for one of our panel members on this first case the lighting system is a key feature of this we want to hear your arguments but we also want to hear the next cases arguments in the ones after that so dread like come dawn you need to vacated because the object office to which he admitted in the factual basis carries a lesser punishment range than the object office to which he did not in the second one second each i'd like to address given that five of our arguments have to do with whether or not mr buttery should be held accountable violent conduct engaged in others what are the objective criteria based on case law that the court should look at in terminating in a situation like this where the assault conduct engaged in by others was something that was on it within the scope of his agreement factual basis our argument is that the indictment alleged to object of government says doesn't matter as long as one of the effect songs of actual factual basis supports one of the object often says that's enough and here's why in this case it doesn't ok in my opinion these all object offices ha different statutory and different guidelines punishment rate the inducing underage girls has a base office level thirty statutory range of ten the life the force threats oftens his office level thirty four governor the cases the government sites in response or jury verdict cases where a jury found somebody guilty of a conspiracy that alleged multiple objects and it was unclear base ok moving on here point to where you leave that point so far as a supplement to authorities is concerned you file that on a rule twenty eight which allows falling of authority that has been handed down since the date of your original still go ahead say this stuff we should mention that i was not aware of that i would look into whether there's any kind of disconnect between the guidance given to you in our well approach i understood at the time i understood at the time i  that i'm not sure how those in that situation how they reconcile with each other but ok objective criteria then for determining whether somebody like mr bott trace ok well first of all there are often says that you can agree to if you're if you're a coconspirator that because of the inherently violent nature of the off things you're going to be held accountable for what other folks do that's violent whether you agreed to it or not one of those is set forth in the commentary of one b one point three that's that the get away driver he's outside somebody assaults a bank teller and the the commentary says because the assault on the kidnapping the one i think that but but what about a situation where like what mr lotteries admitted to that is inducing underage girls to engage commercial sex that's not inherently violent perhaps the other problem would be inherently violent but i would say that one's not what can the court look at that in those situations and i've i came across five things the court can look at based on was he a right hand man was he always there with these folks did he always go everywhere they went i'd argue the answer in this case is no did he actually ate in a bat and some of the assault behavior no evidence of that was he in charge with sikhs one of the main leaders of this entire conspiracy in the answer is no based on what the present reports is and last had he observed any of these folks in gauging it is this behavior and the continued to bring girls in contact with these folks that would be another objective criteria that the court could look at to determine whether or not what they did was something that he was in within the scope of what he  agreed to and again and i would point out and i'm citing here from paragraph twenty six of the present report although there are general summaries in the pre sentence report that say he agreed he knew  about this sort of thing paragraph twenty six as this as only those women and girls where there is sufficient evidence to hold the defendants accountable for such activities are included for guideline purposes the information regarding those identified victims is detail below so you know despite some general language to present the pre sentence report restricts itself to the the the accounts given by victims in determining whether these guidelines calculations apply or not and let's see there are point the judge was asking him you know to go to whether you agreed or not he he he hesitated and the judge said look he did either did or did he said yes i did he attempted to withdraw his guilty pl within thirty days obviously it's not the record he's filed other stuff and sent me letters and that sort of thing says he's not guilty i'm not suggesting that's neither here or there because it's not a matter of record my point is is that i think this that is an indication that we've met the burden if he had been correctly advised he would not have entered his guilty plea so i want to probe that because your core point is that he pled but ultimately pled to the provision that leads to a ten year minimum were not the fifteen year minimum but do i understand correctly he was sentenced to three hundred thirty months yes to well above either well he was and that's what we're trying to figure out is w been i can't remember i don't have my brief eight hundred twenty months as opposed to three hundred thirty in the cases i've cited in there suggest that's plain air i'm sure you're suggesting that he should have been sentenced to eighty two hundred twenty the reason i ask is i thought i maybe i apologize if i much misunderstood i thought you were saying that he should have been subject to merely a ten year minimum sentence well ok i would i guess i would say there's plain error analysis as to whether or not his guilty plea was voluntary or not which is our first and then i would say there's a separate playing and error analysis as to whether the guideline calculations were correct or not here's what i say it should have been eighty seven two hundred eight yes months and that's why dissatisfies prong three that's why it mattered to his yes rights yes how do you justify that when i think you've admitted that he is subject to a ten year mandatory minimum statement counsel made that the sentencing for fifty nine one was different than had different mandatory minimums first i agree with your honor about it doesn't make a difference because those are the mandatory minimums but secondly more importantly the by file a motion with drugs guilty plea denying criminal culpability he did not qualify for acceptance as contemplated of the guidelines so even if this was a comment on his not getting acceptance of responsibility of the governments of obligations never triggered conspiracy this is one b one point two guidelines subsection d a conviction or count charge of conspiracy to commit more than one off and shall be treated as if the defendant had been convicted on a separate count of conspiracy for each the government pointed out you me see a different value there shape than about you haven't dealt with the motion to withdraw the guilty plea yet that's what you're relying on is it not about not accepting responsibility the evidence that they were not that's the evidence that the court right mind but it served a different purpose you may think there were are sort of using it for two purposes but still was a legitimate purpose to be saying that it does seem to me that that 's a very strong argument to how undermining what you're saying ok and i guess like i'm not i'm not suggesting that the court should have granted him acceptance of responsibility what i'm suggesting is that two fold number one if the government breaches the police green that then the police agreement which includes the waiver of appeal is in effect all i'm trying to my only point in raising that is to is to make the waiver of appeal move off here and not be counted so that we can get to all the other issues and i don't have to demonstrate based and i made this argument mark a reply brief i don't think i have to show that his substantial rights were affected i would have to show that if i was trying to get to withdraw his guilty plea i'd have to in and ask for specific performance or there's the other remedy  court chose not to grant acceptance the responsibility based on the fact that he tried to withdraw his guilty plea there's case law that supports that i'm not arguing that though every defendant that enters a guilty plea in federal court not counting those who entered alford police does so because he's going to get three points off he does it we all know that even though he didn't think the degree agreement doesn't say that that's an implied we all know that maybe maybe we don't i'm suggesting that but if the police greenman included an implicit term that the court was going to grant it and then the court didn't the issue is not whether the court had a legal grounds not to grant it because the court did but the co indicated we will have a change in the panel she will take a brief recess at of that the next group of parties can come forward and