what he did met the elements of statute and i think it seems to me that there's a difference between defendant's factual admissions and the defense i don't know what what the right word is is requirements are the fact i guess what i'm struggling with is it seems like he is disagreeing with the definition of the crime he understands what that weapon definition of the crime is but he thinks it's stupid but he yes your honor there were significant risks no doubt of mitchell going to trial and you could tell from the record the federal centers were extremely concerned if he went to trial that the there was an client your question i would have to agree with this for what's best for my client that that that advice was sound advice and i think the sentencing from judge siebel even demonstrated that that it makes it somewhat difficult for me as as you have to keep your honor to get back to the part of the question but i think it goes to the knowingly part of the plea is it knowingly to withdraw the police if the court has any questions there were a couple of other issues in that particular case one was whether the united states had complied with the bargained in mitchell park and him for the reduction acceptance of responsibility of three points the government also reserve the right to make any sentencing comments that it could so within the terms of the agreement you don't like to have somebody do something that you don't think is going to have any impact on the justice of that on the other hand recommendation for three points reduction oh you make that position here if we were to reverse for recent and so you should go to those people is there any reason why should i would say  i don't think i could ask the government to do that mostly because the statutory maximum for the escape in this case is five years and when judge see evil took away mitchell's acceptance of responsibility of three added to for the of struction of justice we suddenly had an increase in a sentence of seven years and then we did that in a rather contested matter at the sentencing with with this is called cross examination argument  situation where the whole point of the hearing is to determine whether someone is skate and then you increase their sentence beyond the statutory maximum for that that wi conceptually it seems to me that what what they were holding is that an increase in your sentence for crime number one because of the facts that underlie another crime is not punishment for that second crime at all conceptually it's still punishment for the first crime except it turns out we now know you're a worst person or more person or something to multiple punishments for the same behavior when it's taken into a context here of a contested hearing where with me it looks like at least that case that the court looked at the precentor report the drugs from the cocaine were added in the marijuana and in the guy's sentence got got enhanced and that was the extent of the fact finding  and then that there's some language even as we know they only address the issues as they get them but there are some language in of midway through worth talks about it doesn't make any difference whether the increase occurred in the as an argument at sentencing that and other words for that it doesn't necessarily bar that a prosecution at all but may have an effect on the sentencing you know there's a conviction on the second crime which of course also was not assured that to that is that there's no harmless error analysis that applies there why isn't that the beginning and the end of it you had a written agreement in which you said we will make this recommendation in court and you did it and had you done so you were not obliged to make the argument that it was an exceptional circumstance where this should apply in spite of the obstruction but it would have permitted defense counsel to make that argument with what success we don't know but he did try afterwards to save the person's life and there were other maybe getting things that he could have argued so why why doesn't  after after the judge that the guideline calculate well even even so why couldn't you have said appreciate your honor that you've already seem to have made up your mind on this point but obliged by this certain agreement to recommend this recommendation to you and i am now making this recommendation to you and you know mr barnes may wish to make some additional comments as to why that might still apply why couldn't you have said that and he might have still said no i really mean it i really don't want to do it but your obligation would have been fulfilled because moms are going to it seems to me not to be looking at what the judge is doing at all but to be a way of enforcing the government's own contractual obligation and if you look at it that way it seems like a pretty straightforward problem but the problem with  the i don't follow that but i have taken that to be a recommendation except we have another case in which now in the neighborhood escaping me in which the government made the recommendation in writing but then did not follow it recommendation and we again said the government was obliged to make the oral recommendation to i'm not familiar with that case that talks about the oral recommendation opportunity for the defense to make the argument that this is the exceptional case in which both think obstruction should take the obstruction adjustment should be made and the acceptance of just much of a i believe he did that both in the sentencing memorandum and also missed it was he able to do that or going on he did that during the sentencing act because i remember he talked knife and went right back to the party and with mr morning again and that's what made his conduct was disregard for human life and i think he just kept getting caught up in the idea that some he'd premeditated this somehow he