all united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court court is in session for you good morning your honor please the court i would like two minutes for rebuttal you may have it ok thank you your honor this case essentially involves three distinct issues as i see it does abuse its discretion and not referencing the original sentence as in to subpoenaed by the parties in the plea agreement and differentiating them from its final sentence and then it is the  e prevented from arguing or contesting that the we do not know the judge's sentencing rationale when the two criminal history points were your own mislea argument are you trying to preserve morning well i think all three your honor but i do think that it does seem to me that not answering the two criminal history points which to me are clearer both of those criminal history points as articulated in the brief for appellant show that they should not have been included in the ultimate calculus that the sentencing court based their decision upon and we don't know of the state's case or government's case and not because they actually were guilty because otherwise why were apparently guilty to begin with so i think that's a specious  argument and i know that a couple of paragraphs were devoted to it by the apple leak but i just think that that's an erroneous issue and that we don't know what lewis gardner meant or enjoyed then so too should his decision to enter a plea in the st place because that's that's the whole idea of a plea agreement is that it's a decision to enter into a plea does you are you are you able to assure us that  r client understands that if he prevails on this argument and we went to remain and then allow him to withdraw his plea that he could ultimately end up with a longer sentence that that's a  possibility i can't say with one hundred percent assurance that he does understand that but i think he does understand that i've spoken with him on several occasions and it's my understanding that he does turn down your speakers just a little bit on that maybe feedback on your answer and there's about three minutes left judge i'm waiting and sleep checks the speakers before commits another offense it's undisputed he committed another offense your client also was questioned whether he understood the terms of the agreement and he said he did so why does the basis for the assertion that he did not understand that the government could withdraw from its agreement to make a held i would say i would agree with you that it's clear that a violation occurred allowing the government to withdraw from the plea but the it doesn't it seems to me that that should render the whole agreement  reason excludes other reasons and i don't we don't really necessarily know that absent a questioning of the defendant as to his understanding of the abused its the pews his discretion in concluding that there was no fair and just reason but that is the that is the standards are correct yes you are ok so just go back to you or your earlier issue but the judge looked at that statement if you will and said well there's no assertion of innocence here and so the turn seemed to take that into account in his decision that there is no fair and just reason to allow the withdrawal was a wrong from the to manage to to factor that into its decision and yes your honor we would we would argue that that it that it was absent understanding from the defendant as to what he thought about that issue the standard is well set out in the in this court's cases mr mattias talking about the sound whether he claimed innocence doesn't matter of course it does it's one of the factors that the court considers and there it's precedent for explained as it should have been the real focus here is that is the reason for the withdrawal is there a good reason for the winter on the defendant's argument is basically i negotiated this plea agreement for one hundred and twenty months to play that sentence and i ended up going to sentencing without that agreement and now i'm in a worse position and he did end up being in a worse position because he was sentenced to forty months more than that stipulated sentence was but the real question is why i think the mistake that i the defendant engaged in criminality there's no dispute that he did the plea agreement is null and void then the question is well should he get to retire from the plea itself for that reason in the answer is no the defendant question please there are just so i understand the sequence here they signed the agreement and then he committed an act and the government then moved to withdraw and was allowed to withdraw my correct that's correct it was an evident hearing and then as a result of that the district court never accepted the agreement is that correct proactive district court never excepts the agreement  sentencing when it can review the p s r to determine whether the stipulated provision is is reasonable and then if i might isn't it a little more complicated than that  didn't the court accept the agreement to the ecstatic finding that there had been a violation and permitting the government to withdraw yes isn't that the underlying premise here that sorry yes this section six is not accepted because the court's not agreeing at the cheaply hearing to impose one hundred and twenty months because it wants to review the p s r and into a court ever imposed the sentence called for by the agreement it did not it has its own building a higher sense so that's where i'm having trouble with the agreement seems to say that if the court doesn't accept the agreement and doesn't impose the sentence called f sentence do you understand that you would have the opportunity then to withdraw your guilty plea and he said yes so this is this puzzles me a lot the court clearly interpreted the agreement the same do well my answer is that what i believed he was doing there which is done in every rule that in case i've ever seen is follow what rule out in c one c says for it which is to tell a defendant if i can't determine that this  before we even get to that moment the defendant has avoided the police by and gauging in this criminal conduct and so we never reach that moment in the case we don't reach the moment where the court rejects the section si depletion and d the rest of the ruhleben procedures come into play but that would be fine if the court simply said if it doesn't if it rejects it but the court says it doesn't except that it does not impose the sentence that's where here you know my reading was that two concepts were linked to each other they were not independent and i guess my reading of it is a bit closer to mr al frames reading that but there is at least arguably some ambiguity here so yeah i mean i hear that what judge  expect that the defendant to be a mind reader we pay much attention to what the judge actually said how the agreement works and the fellow said yes he understood it and then he's told he can't now i certainly understand what you're saying i think that on the advice of counsel that it's experienced practitioner or court this would have been explained that this is what all of this means and it doesn't the court does not impose the stipulated sends the parties will be able to the defense will be able to withdraw from the plea i don't have it exactly in front of me but that's my understanding of our plea agreement counsel did you say earlier there you know it also given paragraph six doesn't read the way you just said it paragraph six reads the way the judge interpreted it says by using the word by finding the parties mean that if the court will not accept the and he doesn't go free he is back and you can charge him with anything any of the offenses that you dropped in the is mean people are going to be i don't understand the downside of allowing people to do this because what are they going to do go out and commit a crime so they can withdraw from plymouth and then get charged with two crimes there are people so i mean it depends what crime and how the government reacts but that is the problem that the cases i talk about which is that if if a definitive there are many ways you could you could do something that the government then can withdraw from the plea if this will if this allows defended to withdraw guilty pleas as you have all seen there are many cases where down the line a defendant doesn't like the agreement he reached in there are many cases that say sorry you're stuck with the agreement you reach well if you can just actually size one of these are one of these  that wouldn't wipe out the agreement the government would then have the option of deciding do we withdraw or do we not withdraw so it's entirely up to the government at that point to assess the it will always be up to the government that is correct i t won't be a self executing thing but won't be a sought executing thing it will be the government's decision so so give me an example of the case where this would blow back on us i suppose although i don't accept the premise that this to be agreement says that because i don't think the court rejected the plea agreement and i think that that is a rule eleven term that's what this is about that is not what happened here so i guess on that front i don't agree with in agreement under principles of contract law should be construed against the drafter of the agreement and highly technical legal arguments about the possibility since the future should not ascribed to someone in the defendant's position as to being fully aware as as to what those circumstances might arise in the future so we're agreeing with you that there is some ambiguity some of the considerations the judge identified you know we do indicate that there are multiple considerations that go into the discretionary call so you seem to think that if there is ambiguity that means your client should be should be able to cross that your position then that is my position your honor and i would suggest that the seven actors that were on see it in the benton case any of the circumstances argument and that they should not be considered in the order that they were listed and that the the circumstances in this case includes what justice has mentioned concerning page nine of the police colloquy and the defendant's understanding as to his mental state when he entered into the into the agreement maddox an attorney a frame you should disconnect from the hearing at this time