may have things the court did you know wild on behalf of mr deem in this case fairness dictates that mr dean is entitled to resign tensing before a different district court judge because the government failed to fill its responsibilities and uphold the terms of the agreement specifically the plea agreement prohibited the government for advocating for an enhancement or a departure that was not in the agreed upon guidelines rage included in the  this case the p s r probation recommended an enhancement for repeat and dangerous sex offender against minors and although the government paid lip service to allowed for the government to advocate for a nine guideline sentence by arguing the three five five three eighth's factors but the plea agreement did prohibit the government from arguing for a recent decision and united states versus robinson the government's use of the guidelines terms of art in this case makes a difference than simply arguing facts that would support that would support and  guideline sentence in this case the government didn't just recited mr dean's criminal history and argue that that criminal history should support a non guideline sentence the government called mr dean highly dangerous an unrepentant sexual predator there's no distinction between that and in the robinson case where the government characterized mr robinson's role in the conspiracy as a manager and that he participated in a managerial capacity it's the use of the guidelines terms of art that makes the distinction in this case and the government has reached yes you the government repeatedly that although it didn't find a breach in those cases similar conduct by the government in the future would constitute a breach and just as this court then found in robinson on january of two thousand and sixteen  a line has been drawn by a panel of this court that the government cannot use the terms of are used by the guidelines in its sentencing advocacy even where the government is permitted to argue d it was a state case and the government at sentencing eg at the sentencing hearing egg knowledge that it was aware of the prior convictions but couch its argument by saying it wasn't aware of all of the facts and circumstances of those convictions until it received the the pre sentence report from probation but in fairness the government could have sought out the facts and circumstances of those prior crimes prior because it knew of those prior convictions so that it cannot be said that that constituted new information that would have allowed permitted the government to argue for  a different district court judge at which the government should not be able to take a position as to as to the enhance that recommended by probation that that new judge w have the probation report yes it would but in this case but it cannot be said that the district court in this case would have necessarily apply the enhanced then recommended by probation but for the advocacy engaged in by the government the conviction that forms the basis for this enhanced it was twenty three years old it wasn't a recent conviction by any stretch of the imagination and so a different district court not prejudiced by the advocacy by the government and characterization of mr dean as a highly dangerous an unrepentant sexual predator might not have applied that enhanced that when it another judge and starting with just parker's whole redo that this will serve his interests that he will get a lower sentence than he received from judge larry certainly that is a risk your honor but given that  follow disposing of so that you he'll know about this the circumstances of this conviction will certainly a different district court judge in any case even in the robinson case would know about  circumstances of the prior conviction would have probations report would have the decision of this court however the fears advocacy that the government engaged upon would not  characterizing mr deane's criminal history and suggesting that that warrants a sentence within the recommended range by the range recommended by probation a would not be recent unsing hearing before a different district court judge or the government would be ordered to specific performance of the plea agreement at which the government would be able to argue the three five five three a factor sir but the government by the government's use of the by characterizing mr dean is a highly under highly dangerous an unrepentant sexual predator that's different than just listing it's criminal history and making that criminal history no one before the court and asking that the court consider that i enter above to impose it above guidelines sentence now when we've had a prolong monica richards and at the united states of america on the subpoena i guess are beginning with the concept it is a troubling consideration here that where this case remained the for new sentencing there was no objection here to the procedural correctness of that the question has come down to my last couple cases and i guess i just presume that it's in there but i can't say that it is when there's an argument being held with regard to the entire range i can't say that there wasn't less so that with regard to that procedural report procedural error where this case sent back the government would not be the government could infect argue exactly for a sense in the higher range that higher range here we had a sense of two hundred sixteen months that was a blow guideline sentence that was issued by the government wouldn't be held back at all from arguing for a change within the guidelines that once it is properly calculated by the district court here that the district court departed below ensuring to the defendant's benefit he did not in fact technically abide by that enhancement as it was applied specifically then with regard to the  advocacy by the government the government's advocacy in fact the nature of the plea agreement itself of paragraph fifteen was to permit the government based on the extensive criminal history to cite to the court that such factors he was somebody who'd been violated for parole and  had sort of violations and so to say as my colleague here said that we unfair lee characterize this as highly dangerous an unrepentant sexual predator that's supported by the record without regard to the earlier criminal conviction necessarily with the the from the before the before court judges make decisions on the basis of of compilations of statistics and sampling when considering a subset when considering sentencing ranges i don't think that was minimal and in order to the defendants benefit that there was that gap in time and the judge specifically rim unaided directly on the record and we know exactly what he was thinking about it that he says that he was considering the fact that it happened twenty three years ago he's thought about it on one hand you could say to page one hundred nine in the record and one hand you can say he hasn't changed his behavior at all but on the other hand there's been no subsequent conviction so i guess the prior conviction maybe i guessed can choose to consider in your favor other wise men and women could differ that it should count against you but i choose not to do that so this district court didn't hold it against him that there was this intervening gap in order to his benefit in fact was effective relied upon for that look at lines that specifically in favor i'm sorry mitigating factors as well as those serious but the seriousness of the offense the criminal history the lengthy history and the need to deter specifically those those serious factors that were noted by the district court  through several factors in considering what sentence to impose in this case it still made unsupportive and contradictory remarks regarding mr dean's criminal history even  twenty three year gap the court also the court also i speculated that mr dean was promiscuous given the number of children he had with different women speculated and speculated th he might not be that he was unresponsive in caring for his children after he went through mr dean's criminal history the district court said something to the effect of not for nothing but you've also had ten children with six different women i don't know how responsive you've been in caring for them and the fact that the corps indicated that it was basing its sentencing determination on all of the factors that discussed which includes the speculation of whether other of sexual misconduct were convicted and whether he was a response the father this court can only speculate the weight that was given to those factors based on the unsupported assumptions and so i was substantively and reasonable even if not shockingly high because it was on support as a matter of law based on those remarks thank you thank you we were