good morning and may please the court my name is david katz and i represent mr iguana on appeal what happened to mr argon was unfair he helped the government greatly in his case with his cooperation and by the time he appeared sentencing the government had made a request for downward departure and the district judge had granted it and ironically he couldn't be sentenced that day because there was a discussion about whether he should get two points for safety bell the judge asked please come back the next day everyone came back the next day including was the odd one who was on bail and then anaheim police detective showed up and said that he had gotten information  distribution to another supplier cancellation of one hundred fifty thousand dollars yet correct that was the allegation when i was nothing if certainly by mr on one he said yes yes number one he didn't know what terri with up to or what his intent was a number he didn't know what another drug distribution would be with names of contacts for sale of drugs what do you think they were doing mr deery had been otherwise well first of all if the government wants to proceed against him on something that's actually a statement by the agent that's an actual accusation they can charge and the government doesn't have to charge  then in consideration of sentencing information can be brought forward it's true that of course information can be brought forward but there has to be indicia of the liability it has to be more probably than not true information under the sentencing guidelines not under five k one point one that's what we're talking about we're talking about whether or not the government have the obligation to maintain its adherence to the motion in view of this information so that's what we're looking at we're not looking at whether argument that this information was not sufficient to allow the government to address motion we're relying on the pedia case from the second circuit which is remarkably on point with this case in fact in that case the person had even been arrested there actually have been sorry and in both of those cases it was held that it was not an option by the government to pull back a fully executed entered five k one they had made the motion for five k one which is what the sting which is that from a lot of cases and the district judge had granted and the other thing that's so crucial here they didn't reserve the right to withdraw the five k one and yet they withdrew it anyway also would you agree among the rights that we have in the event that we believe there's a breach we have the right to withdraw it previously made five k one and it previously granted one but it just exerts they didn't say that there's no i don't have us partner but isn't that just basic contract law the party does not have to continue performance of a contract if the other party has breached into real condition there that's our second argument thank you very much on the first one is that simply under the terms of this contract the government could not do that and they have to turn square corners they have the superior bargaining position where just like the dia and dixon that they cannot withdraw this because it never says anything about withdrawing it there's a case your honor where they impose restitution and everyone said wait a second there was a financial loss you should be able to impose restitution and this court said you know if you don't even mention restitution in the plea agreement whether it's common sense or not that the bennett cannot be duty that's why i make the point that where a defendant violates the previous system duty that he has to not violate the law after the government's made a five k one after his performance after the district judge recognizes he's performed just on the credit for it ye material breach and so forth this is an unusual case given once you get into the second area the material breach which is also a problem for the government if mr odd one was a continuing witness which is often the situation you could say the commission of this crime in our belief proven or not in the government's belief undercuts his value as a witness that's fucking only thing that makes it material well it certainly would be a critical thing in this case which is lacking everything is lacking in this case because mr odd one has already whatever he wants with impunity that can't be right we're not saying that it's with impunity we're saying in this particular case there was not a material breach because mr odd one had performed he'd given them the heads of drug dealing organizations he'd given the information about money laundering back to the middle east he risked his life you just his family's life they came in and started he done all of those things now if they believe and this is not we believe in this case based on everything a proper showing especially in this to add one he made phone calls even after that occurred because the government didn't want to be mad at that point they wanted him at that point having gotten information to be out and to keep only if an erstwhile criminal knows that someone is working for the government why would that was still unreasonable for all the reasons in point three of our brief and it was still an unreasonable sentence because again we make the same point that these were unsubstantiated allegations not  declaration no testimony no nothing no due process and i think the judge failed to give appropriate way to mr odd wants extraordinary cooperation the government came in and asked that it be thirty seven months then there was this whole brouhaha the next day even after of the agreement and the completion of or the federal sentencing commits a crime then the deal's off it's a condition prior to the performance of the government recommendation being like two things we don't believe that it was ever shown by competent evidence of the level that should be that there was the commission of a crime there was an unsworn allegation from right in the same line of it and as soon as the church starts lecturing him and he has a chance to talk he says i did not know what mr derrius intent was that the time and number two i knew that duty was working for the government and i believe that this had something to do with him is admitting that he committed a crime i believe that that is one admission but the