performances and respect a plea bargain i should we go to a new judge because of all well the first reason is because that's what we argue in the opening brief and the government by not answering yes actually waived that issue but on the merits i mean on the merits i mean my worry is i mean look at this case i don't know why this judge couldn't do it committed such serious and first appointing cunliffe for the it's not on the record where they are at that point she then after that he signs a plea agreement that the judge was party to but the judge wasn't the court was a party to the plea agreement was it wasn't a part of the plea that certainly was filed as a matter of public record really won't go there with why they stay there rematch should happen the government goes there because after this he filed a motion or they would not reduce if you will then there comes a case law there after that says they shouldn't have done that and therefore they're of the opinion that based on that the afterwords case law that ok we need to send it back well at seems to me to be a tough argument that side is that the government has conceded or waived all the sensing issues including the breaches and the breach could we understand your breach argument as the government recommended a maximum sentence here which is not what the plea agreement called for and they did that when they agreed that was still in effect because there hadn't been a hearing at that point about whether your client had breached yes exactly very major player in this but you never ask another question so that we go to the bench biggest issue in the case and that was the right to conference to free counsel was violated it in raising that issue in the know why right he didn't cooperate against criminals so how is that even an issue we can consider now really seems like something that maybe could be raised by collateral review when the record is developed we have no record that he even declined to testify because of representation it's retained counsel third in almost all those cases there is nothing as direct where the cooperation please grant requires represent a week something like that more or less it all in this in this record show you know they met for an hour that's all you know there's nothing in the record to transpire what we're t evidence or you know something could be used against him on cross examination with even disclose it don't you have to show that as part of your case and i suggest that this court should remain for hearing on that that should have been done at the point where the we'll hear from the government remained the issues in particular that i'm referring to you're on are whether it should go back to the same judge or trying different judge that's basically the principal issue because it sounds like we saying ok record here but so he's argued that the judge relied on unreliable evidence in the senate saying don't we have to say something about that so on remained the judge knows whether the same evidence can be relied upon i'm not clear on do not have the best explanation for why i didn't respond to that if i could answer that now and i recognize that i'm venturing outside of the briefs here that that particular issue does not call for to judge because the allegation i don't believe is that the facts were inherently unprovable that they were just ridiculous facts that no judge could take to have been proven if that were shown and that would be a problem instead the allegation is that the process whereby those facts were a deuced improved up is insufficient so that i would respond though that again there was there is no objection defense but that gets us to play their rights so well so ok we're unfair of you because they didn't object but now they're they said in their brief that the judge relied on unreliable evidence or unreliable facts and you didn't respond so i'm just struggling with what we're supposed to do at that point i your honor mr to nocca cited case law on waiver in his reply brief and i'm not sure how we can get around that so we have to go with what he said because you waited if the court were to decide under now this is not to say that we could just agreed to remain and to a different judge because we c that any more than we could agree that it judge recused this is something that the court may decide on its own but do we need to tell me if we remain the same judge do we need to tell the judge that all that evidence can be relied upon i  really mean if you had made an argument i'm not sure you would have agreed with that but now we're in an awkward spot understood your honor i do not think that the court would need to tell the judge that he could not consider any of that evidence instead i think the question is to different judge there's going to be different attorney different defense counsel why is that because well then i'm venturing outside of the record here but mr to knock of course was not the attorney below i believe that my understanding is he was selected for this appeal because the attorney below is apparently now has some kind of conflict and was and was unable to handle this appeal i see in that conflict  judge whatever evidence is presented to the judge or not presented to the judge at least one could object at that time pursuant to the agreement and we would have to worry about whether it goes to this judge or that judge because one would have the duty to object when that evidence was presented a career so what you're suggesting then is we're really saying is send it back they get an extra level reduction and they get a new full sentencing on everything and then the attorneys have to beat it out of the end as to what th judge hears is that your position correct or that and the virtue of that arrangement is that under that arrangement the parties are restored both parties are restored to the status quo ante both sides have their rights and are available to be fully enforced and defended just as though none of this ever does that remain need to start with a hearing and part of that is based upon this young case right you know the failure to well but not really your fault i think you're blaming it on the court right to make you think worry about whether or think that right clearly exists as you've alluded to your honor that i think the best case illustrating that is the young case it's so hard though to bring the young case to bear on this situation so hard to the extent that i think it just is not even applying the reasons are these that the issue in young was the defendant who is claiming of his rights having introduced had gone to trial ok so we're talking young and so in particular did the right that he was he was complaining of having been burdened with his right to testify in his own defense that wouldn't really be the right that villa is complaining of here that the right that bill is complaining of having violated it would be something like my right to have the best shot at a five k that i could have which is a strange right to contemplate reflected in the record in i don't have the cites in front of me but in some of the supplemental excerpts of record essentially there were there are two key filings that illustrate why the government did not call villa as as a witness at trial one is essentially one over a year before villa was sentenced government polygraphed him to term will subsequently then so that was in september of two thousand and eleven shortly before mr avila is sentenced and october of two thousand and twelve i think maybe a month or two before  the government files its position concerning p s r and that position government asserts we are not going to move for the third point for acceptance of responsibility now that is that is and they and we said and our reasons are essentially that he was uncooperative and they say the government rattles off some some of those reasons now we acknowledge that that is error that is not a legitimate reason to withhold that  on those facts to depart from the plea agreement and recommend a maximum sentence rack maximum guideline sentence instead of what the plea agreement called for the plea agreement said you need to have a hearing and by not having a hearing and still recommending a maximum guideline sentence do you acknowledge that the government breached did you not your honor and at this point it again recognize him entering outside the briefs but to answer that question this is a plain error argument that it's not a breach is it you know your your honor the sorry what i'm saying is that the alleged breach is not clear or obvious and in this case the alleged breach is the  s just a few arises as to whether the defendant is in breach then we have this hearing here i think it is reasonable reasonably disputable whether there was a dispute as to the defendant being in breach because it didn't they say something like we don't know why you're saying that he stopped being honest or that they raise some questions about the allegation that he had breached your honor i would say some but i would have to say just to minimize that what what what  mr martinez the attorney bill of said specifically was something like i don't necessarily agree that he provided incorrect information but that's neither here nor there those were his words i don't think that those are vigorous enough to constitute an objection and moreover he said those words later on in the sentencing hearing when at the start of the sentencing hearing the judge asked specifically mr martinez are there any objections to the p s r you know one of the facts reflected in the p s r was that and this this is all seen in the sentencing transcript one of the facts reflected in the p s r was the fact that mr avila was not getting third point for acceptance of responsibility because of the reasons that the government articulated in its filing with the court we believe his reach