day the united states and the honorable court that morning this is judge wilson in tampa judge marcus's in miami and judge john bush from the but we read the briefs and we've examined the relevant parts of the record of that will assist you in confining your arguments to the issues on appeal as our court in that building and she will be the time keeper and she will let you know when you have two minutes left argue and she will let you know when your time is up so we will begin with the st case it is you the united states of america versus meant that us probation originally recommended instead imposed a six level enhancement that prejudice noah gran as his guidelines would have been fifteen to twenty one months instead of twenty four to thirty months ultimately mr nygren received a two month downward departure to twenty two months dole issue here is his word was the underlying of bands according to application no one into j one point six and it's the defense position and us provisions position that the underlying offense was the aggravated identity theft that was the count that mr nygren pled to and that the offense in respect to which he failed to appear so because he was only facing two years statutory max and stead of the five years statutory max the reliable enhancement well the unless a different meaning is specified that's what it says and the one point one comment line no one and then when you look at the specific line that we're underlying of that right read still it's the defense's position that the the conspiracy charge was not still pending because he couldn't he couldn't be sentenced on that particular charge once government moved to dismiss that charge the government had not moved to dismiss that charge couldn't be pending at the government had moved to dismiss it and the court hadn't this must because to haul the whole application no one into j one dollar says the offense in which in respect to which the defendant failed to appear and the whole logic under the guideline and the increase in severity fan depending on the increase in the statutory maximum is that individuals that are facing greater and it's still our position that at the end at the end of the day he could not have been sentenced  on that charge when he appeared for sentencing so the way this plea agreement was written because there was no way in which in the plea agreement were mr no grand to fail to appear st sentencing on that that would violate his plea agreement he couldn't have walked in at sentencing in the court couldn't have imposed a five year sentence i know it this this factual scenario is a little unusual given the way the plea agreement was drafted but at the end of the day if the logic underlying the guideline is get an increased sentence for a panel the four for a scenario where you're of facing an increase out the the only penalty he was facing which the judge actually said when he was sentence is is he's kept it twenty four months and that's a good thing so the fact that the u s attorney's office didn't dismiss the actual charge until until after sentencing is was just a formality because he can only get two years once the core accepted the plea and accepted the plea agreement at the change of plea and have to we would have to accept that your argument that the conspiracy charge was still at the time really feel that we're here and i just don't know how we can do that given this provision of the guidelines that well i've i mean i think it's consistent with it's consistent with the guideline it's also consistent with some of the case law that the government say that the whole the whole purpose is what are what is the defendant actually on notice about another words that mr new grand was on notice that when he shows up for a sentenc ing he's going to get two years so in his mind he was fleeing from a sentence of two years not a sentence of five years and if the court were to apply it to this unique very unique scenario given the underlying nature of the plea agreement it would sort of go against the logic of the underlying guideline because it interesting that's another interesting issue in this particular case at the end of the day the plain language of the plea agreement says nothing about fail davis david where the court says that they are of the opinion that in place and every such plea agreement is the defendant's obligation to appear for sentencing but a that's not binding on the limited some situation this limited factual pattern and they chose not to for whatever reason so the this court should just adopt the plain reading of the so while they could have avoided it they chose a lot of boys is that what happened here that's correct but i i don't believe they could avoid it not just for client for sailing to appear in the bottom line however is that they chose not to do what they might have been able to do and instead double down and ratified the agreement by dismissing the two did agree to dismiss counts while and thirteen but because the defendant materially breached it we're going forward with those counts and we want you to vacate the plea agreement they didn't do that rather they went ahead with the bargain even though he may have breached and the court pursuant to all of that dismissed one and thirteen leaving only count well the character which he pled and the count to which he was sentenced to two years do i have that accurately you have that accurately and it was the judge's understanding at the time she impose sentence when she said good thing he's kept it two years depending where the underlying are friends rather exposes the defendant to less than five years the relevant failure to appear is punishable by up to two years and or a d so it seemed to me that the argument of net net wins argument is that the government had had a plea agreement with him and he chose not to void that agreement and therefore the only charge going into the senate saying that he was aware of our on notice that he was going to be punished or was this was the sense that would give the lower the three level the district court had yes your honor the disick or it could have articulated a desire basically to reject the plea agreement allow the defendant the opportunity to withdraw his his change of pl court might have heard from the defense on that subject of course as to whether or not the courts acceptance of the changes we was in fact conditional or not i do think that the court could have accepted could have made that decision at that time so going into the sentencing negron was on notice that the government or that the court could refuse not to accept the plea agreement in which case all three of the charges are still the states was prohibited from prosecuting him because person count for whatever reason because of the plea agreement or because of double jeopardy or any other reason all of those all of those different variables are irrelevant because at the time the defendant if the defendant were permitted to simply presume that the government's statement that it would do something in the future is tantamount to the dismissal at the time that would incentivize the defendant's failure to appear at sentencing and and that would only encourage the