record and i can point through references in the government has cited in the record numerous citations where the where the defendant and his counsel acknowledged that he did in fact do what the government believed he had done what the officer offered his testimony about what he believed what agents have hearing on june sixth in addition to the statement that the defense at the court just referenced the defendant himself discussing the transaction discussing the fact that he had affected received one hundred fifty thousand dollars of a nine hundred thousand dollar deal his words were there was pressure to need some money and that's why i did that and that's the transcript of june six two thousand and five pages twenty five to twenty six it's the excerpts of record pages thirty one to thirty two in addition to that in the defendant's sentencing position paper submitted prior to that sentencing hearing which is the government's supplemental excerpts of record it was not included in the defendant's excerpts of record the defendant acknowledged that he he undertook these acts that he committed this offense at the court noted was the exact same offense the same type of conduct the same type of pseudoephedrine transaction that was the subject of the indictment to an unreasonable and untenable result but petunia is nonetheless different but the it is a case where they were talking about the remedy for a breach of the agreement in this case the government was at every turn  obligations under the agreement and it's the court points out those obligations are that are triggered by the defendant and compliance with his obligations not to commit other crimes to be candid with the government and again different from pretty the as the court has also pointed out the language the temporal discussion in the plea agreement in this case that the government obligations the government obligation to recommend a departure under five k or not is extended up to the time of sentencing and in this case that became particularly important because the government filed a five  motion and in the two weeks the intervening two weeks from the filing of the motion the defendant committed another crime the government and for that reason that's why the provision in the agreement  in the plea agreement says that the government's obligations will be triggered to make a recommendation or not at the time of sentencing because i don't know what about opposing counsel argument that if the government believe adams one had committed an offense it should have charged him and prosecuted him for that well that is not an obligation under the agreement it's not an obligation at sentencing i can't speak to the state of an investigation regarding the local law enforcement agency it is my response is simply that it is not an obligation under the agreement however what the record strongly reflects c portion of the deal and would have had no intention of disclosing that to agents at any time prior to having been caught and confronted with the issue at his sentencing hearing and that is those are facts that were never contested at the sentencing his his defense counsel and the defendant himself acknowledged those facts as as being true they were not contested  nor was the performance of the government's obligations under the plea agreement contested in this is trick court and yet the government recognizes far less than it said to me you have any comment on that well your honor and ask the sentencing and i think the record also reflects that the position the government took the position i took at sentencing was that under the plea agreement based upon this defendant's conduct he w not entitled to a departure under section five k one point one he was not entitled to that so the position i took was the position that i would have been obligated under the plea agreement to take without a five k recommendation and that is why my recommendation to the government's recommendation the recommendation i took put him in the position where he was under the plea agreement under the sentencing factors in the considerations of the guidelines without the five k recommendation including the fact that recommending low in the low in of the applicable guideline range and i think the record also reflects my statement in explaining that to the court that i took the view that the government was complying with its obligations under the agreement even though the defendant had not thank you i thank you counsel thank you will give you one minute for a final the government had the option to prosecute him under the plea agreement the government had the express option to use his statements from the time that he was cooperated against him whereas they couldn't have otherwise but they couldn't use this remedy the remedy was not set forth agreement and it's entirely under the case law quite differently that they did not have the remedy to take back and already made already already accepted a plea a five k one because they didn't use the word we can take back a five k one and look how long the agreement is and look at all of the different remedies it does call out and it doesn't call out that remedy if you're honest with look at page thirty two of the excerpts of record that really has the discussion where mr odd one says this is all my job and i wasn't knowing what he was doing what his intent to do this is all what happened and it was a stupid thing for me and he talks about his kids and the judge says well you knew exactly what he was going to do that's when the defense says yes yes your honor the court then lectures him some more he says your honor he tries to interrupt the court lecture since more and then he gets a chance to speak and he says i know this guy he's cooperating with the government and i know he was working with the agent i  thought he was just going to do something to he says that for the government he never explained to me what he's going to do that's what i have in my mind because when he's cooperate he was on the street for two years he was working with agents for the government and that is all that's coming in my mind and i prove it to the government i got nothing to do i make a phone call in front of them i have no connection with these people i did make a phone call from the office of the u s attorney mr brown and i got nothing to do with them i coun