turn to our next cases united states versus  my name is nathaniel marmer i represent the quantum harish in this appeal and i represented him in the trial court below your honors a fundamental aspect of this plea agreement was that mr parrish would receive credit for time  came to the sentencing however the government played fast and loose with that agreement what it said was the court should conditionally grant that will court the court should granted but if it does grant it can impose a but if it does to recommend a lower lower sentence then than a debt i mean how is the government under obligation to recommend something under two hundred eleven months which was what the government recommended all centrally of the government recommended if the court was going to award the thirty one to one month credit standards mr parrish to three hundred forty two months minus the thirty one which was two hundred eleven the government agreed government stated that at the sentencing what it's odd about this is what the government did right and what it argued at the sentencing was to the extent that the court is inclined to give parish credit it should be given to an eleven months after such credit is given that is really playing fast and loose with what is the essential bargain we tend to think of time served being credit for a person who has already been incarcerated for thirty one if you reach your lower to recommend a lower amount with you the government no the government agreed not to oppose the request for the thirty one months right but essentially to say to a defendant we'll agree to it is a departure we want to pose it to be using the exact language as a departure but judge if you give that you really shouldn't do it by thirty one months the ultimate sentence your honor should give is really dependent on whether you have given that departure that we agreed to and that is a very very odd way it's really in essence bad faith because mr parrish understood fundamentally that he would get thirty one month credit the government was not going to go into court and say you know judge don't give it to him but to say to the judge you can give it to him but if you're going to give it to him you should just come up by that exact same amount of thirty one months to essentially southern district policy have allowed both sides ask for variances and it's one thing to ask for a variance but it's another thing to say the judge we're going to ask for a variance for thirty one months to the extent that the court has granted it so what you're saying is if the court doesn't grant the departure we don't ask you for the thirty one months other way of saying that is has done such a bad stuff that we don't think an appropriate sentence would be any less than having him serve so much time as a minimum so much time from counting from now i guess is the count i'm sorry i guess is the counting from now part we tend to think of of credits for time served to be taken away from the ultimate sentence of someone says he gets ten years and he's been in for three weeks we can do expect that means he'll do seven years is there a hypertechnical way to read this agreement to say otherwise i suppose of the condition the ultimate sentence on whether or not the judge has granted that thirty one months is a violation i think not only the spirit but also the letter of the agreement that goes with alice you said in the last argument i believe this is justice not a commercial contract look one parish had a nearly i have tremendous respect for the southern district but it was i believe far beyond them to were you ever misled by them as to whether they would recommend the two eleven i thought that two eleven was straight was was was was common knowledge all the way through well they actually were going to recommend they recommended two hundred forty two months to thirty one well there but then they came down right you know they recommended two hundred forty two if the quote court was going to grant thirty one months par he is going to get credit for that thirty one months not that the government will technically not oppose that thirty one months but then if the government of the court is going to give it to him recommend the judge to very upward by thirty one months so that he doesn't get credit for it now it's very difficult in this day and age to explain to a defendant what is the statutory guideline of the statutory basis for sentencing the guidelines what they mean nowadays and booker and is actually quite good on this for the defendants which is you can't on bring that bell once the government asked for that if it breaches of this court finds a breach the judge's hurted judge has heard that second the sentencing recommendation and even if the judge d vows reliance on it this court's law is that the breach has occurred and that remained is two different judges the remedy thank you ron we've got a couple minutes rebuttal thank you know you're from the government dismissed the defendant entered a waiver of his appellate rights if he was sentenced to two hundred eleven months or less he was in fact sentenced to one hundred ninety five months and therefore the appellate waiver has force the government complied with its obligations under the plea agreement which pertain to the guidelines range in effect the plea agreement contains a great number of provisions to pilate in the appropriate guidelines one of which was an obligation not to object should the defendant move for downward departure and we complied with all those as judge of all indicating this question the plea was also incredibly clear that the government could request any sentence inside or outside the guidelines as to the defendant a provision that both parties took advantage of here the government requested two hundred eleven months it did not request two hundred eleven months in a conditional or contingent manner you can look quite clearly at the government's