yours when the government asks the court at sentencing to take into consideration for the purposes of the guidelines information that is protected by one b one point eight or when the court does in fact use such information to calculate the guidelines the defendant is entitled to under this court's precedent to rescind and sing without any analysis of harmless error so long as the error is preserved it doesn't matter whether the court would have imposed the same sentence that united states versus purse or considers the question at length and it certainly doesn't matter whether the court's sentence would otherwise be eroding isp reach of the police remit is the claim of error and it independently mirrors merits relief so let me ask you before we get too far into this was there a sufficient objection on the record or are we talking about plain error review there was sufficient objection  the the government in fact concedes that what the defendant said at sentencing was an objection it was a complaint about the use of the briefing material at sentencing it's contention here about insufficiency of that objection is that the defendant didn't defense counsel below didn't specifically say that he was invoking its rights under the plea agreement as opposed to the proffer agreement i would submit that's a that is an extremely fine hair to split given that the proffer agreement at the time of sentencing was entirely in operative whereas the police remit still determined the defendant's right so when the when the defense counsel says they've made real clear this was they're not supposed to use debriefing material then that is a sufficient reference to the only provision that remained in place at the time which would have regulated the use of the briefing material which was which was the the police remit in addition i think that the government's response after that demonstrates that it was understood by the parties at the time as a complaint about the use of debriefing material i won't call it a model of clarity but they their response was well this is permitted by the rib eye the rebuttal exception in the proffer agreement which wasn't true but it does demonstrate that they felt the need to justify the use but but does deal with the election of relief that that case says that an immaterial breach of the plea agreement might not be adequate to justify rescission of the pleading that withdrawal of the plea but there's never been a suggestion as i understand it in this court case law that that the materiality of the breach is a prerequisite to specific performance as a on the issue preservation what you dress to hear in case and  an operative basically at the time but nonetheless that's what the violation was and this court may be a little more insistent than song around the country and having a specific objection that that just seems to be the hurdle that we need to determine what you've gotten over what's what's the what do you say is your best authority they're making an incorrect objection and least to that extent it's still good enough because as you say the government concedes it was clearly an objection whatever else you want to rely on i don't need to find out authority because i think there there may be a misconception i don't think the defense referred to the proper objections so this is not a case where the defense says i have a did this is a violation of the proffer agreement what the defense said was there not to use the d briefing information so that so the objection if that's possible this is a distinction  the disc that the objection here was not an indication of the defendant's rights under the wrong provision it was in india indication of the defendant's rights which might have sounded in either the proffer agreement or the or the plea agreement and that the government's complaint now was that it wasn't specific sufficiently specific to exclude the wrong provision here so here we have an objection that is potentially ambiguous but it's cleared up by the context of of the proceedings  says it did they don't have to be in minute or hyper technical detail particularly when they're when they're live in the world often when we say something like no magic words are needed but that follows when you and now but here is that the district court must be sufficiently aware of what the objection is and what the violation news you're addressing back but that's right and it would i think it would be it would be very strange to ask the it if the defense went to the trouble of identifying the proffer agreement as the source of the rights they were invoking and was incorrect then then the district court has been led astray but if the way the defendant merely complains they're not supposed to be using the briefing information it's hard for me to understand why mr court would understand that is a reference to to the source of rights which is not available anymore so i would also submit in the alternative that the case can be reversed on on would have merit in a vacuum but this shouldn't be considered in a vacuum should be considered in the context of the entire investigation including the proffer and page two hundred and thirty three dollars where they say look he's asking to be sentenced on the basis of fifteen kilos here to be held accountable on for fifteen kilos but if you add up all the proffered admissions he's already admitted twenty one dollars so at that point he's saying reject the objection that the government counsel saying reject the objection because of the information in the proffer so th the rd in cartland and and williams recognise that the the usual presumptions on the rd prong are inverted in the cases of breaches of the plea agreement and that we usually assume that the government's advocacy affected the district was it had some force that said this is an anonymous codefendant anonymous drug dealer somebody that the government isn't even identifying who's saying five kilos a week for thirteen weeks sixty five kilos this is all this is a this is  large claim this is a significant claim of information to to to put on the defendant and i think there isn't adequate evidence of the reliability of that and then to answer that challenge the government used the pro agreement so that the information in them that was used in the proffer it could have been used merely to replace the kilos that would be lost without objection but it also might have been used to corroborate the p s r in that regard by saying this is a using that the government by using that family to plead i am saying that and the reason that i'm saying that is that the government views that as corroborative evidence that the district courts conclusion that it ought to rely on the p s r could