good morning i'm richard walker an assistant better public defender in the northern district of west virginia i represent johnny and johnny edgell is an inmate you know heigho he was convicted for methamphetamine charge and a firearms charge were here because johnn for that requested and supported a sentence in the area ten months we asked for probation but there was a ten month plea agreement contemplated and after the government disclosed new evidence that without any notice to the defense when he learned of the evidence then you can let the district judge you can agree to a fact that's a false fact so when they learn that a pure math i let the judge know but the problem i think in this case is not that they breached they didn't do anything that they they agreed that it was the lower level math and you asked for specific performance but all you can all they can say is that they agreed that their recommendation on sentencing but now you have the district court that has the real fact and judge healey in this case was made the observation that she thought the case was more serious than what the parties had had a greed to and you know what she did right the injustice comes it seems to me from a mutual mistake back to you in that event and maybe the answer is to vacate a plea agreement but i don't think specific performance helps you a bit because all you can do is to instruct the u s attorney to do something different and so they get up for the court and say we agree to the colts fact your honor we'll take it were they say that right but judge keenly recognize that because the u s attorney made a full explanation of what happened very accurate one saying we assumed it was the deluded math in the lab him back shows pure math and we just let you know and that's an obligation the u s attorney has explicitly in the argument and the court should not be sentence you know all spots but you are it's your injustice comes from the fact that you entered into an agreement based on the fact that it was  math and the government agreed so both of you were under a mistaken belief when you entered that leap and the question in my mind is what is the appropriate remedy and i don't think you gain anything to force the government to say something caution you that you ought to be sure dr klein wants well that would be acceptable to the defense i think that mr udell would have prefer to proceed to trial rather than receive a sentence of thirty on the basis of math he clearly did not negotiate disagreement on the basis that it was pure i agree and there's some justice has to be done for him in my view is what's the remedy i agree and i think  think you should have an opportunity to return to the district court and make that decision before just a court judge in and determine once and for all whether in fact he would like to exercise the right to withdraw the plea agreement proceed to trial and if he would have to do that i think he would have to do that on sentence so that he can be released from prison he wants the benefit of his bargain which was denied to him here now but the danger in that is we would be forcing the u s attorney to say to a new district judge that now the court the government knows that the information is inaccurate we all and the new district judge is now faced with the fact that the agreement says we you can go ahead and they can say we're bound by this cream and we accept the agreement based on the fact we understood that and we'll stick by the agreement and the recommendations but the new district judge has to be sentenced on the basis of what the record we've never advocated to conceal any fact you know i want that to of the lab report but this time the u s attorney instead of recommending a sentence flatly inconsistent with the plea agreement or recommend that the plea agreement the ten months something sentence be adhered to notwithstanding that the accurate we believe is accurate i understand that disclosure i think that was done in good faith i don't know that it was required under the guidelines because i don't think the guidelines i don't think the guidelines can and authorize the government to reach a plea agreement be that as it may i understand the intent there and i never criticize the government or mr warner for making that disclosure but what i fully expect is for a prosecutor to fight for our plea agreement and honor our plea or him at the sentencing hearing and the opposite happened miss was we can see he came to the sentencing hearing and she just  hands she said this is a calamity it's rare it's unfortunate we don't like to see this happen but judge go ahead and sentence mr agile to the bottom of the guidelines based on ice based on pure methamphetamine  contemplated by the parties i'm lose specifically for that in my sentencing memorandum which is in the sealed joint appendix on the basis of the interest of justice and for all of the mitigate other mitigating factors in the case the government never addressed that so the they didn't know that even under the warner case even in the warner case where there was a mistake it's your case even to work case where there was a mistake a fact based on the weather the crop the underlying crime in the gun cas a felony the government came out at the sentencing hearing and still recommended the original the agreement they made in disclosure the government admitted that they had had a fail to analyze the felony properly but the government going to the sentencing hearing and said despite  was inconsistent with our agreement did the agreement have a provision that the government would recommend sentence in one or no year no well then the government doesn't have to recommend any sentence that this be not a specific sentence but it still is required to recognize the drug quantity stipulation which we all know it but it has to it can't misrepresent the facts never has to make the disclosure about what the lab absolutely did