you said you have discretion but we want you to exercise it in this other way in view of the fact that the district court had that in front of it and that it seemed like everybody agreed to that why should we conclude that this experience told the court you can't depart don't part because he did not accept the plea agreement so you can't harvard don't go far to different i didn't get did say don't depart because anybody because of this circumstance so why would you want to depart our but it isn't a way of saying like us already i think this actually weighs more of the second aspect of the legal error which is that the court did not understand the correct standard for the savings to the government departure well if the court understood that it had discretion and declined to exercise it is in fact the and everything you know i think that i think the court will still look to see if the court committed legal error in  declining the departure so this court has the jurisdiction to review it for a legal letter i believe just like it would if the court commits legal lare i think in this case the government position was an all or nothing and essentially it amounted to a bar to the departure what the government argued was that simply because he rejected the plea he doesn't qualify for  the departure is that he doesn't he is case isn't taken outside the guidelines but i think there's two other things that we should look at even though that may have been presented to the court what the court actually said i think indicates that it did not believe that it had discretion and i'm quoting from on page forty eight of the excerpt the court said the issue and i quote the issue was that mr holmes mchale did not accept the government's plea agreement which gives you a lot of consideration so later it says quote but you retain certain things you give up certain things and there's consequences to it i think what the court is saying there it directly linked mr holmes in the tail not accepting the pl to his not getting the departure so despite any suggestion by the government that it had discretion what the district court actually said on the record about this departure is at odds with what this court rodrigues lopez respect to a motion to continue the time for filing the indictment the government agreed that by waiting is right from indictment he saved the court the government's time and effort not having a panel a grand jury entering this speedy guilty plea he save the government time in not having a pair for a trial not having to set this court case on the calendar numerous times to not having seen him in pretrial incarceration the critical shortage government also agreed that by not bringing in pretrial motions it save time and not have your prayer for litigate those motions in addition the government essentially agreed below that mr holmes materials reservation of the right  argue for cultural assimilation did not deprive the government of any benefit and if it conceded that by saying that in other cases it allows defendants to argue to litigate the cultural assimilation i good morning my name is joe caller and i represent the united states in this case this court should affirm the judge's district court and the sentence because the district court clearly understood that it had stretching to depart and exercise that that discretion not depart in addition the district court explicitly declared that the dispute between the parties regarding the terms of the plea agreement was immaterial to a sentencing decision the defendants are going to ask this court to find that the excuse me had the authority to depart number two the court entertain the argument on the departure number three the district court granted two of the three departures the two of the departures that the defendant asked for puzzled me not the formal rule but the way in which we apply it and that is it's clearly in all striking stances an abuse of discretion by a judge when the judge does not understand the law and applies the wrong legal standard i mean that by definition is an abuse of discretion but if the judge doesn't stand the legal standard and then within that standard exercised his or her discretion ok that's what it is the question is what evidence do we want to have before us to the judge properly understood the legal standard ordinarily i least i think this is the way it works unless it's pretty clear on the face of the record that the judge mistook the legal standard we assume that he or she understood it here it seems somehow that we've managed to persuade ourselves that there's got to be an affirmative indication on the record that the judge understood the standard and i'm not quite sure how strong that affirmative indication on the record here was and you're telling us we infer that's correct in this court case law starting with garcia garcia clearly states that the court need not explicitly declare on the record that it has the discretion it only needs to be clear from the record that the court understood that this courtroom and for clarification if that court meant that that was all i could do given what the guidelines said or if that meant that the court was exercising exercising its discretion and rojas me i know judge graver was on that court  guidelines the court said that the guidelines that fail the sphere we cannot shape the sentence as we should be able to and indicating that perhaps it might not have the discretion to depart in those two cases the court remained however in this case just a court never made such a statement instead the district court made it clear that it was actually sizing its discretion to grant downward departures in other circumstances and in this case it's in my briefs the court  where you are starting for this departure is not appropriate here when it was granting the departures and referring back to the departure for savings to the government it also said that to retain certain rights that is the right you asked for cultural simulation the right to appeal the right to pursue a twenty to fifty five motion the defendant gave up certain rights and those rights were a guaranteed downward departure for savings to the government that's what the defendant gave be original short of cash to bargain he was unable to get cultural assimilation that is correct so what so so from his standpoint what he wanted was listen i want to chance to be considered for a cultural so malaysian and the chance to be considered for this and additional that's clearly not what the courts have there and number two invites the court to inject the district court into the plea process by saying i don't like the agreement that the government offered in this case therefore i'm going to do our depart that is exactly what to me that when the court was disgusting the implications of not going fast track with the defendant he's explicitly telling him that the lawyer can make an merely a statement of counsel that's the product of a faulty memory the district court clearly understood that in the transcript the district court said look sometimes we mistake things sometimes we don't remember what we say that kind of thing happens but the point is it's not material here the court complied with rule thirty two and this court case law and made an explicit declaration that it was not going to rely on what the terms of the agreement would have been in making a sentencing decision and  mean in response to the court's question about page eight of the record i think what the court was saying is it had discretion about the cultural assimilation departure that's the way i read this in context so i wasn't saying i also understand that i can give you a downward departure for sa government at that at that point of guilty plea i think there is something positive in the record here despite the fact that the government may have that you have discretion that one phrase by the government that the court says you since you tells me that there is i don't want to give you the downward departure for saving to the government not that i am compelled by a law to do that but in my view giving up cleanly and giving up the saving of government that would have been accomplished by southwest track that's enough for me in my judgment to deny it to you would that be permissible if that's what the judge thought i don't think it's permissible if in addition that if that if the if that's the only i agree with judge pleasure i think that that would and the matter that if he says i have this question but i'm not exercising it for this reason and this is the sole reason and it's all reason but i think you're we have something in addition in the courts that i'm not giving it to you because you gave up that right because you