be have been informed likely was informed by the arguments that the government made to corroborate the information in the p s r through the proffer through the proper information but defense counsel is contesting the p s r as i understand you think you just said that defense counsel was objecting to the provisions in the p s are specifically those that relate to quantify occasion isn't the purpose of the clause in the proffer agreement that the defendant doesn't come in and offer the government nuggets of information you know get government to take the bait and enter into a plea agreement with the defendant who is knowledgeable and then have the defendant back away from that knowledge or even contest or deny making previous statements isn't that the purpose of the clause that allows the government to rebut that that is the purpose of that of that clause i will tell you that clause as an operative by the time we get to the pleated that the defendant that clause was there in the proffer agreement said and it was by the plea agreement itself that the proffer basically is no longer exists for the purposes of this case is that precisely but it is instructive the contrast between the two provisions is instructive in telling us what the meant the contrast between a the proffer agreement which says we have a right of rebuttal to evidence in organs is is and then to go to a pleading that which doesn't which merely talks about information testimony in the context of cooperation in a five k agreement now the words if the defendant later testifies and is contrary to what he told the government at the time of the proffer the proffer still there isn't it and the government can take it out and say well you do remember meeting with the government you told us x y  regulate the defendant's right to make objections in that case another contrast i think that it's that it's helpful in the course of dealing here is to contrast the government's to the government's response proper response if the defendant gives false or incomplete information testimony and and to contrast that its offer of a protection under one b one point eight with its discussion of the five k and in the discussion of the five k the government says that the right to offer the five k is in its sole discretion meaning it that the court will regulate whether it decides to give a five k if there is no comparable language or doesn't use that language anyway in connection with  decision to say that one b one point eight is is a pleasurable so i don't think the government can stand up here and now and say well we're essentially voiding the avoiding the plea agreement because in our opinion this this objection didn't comply with the plea agreement there that the district court would have imposed the same sentence otherwise not merely that it could have that the information was there but it would have found the evidence sufficiently credible to do that and nd of all i think the behavior of the parties speaks a lot to that as well why did the government offer all of this proffered information in support of this objection if that objection was was independent was in its view independently adequate if if it gives me if that information was independently adequate in the the objection w may please the court christina williams on behalf of the united states under any standard overview toppy is claim fails because the government did not breach the plea agreement or it supplement and this court to the firm the district court i know this court case saw the court asked whether the government's conduct was consistent with the defendant's reasonable understanding of the plea agreement and that increase begins with the plain language of the plea agreement itself here the operative document is the plea agreement supplement found of pages sixty seven to sixty eight of the record and the st paragraph that purse paragraph of that provides that tapia will provide truthful incomplete information and this is a continuing obligation from de briefing all the way through sentencing in the district court the nd paragraph speaks to the  motion that the government will file if the defendant has provided substantial assistance and finally turning to the rd paragraph provides two things st section one b one point eight of the sentencing guidelines applies and then it also provides if and that's a crucial if the government determines that tapia provided complete and truthful information it will not use his proffer information to increase his guideline level so here a topic is reasonable understanding of the plea agreement is that if he provided complete and truthful information and testimony not just testimony also information which is much wider subset than the government would not use his proffer information next we look at what actually happened as the court that and he admitted to twenty one kilograms which is more than the fifty five to fifteen so the government was using that to ensure that the court had the full injuries full information before it sentencing because he couldn't possibly only been accountable for five to fifteen after admitting to twenty one the government doesn't take the position that he breached the agreement is that correct either the proffer or the plea agreement is a correct i mean that the government offered him the got the five k for him so that the precluded from arguing that he breached the either one of the agreements is that right well the government contends that the plain language of the plea agreement allowed the government to do what i did to enter duce a proper information because in the government's opinion he did not provide full and truthful information so it's not necessarily a matter of he breached st so we get to breach it's a matter of the plain language of the plea agreement supplement is there any obligation on the part of the government either in the jurisprudence or otherwise even by customer practice to so advise defense counsel that the government considers the line to have been crossed on the truthfulness obligation and that the government intends to file into the record o produce in court the results any part of the proffer or can the government just unilaterally decide it we're going in with the proper information so the government you know the st notice given the to the defendant miller and that panel did interpret the casting the opinion to require that in a breach of a cooperation agreement before the government uses information that it provides notice and you know that notice could be during the sentencing hearing could be in redemption actions which is exactly what happened here after tapia filed his objections to the p s r the government gave notice in that response that it intended