we are here to hear arguments in two cases united states of america versus use of united states of america versus campbell this is not the rare instance i don't think these appeals are about a broken promise the government bargained for united sentencing recommendation and didn't get it as for mr yousef he agreed not to seek a sentence above below twenty one months he asked for five and got six when mr campbell he agreed not to ask for sentence below thirty months he asked for a zero and got me well let me start  not with the nuts and bolts in the record of whether or not what occurred in either case was a breach but what is i concede more of a policy issue is there any concern on the part of the government that we the rd circuit to decide either or both of these cases in such a way that we either were condoning what occurred or seemed to suggest that it was permissible for counsel to argue contrary to the terms of a plea agreement that the government that the prosecution in future cases might be more not only crushes perhaps unwilling to bargain and enter into pl agreements and more particularly even if the case went back to a district court and the parties were left to have to either proceed to trial or enter into another plea that the government having after having been in its view bird in the previous proceeding in bird that the government would take a harder stance a more difficult position at least as far as the defense is concerned that's true your hon i would think the government is here on principle and if we are to allow defense attorneys and defense defending themselves to breach cleaving as without them being held accountable the government is in a difficult  by district court and asked questions which seem to seek answers that would be advocacy contrary to the provisions of the plea well that was any such stipulation what is defense counsel to do when there has been a material change of fact that is there's been sentencing of other defendants a clear disparity and a pretty dramatic one and their defense counsel zach asked directly about that the government is reserved to its right and the opportunity to speak to material facts is the government's position really did a material facts of come into being and the defense counsel is asked directly about them they can't answer the question of the court without being in breach of the plea agreement now that's not what we're saying judge in fact in no one cooper r there was nothing that any party disputed when it came was as you spew but the district court wanted to know about it asked specifically was pressing the defense counsel about it and when counsel for the government quite rightly stood up and said i think this was in conflict with with the plea agreement the district court said look i'm asking the questions here i need to know we were were in judge white's is policy in this sense in williams where he says the the district court has a job to do and if the government is preventing defense counsel from doing his or her job the district court can do its job it's a statutory mandatory job what's the government's response to that argument what mr consul in this at the end of that statement counsel could have asked the district court to him the sentence at the bottom of the guidelines that's where the proportionality argument ends so that one would end there because by asking for a sentence at the bottom of the guidelines the judge concerned about the bush analogy if the judge if she imposes a sense of the bottom of the guidelines that concern is not just because she's imposing sentence which she's concerned will be disproportionate to a similar they may not speak in response to the governments of the questions that the court puts to them are you not preventing the court from for filling its obligation by taking one of the players out of the mix and the government god thing for making extra remarks that that were later construed to be in violation of the police meaning could could be judge the sentencing judge at the sentencing proceeding is we have here let me hear from both sides where does that leave you well i think a valid point i think the court would have had to advise the government that it would be rejecting the plea agreement we talked about at the sentencing yes yes i think that the government would hasn't the government similarly had for lack of a better characterization here alliance interest in terms of where this proceeding was going even without the plea even without the agreement having over mentally been rejected events is they unfolded in the courtroom at the sentencing permitted argument that the government i presume was expecting would not be permitted given the explicit terms of yes i guess i missed the question and there will is the is the fact that the judge is making an inquiry just confuses me a little bit because doesn't the government always have a response when he speaks to three thousand five hundred and fifty three factors i mean the fact that there's a plea agreement doesn't mean that the government gets to say unless you've got to see play in place that everybody is agreed to in the quarters of knowledge it's and both defense counsel and the government have to speak those factors and any sentencing proceeding up course we're dealing with a plea agreement i we're bound by the the the range that both defendants agreed would be unthinkable to them and that at least in part is why you don't challenge the argument that it was appropriate to argue for leniency here correct because leniency very well could be the very bottom of the agreed upon sentencing i do defendant here got two months bottom of the range is twenty months we'd ask for leniency sit down that would have been all right not unless the you're saying that then defense counsel has an obligation to say we want to sentence with it it's not enough for them to say we have knowledge there's a plea agreement we acknowledge we're bound by the plea agreement we just think it's important for the court to know since the plea agreement so and so's been sentenced there's two months there on that sentence we'd ask for leniency leniency is ok judge we're not saying that leniency is not ok but we are saying that he does have a point raise the bottom part of which is twenty one months we would ask for the agency now that to me seems to be consistent with times his obligation but also saying to the court look if you if you think leniency is the bottom edge of the bottom of the range fine where where the court says that if you're giving the the the district judge a reason to reject the stipulation that that's in the plea agreement that's foul play and that's what