cross your honour's this is a fairly simple matter i think that the defendant wanted the benefit of his bargain and he did not get it he was promised among other things that the government view of the two level enhanced for maintaining a premises for exclusively through the use of manufacturing drugs would not be applied and they would support the defense in that position alternately while they made some arguments towards that at the sentencing hearing their ass a straightforward question by the court whether or not they believe they believe that they would not be able to prove by preponderance of evidence  the enhanced and rather than simply asserting their position which they had agreed to and say no judge we can't prove that at which time it seems from the records that the court would have concluded that  the enhancement would not have applied and the guidelines would have been reduced substantially and presumably the judge would have taken that into account and sentenced mr belinda to less time than he received so a substantial right w affected it is that simple the answer to that one question the court says unless the government wanted to tell the court they do not believe they could prove hundreds of the evidence that the defendant maintained the premises for the purposes of manufacturing controlled let me ask you this if we agree that the has been does apply from the from the from the record the calculation does just as your argument go away no your honor one of the cases that i was not cited in our brief but around across this induce a guilty plea especially one where the rights and the mana time in prison is substantial as this induce a guilty plea by making promises and then what it meant when the rubber meets the road so to speak say well no we're only kidding  that i mean that the play agreement expressly contemplated situations in which the court was going to ask questions and in fact that allowed the government to answer questions and make arguments in the light inquiries made by the court so isn't this you know exactly what was marking exactly running but the answers to the questions need to have been consistent with the position they staked out when they negotiated introduce the guilty plea they can do is to guilty pl by saying here's what our position is with respect to maintaining this premises and then when the court asked them the very same question answer it differently they need to be consistent whether or not look but i mean that the colloquy indicates that the government agreed to stand never provided security he talked about it but there was no security provided we all everyone conceded that the question that the government answered amounted to the breach was when they said that they would not be able to essentially saying telling the court they could prove by a preponderance that the enhancement of lives they said in a negative but that's the gist of what they said in that instance they pulled the rug out from underneath the defendant and vitiated all the prior arguments they state ok so you misspoke well i think it's i paraphrase what they said was we're not prepared to tell the court that we can't prove it by a preponderance of the evidence which is the corollary to saying we can prove there's a question  are you prepared to prove this by a preponderance of the evidence and then if they were not prepared to tell the court that that basically means they haven't met their burden right that's correct so we have the government here telling the court letter of the agreement was no your honor we can't prove it we can't prove by preponderance elbow it's a close question if the answer to the question was well we think we can which is what they implied to the court and which is what the court ultimately to find that the enhancement applied then they should have staked out that position in the plea negotiations with the defense counsel with us but this is helpful if it seems to me that you're saying that if they had answered no they'd be complying with the agreement but answering we're not prepared to tell the court that is a breach right yes your honor clearly are going ok i think my time is allow for such a response that the government did not advocate for anything that would have reached the agreement and all three factors support the same result here as the st factor at that is in the courts the civically asked about the two level increase for maintaining a promise the government stated that we stood behind the agreement and that our position was that the enhancement should not apply to court and ask certain factual questions which we answered truthfully and as to which there were no there was no real dispute a meth lab was built on the defendant's property the defendant was responsible for maintaining security and the defendant did not surrender his lease full of interest in the property this court is a repeatedly that calculation of the sentencing guidelines there or the government never advocated for the enhancement and instead asked the court repeatedly to sentence the defendants within the stipulated guidelines range of seventy to eighty seven months which the record i clear that the government did not seek to impose the court in any way incompatible with the plea agreement the defendant also cannot show any negative effect on his substantial rights the court's decision to apply the enhancement was independent of any alleged breach the appeal waiver of course applies to the range but we once the prosecutor breaches their agreement we're allowed to appeal from it anyway our argument is not that he was sentenced outside of the range or the waiver doesn't apply generally is that because of the prosecutor's breach were then free to file the appeal so it should not be dismissed and the breach clearly happened in our view we were mr mr cross i don't think was at the sentencing hearing co counsel handled it i was there we were stunned when the prosecutor we got to that final question and the judge asked are you telling us you can't prove this  we can't say that are and then the judge applied the enhancement and a substantial right was of that did because the guideline range was off by a substantial amount so that that's one of the factors the judge has to take into consideration when sentencing the defendant and he sentence them to a seventy two months which was fifteen months below the minimum of that you've got financially found if you did send some to fifteen months less apply and then he chose the prosecutor says you know what i mean what is the what if that played out this way the judge says look you don't think it applies and you don't think it applies i do i think these facts add up to the enhancement and then it turns the prosecutor says are you are you telling me you can't prove it according to my understanding of the enhancement is it would that be a breach of well i'm the my understanding of the enhancement we all agreed upon what the facts were there was a guilty plea here is not a factual but sometimes way that the clear agreement indicated they would which is we can't prove this but the reading of it and being in the courtroom it seems that the judge would not have applied the enhancement or what would you have had the prosecutor  he seems to me to have been in fact you're so certain that he that he would have that you don't want it to go back to him notwithstanding your last sentence says to send it to another judge because you don't think he could be fair judge castille to be fair but that aside she says yes is that a breach well no if the prosecutor had kept the agreement and the judge said well i appreciate what you're saying and i appreciate that the both parties agree on that that you don't think it can be approved we disagree and applied it anyway well then  would be within this four corners of the agreement that's not what happened what have i missed prosecutor at the end literally pulled the rug out from under us and lay answering who are by answering that they could prove it according to cast tells understanding if i mean that change their definition they ate they they said it was close right they did say it was close which was part of the discussions in the play and i think they said it was not appropriate i didn't because no they said it was a close call and not appropriate but when asked if they could prove it but that that those three or four sentences pages i think a pretty or a three hundred and sixty five the record are d the sum total of the breach had they said yes judge that's exactly what we're saying we can't prove this the judge would not have applied it and we well wait as you know i mean that would have been clever to try and cut a judge off but i'm not so certain that it would be precluded from what a prosecutor's conclusion was with regard to whether they could or they couldn't prove it right yet i don't mean that absolutely judge and i'm not it's not i can't predict what judge the star would have done had the prosecutor accept their plea agreement but they didn't were entitled to the benefit of the agreement and as a result of that you you would agree with me that the judge was not bound by the prosecutor's estimate of what he or she thought they could prove absolutely judge the prosecutors were bound to keep the the integrity of the discussions in the plea are at stake which is why i'll be at somewhat later i ran across and a bellow which is very similar in some respects ok thank you very much thank you