well now hear arguments in united states where versus  at morning and i'm jeff bagley i'm here on behalf of defending a pollack kenneth dykes may please a court so the magic number in this case is five so that's the number of times the government breaches the plea agreement in this case we start reach number one concession the bottom line judge with that is i know the government is not advocating for a career or a founder of a handsome so that comes much later in the case after this case has been briefed and argued before the district court on a number of occasions  well they did it five times but after the fifth time she says that i don't i don't i don't you know read that statement literally i think what she's trying to get out is the fact that it doesn't matter that they were saying that they were abiding by the  line that's been drawn i don't think so your honor i think that the line is what the government promises in the police and that's a range that's no higher than one hundred twenty five months one hundred to one hundred twenty five months violence because bank that's a big issue all around the country wants a crime of violence and they didn't want to be hamstrung in other cases by it by conceding that bank robbery is not a crime of violence and i don't think under under lawler don't they have to affirmatively firmly argue something that's contravenes the policeman so that's that's what they say they're doing is they're they're protecting their interest in future cases that they once he's a career or founder what they said that somebody you know they did what they said is somebody in mr dykes is positioned with that with those two prior bank robbery convictions in his current bank robbery convictions is a career offender so i don't think it should be lost on anybody and i don't think it was lost on the district court that what they're really saying is that mr dykes is a griffin or do they come out and say it no of course not because that would be a blatant violation of polygamy and i think that's what's particularly troubling here is the lengths that they go to to try to hide the ball they say a number of r that it comes in on the very do sentencing in breach number two this is the very day of sentencing in april of two thousand and sixteen and the government comes in mr dykes is prepared to be sentenced he's he's reasonable expectations of the police and of course that's what we're talking about here when we're talking about p agreements reasonable expectations of the parties his reasonable expectation is i'm looking at a range on the low end of seventy seven and ninety six months for i'm looking at the very high and at one hundred twenty five months and the government comes in on that day in april twenty by the the pre sentence investigation report ye the court of course is not bound by it but it is this court has set a number of occasions that's that's an important factor but the most important factor the most important factor is looking to preserve the integrity of the judicial system looking to preserve the integrity of the plea bargaining that that happens holding the government's feet to the fire so to speak when it makes an agreement i take it there's a kind of a low balling problem here the problem of the government entering that later on it's going to say well we're not advocating for our one but with a higher one apple i think that's precisely the problem and not only that i say to the to the district court on one hand  know paying lip service to the fact that we're abiding by the police game and then going in saying that somebody in mr dykes is the question i suppose how do the courts assure themselves that that is not what's is there a way that what is not happening i'm so low balling would go going low and with the full knowledge or expectation that later on they'll say oh we're not advocating it's yeah i think i think look the government made a mistake i think is what happened then i don't think it was an intentional but the question is what law what law should be we be worried about so that this doesn't that what we decide does not result in the ability that is what what supposing you lose what is to prevent the next case the prosecution coming in and saying we have a great deal for you here it is circumstances of the offense the government does it and they claim that that's the ability to respond and that's where the police but as a point of my papers that's that's kind of a factual distinction there's no there's no factual problems here we're not arguing that mr dykes didn't rob two banks or that the manner in which those banks were robbed this isn't a fact that the nature and circumstances of the case are about facts this isn't about facts this is about taking mr dykes from seventy seven months on the low end all the way to one hundred eighty eight months on the high and that's it's almost ten years in jail and that's that's a difference that the government shouldn't be able to affect your weight after it's already begun for something else you want take a minute to address your argument that twenty one thirteen that the due process clause you can't make a due process clause violation argument when it comes to the guidelines so but what it didn't hold is that the due process that the residual cla brecht correct it can be so so you have to in order to fall into the elements cause us to be violent physical force against the person of another bank robbery can be committed without violent physical force the best example i think is carter as i point out my papers where the defendant pushed a bystander curdled the bank owner grab some money and took off there's no violent physical force push is not violent physical force the supreme court said that maybe a slap is violent physical force but a push push isn't and so bank robbery can be committed without violent physical force therefore it doesn't fit under the force cause because obviously you have to look at the lowest common denominator the record just doesn't support that for a few reasons and i think when you look at the record you can see that that is not what we had here first and foremost and there's i think just three reasons why first the record does show that there was a limited but significant reason in this case why the government was making a legal argument as it did that bank robbery is a crime of violence and specifically that was to protect the