government's conduct with respect to their preacher play for him and in this case the defendant in october of twenty seven team entered into a play game with the government and entered a guilty plea among the provisions in the plea agreement was an agreement by the eighty eight months range with no argument for obstruction and a recommendation for exceptions of responsibility in a three level reduction what occurred there after was the probation office as they often do came up with their own creative thinking and they came up with a report where they said aha we see an event that occurred on the day to mr beattie's of initial arrest in a search warrant that was issued all the way back in acceptance of responsibility because the in a relationship of those things the government then responded to that in their first inkling that they were going to start backing up from their commitment in the play agreement  suggested that it would be up to the court to determine whether or not that so called obstruction occurring in connection with the pass code to the cell phone in december twenty fifth teen was sufficient to warrant a denial of acceptance or responsibility they also made a statement and there we're standing by our recommendation but it will be up to the court to determine that which is sort of artful language in inviting basically had to terminations that that was such an egregious of it that it should warrant denial of acceptance and as the court knows there's a close relationship between obstruction and acceptance where the guidelines say that only an extraordinary cases are exceptional cases would a person get an obstruction increase and also receive a decrease for acceptance so those two issues are closely related following that the government filed the sentencing memo and the advocated for an obstruction increase along the lines of what probation had suggested the defendants attorneys felt that was a breach of the play very much because the government was arguing for obstruction defense felt that the government could only argue for obstruction if it had occurred after the date of the play based on their belief or what the government's position was so they filed a motion to enforce the play agreement and declare what the ome of the events the government filed a response to that objection to their or the effort to enforce the playground in that response of may one they argued that the defendant was not accepting responsibility even though they had agreed to argue for acceptance of responsibility and and recommended and they argued that in multiple paragraphs and they cited culpability the government affords him the benefit of the doubt how gracious of them given that they had to play agreement that they had already entered into and here's to a general obligation which is what they called their agreement to  recommend to ask the court to give him credit for accepting responsibility but they didn't cite any facts or basis for their recommendation but they had gone on for multiple paragraphs arguing against it and the worst part of it is perhaps not only that they made that argument but that they actually made the argument on a false factual predicate and their false factual predicate was that the attorney for the government had become somehow confused or became mistaken in believing that the defendant's conduct in this case possession of child pornography had occurred starting in two thousand and thirteen and carried forward into the latter half of twenty fifteen when in fact all of the conduct concerning the possession of child pornography in this case occurred in calendar year two thousand and fifty and the reason that mattered was the defendant submissions sentencing were relating his possession of child pornography to his divorce in two thousand and fourteen consequent clinical depression and controlled substance use that followed in a twenty fifteen from that the government took the position well he's minimizing because he's not admitting that he actually was committing the offense before those advanced all the way back to two thousand and thirteen so they made this argument against acceptance which judd woman you wrote the thompson case which we cited in our twenty eight j letter where he said that type of conduct on the part of the government where they advocate against what they recommend obviously violates  terms of a plea agreement and they can't get around that violation by simply claiming oh we're just telling the court about what the facts are and in this case it's even more egregious because those weren't the facts and the government prosecutor mr gone or not mr call mr garner at the sentencing hearing at pages twenty one to twenty three said i was wrong sorry it was just a slip of the the paragraph what happens there after though is they go forward in the sentencing memo that they filed on may fifteenth and they affirmatively argue for a denial of acceptance of responsibility and they claim at that point they're justified in doing it based on something not occurring prior to make one but on the defendant's possession of a cell while on pretrial release on may third two days after they had already violated the plea agreement by making this argument and under the first breach doctrine what so what about if if we were to agree that there was a breach and send it back wouldn't they be able to seek it based on his violation of his terms of release well i i would just say that under the first breach doctrine which this court recognized and mostly applies to plea agreements it's the government's problem is that that they breached it first so they can't do that now when it goes back on when it goes back on zer when yes and when they when he goes back you know when it goes back that's an interesting question that a great question that i don't have a direct answer to probably but my answer would be this of thinking here on the fly that the reality is the first thing that happens is because this was really messed up with this argument about the date of twenty thirteen be in the off chance fate because it kind of bled through the whole thing that it would go back it would be response in front of a different judge without the government's breach and we sort of take things from the point of their breach forward and we wouldn't worry about this alleged violation of the pretrial release condition which frankly i don't think qualifies as a basis to excuse them from the plea agreement obligation to recommend acceptance anyway as i point out my brief that didn't show a lack of cooperation with probation which is the language in the plea agreement and it doesn't own it doesn't qualify under that and