i'd like to start with a discussion of what i think may be the most important issue in the case and that concerns the prosecutor's refusal to allow the just your court to award court as opposed to a third point under guideline section three one point section section three a one point one b at that time congress took from the judiciary its power to fully determine the third point reduction and shifted power to the prosecutor to determine fact versus wade the supreme court held that it is improper for a prosecutor three fused to take some action within her power based on an unconstitutional motive or in that faith or for an arbitrary reason which the court there defined as one that's unrelated to a legitimate government and the court also held very district court has the remedy has the power to remedy such an improper refusal in this culture met the requirements for receiving the third point by pleading early enough of the government avoided trial preparation and third the government refused to make that motion to allow the district i don't think that the government goes that far if you'd say that he was prepared to present the testimony of his mother in support of the derivative citizenship defense so it's not the recollection of the record that the government's didn't have to do some additional investigation in order to disprove that you did say that it had its agent review the mother's immigration file and found some affidavits that's just a short review that occurred in the beginning the case and  response to a defense initiative to dispose of the case to resolve the case without trial even though the government says it was prepared mr coaster that's this is their untested allegation mr a coaster and the government place there's a letter that the prosecution wrote shortly to the defense counsel shortly before the plea occurred she starts out telling the defense quote we need to resolve this case and then she talks about her position on some of these whether a trial is in the offing so that process meaning the trial process may begin and quote this is clear evidence that they have not yet begun to prepare this court i would cite to a case of us vs kimb unfortunately i was unable to cite that i just reviewed it yesterday but in temple the trial court talks about what was that the static that was decided in one thousand nine hundred four and it was decided in the context of whether somebody did qualify for the third point what the court looks for is there something in the record which is that the district court would not have imposed any lesser sentence had it known that the guidelines were advised and i think there are many indications throughout this record that the court would have imposed a lesser sentence if gave the bottom of the guideline range you gave a departure it granted other reductions so i think every time that it had discretion it exercised it in its favor i think the record is not clear enough for the court to say but this district court would not do better under all of the book or decision and i believe that this court's case law since i'm willing essentially it's going to result in a limited remained at least to the district court for it to decide whether it would impose a materially different sentence but this court also has other case law which i the rule twenty eight a letter which talks about how the court's going to resolve challenges to the guidelines first because an anomaly in the court said essentially that the starting point for a reasonable analysis under booker is what's the guideline calculation and in order to for this court to know what's reasonable we have to go through the guidelines calculations first and i think then send it back our request for relief exactly for every man based on the guidelines claims that we made cultural assimilation and not and redo that process without having a legal mis understanding of this court case law so we're asking for the limited remain and but first we ask the court to resolve the guidelines questions and actually give a full remained on those errors of the court can determine a correct guideline sentence to begin the process of deciding what are reasonable sentences  plea occurred said we haven't started the trial process and i know that i wasn't able to cite the case but that the case that came full which i had just come across yesterday at twenty seven f thirty forty nine the court there says it has to be meaningful feel to make a motion this is on e r page twenty six of the sentencing transcript and i quote the court quote the issue of getting three points for acceptance has been taken care of because the government is not going to make a motion to give you the extra accepted responsibility actually the pre sentence report had recommended a three point reduction but the prosecutor came in before sentencing and said no you can't have that because we're not making a motion and i didn't make the motion because they had to find out they had to go do some research into the mother's a final to find out that the story your client was telling was false but your honor that i think that was a very short amount of time if you take it had to be done twice once in many and then because at that point as a prosecutor you don't know if you're going to trial or not i mean the concept of the guilty plea is not happy do any preparation and somebody please guilty you're done with the case but if you're back and again i'm sorry to the careful case which hasn't been cited in the police but i'd give the authority to the clerk at the afterwards but in my case they say it has to be meaningful trial preparation in that case there were motions to suppress that went on for a year and the court i think recognizes that in all kinds of pretrial motions the government's becoming familiar with the case i mean that's a preparation for trial but pretrial motions and this case disposition process is going to case can go to trial or not that's what it was about the prosecutor could have said in the beginning i don't want to hear that you need to take my plea bargain or i'm going to go to trial the prosecutor didn't do that the prosecutor should have gave notice