which indicated that the waiver of a constitutional right is something that has to actually be very carefully arrived at what the agent did in this an fact there isn't any kind of ambiguity you know just as to whether or not those rights are actually way that it's fact it is the duty of the officer to further inquire as to whether or not you are correct or judge thomas that is correct i apologize for not being familiar with the rodriguez case well you may well be able to distinguish it argue for conspiracy there has to be an actual intention to deliver well and you could you argue that it was really a setup for the robbery of the agent the vibe virtue of the jury's verdict they rejected that defense so we're we're still left with your client's admission under oath that he was talking about five but i think that if the and of course my defended testified in front of the jury that i am not in a position to deliver five thousand methamphetamine i never could get it i never understood that was all part of your defense but the jury obviously didn't buy it if they convict but the jury bought judge tolman was the fact that my client was trying to distribute fifty grams or more the jury verdict doesn't say five pounds and that is i think the significant issue here but a pretty says other than the fact of a prior if in either of those facts admitted by the defendant or found by the jury and the last time i checked testimony sworn testimony under oath was an admission of i question why doesn't that neatly fit into the supreme court's language in a pretty to foreclosure argue that i don't think it's the complete mission completed mission as i said to the agency i want to distribute to you five pounds but i'm not interested in distributing five pounds i can i have no intent to distribute distinguish your client from the predicament that mr reagan's client is in having to testify in an admitted before the jury that he was negotiating for five pounds of methamphetamine i think you can buy my kind also testified have understood that we would have to assess if there was a reasonable probability that under discretionary system the judge would have sentenced differently i would i would agree with that however i would also say that there is  history i think it is reasonable to believe that it would change if remanded under booker position is first off dealing with the issue of the five pounds versus the fifty grams or the relevant conduct the is factored into the guidelines sans that was imposed against him and one of intending to why isn't he bound by those admission indication that he understood his rights and was willing to waive them on the asst issue of the five pounds as a basis for the sentencing and that applies i think to all three defend itself little bit differently with regard to the first take another look at what and why and i realize this is up in the air with amalie pending in terms of our general approach but why shouldn't someone in that position get to make their pitch before reasonable under the circumstances and i don't think we have that on the record before this court i don't believe that how can i can we expect the defendants to have made a record for discretionary system when the time of their sentencing guidelines were mandatory and the judge couldn't depart except pursuant to coom and couldn't consider certain things under the guidelines that graf's district may be one of those cases where are we going to get just a another cracker well i think that this is a very developed record i think there was plenty of opportunities for recommendations to the court that would have been then to handle these kinds of situations and it would be nice if we could let everybody argue their case after that which i suppose we might do if we have a question about it we could call for supplemental briefing to let everybody be heard as to where they stand in light of that and bank amalie but at this point i'm not sure for we can go with well i can add anything to that i would suggest the court that the done by putting things in writing i don't excuse me it would have been more developed for the courts and the court might have been more favorable in its reply or response to the objections however it seems like it was considered by the court it's two issues that were ra reluctantly find it's a safety valve it's not apply his reluctance just based on the fact that he was giving one hundred fifty one months rather than what i would suggest was the appropriate sentence somewhere in the range of sixty three and admission was not we are conspiring to deliver five pounds the admission was we said we're in spare it's inspiring to deliver five pounds but we were just kidding judge common points out the jury didn't think you were kidding but the jury didn't think you were kidding only to the extent based upon their verdict only to the extent of fifty grams already more or more in five pounds more than fifty grand by a bunch of there's nothing else in the record besides five fingers five pounds i don't think there's any and if i was here it would be sheer speculation that it would be anything other than fine  that's true church common it is probably speculative to say that it's something other than five pounds but i think on the same hand if you don't get an explicit answer from the jury if they don't pick the number right out of the clause that says other than the fact of a prior conviction and admissions by the defendant in no fair not otherwise found by the jury that increases  the in response to the government's position that the in order to has the matter reminded for discretion and sentencing under order the government said well we have the defense has to prove something the appe applied then under the guidelines without violating the statute the court can come under what the statutory minimum would have been well with under the guidelines themselves with this part conviction counting those three points the good argument or not but an argument could be made a least that therefore the east safety valve provision of the guidelines are also discretionary in that a court in looking at whether or not the pot a safety valve and specifically looking at whether or not there's that even if the statute appears to apply that the district court should be allowed to consider whether quicker changes the same way yes and that we shouldn't address the issue kind of on a cold record without the benefit of letting the district court make a first cut of the  seen a lot of these cases and i'm sure not as many as my colleagues and i think but i've never seen any where the government's acknowledged that it's a possibility although seems like it would be a pretty