happened here that what the does more goes a lot further than state and agreed upon range or an agreed upon eighteen level right i mean it the agreement extends to constraining what both parties can do and say can't advocate for in the courtroom right correct so i mean what we will have to write an opinion in this case whether it's a presidential opinion or non presidential opinion and the government has taken the step which is not the i don't want to say the usual course it's not it doesn't occur all the time by any means when the government has an adverse ruling of of taking an appeal do you want to provide some guidance here to defense counsel or to district courts both as to how proceedings of this kind how sentencing proceeding should be conducted pursued to sentencing pursued to a plea agreements that say with this plea agreement said  we think that that would be helpful the court is up what do you want to say how do you want us to guide this trichords and or defense counsel what would counsel a large well one of the things i guess for in terms of district judges is to be mindful of plea agreements and questions that may induce what that means that just that the fans council or the government for that matter could make an argument that would breach that plea agreement that's for defense counsel and for the government an opinion and opinion that would explain the bounds of what we are able to argue i mean in the billions the court has already said that it's a constraint on advocacy and not the sentencing discretion of the district i think that's clear how can that you're i'm still waiting to hear you address the fundamental problem which i think comes up in these cases like this and maybe campbell in use of for not similarly situated be interested to explore that with their counties but but you've it it appears you've got it a basic conflict when you say well we're not trying to constrain the district court judge but if what you say is and i i know you wouldn't say quite like this but what you're getting at is plea agreement muzzles the fence counsel the fence counsel may not speak in any way which would give the district court a reason to depart or very then are  effect constraining the district corps because you're taking a crucial stream of information away from the district court in making the decision there there's a there's a tension there there's a rub there that that the government doesn't seem to be squaring up to with all due respect i don't think that that the district judge is in any way constrained by the by the inability of either the government or defense counsel to bring a line of argument that would breach a plea agreement you see to bring a line of are you suggesting i'm not sure whether you are arguing that it's entirely appropriate for the district court to say something or for the district court itself to say something or for the district court to ask or encourage counsel to say something or advocate certainly has discretion to do what it wants to do you have a right everybody agrees we all agree on that the district court i would hope would not ask counsel questions whether it be of the government or defense counsel but you can't constrain what a this i understand we're in the contract from here because it strikes me that you can you please grievance in terms of traditional con tract law is one of the many fantasies that the law engages in out of convenience or necessity or whatever but i mean it's a contract is not it's not a contract but we're stuck with that we said that's not going to set that but given the limitations of the of the circumstance what if the judge would ask we're talking in terms of limitations on c shows up i want to have a pretty involved discussion with the defense father but i really want to get into a dynamic with the defendant and how you can interpret this language in a specified that neither party will argue for the imposition of a sentence outside the  from him it's kind of out really just what he did given the plea agreement but why wouldn't the judge be able to hear from defendant and you really expect the defendant to say well you are right and that i signed this contract and maybe  that that that would be too much of a constraint on him but at least i'm talking about the elocution of the defendant just yeah well that's the way i'm reading this agreement he can't she can't argue for any upward or downward departure adjustment or variance there's considerable distortion can we do we know it all why  advocacy in the light time of cove to put your break there she did what you know there you go well it only lasted there would get all right we we see you and we hear you very well all right so i think you were in the course of asking a question if you can remember what it allocution could make comments that is essentially a request for leniency because a judge like yourself as mickey would want to know certain information and to see how the those facts impact your sentence and i would say that's where this is very similar this but to respond to to a judge asking those questions of in this case does something did ask questions like that even before the defender went to his official allocution and those and the government did not object to those responses they were factors that the judge could consider as part of her analysis of where to sentence and offended when that would be within the range or outside of the ring but i judge nikki indicated to a fetus stated a few examples of what he would want to hear and he has considerable experience as a trial judge before coming to this court that he would want to hear from maybe the children of the defendant that he want to hear from family and neighbors and the government right we'll have you back on rebuttal but after i ask just one question and this is this is relative to the campbell case campbell submitted a sentencing memorandum and by my reading of it in any event my home it appeared by itself to be suggestive of or even in breach of the plea agreement i would have asked but there was no objection or posed by the government in response in any way not in its own submission of a memorandum or any other way did the government as a consequence either waiver forfeit the argument  government in terms of trying to get as much information because she is your honour's or we or she didn't have the entire case in this matter she had for some reason my defendant my client and not the others right and we understand that we know that we know the background since we've got kind of limited time well i guess we don't we can we can go for it and then we get on but but parking is the same so here's the here's  the