appeal because the government failed for several reasons first of all we agree with your contractual nature and the government didn't object to the filing of the appeal until several months or so almost a year later leif secondly the government the action not found by a jury or a minute by the defendant specifically they raised the issue of the increase from six to eighteen based upon sophisticated concealment organizing leader abus position of trust and a tax loss that would not admitted by him or by a jury and it was the same thing in counts twenty two through forty and forty three through forty six the base level was thirteen and it was frick for an almost equal number of times a length of time i don't think i've ever heard a judge there dismissed any counts in this situation with prejudice in fact you look at the judgment form which is promulgated by the administrative office of the cour there's no space for with or without prejudice that just says dismiss the way that this works is that if you think it's dismissed with prejudice and with the government we indict you you go before the district court and you point out that you think this court simply files to relation there the other thing the defendant has admitted that he's not challenging his plea and the thing about appeal waivers is that their validity is dependent not on what happens at sentencing or after the counsel is awaiting point you wave your appeal the court struck open the question whether that could be raised even in the face of a waiver of collateral attack which there was here but we're not in that situation that's not my understanding  second one is that the remedy for this preacher is quite obviously that specific performance that you just missed it was prejudice i would also like to point out that the defendant this was more of an equitable consideration but the defendant is running a considerable risk here if in fact there is a resentencing if the court remembers the district court gave the defendant considerable break by first finding that the defendant had not had a sufficient opportunity to address the question of whether he instructed justice by lying at his sentencing in the pre sentencing documents so refused to impose the two points or that it then went on to find that he had satisfactorily accepted responsibility we would object to that but we didn't feel it on remand if there is one the defendant will have a chance to address the destruction of justice issue the court has already found that he lied at sentencing so it's entirely possible that he would not only point to her obstruction of justice but be precluded by that from getting the two points for acceptance has gotten guideline range would then go from he hasn't every sentencing imposed a guideline sentence which means that it's quite possible if not likely that the defendant sentence when they're not being much longer so there's no equitable argument here that he will fare better at the most he will get what he got which is seventeen months it's asking toward the district court to depart under amalie in the discretion that's allowed there would be like asking lightning to strike and also like to point out that we're not relying entirely upon the waiver we think that even without the waiver of the continuance would have been perfectly valid in this respect i think it's important to realize i would have used discretion means as i understand the cour is that the judge after having gotten those two parts right can do whatever is appropriate that's what it means for district court to have discretion there's no question here that the judge has a lot right in fact he sent the attorneys out exactly what the defendant did in fact there's a psychiatric report that said that most of the things the defendant was doing were the one going to avoid prosecution that he had been refusing to take his medication to make himself more sympathetic was a discussion with the defendant's son in which the son said that mr brown told him that he had planned to stop taking his medication to avoid trial and to get sympathy with the court through all of those things that employees support the district court's decisions that all the defendant was doing was trying to avoid sentencing so given that and the fact that it's perfectly possible to possible i don't think these risks were were totally unknown for instance if what he's talking about his book or you may not have been able to predict how poker was going to come out that it had been in the works i mean ever since the frenzy that something