to use proper information and then again  sentencing it did so the defendant had ample opportunity to you know have a full robot will an argument concerning that which would satisfy any obligation from miller and i can and i can give the so here the prosecutor's use of toppy is proffered missions was within the bounds of the plea agreement supplement and it was certainly reasonable and there's an argument made by the appellant in his reply that the government is essentially saying well no defendant can ever challenge drug quantity he can't make any objection at all that would interviews proffer that's not the case here here the line is crossed with independent lies to the court which is what mr tapia did the government acted reasonably and fulfilled its responsibility to the court to characterize it maybe and that you needed better evidence is that in itself a violation of admissions he had made when did he cross the line what is in your otherwise to cross the line and violated his agreement well if he would have simply stopped i could have been and once testimony is not reliable i didn't sell him the five kilograms a week for thirteen weeks perhaps that would have not crossed the line but when he went further and you said you know his counsels on his behalf i'm only responsible for five to fifteen kilograms that's when it crossed the line because that was that's what was directly contrary to his proffer  the equivalent of saying the it government's evidence only shows five to fifteen when that basically the objection i don't have to offer evidence i mean maybe the phrasing of it but just in media objection is other words may not have i think here we do have to look at the specific language that was use in the argument to the court and then specifically what this plea agreement supplement provides so i'd like to  respond to a few points made by the appellant here the government certainly does not concede that the error was preserved and the government provided its briefing and still asserts that claim error review applies here the objection was made to quote debriefing information that's it page two hundred and twenty six of the record and whether or not the proffer agreement or the plea agreement legally whichever one is binding for purposes of that objection we look at whether there was a live question in the district court at that point as to whether the proffer covered proffer agreement or the plea agreement or something else and the government's response to the defendant's objections actually sided to the proffer agreement so at least at that point the district court very long could have interpreted this objection to debriefing information as being a violation of the proffer agreement versus the argument about a violation of a plea agreement that's made here so there was not a specific enough objection made air review to breach a plea agreement cases would encourage proper objections and and allow for the district court to be able to correct it in the st instance if necessary so the government's position continues that  and all four prongs of that cannot be satisfied and i assume an argument that plane air or an automatic breach becomes plane air that's not the case and puckett tells us that we must still continue through each error analysis and even more so that not all breaches will be clear error and here you know the when we look at the actual objection made the use of the information and the plain language of the plea agreements supplement itself it certainly would not be clear error and in any event the other four prongs cannot be proven as shown in the government's brief finally judge graves noted that the that the record adopted the p s r and that's very much the case here and even if the district court had soley relied on the proffer information and found codefendant one information to be incredible it couldn't have reached the forty five kilograms would have stopped at the twenty one dollars of his admissions so simply can't be the case that the that the district court relied on that to reach the forty five or more kilograms drug quantity so in conclusion because the government did not breach the plea agreement supplement this court should affirm and of the panel has no further things that denials of things that the defendant said in the proffer agreement in other words the government can use the proffer agreement in order to correct misstatements by the defense that denied what he said in the pro one who put the sixty five kilogram who attributed sixty five kilograms to the defendant was not mentioned at all in the proffer agreement so it's difficult to understand how the use of the proffered material would have even been available to the government even as robot will under the terms of the proffer even if that rebuttal exception had had somehow survived this it was merely really just using the proffered agreement  objection is district judge i should be held responsible for why i'm out i should be responsible only for x amount not in terms of who attributes how much whether it's for sentencing or whether it's in the proffer though right that's true but i mean if that's if the government can use information that's in the proffer agreement quantities that are admitted in the proffer agreement in order to replace the quantities that are want to be careful about that idea when he said he should be accountable for five to fifteen kilos that's not saying he's only dealt five to fifteen kilos that's saying that parties saying this this is the is the government's evidence isn't sufficient to show more than that if we were let's take let's assume that he did that and see that clobbering defendant one information is worth something it's not worth sixty five kilos i think you should hold him accountable r argument it's not in my opinion it's not in the phrasing at all and the reason for that is that the plea agreement simply doesn't regulate the objections that the defendant makes that's if it simply doesn't regulate the objections that the defendant makes the pro agreement does its talks about evidence and arguments assertions representations but the plea agreement is talking about information and testimony and so that in the context of a five k is talking about the defendant's personal assertions of personal knowledge in court or to not analysis of the evidence now i do want to be clear so i'm not stating anything there are statements and in by this attorney that say we deny the defendant denies  dealing this much this much methamphetamine the statements at the hearing i'm sorry well i think they're in that they're in the filing as well oral and written statements that's not the way i hope our offices would make that objection this is retain