brief page ninety one which i know the cour which says please sentence the defendant to two hundred eleven months there was no please give him this war that depending on what you do with the guidelines the government's position was simply that two hundred eleven months was appropriate period and there's nothing in the plea agreement that says the government cannot do that because the government complied with its obligations under the plea agreement and sought a sentence it was allowed to see furthermore that was expressly contemplated in the plea agreement there was no breach and the  second circuit has to say about rights even seconds even the district was a little uncomfortable with the math here is that the thirty one you take thirty one from two eleven you had one eighty which is the top of the guideline range so you know it looked a little bit like they were asking to negate the thirty one months right so i think i guess to respond to that first the i read the sentencing right i was not at sensing on her you're correct the district court however was and in the end having been through the whole sentence the understand that they were not seeking to do an end run around the plea agreement but rather seeking the sentence that they felt was just the sense i think i think i think again judge of all put it well that our sesame was based on all the facts in this case the defendant should serve two hundred eleven months in prison that there was not bad faith your honor i think the plea agreement which is the best evidence of the promises we made and here in fact the only evidence because it contains an integration clause and the defender was asked if there are any promises  agreement very clearly contemplates the two hundred eleven one sentence there was nothing that should have been surprising to the defendant there was no bad faith because the government was not interested in undoing any particular i understand mr morris as you know i won this concession i wish it had had more effect but simply asking for an ultimate sentence is not bad faith with respect to the guidelines to belay should i think i guess the best example i could give  marmer stipulated to a four level increase to his defense offense i was under the guidelines because he was the leader of this large and violent gang he then went on to argue for a below guideline sentence he was fact asking the district court not to give full force to that concession had the district court gone his way the sentence would have been less than the guidelines he stipulated to and that particular provision would not have been given it's full of fact but he wasn't acting in bad faith because it looks like there's no provision of as we both sides could argue for a variance or a departure that is exactly my point your honor because the plea agreement in the end allowed any party to seek any sense that was appropriate there's nothing bad faith about seeking any particular provision it allows both parties to agree on the guidelines take that off the table and then move on and make their points about the appropriate sentence and that's what the government did here and that's how judge kaplan understood he realized that the government was just seeking the sense of thought was appropriate and to be clear we didn't say judge you know given two hundred forty two if you do x with the guidelines give him one hundred eighty if you do x with the guidelines judge kaplan wanted to explore what sort of variance the government's request and look like relative to the guidelines for the government's request would never contingent upon any particular guidelines calculation the government's request was just this is to just sentence under the thirty five fifty three factors and that is exactly what they were given to all of us are it's the only figure you ever talked about that is the the only figure that we submitted the court now you're on of the court the district court wanted to do a bunch of permutation of the guidelines to see how the various calculations played out we certainly participated in that but the figure we told the district court is given to eleven we government said that it was not conditional and it didn't refer to the guidelines in terms of what the request was but again i refer to the footnote on page ninety one which says to that to the extent that the court is inclined to give parish credit months after such credit is given so the parish is actual senators two hundred eleven months now we turn to page one twenty one of the guidelines for the government that we never made a request for two hundred forty two months it says and i'm reading from the middle of  marmer meaning in their view it's two hundred twelve to two hundred forty two news feinstein i agree with counsel so what you're saying is two hundred eleven months if you give the credit and or two hundred forty two months and then take the credit or if you don't give the credit than two hundred eleven months that is the very problem here is that it was a conditional request now the government also said you know it's like a defendant who asked for a variance based on an aggravating rol enhancement of four points but it's one thing to say judge you may have had a an aggravating role in this offense but overall he should get a variance downward but if i came into court and said judge i've agreed to that but i don't believe the facts justify that we should undo that specific enhanced meant before you impose sentence that would be a very different thing i think the government would jump up and down it's and mr marmer is reaching the plea agreement and for them to say in essence we don't oppose but if you give it you shouldn't do it we're lawyers and maybe we can understand that distinction it's a fine distinction but you've got a client here who's trying to understand very basically what he's getting out of this plea and he should expect that if the court gives him the thirty one