question is it is it ok for you for any defense counsel to even if the district court is asking you questions  w you try to do the right thing when you try to adhere to the to the plea agreement i think in this particular circumstances though you know i'd be derelict i think if i didn't mention it i mean we don't we don't go into i mean the allegation made that there's foul play here and i frankly i take that personally because anything that i said they are i thought was consistent with what the record was in this case i'm i'm sure that's true and i know you're you need to advocate specifically  i don't discount that but i'm actually trying to get you pick you past that to the pool the question that chief judge smith was putting comes to ramsey earlier where we're going to need to right here and what we say is going to go beyond mr mr campbell how how can we understanding that plea bargaining is essential to the system we've got whether anybody likes it or not it's essential how can we maintain the incentives on both sides to bargain in good faith if if we in essence open the door for one side to walk away from and it's a key element of the plea agreement that is not advocating in any way for a sentence outside of an agreed upon range so i understand for a moment from the specific facts here and help us understand how to deal with that dilemma because it is a dilemma we recognize that defense counsel has a dilemma how do you suggest we instructed this record to proceed and defense counsel to proceed when you're in that spot where the tension is acute you know i'd like to think that you know sentencing is such an important activity that it shouldn't be about i gotcha moments you know you don't say this you don't think that i think a court makes an inquiry sure and you know didn't we know that in all three of the members of this panel have been trial court judges so we've we've been in those trenches and also in other positions not just judging in those trenches but having been presented with the dilemma is you characterized it and as judge jordan has framed his question should the response of defense counsel be at least in the st instance your honor i have along with my client entered into a plea agreement the a plea agreement says this and it constrains what i am able to say i considered myself back down by that plea agreement and it is that satisfactory or i think i think that would be appropriate i don't have a problem with that and i think that's the way i started off here i said there is a plea agreement and if you look back to the hearing with adequately the codefendant when this balance was confronted with the same dilemma i submit when her client they had a plea agreement on th i think that's frankly i think that's that would be sufficient and in that case ironically in that case and if the court of the problem that i have when i say foul play mr coe going to was the same prosecutor for my case in her case said she's entitled to say that decide that i mean that's what he said on the record and that's what frankly when i was preparing for my for any comments that i might make it in court in what i might be asked by the court  i i hadn't seen the transcript of that hearing before hand when i had submitted my memo and that i knew what the sentence was but i had seen the transcript when i saw the transcript i said you know i didn't i didn't think that i have would have the problem for mr coggan that i ended up having because i started off saying that there was a plea agreement and then i and then i made my comment which were the same kinds of comments that miss barrett said at the adequately sentencing that's a that's a that's an interesting in a significant point it's not in the in the record we have if i could ask the indulgence of my colleagues for a moment do would you mind if we got a supplemental where where this is stated the very thing that you're saying where he says on the record i i would expect you to say that exactly ok then maybe you could just help me with  yeah in your specific case maybe there is something that arises the amounts to the government being a stop from complaining that's essentially what it sounds like you're arguing they should be heard to point the finger at me when they agreed to this in the various in a in a different case but again i'm asking you to step beyond this case and speak to the kind of you know where the lines get drawn where assume for the sake of discussion that you didn't have this weird split between two district court judges another issue that is puzzling to me as well as your own from the same judge what what is it that you say as a what should we say to defense counsel assume we thought counseling campbell stepped past the line but can you as an answering a judge hayden's questions go beyond simply saying hey look at this disparity can you start saying given that disparity we should have only two months i mean you start advocating specific sentences you know i can speak about because i was confronted with that that that's exactly what i think i was confronted with he got two months and now my quiet was already beyond that and and i think that under the circumstances you know i think you  you could be inclined to do to to seek something that would in specifically i mean and that's what i ended up doing if you look at the record i said he got two months my client already is going to get five months so that's two and a half times  and i so you're saying in response to you would have said that no matter what mr the a u s a had said in the other sentencing because what you're telling me now is it would have mattered whether a different defense lawyer in a related case had argued for addressing that and you're mindful of that however i think this information is is something that i should be considering at the at the time the sentencing would be the same if it were after rising facts assume you know you've got the position the unusual position and use of scase of being able to say look this thing happened after we entered into the plea agreement so it's a new fact then and this you should be aware of it let me tell you about it what if that had been the case what if what if the facts we're talking about were the kinds of things that judge because he was asked about stuff that's historical and happened before the plea agreement can you get up and say look judge i know we agreed to this thing but let me tell you about  what a good person this man has been in other areas of his life separate center well without being you know and saying and we want leniency in the end we know we agreed to the guideline range but look at these other things guess that it