it's not obstruction for the reasons we are given as well but i want to leave a little bit of time anyway for unless you had another question you want to be an answer right now please the court my name is andrew call an assistant nicely turning out of the southern district of iowa in talking about the alleged breach it's most important to look at what the plea agreement itself sa d we've talked a lot about paragraph twelve of the plea agreement which said that the government would recommend acceptance of responsibility under certain terms the government would recommend except responsibility in last after the police proceeding the defendant failed to cooperate truthfully and fully with the united states for beijing office attempted to withdraw his plea or otherwise engaged in conduct not consistent government would or would not move for obstruction there were no other guideline issues discussed in the plea agreement in fact while the phantoms in the record have put in e mail correspondence having dealt with these guidelines for a long time the government certainly was aware that advocating for an instruction which meant that virtually certain that he would not get the acceptance of responsibility and the government is aware that there are situations where x is unusual situations where acceptance and very unusual by the terms are guidelines and selves but as but the of struction is not addressed in the plea agreement the plea agreement makes clear that any estimate of the possible sentence to be imposed by defense attorney to government process writing and that the agreement has nothing to do with obstruction or any of the other adjustments under the guidelines and that was the intentional decision one that the plea hearing in front of the magistrate judge of the magistrate judge raised why aren't you addressing the other guideline issues and the explanation was that that had been taken out of the plea agreement or the statement as is the practice in our district which did not suggest obstruction of justice and did not subject and did suggest acceptance of responsibility as mr starr's pointed out the probation office came back with with that steak search warrant and provided a series of false numbers that for riding the series of false numbers in the view of the probation office qualified as obstruction of justice we did not object to that obstruction in the pre sentence report we did not and nor did we endorse that we took a neutral stand on that we underlined that we would continue to the incident in may of two thousand and eight where the defendant was found in possession of another cell phone device that he was prohibited from having he lied about it to the probation office that we think justifies a two level adjustment for a structure of justice but what he also did is he provided a bunch of false pass codes so now we have a pattern of providing false pass codes for these electronic devices the district judge found to be not credible the idea that the defendant may have just forgotten these pass codes or had somehow made an honest mistake by putting them  what position it would take at sentencing as the facts developed the in response to the draft present report as i indicated the government indicated it wouldn't hear it here to the acceptance and it would be neutral as to the obstruction which was based at that time on this false pascoe's back in december of two thousand and fifteen by the time that the government filed it sentencing memorandum we did seek obstruction based on that one discrete incident in december of two thousand and fifteen but we continue to ask for the acceptance of responsibility under three hundred one point one this is what prompted the first motion to compel specific performance we responded explaining why we felt that was within the terms of the plea agreement and also making some commentary suggesting that certain things that have happened now after the plea agreement were placing the defendant in a dangerous situation where he might not be getting the acceptance of responsibility and that's primarily based on defendants sentence in exhibits ass and t where the defendant was putting on expert testimony that then this home visit occurs on may third on may seventh of the district judge looking at the strict terms of the  agreement found that there had been no breach that's the approach we think this court ought to follow that was then followed by two days later a bond revocation hearing resulting from this home home visit a second motion to compel specific performance was me take you back a little bit december twenty seventh the government in response i think to the p s r the government essentially says hey it's up to the court to determine whether there's obstruction and then whether that should result in the denial of acceptance isn't that it getting too cute by half to then go on and say but we stand by our position what i read our comment as saying the court will have to determine that and i don't need to reread what the court has just just just pointed out of just tell me why that's not breach right there although our general approach and what was found by the district court judge was that we were recommending stepped in and  in if you look at everything that seems to be what the government's position was based on their off and conduct statement everything so yes that's our position but we don't have to go where on that point to prevail in this appeal because they violated the specific agreement to recommend acceptance of responsibility when they did what they did on the december twenty seventh communication and that may one in particular filing and that may want filing  particularly egregious because they're they're advocating and citing authority opposing acceptance and what judge woman you said in the thompson case says we're going to look at the essence essential what did they do what they really did in the may one filing was argued against granny acceptance citing authorities and doing all this that's what they did we're going to look at the essence of it the case law says they can't just pay lip service that's the phrase in these cases and if the law courts do a lip service search term search in little play game it's you can't just do lip service to a plea agreement and then save the day by saying well yeah we pointed out all the reasons why this clear agreement shouldn't be enforced but we said you should still follow our rip of recommendation and then claim that they're insulated from breakage they are so thank you i appreciate your time hopefully you know enjoy the rest of the day thank you for prescience your appearance and arguments today in briefing