april twenty first just a couple weeks before he pled guilty that we still haven't started the trial process this i think is a post hoc rationalization when you take a look at what the district court or what the prosecutor told the sentencing court it's that the real reason is because we think you have struck the justice this is an untested allegation what they should have done is go to the district court and say you know what we don't think towards the coast is fully accepted responsibility we think you should get an obstruction of just by the government i would direct the court's attention not to e r seventeen where the government attorney simply says that the exhibits and witnesses for trial have not been put together which obviously there's a formal process to have to prepare for foundation and so forth as opposed to compare if you are fifteen and which is another letter from the prosecutor which is pointing out to the finance coun we are repeatedly reviewing this file you are raising this defense which is a defense that had to go to the jury if it was presented it's not just like a suppression motion of the judge could decide a derivative citizenship and because of that we not only have to look at the papers or you presented to us but we've gone back and we've pulled is a file compare to look at the dates found out where the mom was swearing that she actually was a resident mexico and so forth so yes there was in fact significant trial oriented preparation that was going on and it was not until in fact this phrase the fans had been exploded and that the defendant plead guilty and that's why it was untimely which clearly is a legitimate reason for the government to withhold moving for granted septa's and i would just point out to the court the reason why this is not unconstitutional and not a  branches have a part play and it's very clear from this court's prior line of decisions dealing with granting the authority to the government whether or not to agree to departure is a substantial assistance that the government has a legitimate part to play in deciding whether or not to the conditions are right and what the feni amendment did was to recognize that there are certain things the courts calendar which  is its own economies and its own allocation of resources need to be considered but the government also has its own allocation of resources problems in this case is a beautiful example of it usually plea case goes off th and the story corps tactic and it has not had to expend anything but how did we get to that point the government had to go to the trouble of reviewing always documents having its agent checking all out in order to persuade in effect t government also has a reasonable degree of input from counsel do you agree with the cases cited by your opposing counsel if the failure to depart were motivated by toward the first two points because you're getting yourself just records docket we don't have to give you the benefit of the third point when you basically put us a prosecuting agency to all this trouble what's your response to the policy and counsels argument that the government did not ily or inappropriately and the facts here are that it was a very appropriate use of our discretion if we had said we're not going to give you a third point because of your race or religion or something like that that clearly would have been out of bounds and improper since we don't have a due process problem which is different from the separation of powers issue then it was clearly within the people who prove you a prosecutor to say you have your l judges were operating in our now and attorney guidelines themselves district court judges are always cognizant of where they are in the scheme you know the spite having discretion still which says that we only do this if it's impossible for us to tell what the district court judge would have done or if you wouldn't i think the language is going to materially different of sentence had he known with the guidelines revise error applied in this way it would seem to me applies to both as well  that that approach was entirely appropriate under the language of lipmann itself everyone recognizes that lippman is kind of the seminal case and i direct the court's attention particularly to pages seven thirty one of the opinion where repeatedly says that   simulation tell us about character and if specifically mentioned that the district court in that case had appropriately considered a prior criminal history in deciding whether to give that a departure  court said so i'm going to give you only one level off for your newly culturalism elation and then the government believes that one minute on the clock when the government agrees that in his brief that the court believed his th that it's not giving any consideration to what happened before he reentered and that's the reason why the court committed legal error in the extent of its downward departure and why the court should remain and for that reason if the court has any question about whether the government did prepare or not for trial i think in light of the government's concession that weight of flies and that their peers to be nothing that the court recognized that it just court didn't recognize it had the authority the courts should remain and give the just of course the chance to decide that issue remained to decide whether you would have imposed a materially different sentence what's important from this court case law subsequent to the lane is that the guidelines issues are separate from that because the court has to start with a correct guidelines calculation and it's not going to do that i don't think it can't do that on the only limit degree man is the way i read this court's opinion that's why i think a fully man just necessary for that to allow the court both with respect to cultural assimilation and the weight issue and separation of powers or to have had the exact sentence was based upon and whether or not this is the sentence would have been materially different if the guideline if the that was had and ties way rather than mandatory so i'm not sure that your point is well taken because the record does not