you know for me it hasn't come up that often in terms of this kind of thing but i think that if a court if a court is you know has some concerns about something and there's a plea agreement and the core pose of the questions to me i don't necessarily see a problem that i'm going to you know step out of my  that's here's the curious thing you have agreed and stipulated to this range but then you went into court and said this guy should get jail time discussion kip probation which into the remedy but to ask your client why well as punishment for your offense that's ridiculous i don't i can only again say your honour's that that i have done to please within the last month where it's up to size to the client in federal court that by the way even though you've entered into this plea agreement i have the final word as to what sentence you can get that can be above and beyond the guidelines that can be above the guy lies it could be below the guidelines now they are triggered by the th know i didn't say that she characterized what occurred here his is being preferable or not i understood from my recollection of reading the the parties agree not to seek or argue for any upward or downward departure adjustment or variance not set forth here and neither party will argue for the imposition of a sentence outside the guidelines range that results from the grito guidelines of agreement signed a petition that he be given leniency there were numerous photographs of his trip contributions to the local community there were additional fifteen letters of support for him and i thought all of these were important to present to the court by way of mitigation in terms of any sentence that he was to be was to receive sure you're allowed to argue it given your plea agreement within the bounds of the sentencing guideline range all those things could have been argued perfectly consistently with the plea agreement by saying look at all these important great things he should get he should get a sentence of the very bottom of the range top but once you start sentence so are we then basically stepping in and we're becoming the sentencing court because we're superseding what the judge might want to impose irrespective of the breach let's assume no breach at occurred and judge hayden thompson would have looked at the circumstances and said well there's a plea agreement but i just think the bottom of the range is too severe i'm going to go below that she clearly could have done that which on her if we asked for specific informants that she cannot do that that that troubles me and if that happens there's going to be you're saying a chance for that judge to depart or to vary if that judge feels it's appropriate correct ok if is he factually correct when he says to us the look the codefendant had sentenced and there was an advocacy that was straight up hey go outside and not a peep out of the u s attorney's office there i came in i did something which it was i thought frankly not even that extreme i just was responding and they say at breach so deal with the factual piece is he correct defendant's lawyer said things that weren't complained of and that aren't in front of us on a appeal but suddenly he is that factually accurate well judge this is something that we've explained in sentencing at that time ok we've got the briefs we've read the briefs the question i'm trying to ask well maybe it's not different it is slightly different what i mean what i'm hearing mr glaser say is a reasonable person in my position a defense lawyer looking at that would understand and think i'm free to say the kinds of things i'm about to say and having gone in and said those things it ill behooves the government to say well you can't do that specific performance i mean that's he didn't quite put it in terms of a stoppel but is there something akin to their going on here where if matters granted thank you thank you for the clarification keep it that way coconspirators but because of that i mean even if a breach occurred in that case and we didn't we weren't quick to identify the br reasonable reliance on the part of defense counsel in looking at how the coconspirator was treated well i guess the court is asking is asking a question about conduct with the government but we still have a plea agreement and if the government didn't catch the breach in one instance that doesn't mean that a beach didn't happen in another instance there are two different plea agreements two different tensions and hearings and the issue that we have in calling the bre blatant disparity in treatment here that has been referenced in the question doesn't it seem to you just a bit unfair it had that result given what would seem to be the reasonable reliance that was experienced by counsel for use of maybe fairness unfairness is just too squishy a term but will strike you that way the unfairness from the government's perspective comes from the fact that misuse of now is how to profit from an iranian original sentence and so that is that is causing attention throughout the entire difficult jobs and to prosecutors who have challenging jobs as well i have just been puzzled why you know why you weren't content as the government to come in here with mr campbell scase which seems to be one where the government doesn't have these other factors in play and could make the pretty straightforward argument that if you come into court when you've got a plea agreement and say hey give us probation that's a problem but here with the use of case you've chosen to fight on the ground which is just hard for me to understand why that's the and maybe that's an unfair question to put to you but it is a little puzzling to me do you see the difference between the campbell situation and the use of situation or does it look to you like that's exactly the same set of facts they the same sort of things in play well certainly one case is more obvious than the other but that doesn't that doesn't excuse the fact that a breach occurred in mr hughes this case even if it's in them by groups in one sense it's good for you to have done it because you know it does it does put a harder case but from the governor's perspective that might mean you get a decision or an opinion that's not quite as straightforward as you might like but you know i don't know i don't know how this  going to work out it just seems you've got the issue with the use of case in a way that requires a good deal more balancing and statements about government are these are important matters that some of our question is certainly suggest that raise issues of concern and issues of policy that extend beyond the two cases before us we thank you for your he