robbery that he was charged with and ultimately pled guilty to he also provided information about an unrelated homicide that had occurred in the walkie and that he had significant information about the government ultimately filed a motion for a downward departure under section five k one point one of the sentencing guidelines and asked for a twenty five percent reduction in mr williams's guideline range the government's s its motion for a downward departure is that mr williams had guns he had fully accepted responsibility for his role at the fence and there was no mention that mr williams was anything but candid in his deep grief with the government at sentencing mr mr williams asked the court to consider first of all of the government did not ask the court to grant a downward departure based on the information mr williams gave about the homicide the government did not believe that that information rose to the level of substantial assistance and that was what the judge thought to the judge said it was insubstantial and he not only said that he couldn't but he also said if he could he wouldn't put it into the guideline calculation although he said he would and he intake did return to it for thirty five fifty three a so  question is why isn't that exactly what he should have done had he evaluated it as substantial we might have had an interesting question about the difference in in approach taken by the government and the court that actually the court thought was pretty insubstantial as well or position on that issue is that the comments that the court made suggest that the court did not believe it had the discretion  to provide mr williams additional consideration for that information will be covered in covered both bases though he said he couldn't and if he could he wouldn't i cannot find it right this minute but that that was just in the transcript  that's what it said and i'm just citing page nine of the sealed excerpt from the transcript which said that the district court said that i quote i come to that conclusion because the government's motion is limited to what has been given to the department of justice which you know our position on that is that language the government district court used suggests that it did not consider that it had the discretion fact even if the court could evaluate the court will not a value with information such as your you're describing concerning the homicide so he's he's inviting it in thirty five fifty three  as for your other point which you raise in your brief about whether mr williams was fully forthcoming or not i think it's depends if you're a glass half full or glass half empty sort of person you know maybe he did tell them about this particular offense that he also gave this story about needing the money to cover debts and then he sends his wife out with four hundred dollars to buy a gun and so on and so so the court felt that he wasn't really being fully honest all and that's where we believe the court relied on a clearly erroneous fact which is that mr williams never discussed his motives for the offense in the debris that the court specifically said mr williams was not fully forthcoming on the d brief the government never alleged that mr williams wasn't forthcoming in the deep brief now it's possible that i did have to be so narrowly confined well i think it's relevant in this situation because that was one of the bases for our requested variance was because mr williams provided information in addition to what he was getting credit for under the downward departure motion he provided additional information which we argued was a basis for a variance the court found that i think it's fair to say that the court concluded that it wasn't a basis for a variance because mr williams wasn't and that's one way that i have to read the district court's comments but i think the more direct way to read the court's comments is that the court did not believe mr williams was forthcoming in his deep breath that's exactly what the district court sat and there's no evidence for that finding mr i think the district court might have been confused by the d brief with the comments that mr williams gave to the pre sentence report writer which is what the government's argument was was that mr williams wasn't fully forthcoming with the p s r writer and we believe that the underlying basis for that is incorrect also because so you think he should have gotten more than twenty five percent off he gets a pretty big discount for the cooperation so is it your fundamental argument that the court just heard by not giving a big enough reduction if so doesn't that run into standard of review problems with us well as much as our fundamental argument is that the court erred because it relied on a clearly erroneous fact i think if the court had not made the comment that it did about mr williams not being forthcoming in his deep brief and gave the sense that it imposed i don't think we have an issue but it's because i think it clearly erroneous fact that the district court there will be only cooperation really was the use to say about the driver my name is keith alexander and i represent the united states at the beginning of the sentencing hearing the defendant conceded two points first the defense said the twenty five percent reduction suggested by the government was appropriate for the information that he provided about his co actor in the robbery uncritically the defense also conceded at the outset of the at the hearing that the information when provided about of twenty twenty ten homicide had not yet risen to the level assistance so again at the beginning of the hearing the defense asked the court to consider that fall is substantial but what does it mean to rise to the level of substantial assistance well in section five one point one  so the court was left at that point of the hearing which is soley dedicated to the question of the five k motion at that point in time with additional information that both parties agree was not substantial assistance and so the court appropriately at the request of the defense considered it later under thirty five fifty three so the court did exactly i would say what the defense asked it to do and committed no procedural error here  are then we get to this other argument about because there's a point in the transfer i don't know if you were the prosecutor but there's a point at which there's a about a paragraph of here ways in which he wasn't particularly forthcoming you know he said he was doing it for the money and there's the four hundred dollars or a couple of other things in this list yes and i was a prosecutor so that the sense in here was your list it was not yeah my list and and  and and so what happened was that the court said that well doesn't appear he was forthcoming in the brief of the defense counsel mr maule and said wait a second that's that's i'm not sure where that's coming from the court then turned to me and then i cited what he had said to the p s r writer and to the court at the hearing at that point saying it's been consistent with other undisputed facts are on the record so you are taking a more global view of it basically not just the moment when he's sitting down talking about the robbery that's correct yes and the court then said i cannot conclude quote said i cannot conclude he was thoroughly forthcoming in the brief but regardless and then essentially said he's not being forthcoming now to the to the pre sentence writer or to the court now because he said he wrote the bank is a difficult financial straits but he's buying a gun and four days later with four hundred dollars of those proceeds  so and and so there's two points of that one is he said regardless of his finding about what happened the debrief you didn't rely on and secondly quite frankly i think it's more breeches that he's not being forthcoming to the court  is when he's first talking to law enforcement the only reason why this is a person issue is because it goes to his character under thirty five fifty three and so if he's not being forthcoming to the court at the time of sentencing that strikes against his character and  error at all but certainly didn't rely upon its its conclusion about what happened or didn't happen i should say at the degree and so given given this record i would submit to the mr williams made an innocuous comment to the pre sentence report writer that he robbed the bank because he that money i don't think that's unusual and the government in the district court interpreted that comment that he was not truthful about his motives he gained eight thousand over eight thousand dollars from this bank robbery he used four hundred dollars of that by god so i don't think that by itself which is all the government has sentencing guidelines adjustment based on this back and forth about motive there was never any discussion of that and for the sentencing hearing i mean you're right i'm so so in other words if it's not us on one side seems to me it's a little bit innocuous on the other an additional variance under thirty five fifty three because we were asking for an additional variance under thirty five fifty three for three reasons one was the timing of the prosecution one was mr williams as mental health and one was the additional information that he had given regarding her comes and i think it's more than semantics that the court said debrief versus p s r because that was really the whole thrust of our argument was that he gave