good morning in may please the court my name is brandon sample and i represent the appellant that's jennifer kirk the district court heard in holding that kirk may not challenge the partner of justices refusing to move from a thirty five relief under the administrative procedure act while prosecutors undoubtedly retain broad discretion in determining whether to move for substantial assistance reduction that discretion is not unlimited as a supreme court held in waves or says united states the exercise of prosecutorial discretion in this regard is subject to due process constraints namely that the decision be rationally related to a legitimate government will of course that's true but the administrative procedure act says you can't use it if there is some other adequate remedy available and the question independent of committed to agency discretion by the ball is whether a motion in the criminal case isn't an adequate remedy and we believe that that issue is controlled by this court's decision and verdicts of pieces versus smith which that's five twenty one fet thirty seven zero seven at seven twenty two your honor which construed section twenty two forty four by reference to twenty two fifty five and there are this question i'm not talking about either twenty two fifty four or twenty two fifty five i'm asking simply about a motion in the criminal case that's how wade arose and reached the supreme court it was not by a twenty two fifty four twenty two fifty five pleading it was by a simple motion in the criminal case that is correct so why is it that they will do your client as well because at this juncture of the proceedings that the the client is not pre sentence and but what prevents the defendant from filing a motion asking the court to direct the prosecutor to file that motion as i say that's what happened in ways that was the procedure used in a way yes  honor i believe actually this court's decisions and obeyed in richardson speak directly to that issue because they say that you cannot simply file a motion those decisions you know what we've said is you can't directly file a motion for a lower that's not covered by rule thirty five here we ever said that you can't file a motion asking the district judge to direct the prosecutor to file the rule thirty five motion as i said that was the procedure and wade we can't jolly well say oh gee the supreme court was wrong in thinking that that's an available procedure but i believe that there might be some questions of whether or not to that this record would have to restriction at that point in the case to even be able to consider that is come after the sentence it can't come before the sentence because rule thirty two i was about the district court has jurisdiction that is authority to grant such a motion by the prosecutor which leaves the question why would the district judge lack authority to go through the way the procedure are  u are construction of the relevant cases from this this court including ovate and richardson as we as we've indicated in our filings is that that would not be permitted that the remedy that the procedural mechanism by which the defendant would normally racist would be through a twenty to fifty five motion but in the context of what it is specifically that the defendant is question requesting here which is namely reconsideration of the issue by the department of justice if we were order that such reconsideration what instructions would we them we well that reconsideration would follow after naturally a review of whether or not the government's decision not to move based on its decision to effectively control the senate is proper so that was a commentary for the court with reference to thirty five fifty three d so those suppose the government makes a one rule thirty five motion and the judge reduces the sentence by twice as much as the government  step in find that wrongful and require another motion it your honor it is our position that the determination of the senate's lead to something that is that is left of the court and that if the government is permitted to preach or meet the consideration of that  then it basically nullifies a portion of how the statute works or the rule works because that the context is that the defendant would render substantial systems the government would tell the court what the defendant did and then that in the court would make a determination about whether or not to further reduce the sentence the government would be free in making that motion to make that argument to the court at that time that no further reduction should be made based on their view contended in the district court are you prepared to contend  have evidence that the reasons for motion was not filed a second motion was not filed for per reflects race discrimination or sex discrimination no you are well you may remember that wade said that that would be about the limit permissible reasons the disagreement with the prosecutor's conclusion about how much assistance was given would not be a permissible reason so it now sounds like you're conceding that you don't have a reason within the scope of wade is not an independent problem no your honor we don't believe so because we've actually advance a statutory argument here the argument is it's best not what the supreme court said in way we were told by the supreme court both what the procedure is and what the standard of review they said the standard of review is violating whether the prosecutor is violating the constitution you know i said earlier that we we try to follow the supreme court do you have any line of argument within the scope of wade not with respect to the constitutional argument or that end in wade the parties had not made a statutory argument that the core proceeded to the  what we're going to see is there is no cabinet on the prosecutor's decision nothing that we can apply to determine whether or not the the prosecutor has acted improperly those two points suggest and tell suggested filing a motion in the district court under either circumstance or what you mr kirk is trying to do is parse haters she's trying to say that i don't want to release under twenty to fifty five i just want reconsideration by the in our brief i reiterate sepoy nt that there has no your brief says go file one hundred twenty to fifty five but if you file under twenty to fifty five it will instantly be denied on the grounds that it's outside the scope of twenty to fifty five so that can't be the right thing that we should be telling for her to do in i take that point your honor so that just brings me back to the fact that this is a threshold issue an issue that is committed to prosecutors discretion is a matter of law  augmented to prosecutors discretion by law because wade held other words that was the argument the solicitor general made to the supreme court in wade and it was rejected and we recognize that there are limits your honor then it's not committed to prosecutors prosecutorial discretion by all right as i said that was the solicitor general's argument in a way we try to follow the supreme court we may not always succeed but flipping the supreme court the bird is just not an option for a