good morning your honors may it please the court as an issue of st impression and under the unique facts of this case this court should find that the government's waiver the government has waived its ability to enforce the sentence appeal waiver you're not arguing  that what occurred in this case is even stronger evidence of government waiver than what occurred in any i don't understand we've got to before you start making your argument along those pass you've got to tell me what you mean by wait now johnson these are did say procedural to fall you just don't object waiver because the intentional relinquishment of a known right when did the government intentionally relinquish a known right the moment it objected to mr lewis a sentence as substantively unreasonable so once the government agrees to recommend a particular sentence and to support the government and i'm sorry to support the defendant position that should be his sentence there can be no appeal waiver no your honor that's not what i'm saying if the government had somehow can the government  support of the defendant and not waive it appeal waiver rights your honor it would be a different situation if the government had simply persisted in its recommendation that the appropriate sentence in this case was the bottom of the guidelines i don't think that's the situation i know it's not the situation here what if they had said that i'm asking you a question i don't know i don't understand your concept of waiver and if the government has said we we would that have waived the appeal why i don't believe it what your honor if so making an objection itself doesn't waive the appeal waiver not necessarily but under the well under the specific facts of this case i believe it does and that's because the context of the government's objection is important in this case because the purpose of a listening in objection following the imposition of a sentence is twofold st to permit the trial court to cure an error on the spot at that moment and  to narrow and sharpen the issues presented on appeal and if we're looking at them sent to the government wasn't presenting an airing and sharpening the issue on appeal the government was trying to persuade the district court in the trial at i'm sorry in the court room at senate saying to go along with the position it had promised the defended it would assert your honor i think i disagree with that characterization of the record if we interrupts says effectively i've had enough of this make your outrageous arguments on appeal the district court notes that the defense objection is preserved for purposes of appeal mr lewis asks if the government will join in this particular objection the court indicates that the government has already complied with its obligation before the sentencing court to make a recommendation and then the government at that point explicitly joins the defense objection to the reasonableness of the sentence for purposes of appeal  well read me where they said for purposes of appeal well they didn't say that there are wells then why did you tell me they said that counsel well that's if you can take material to the nature of the bargain as we said earlier i mean  the previous case i'm sorry that it took are that well your honor i mean i it was not my intention to misrepresent the record on what is the government's we have to look at the government statement in the context and i think the context of the government's objection makes it clear they're doing more than just trying to make sure that so in the context it's not all that clear that the government was agreeing that the sentence was outrageous  outrageous drops away and then it comes back and the council says you know i ask you as i'm reading from the forty four i'm curious why the government has no objection to the sentence considering the whether or not the government agrees with that and the government says yes because they're bound by tom for act right just curious how far your argument goes part the police agreement indicated the government would recommend a sente at the bottom of the advisory guideline range so let's assume here the judge didn't do the bottom of the room and he did the top of the range and at the end of that you know the government was and you would say counts of the government but you've still got persist with your recommendation the low end of the range counts of the government says yes would your position be at that point should you have appealed the top into the ranks then it's based on an unreasonable us argument that the government likewise in that scenario had way its right to insist on your plea waiver no your honor i think my key distinction here is that objections in the district court have consequences on appeal and it has consequences for what arguments the parties may raise on appeal and objecting in the district court on a particular ground results and waiver of that party's ability to assert the contrary position on appeal in this court and i think under the unique facts of this case the government's objection to the sentence as subs bargain there's a consideration right yesterday and so your client could have bargained if he had wished for a term in the contract saying if the judge doesn't give us the sentence that we hope  will you will stand up and disagree strongly and you will then waive your you will then stand behind a waiver my right to insist right that's correct your honor and if the that's that term is not in this contract that's correct your honor and that seems to me that what you're trying to do is to to amend the contract you're trying to to imply a term in the contract that the government would when the sentence isn't given as they wanted will do what you provision may be implied when a party engages in conduct or takes action and in a manner that is inconsistent with enforcement of that provision and the ability to enforce the appeal waiver was a benefit to the government conferred by the plea agreement and under yes it is and if it is a contract then we can apply these contractual principles to it how hard is your argument if if we decided in your favor here and we said the government had waived his right to enforce the appeal waiver provision where next up to your real argument your real argument is the judge impose a substantively unreasonable sentence when the judge very