we did but our goals were that the government is not obliged like and warner is not obliged to recommend a variance or to recommend a downward departure or to recommend a low end of the guidelines well it is that there is a low in recommendation are it is there is a lot of right makes into the low end of the guideline that was based on a new drug that we had didn't know anything about that was almost twice as high than we nizhni contemplate it this i know was a very but i was a breach it was a breach it was a breach and you know why don't have i don't understand why it's a breach i think he didn't receive the benefit of his bargain it was a it was a material a material element or i'll agree with that but i think that's true that drug quantity stipulation is the reason you enter into a plea agreement these but even now now the government want to agree to waive amendment or set aside a minute so all you have is the drug quantity stipulation if you take that away from someone like johnny edgel the plea agreements worthless i think i've made my point the only three cases the really have to look at it because i think this is relatively sure forward's warner dawson and to clara were asking for specific performance if the court believes in another remedy than we'd like an opportunity to have that shuts the whole that's my only problem with your whole argument right you're asking the government to specifically do what go to a sentencing hearing and ask the court to recognize the original guideline range there's a lot of cases out there where it that's exactly what happened i was sort of surprised at how often this comes up and there and we've done this before it just didn't happen in this case i think it was a mistake i think mr warner acted in good faith i think it just was not handled appropriately there were two prosecutors involved i think that made it even more complicated and i of the god law is this consistent with the stipulated amount of men right right timmons but if the district court disagrees with that knowing as a matter of fact what actually was it is look at it and view the error this judge looked at it the plea agreement clearly was entered into by both parties under a false assumption and so the in order to keep the air pure and we get another judge looking in but the negotiations center on the drug and the amount of drugs and everybody believed that was reasonable and everybody for the lab report why is i mean i don't understand why the government should not be relieved of the calculated risk because because the language in the plea agreement clearly said that he assumes that risk if the district court doesn't is accept the stipulation but there's nothing then that says he assumes the risk that if the lab report comes back we can change the drives the sentence and that's what he want to mess with you promise to give him that and you're right it's no fault of the government but it turned out to be something different nobody's saying that but what isn't different is that you still had an  is a good question and inquire about terms of who assume risk and you said love very well because you had twenty years of experience and you felt that this was correct equality you know you didn't do it out of in the sympathy at all and other external circumstances the change that might be different because you look at it in a context of twenty years of c n n and you think this was just men and that's nothing wrong with that it happens all the people make you know resistance made him do that they knew going to say i think he ought to be sentenced at the low end of the god line range that associated with stipulated on it that's simple that's all and you're right you can't guideline ratings so i know i know mr edge was looking at the drop weight in assuming that that would be the ten month sentence but the language it was clear that it's the applicable guideline range and that i have a right to correct the record and that if the judge doesn't go along with it here it would draw so not happy with the case at all but but we did recommend the low end of the ethical guidelines which even though it was now a new a new guideline res we didn't anticipate first of all i'm surprised by that because you have to do a lot of people just going to a normal contract i don't know if that's the practice in all but all the courts where they've done this but it seems to me if you entered into on a mistake in fact and they entered mistake in fact and both of us assume the guideline range would follow those mistaken facts and it turns out the facts turned out to be a mistake then it's not a very good agreement and common law maybe maybe the analysis is when you enter into contracts there are risks here and there shift in risks and you did have these rights to correct things but you signed the agreement with the understanding that he was going to get in your own mind as manifest by that and that he'd get between ten and sixteen months and you were going to recommend the low end that's right that's right a he thought that too and then also on the lab report come back which is a normal procedure to do and shows that it's thirty thirty seven lines well i think in this type of a circumstance what is the appropriate remedy taking into account the defendant's negotiations also the patients and the contracts are basically documented expectations to regulate expectations me to take me to the wall so i certainly i do want to still argue that if you're considering this new remedy that he did assume the risk he was a one so it was his drugs he would should know what he was selling we did and risk because it was his drugs he should know what he had maybe he read all the case on all these other circuits that say no matter what the government's going to have to stand up there and argue for ten months but he also knows the government had to disclose right but it on the plus side they're going to have to keep arguing for