for not attempting to withdraw from the plea altogether then all you are asking for the reason that's correct your honor ok either before a different district judge or if the court only addresses the district judge new district judge get the same information we would submit your honor that the government should be precluded from making the kinds of strident inflammatory arguments that it did in sensing unless you're talking you want a new judge on remember what you want to do p s are know your i think whitney and already a morale is made clear is that the government is allowed to refer the district court generally to the p s r it's not permitted to do is raised there were two main problems with what the district court did first the district court plainly did not apply the longstanding legal standard that this court has promulgated for both well but then didn't the do what was so i think that's probably a correct way of stating that your honor regard to the minimal role he did articulate the substantially less culpable standard but he didn't attempt to compare it to anyone and even though my client at that point was the first defendant to be sentenced there were several unusual i would say compelling filings by the government itself that specified that my client was only minimally it please the court good morning your honour's francis lewis for the united states with nick counsel table of matching pins he was trial counsel for the united states in this case neither of the defendants sentencing arguments has merit on this appeal i want to start briefly with a comment he made about the minor role comparison chart judge otero requires the government to comply with his complex case management order and actually brought copies of the court would like to see it but it's docket seven thirty one states very clearly that the designations which are supposed to be rough culpability designations shall not be binding on the u s attorney's office meaning that the u s attorney's office may change its position regarding relative culpability at any time including during p negotiations trial or at sentencing so i don't think it's accurate to suggest that that charge was somehow a commitment by the government that this defendant should not have been denied the minor role it just meant i also think defendant correctly acknowledges that the judge applied the correct standard in this case that excerpt of record one twenty two the court said he was considering whether the defendant was quote substantially less culpable than the other participants  i think you're correct your honor that he doesn't name the other participants but he does go through in detail this defendant's involvement in the conspiracy at the manner roll it just meant is all about the comparison right i think it's it's about the individual defendants participation in the crime for which he is charged with i don't think when tara leyva which articulated how the amendments affect the enhancement which of course came out after this defendant was sentencing walks through and talks about the degree to which the defendant participated in the conspiracy and in the commission of the crime it doesn't require that the court name specific other individuals or that they walk through and decide that these defendants are more culpable these defendants are less couple otherwise court is there some place  say defense counsel pages one twenty five one twenty six discusses the defendant's relative culpability i don't we are one twenty seven and i don't have the line number but the quote is that the request is denied because there's no evidence to support it so the court is plainly consider the arguments of relative culpability advanced by the defendant the comparison the defense counsel has made the courts rejected it and the court explicitly stated an e r one twenty six that defendant as noted by the probation officer is an  associate of the gang but the defendant conspired with other gang members to conduct drug sales in gang territory and he was involved in activity for approximately seven years but again that's talking about the defendant's conduct i'm not comparing it that's what i'm trying to get at it but maybe we have your best answer  history points in ninety nine the put i mean this is what he says he focuses not only doesn't he compare him to other participant in this crime  with the court will conclude this is the top of one twenty seven there's no evidence to support it and this comes in the context of if you go back to one twenty five one twenty two where the court again states that it's intending to deny this based on his  seventeen over seven years involvement in the rico conspiracy and again this is a seventy two defendant rico indictment there were a number of defendants who were indicted who had no assault rifles and no gun possession charges who were just involved in drugs this is a defendant who as the it's plain in context even if the court didn't explicitly say the words i'm comparing him to other defendants given the context of sentencing i think it's clear that that's what the court was doing and that it was not clear error for the court to determine that this defendant didn't want a minor role adjustment i want to turn briefly to the greek question i think the court has hit the nail on the head with this one the facts are what they are and if this court were to remain and i think the government would likely be taking the exact same position and under the breach under the court did not give me under the plea agreement the government did not obligate itself to make a low and recommendation to take no position at sentencing the government was allowed to make whatever arguments it wanted under the three five five three a factors the only commitment the here's this is exactly my problem paragraph thirty riddick says the prompt parties promise to maintain their views that the agreement sentencing calculations are consistent with the facts of the case they weren't i disagree your hon parties obligations not to contest the facts agreed to i don't know what the government promised to do here i think you have anything i agree your honor that that that paragraph that that language has intention because it says that the government can correct facts but can't contest facts that it agreed to but what i would point this court to is the factual basis of this plea the only commitment the government made with respect to facts on drug quantity is if you turn to twenty three i'm no please don't turn please answer the question about this paragraph thirty it seems to me impossibly inconsistent it seems to me that there's a real question i don't how can the government promise to maintain its view that the sentencing calculations are consistent with the facts of the case when they're not because of course you have a duty of candor to the court so i'm really having a problem just internally with paragraph thirty and is it am i correct in understanding this is language  agreed to in the agreement i just want to distinguish between the sentencing offense level that was agreed to from the facts that were agreed to because those are different sections of the plea agreement the