but you were point of the criminal justice act is it correct that's correct your honor court appreciate your willingness to accept the appointment thank you judge you may proceed thank you please the court counsel my name is kate raise hell and i'm here on behalf of the in this case carlos felt here your honour's this is a case about holding the government to the same standards of accuracy and precision that are expected of criminal defendants when it comes to presenting evidence regarding safety valve eligibility at a sentencing hearing mr alkie where the appellant in this case pled guilty to conspiracy to distribute methamphetamine and part of his plea agreement contained a provision that if he qualified the government would agree to recommend relief under eighteen u s c thirty five fifty three dollars which is more commonly known as the safety valve provision which would allow mr about here to be sentenced below the ten year mandatory minimum that the statutes provide in this case at the syncing hearing the government argued that mr out here had not met the th prong of the safety valve provision which is providing complete and truthful information to support its argument that mr had not done unless the government provided a summary of what it believed to be mr al cures proffer statements then offered by way of proffer the testimony from a co defendant's trial simply from the government attorneys best recollection and it offered the testimony of one agent who had been involved in the case based on this information the court concluded that mr valcke year had not been truthful and therefore did not qualify for the relief he sought this procedure that was undertaken at the reliable accurate of events to the contrary nd that the government misrepresented statements made by the defendant and by his co defendants which resulted in substantial prejudice to mr about here in that the court relied on those statements to deny him this relief that the court heard when it permitted unreliable hearsay statements to be proffered by way solely of the government attorneys recollection not by means of a transcript provided or a witness and for that in relying on this collectively u contained in appeal waiver and that appeal waiver does not bar the appeal in the present case for the reason that the government reached its end of the plea agreement the government had agreed that it would recommend safety valve relief if mr alkie or otherwise qualified the st four problems of that test were not disputed at the sentencing hearing the sole issue was the truthfulness and for the reasons contained in the remaining arguments the government was unable to determine the mr volcker had been untruthful and should the have upheld its end of the bargain in recommending that he really have that receive that safety valve relief the reason that i wouldn't that be barred by the police department by the appeal here if he can't he waive his right to appeal a claim regarding breach of the agreement yes your honor this court upheld appeal waivers in numerous other cases but has also stated that under contract principles the government's also bound by the plea agreement and where the government reaches its end of the agreement the defendant is also not then bound by his agreement and should be permitted to appeal if there is an appeal waiver or be permitted to withdraw his plea agreement whatever the relief should be so in this case because the government  clear question or whatever it would be if you had raised in the district court your honor although it wasn't expressly raised in those terms in the district court mr volcker here did object to the government not recommending the safety valve into the procedures that the government took undertook to attempt to prove that so i believe he did preserve err on the issue of whether the government up held its end of the of the plea bargain as it related to recommending the safety valve in this case is that the is that the  your alleged breach by the government of the plea agreement the fact that it did not recommend the safety valve relief yes judge the plea agreement provided that if the defendant qualified the government would recommend safety valve it was not optional if the defendant qualified given the evidence that the government was unable to present and that the defendant met his burden of proving his truthfulness the government should have upheld and was required to recommend safety valve relief under that plea agreement and that part of the plea agreement describes the palettes obligation as truthfully disclosing all information and evidence that he has concerning the offense and relevant conduct yesterday and also if he otherwise qualifies for safety truthful information and met his burden of proving so at the sentencing hearing the government attempted to refute that evidence but the evidence that it presented supposedly to contradict mr statements the government attempted to say that mr valid here had said that another codefendant in the case was sort of the mastermind of this however the proffer agreement which was accepted as exhibit two at the sentencing hearing revealed that in fact he had said another nonparty that resided in mexico was actually the one in charge of the case the nd way that the hear evidence was unreliable was by means of the proffered testimony from the  that was solely from the recollection of the government attorneys memory not by means of a transcript or witness or any other form of reliable evidence the judge should or presided over that other trial that's correct your honor however mr and his attorney were not present at that trial had not had a chance to review a transcript from that trial and judge rushed it or stated that he generally thought it was collect correct to his recollection he also was not actively reviewing the testimony to say that it mr mcgee will hear from you please the court opposing counsel my name is pat mcginn of represent the united states who is the appellee in this matter as you know this case arises out of an appeal of a sentencing order from judge roster with respect to  issue at that sentencing hearing was whether or not safety valve applied specifically that would be the th prong of safety valve which is whether or not mr vaile care gave a truthful incomplete proffer the district court correctly found that care did not give a complete and truthful proffer he stated that on the record mr vaile care although he did give information to law enforcement about the conspiracy he did not give information to the bread that would be required