brief to the issue of whether or not the increased mandatory minimum should apply to mr vere and based on the nature of his prior conduct obviously the law her decision has made that a no go so we understand so we're focusing on the first and the third issues that are brief this morning the first issue is whether or not the district court abused its discretion in rejecting an eleven c one c agreement that would have subjected mr near into a maximum sentence of thirty years of imprisonment for the conduct in this case and fundamentally what you have is when the court took the plea the plea obviously the agreement contained a provision that stated that it was up to the district court to the to accept or reject the agreement if the agreement were rejected then mr barry would have the chance to withdraw his plea and begin negotiations a new and they showed up for sentencing four months after the plea was taken the district court had noted that she would wait to see the pre sentence report before making a final decision about the accepting or rejecting of the plea agreement she did when the present report came out she decided to reject the eleven c once the agreement but she never says one well i mean that's your position i understand the government kind of gave us the context of this around page five and six  understand and then i'll totally agree with you this is not the most fulsome explanation i've ever heard but she says i will not accept the three hundred sixty month app so that tells me that it's the sentence kept the chief just disagreeing with it i'm not sure what else there is to say about it well the point though is that when you're rejecting a plea agreement on that basis and sure she says she won't take the cap but a subpoena particularly when you're looking at the cross case the judge in that said the same thing except with more and that case the judge said i think the sentence is too low given the nature of the conduct i reviewed the pre sentence report i have these problems with the pre sentence report i'm going to reject the agreement but that is the type of hansei all of that  you i think you do what i think that's what the case law requires because when you're talking about the rejection of a plea agreement what this court has said that when you reject a plea agreement the reasons for that rejection can then be used by the parties to engage in further plea negotiations to make decisions about what they're going to do so what is it about knowing that it's the cap obviously you know the conduct is the conduct right that it's the cap on the sense of the parties wanted to go back to the drawing board and try for another see one see which i think actually get really particular scrutiny because they are the exception to the rule of the district courts discretion over sentencing maybe did negotiate a four hundred eighty month cap i don't know what they would do a but they actually rank doing well but they'd but they don't know that though because the question and even in cross that the case that i cited quite frequently it states that you know are you going to reject any cap is it just this cap do you not want to see a cap do you is there a particular sentence that you know they could work towards for example and your honour's exactly right if you're talking about renegotiation renegotiating a c one c agreement there are a plethora of possibilities for what the parties could have negotiated here they could have done another c one c with a higher cap  could have negotiated for a range of months of imprisonment within like within the scene once the agreement as we sometimes see there's a many different things they could have attempted to do and you could see from the transcript that the council was kind of surprised and and didn't know how to behave had to that it was rejected she gave him a recess to discuss it he said i'm not we're we're thrown off here we need more time and then and then they have this open play that happens because you know all the district court said was i don't like that you know like  could infer that but that's not what the courts burden it is a so when a court when this court is reviewing an exercise of discretion and has to be flat out stated what is that district court recent what's the reasoning and the case law states that there has to be an acknowledges she's red suv pre sentence report does tell you something there's a lot of things in the present report which actually sort of coincides with my next point which is that the kernel history category was incorrectly the site it had to at president's i mean maybe i'm jumping ahead is they're intertwined and the reason that they're intertwined is because you know the government has said that it doesn't change the guidelines for ensure that it's harmless error because the range was going to stay the same but i would posit that even though it's not clear that she didn't say much on the record about her consideration  criminal history category except to say that he had a history which disturbed her but that being said you know anybody who is familiar with federal sentencing guidelines judges lawyers alike who see a chapter for enhancement in a serious offender than anyone else because of their history and in this particular case for me one point five is repeat and dangerous sex offender against minors and anybody who sees that is automatically going to trigger something in their mind this is an extremely serious case not the comic that of itself was serious but that being said there's no way to tell that that chapter for enhanced meant didn't somehow influence the decision making and when the court specifically that is hard for me to actually swallow given mr viewer given what the judge knew about what true but she wasn't inclined to give him a life imprisonment range as indicated by the sentence she actually ended up keeping him she could have stacked the sentences consecutively and chose not to do so so you know i think that when you have a forty one point five and hence there was someone who is otherwise has a single conviction in the category two and she says on the record i have looked at that pre sentence report that is influenced my decision it could be the factor basis it could be the criminal history it could be personal facts about him that are in the in the emotional characteristics section or the personal history characteristics section we don't know because that present report is twenty five pages long it has a lot of information in it what's at her almost a new book or maybe there's that's the thing there's no way to know you have to say something there's no way to tell well she said the person's report that led her to that decision so that another please remit if the parties could have could have been renegotiated at that point you know what you can say i mean you know this guy has engaged in some and she does actually some point say engage in some of the worst behavior reading over the briefs today it looked a little unclear to me exactly what i'm asking for what i'm asking for is for the court to remain and and vacate the open plea and the sentence and send it back and reinstate the eleven see once the agreement and give the court if let's be fair there's a lot of space between thirty years and fifty years maybe she would have taken forty maybe she would have taken thirty five maybe she would have now after all these thompson cases rebalanced to professionalise put on life supervised release there's a bunch of different options here and he's forty three so he's going to be in prison until he's dead and that this is the difference between maybe breathing on the outside and maybe not so let her make the appropriate explanation and if she still rejects the thirty years then we can try to work out a different shouldn't give a lot of editorial comments because otherwise you're going to start engaging in the plea negotiations we think that judge pirro was crystal clear in rejecting the cap of three hundred sixty that it was too low i can't think of another reason why you would say i'm rejecting the cap of three hundred sixty unless you thought it was too low and even the remedy that's now asked for is to go back and let her give more reasons if you take into what account now what she said at the sentencing it is crystal clear that she thought it was too low and in fact best the a u s a why are you recommend still recommending thirty years a substantial departure from the life guideline range so we six she was very troubled by his history his conduct and i don't think so if he's up at the forty three offense level no matter what i believe he's actually had a forty five he was higher than just downright correct but for under any criminal history category before and we think that the judgment of the district court should be affirmed thank you thank you if you'd like one final thing you maybe don't have a full minute but i'll give you a full minute thank you  squad is that if you take a look at what happened at the sentencing hearing her reasoning becomes clear and i think the case law is clear that that kind of bootstrapping is not permitted what is required at the time of the plea being rejected the reasons have to be given what she was doing at t sentencing was going to thirty five fifty three a factors in describing the justification for her chosen sentence to then imply backwards that that's what she was thinking at the time we don't get to know that officially but the fact is that by not saying that at the time of the rejection of the the ability to renegotiate a plea that would have been more favorable than the ultimate result was taken away from the defendant and so to take what happened at sentencing and infer back is not the proper procedure and needs to be rejected at the time explanation needs to be given at the time of the rejection not later and that you know i made a just a brief point in my reply that if that's the government's position and if they think it's useless for every man then just give us another judge and somebody else can do the review of the c one c and rejected based on their reasoning and that would be inappropriate