sentenced to plead guilty to lesser offenses as the defendant did the two to near max being the latter to which he entered his guilty plea only to then turn around and walk away from the whole proceeding even though he had been under under the court's order to appear for every one of his hearings his relationship with not only with the government but actually more importantly with the courts so when he appeared as for the for his very close hearing he had a little israel and he is given a bond hearing and he was released on good terms and conditions that he had to comply with in order to remain out on bond at liberty in the community and one of those conditions was that he not only you can hand off people's personal identif information but also that he appear at every one of the hearings will eighteen to his case and so the to the the the belief that he somehow was responsible to appear only  the government double down on the plea agreement and actually move to boy that you could have done that it seems to me speaking for myself i think he what he would avoid in the agreement but the other the about the it mattered in the united states even though he breached the agreement as i see it in a material way the united states said that's all right let's go forward with the plea agreement will one and thirteen and the district court did exactly that at the time of the nd saying that a blow moment here it is absolutely of no moment here you're absolutely right you're on the government and extended the benefit for the defendant of the plea agreement anyway doesn't mean that he didn't fail to appear if he he still was responsible for the consequences of his its terms to word it was written what's your response to that my response to that is quite simply that the plea agreement would not have made any sense had the parties and had the parties readable understanding and agreement not been that the developer for his own sentencing the requirement that the defendant appear for his sentencing is implicit frankly in the plea agreement the language refers to the sentencing at a number of different points within the plea agreement a dokken entry a b y and r the language talks about the fact that the defendant has to pay a special segment we've had to be paid on the date of his sentencing was not due to the court wired to that date so and i and the united states would also respectfully point out that to to to consider the plea agreement and a lack of language requiring the defendant appearance within the plea agreement in a vacuum ignoring the bond conditions which i've already mentioned and ignoring the federal rule of criminal procedure thirty two dollars which basically contemplate required to address the dependent personally order to allow him to speak or presenting any information to mitigate the sentencing so obviously the that could not take place without the defendants physically being in court obviously the defendant is not in a position to know what the what the criminal federal rules of criminal procedure are but within the context of his appearing before the court for bond hearing  by the united states district court without any objection by the united states right on the united states motion in fact yes or let me ask just one other question if you can help me i'm looking at honest that's the right application note ok let's get out of the language itself it defines underlying offense as quote the offense in respect to which the defendant failed to t failed to appear the offense to which he had pled guilty rather than the other two counts which the government moved to dismiss in the court this passed you know you're on a lot at all one where offense is defined as offense of conviction and all relevant conduct under one b one point three unless a different meaning is specified or is otherwise clear from the context now in this particular case i do understand that at st blush we could look at the underlying offense and and we might get the impression that because he's entered a guilty plea to one particular count that that is the count to which the word underlying offense refer but in this particular case and in cases where individuals have entered a guilty plea to a what would be a lesser offen expose him to a lengthy prison term would would within the context of the policy behind the entire sentencing guidelines would result in an appear in this seems like this is your best argument includes and i don't have it in front of me but i think it says it includes pending charges right i did hear the court i'm clear on this you agree with the defendant that the appropriate guideline we had guideline no we apt to apply and construe is to j point six application no one underlying offense is defined as quote the fence in respect to which the defendant failed to appeal that's the question right did he feel what offense  appear on and i'm simply asking if he has already been sentenced on camp well and the government had agreed to dismiss one and thirteen although they had not yet been dismissed but later were dismissed wasn't the offense in respect to which the defendants failed to appear count twelve ok and just to be clear on that he had not been sentenced to count twelve at the time that we're moving counts with this mess agree with you that you would look at what happened at the time he jump on and try to apply that to the definition but the definition is  in respect to which he failed to appear he was supposed to appear before sentence on the count to which he pled which was count well he failed your year but that right yes you want however indictment and the fact of public do before in this case to more than one count the government i'm simply arguing that the only town that that was committed that should have been commensurate and that was commensurate to the failure to appear as far as the punishment was concerned is the conspiracy count that is clearly was like did in the indictment to which the defendant knowingly entered his guilty  and sixty one that and compare that to the indictment there's a couple of different ways to violate that if the person was released think connection with the charge which is how they charged it here and it's true that mr no gren was released on bond in connection with the lottery charges an alternative way to violate one a would have been to charge him with while awaiting calculating the application of the guidelines determine the offense guideline section in chapter two applicable to the offense of conviction so probation acquaints the offense of conviction to the underlying offense and offense jeopardy attached at that point so i definitely disagree that this plea was voidable it was not because jeopardy attached at the time the judge never deferred this was in a conditional back to the underlying logic an odious mr in the ground was on notice that he was going to get two years and that's why his penalty for bail jumping should become measure it with and there are penalties for committing new offenses a new indictment it's not like he was able to commit this new offense and not have any consequences and on top of it all the government could've remedy this situation by properly drafting the plea agreement to