upward at that juncture does the government required to stand mute at this point and the government of then the judge how how does your contract argument it into what conduct you would allow the government to engage in at that point that's a that's i think a totally separate issue and i do believe your answer i do think that the government would be precluded on appeal from grazing the contrary position to what it did in the district court which was at the substance was substantively unreasonable hell ever i think this court or the district court would have nobody at that point to defend its decision well your honor this court has an obligation to conduct the sentencing inconsistent with the government supporting the defendant and the position before the district court and then when the district court rules supporting the position that the appeal waiver or plaice and the defendant cannot appeal it's perfectly consistent you know try to get it right in the district court but if we don't we don't want to have another appeal you give that up in return for us supporting you in the trial court perfectly consistent rational system again your honor i think the specific context of this makes it clear the government's objection was intended to proceed further than just to persuade the district court to change its mind would do that your honor i'm arguing that this is an implicit waiver of the government's ability to enforce the sentence and i'm telling you that it doesn't appear to be and it is certainly not clearly an implicit waiver because it's perfectly consistent with not waiving i i see have run out of time a attempt to answer your thought i think the sentence appeal waiver strikes at the very heart of the issue that the government objected to in the district court the scope of the sentence appeal ever sought to be invoked is almost directly coextensive with the issue that would be precluded by the waiver which is the reasonable miss of the sentence but i mean that's that's the heart of the bargain on the pill whatever you can't appeal just because you think the s please the court jonathan ross and half the united states government in this case did not waive its ability to enforce the appeal waiver the government's objection to the sentence was merely an effort to comply with the terms of its plea agreement the government substantive but reasonable this objection simply yes your honor and immediately before that as to scoff at your point out a moment ago there was a conversation about whether by the government was not objecting when it had agreed in its pleading that to recommend a sent in the bargain you asked for the sentence you have for wasn't given yes you're absolutely and it's important to consider that i didn't understand you to be saying on your briefs i mean i deduced that from when i read the honor and i doesn't matter here in the argument about what the nature of your concession last no ultimately even if the government had said we think that the senate's a substantive and reasonable at th your honor the district court still had an opportunity to reconsider the sentence that the objections were made in the district court even to the extent the government took a position there that a thirty month sentence in this case was substantive and reasonable  doing so allow the district or one last opportunity to reconsider its sentence no where did the government explicitly say we waive the ability to enforce the appeal waiver in this case in fact had the attempt to persuade the district court there was no relinquishment intentionally relinquishment or even implicit relinquishment of its right to insist on the appeal waiver here even if the court could send consider the sub's to present to the three minutes count honor the government's argument is asking this court to ignore completely the fact that it made a deliberate and unequivocal objection in the district court to the reasonableness of the sentence and i would just ask this court to consider what its reaction would be if mr lewis were to come before this court and argue that well that objection mr lewis made that you know that really wasn't an objection that was just us expressing our opinion disagreement on behalf of the government always your honor this isn't a case of implicit disappointment this is an explicit objection the government persisted and the point isn't isn't there an objection in every case can i just assume that whenever the dish of the contract i mean there is almost as if the government is bound to say i object because they entered into a contract to try to achieve a particular result the contract only provided that they agreed to recommend a specific sentence and the district co even caution them you've already done that you don't need to object not withstanding everything we've been over do you still want it so in the future when your client is in this situation you would have cost tell the government what you need to do is say object o f no no we don't object have it you're on your i think the point i'm making here on a no that's preferable for criminal defendants the position you're arguing and then of course it exists in your arguing for those interested this criminal defendant but in the future would it further the interest of other criminal defendants to say that the government should not join an objection i don't understand it is being too long because they risk waiving the appeal which i don't think that's the case your honor i mean the they're the department of justice theoretically their job is to ensure that there's and you told us no and i may have misunderstood you that the government wasn't obligated to object to the it wasn't ok but i did despite all we're going to tell the government in the future you will be say don't object to this i don't support that and all were telling the government is that if it makes an objection in the district court that objection will have consequences on appeal unless they say however notwithstanding the aforementioned objection we reassert our right to the appeal waiver and to enforce it on appeal that was what that be enough of that would be materially different i i'm sorry and maybe i should have called the case pearson versus augusta we'll get to you trust me we'll get to confusion was instead of the cases i'm sorry now pearson versus augusta mr bat mr bat