government agreed to the government agreed that the defendant conspired to distribute at least eleven point two grams there was no cap on that there was no statement that it was only eleven point two that's what i was trying to direct the court to the fact that i know that part i know no right so that was a countryman and i don't get to you the way judge cristol interpreted this paragraph is obligating the government to maintain that its sentencing positions were therefore consistent with the facts i don't interpret this paragraph that way the government is this is trying to thread the needle that is the quantity range associated with that basic sense level and the government agreed and did at all times urge the court to apply that base offense level notwithstanding the fact that it was no longer factually accurate which as this court has noted the government has to be truthful with the court at all times if you look at the sentencing position the table that the government put forth with its sentencing calculations it at all times said base offense level the court should use is eighteen and i think that that makes this case consistent with maldonado where something very similar happened the base offense level that the p s r came out with was much higher based on a higher quantity and the government was truthful with the court and said that's probably the  kind magine a lot of folks have a real hard time understanding what the government actually agreeing to in this provision it seems to me to be very internally contradictory and i'm concerned and i just want to give you a chance to respond this is standard agreement language that because i'm the one that's prolonging you right now but if this paragraph were to be written so it's clear that the facts you're talking about of the stipulated facts and if there were a place where we talk to here's the stipulated facts as opposed to the facts of the case because the has got a very different fact and everybody seems to be agreeing that that fact is right in the government's got an obligation of course of a court in the sentencing judge is going to want to inquire into a big discrepancy between a p s r and the quote unquote stipulated facts but this paragraph in isolation is i sure it is being awfully ambiguous and the only for follow up i would attempt to make is that what i think this paragraph does is it tries to make clear to the defendant that when  clerk for a loss amount case when the government agrees at a loss and out of ten thousand dollars and let's say and agrees that as a fact right that this will still allow the government to submit right to the verbs are sort of the key the key here it's allowed to submit f qualify my comments when i say this means the government can't advocate for the direct object as well right government can't advocate for something it agreed not to advocate for here it agreed not to advocate for the higher be defensible it didn't advocate for  any intent and i think i said i think it's difficult to know what facts it is you're agreeing to but but the question that the judge kozinski sassing is very important what did the government give up so i would say the government gave up the higher statutory maximums when it drop charges and it gave up the mandatory minimum when it agreed to not pursue the minute or a minimum outside of that i would agree the government did not give up many of the rights that this court is referring to is i'm not trying to suggest that the government gave up sentencing  i don't think the government gave up the right to argue for a book or variance for a sentence outside of the sentencing guidelines for additional i mean this is twenty four the u s attorney's office reserves the right to argue specific defense characteristics adjustments and departures are appropriate the government and the defendant reserve the right to argue first and it's outside the sentencing range so i agree with the characterization that this is an instance where the government did not give up many of the sentencing arguments that it often does like whitney and heredia and many of the other cases where this court evaluates breach the government has obligated to take a low and recommendation and then you can say these references to criminal history are inflammatory that's not the case here and if this were to be remanded for resentencing the government would still be allowed to make those arguments about his criminal history about his involvement in this game and i don't think the defendant can therefore show plain error here because there was no impact a substantial rights the judge determined quantity well before the court heard from the government at sentencing the p s r determined quantity well before the government file that sentence in position quantity will not change on remained and even if the government stays silent on remand i don't necessarily think that's a benefit for the defendant i think it's useful for the defendant having determined that the quantity was as high as it was for the government to stand up and still say we stand by the lower offense level because we think that's appropriate in this case the government urge the senate to fifty seven months when the court said the sentence this defendant probably deserves it one hundred fifteen months and if the government is required to stay silent on remand i think the defendant may very well end up with a higher sentence that he received but that of course that's up to the defendant in this court if burst pick up on lines of questioning from the edge because it's going to kristen regarding the minor minimal role it just meant and how there was absolutely no comparison whatsoever to any other defendant in this  case the court is of course aware that there were seventy two defendants seventy two defendants charged in this and a that so even though this was at a relatively early stage in the proceedings perhaps a little bit more than a year after the indictment was return anything in paragraph thirty what they promised would argue your honor is that they they promised to not argue for factual inferences other than what the party said agreed to versus the agreed upon the stipulated facts i would agree there's some ambiguity varying their purse a range of grams your honor but ultimately when you look at what the parties agreed to in terms of guidelines calculations it was clear that that they were contemplating facts at that point the base of offense level or the possession of crack cocaine and of course when you when you enter into this agreement you know the government got in a duty of candor to the court and the amount is am i right that at the time this was entered into that you knew about could you tell me when you say during the sentencing hearing you think they improperly advocated just quickly can you tell me which pages of the transcript you want me to take another look at certainly your honor which i would suggest the court look at is  obligated when it enters into a plea agreement to do and goes forward incensing to do nothing more than to refer the court to the p s r for criminal history purposes it's not permitted to to select inflammatory portions of the