to little bit about the facts of this case so the burden of course is on the defendant to prove that they are eligible for safety valve in this particular case defendant offers an affidavit into evidence affidavit states i was honest and truthful with the court and with law enforcement the united states offers evidence four pieces of evidence in three forms the st is  specifically but he did state that errors mother bought him a burner cell phone with which he could use to contact the valve here brothers he did say your brothers were giving him rides he said they rented him a hotel they and he was supposedly going to exchange those money for narcotics in a drug transaction when you were a mere is also testified that he was instructed by another coconspirator that once he obtained narcotics he was to bring them back to the stash house he was to sit on them and he was to wait for further instructions so that carlos in alfredo who was convicted in a jury trial could transport the narcotics to minnesota the  form of evidence that i presented was the testimony of jorge fernandez who listened to jailhouse telephone calls of carlist out here he listened phone calls on two different occasions both were just days before carlos his nd proffer interview with law enforcement on the st occasion there was a three way telephone call between hears mother veldheer said brother invalid here himself where val cares mother told alfredo just tell them all you did was give a couple of rides now this is significant because at the proffer interview a couple of days later this is exactly what carlos failed here does he tells law enforcement i gave trial the testimony of blanca day of via which i proffered to the court was that mr alfredo valko here had delivered her a load of narcotics approximately eighteen days prior to the day they were all caught this is significant because she she testified that alfredo was with another individual in that that other individual was very well the sky's she didn't identify him affirmatively as carlos brother proximately two weeks prior so those are the most significant facts from the sentencing hearing itself and let me ask you this did did the defendant object to presenting a testimony by proffer and i ask that the witnesses be brought forward to testify live and be subject to cross examination i don't recall exactly what the objection is your honor i do know the defens objection objected to offering this testimony by way of proffer however the government was not interested in transcripts the duty was the burden was on the defendant to prove their case at contested safety valve hearing they were aware of these transcripts they never requested them they never offered them themselves furthermore when i gave my synopsis of what had occurred in the trial judge rossiter himself acknowledged that it was i believe his words were generally if not entirely accurate synopsis of the testimony at trial in doing so judge ross or effectively took judicial notice of the testimony at trial well i think we have plenty of case father says that when when the sentencing judge was also the trial judge he or she can rely upon their recollection so i'm not so concerned about that but what i am more concerned about is is this is these proffers are they things that were not testified to a trial that this  additional evidence or it's to fight to a trial the proffer of block of them talking about that was my recollection of the direct trial testimony and i did include in my record the testimony of blank of the and when you were mere is just for the sake of clarity because i did proffer to the court this information and not until the time of appeal that i actually have a physical transcript with which to work so i did provide that out of well the thing that volcano seems most upset about is when you said when when dia ramirez was calling the shots essentially i understand parent leave that's not accurate there was a guy above her in the organization who is calling the shots what's your current view on that it's an accurate summation your honor i'm not going to call myself the most articulate person in the world i will say that when i'm making a summary of the facts that it is accurate in this particular case it is accurate that and the relate what i'm looking at this conspiracy is like an onion we've got multiple layers here in the guy on top is the outer layer that's the uncle that defense is referring to who is the actual mastermind subservience and that the valve here is we're bringing in money giving him a phone picking him up from the hotel he was essentially for mercy living in a stash house to hold on the money to be the most culpable person whereas carlos developed here on the other hand tries to make it as if conspiracy in fact that particular prong of safety valve being the leader organizer is not even at issue in this case what i'm arguing is that blame to ramirez was in a position where the valid pierre's were bringing in money putting him up in a hotel setting him up to take the fall in a drug transaction which is ultimately what had occurred so he subservient to care in your view that's my position rather i believe that sacco well that's not only consist to his saying that he was calling the shots incompleteness is more what's at issue here then untruthfulness of the proffer now i would like to get when you refer to proffer then you're talking about the government attorney statement in this instance when i'm referring to proffer i'm not enough in this case mr valcke year is sentenced to five more years than he would have been eligible for under the guideline provision how do you receive this relief based on the minute details of whether here is brother provided a ride whether he or his mother was the one that bought a cell coconspirator he is being held to a high standard where his every word was scrutinized by case agents by judges that are now by this court the government should not be permitted to comment off the off the cuff work out what it generally recalls to be possibly accurate testimony when it could easily have provided accurate and reliable testimony but the court should disregard of the government's attempt to offer that testimony on appeal to the extent that the court does review that it does not support its argument that mr up here was untruthful the procedure in this case was improper relying on the properly and reliable evidence in this case mr out here was truthful and complete he should have been granted his relief under safety valve and we asked this court to please reverse the judgment