government's interest on future cases and we noted that and multiply was not really necessary i mean cou know your honour's are aware of all the different districts in the second circuit in part in the western district of new york where smaller district when one district judge rules in a particular way the other judges take heed of that this was a very hotly contested area of the law that even violence was significant in the wake of the second johnson decision and the government needed to cement its position as to what was and was not a violent place to cement it when you have this forsworn taking a position basically in the distinction was was laid out pretty clearly and i reran and the third footnote and again in a mico where the court indicated is specifically pointing to a mico that where the government is responding to a legal argument made by the defense in order to fill in gaps as one use the government practices that that argument wasn't intended to apply in the instant case that was a distinguishing factor the court the court found significant and i think that's exactly what we have i was gripped by the fact that you not right at the record actually shows at that point the government did not ask for a thirty day germans to address this issue they got clearly shows that the government asked for a thirty day a german to see whether or not we could address that issue and that again shows the record back to your  through great lengths that you look at the griffin decision and the lengths it went the record was examined i think that is just how these are at these issues have been approached by the court but i also do think that there is never been a rule that neither from lawlor on that the government is obligated to absolute silence and purely legal matters so long as that preface that it doesn't apply here exists and i think the record shows and amigo the court found it significant that the government repeated i think was four to five times in a single brief that they did not think that their argument should apply an instant case but here we have more than that even though we don't have an individual briefer there are four to five times there are occasions and you can see i'm on the record it a one fourteen a one twenty three a one thirty nine a one forty eight one fifty six a one fifty eight where the government made it clear is possible that it was not advocating that mr dykes be sentenced as a career offender and the government at no point advocated that mr gates be sentence should still not be sentenced as your career bender i think everybody would agree that if the government and responded to that and that would that would have been a problem that would have been applying to this case but is this course repeated over and over the government has a decisive role in sentencing that way back from from even mauler the government and the defense are standing here in the district court saying do not sentence mr dykes as a career offender the guidelines are there's just not much else we can do it while also simultaneously protecting a legal position that's that's not about mr dykes at all your honor just to address briefly two other points the remedy that was raised in the paper's ridiculous note that if they're the mr gates is requesting that there be some sort of maximum imposed on any remedy if the court has to rule against us and we would just note a concern that that would essentially require a judge to ignore thirty five fifty three a there's there's no legal basis for that sort of remedy so just briefly note that and then to address the credit balance issue the government's asking the court to follow every other circuit that's addressed this issue and ruled that the district court did not air and ruling the bank robberies a crime risk of force or the residual clause and enumerated crimes both also provide avenues for finding that bank robbery is a crime of violence and not only every other circuit that's addressed this issue but also the several the arguments that were put forth by existed at the time yes the several the arguments that were also put forth by mr dykes i think were also addressed in this court's decision and u s b hell wall that was about hobbs act robbery it does address a number of the situations nature of the hypotheticals hill stated that it must be a realistic probability not a theoretical possibility that the statute issue could be applied to conduct a does not constitute a crime of violence and not only did the court and hill address similar hypotheticals and find i think for control and not hill to the more important point though i think you know we were never asking the government to agree that mr dykes was a career funder was not a career founder excuse me all we were asking the government to do was to say was to was to be quiet on the issue and it didn't do that it argued time and time again that somebody in mr dykes his position you know the government points out that it's saying over and over again that we're not advocating for anything that's not in the and i submit that the actions speak louder than the words here and when you say that somebody in mr dykes is precise position with his two prior bank robberies and it's current bank robbery would be a career offender and what you're really arguing is that mr dykes is a career is saying that the words speak louder than words because yes the yes it's the words that they really mean are much stronger than it's you know this court has talked about formal disclaimers are not enough if the reasonable if that if the reasonable intentions are to influence the district court and one last point this is an issue here of in the main issue here is the response are they allowed to respond or not respond this is more than a response because what they did at one point it's the fifth violation that i talk about a supervisor from the u s attorney's office came in and not only did he continue to argue that you  know bank robberies are kind of violence but he told the district court he made a mistake made a mistake in this case and so it leaves the impression with the district court that had the government had its druthers we were really wouldn't be arguing with for this one hundred one hundred twenty five range we really would be up in this one fifty one to one eighty eight range and that's a stain that can't be removed thank you thank you very much we'll reserve decision