briefs i would like to however say that in response to your question number three which was posed by the court and its request for letter briefs that the answer is no in other words you do not wish to pursue the have not had time to have and have an additional discussion with my client about the issue i have discussed this with him prior to filing the letter briefs and i have received written correspondence from him you have to consider well now let me suggest something beyond that first of all we're dealing with what is before us and that is what you claim is the in earned should be therefore reversed so the consequences of that as to what the government is allowed to do in response to that is up to the district court it's not up to this court to say oh well  the government either gets to reinstate the other counts or not pro rate gets to sentence on the count of conviction or or any of those things those are all district court decisions are they not we have to decide whether or not count seven should be affirmed or reversed literally once we're done with that we're finished are we not i think so yeah i do all right think that is accurate now let me go to count seven difference does it make what the government claims it can prove he never played guilty of anything because if you if you look at it in that light i agree well what are the like can you look at it and it wouldn't matter whether the government said it was an element or not if the guy didn't plead guilty to it it doesn't matter what the government says the other elements are so aren't we stuck with reversal no matter what and when we look at whether or not this plane there are facts to get integrity of these proceedings how do we escape that how do we as a fact that this affects the integrity of this whole thing it's in my view for the time being can say we can prove that the guy killer did it yeah the government can prove it but he never played guilty to it that's the problem i see really just a function of his earlier commission of the rule of an error but in so far as the court has referenced count southern and is referenced that clickable statute that's charged in count seven i don't think there's any additional error mostly case the most recent decision by this court case i think that while it may not have been overwhelming it was close to overwhelming this was a situation where there was a loaded firearm above the headboard of the b count should be vacated and as this court has done repeatedly i believe in the sound of our lopez case i believe in the derren case the sentences with respect to the remaining counts should be vacated as well young the court left in a situation my thought one presented here where the defendant is not simply challenging the conviction because of a subsequent supreme court decision changing the law but rather is attacking  is returned to the district court you have you have three options and you haven't told us here which option you seek to exercise and the appropriate place probably for that is to  the record is unclear as to whether he may have in fact known the true statutory elements or not but on this record there's nothing in the killing that he did but under plain error prejudice is require significant possibility that the government would vacate the entire plea agreement and there and thereby remove all of the cooperation benefit let me put it a different way at that point the government would have no obligation and i don't know how we're going to decide or you can hurt our thoughts on it we could go a lot of different directions you know the risks government knows the risks are you can you try to strike a different deal with the government that you got as a week agreeable to all of the three of my adult life i want to make it clear that