white always rapid schedules which makes it very difficult both sides finish the report i'm sorry when we finish the motion to suppress hearing mr johnson was transported back to monday we had had conversations which were subject to privilege but mr johnson had indicated to so don't bother to prepare not necessarily because unfortunately we've had defendants change their mind after the fact and so i don't think that's the way out the way out is the way out of the appellate actually put in his briefs that the government could have sought a continuance and i don't think that's the proper way out either i think that if the defendant or the appellant could have stopped the court a motion to continue the trial date to allow for those is fifteen years and eight months not a lot but little hope for him yes but i think that the going back to my point is if the defense counsel sees that there is going to be this timeliness issue and he's filed a motion to suppress and that's within the short calendar that we have going to the judge and asking for continuance is not unreasonable and i and i suspect the court would have granted that continuance the court grants continuances on other basis particularly one brought by the defense not so much by the government for obvious improper reasons of the defendant is in a better position to ask for those continuances from the government and holds the key to the speedy trial would be given that or when we started talking about trial preparation they were actually discussions between counts my about trial preparation and particularly one witness that they had sent their investigator out to locate and couldn't locate nor could we for a period of time and we found them and we actually exchanged information on locating that witness they thought we were issuing subpoenas for trial which happened towards the end of their beginning of this process and when those blanks subpoenas were requested they knew we were hearing up for trial we had conversations on the fact that we were preparing for and needed to prepare for trial in order to be prepared then to both ask for a motion for a continuance i would have that would have been fine and i think that that could have worked and that's the reason that i think judge l'affaire when you're talking about this being  to i mean who are we to criticize anybody for delay in getting an opinion out i mean sometimes there's twenty seven hundred factors influencing when it comes out and so can say well just i understand so i'm going to answer the third point we have no criticism of the judge but the reason we didn't file with her point is because of the significant resources we spent in preparation for trial and that's a legitimate benefit of the cert he did it also but the court here said no i'm not going to consider that because i believe that counsel for the government's in good faith and they tell us that the reason they're not asking for it is because they had already started yes and i think that as judge kelly pointed out judge white did consider these things and in fact had already looked at the law in terms of whether or not it was animated by an unconstitutional motive or not rationally related to him in a government end and he actually had practice it's not people that did boyers i'm personally very opposed to continuances generally but if a defendant asked i rarely object even though you're going to have to deal with this trial preparation that you might it's unusual that's or continuous of this sort of these types of circumstances these circumstances don't come up that often so it's unusual in that sense that he recognizes his rights are very few recognizes that this would be the same time as he would impose regardless of any of the factors out there and i believe that to be the case and as a result we believe that this case should be affirmed and he was sentenced to within the  as i say in the record i didn't feel the need to do so i didn't know how long the court was going to be taking in for me to stand here and say i could have done it is just rampant speculation i don't know how judge why this wonderful i'm sorry hindsight is long or when the government starts to prepare for trial i'm not they don't inform me of those things mr burris and i did have conversations about that with patients of certain witnesses that is true but the reality is i filed my notice intent to appeal as soon as practical under the situ under the context of the case and in and for that reason we would ask the court to remand with instruction thank you very much