morning here on earth my name is carla gunn i'm preparing for mr franklin i thought i'd like to start by laying out exactly what happens here if the government's correct in law mr franklin commits these two crimes just two weeks apart he gets arrested for the second one right when the drugs are discovered and get sentenced pretty much immediately in state court to eighteen months in prison he serves eighteen months in prison and state prison while the government just sits on the other charge two years after the first crime and several months after you get a government there do you mean the state or the federal government two years after the first crime and several months after he gets out of state custody and starts putting his life together actually quite effectively the federal government files a separate charge for the first crime if the federal charges filed even just one year after you start serving the states in the federal mandatory minimum includes the time he serves the state custody but soley because the federal government waited two years and he's out the state custody isn't included now what might be the most natural reaction to that was certainly was mine is that just ain't fair well once long ago when i made i think i think the natural reaction might be your client has waived that argument in the plea agreement well that is that th now obviously my ability to raise this argument on appeal depends on the first argument i make my brief about the government having breached and i want to explore that just for a moment because the the way versus provided the court imposes a term that does not exceed the statutory minimum which you all agree is sixty months your client has waived now the court did that according first term sixty my speech of course is whether includes  or not no that's not the issue the issue for waiver is did the court impose a sentence that exceeded the statutory minimum there's no discussion in there about accounting for other sentences but these are the courts certainly let me finish the court impose a sixteen month sentence i don't i don't see how you have any basis to be here to tell me why what am i missing i mean this is all about the court the way the waiver provision turns on what the court did the court lived up to the condition precedent of the did the liberty of the waiver by imposing a term that was exactly equal to the statutory minimum fifteen minutes but i've got to note that the waiver appeal provision that your honor is part of a high end of the sentencing guidelines range corresponding to an offense level of twenty one and the criminal history cack category calculated by the court but your honor that is part of a plea agreement with the government and under this court's case it is crystal clear that that waiver is ineffective if the government breaches the plea agreement and the government did breach the plea agreement here the government reached a plea agreement by saying yes we agree with the probation office the base offense level is twenty six when i promised in the plea agreement to agree that it was twenty four i'm sorry but the record is crystal clear to use your words that the government said the prohibition to pre sentence report was correct but the government was sticking with its twenty four recommendation eisley the government send i mean what it said is instead of going with the base of has all twenty four go with twenty six and very downward to twenty four and that was an important difference for two reasons your honor first of all as the supreme court has recognized that starting point is important the government was then able to go into court and say well gee your honor you're making a twenty four level twenty four month variance not just a ten month vari figure which naturally makes the court less likely to get more second that was the hook that that them argue for the extra two levels for the gun if they had to agree it was twenty four the only rational way to make that argument was by conceding the other drugs weren't relevant conduct and that would have prevented them from making a two level has that a breach that allows your client to pursue this appeal because they promised states a base offense level twenty four and instead they said basic fence level twenty six and vary to twenty four and it made a difference for those two reasons now remember that may be arguably a technical construction but the case law is clear that you strictly the government's the government has to strictly comply plea agreements say we agree with you that that was a breach by the government why did it affect franklin substantial rights it doesn't well you know i don't think you're reviewing for player here you're so how do you how do you get past pocket cases afterward canel is a case from this court where the issue was just whether the the violation of the plea agreement by the government would give you the right to appeal something else just like what you're arguing here und go to pocket pocket the reason the grand certain package was there was a split in the circuits about whether you are of your breeches a plea agreement for plane air or some more dyno of a type of review in the context of where to fit in this context where you're not making a substantive breach argument i mean we're not arguing i guess is so i think you'd have to say that the government's breach it made a difference and i just think that's difficult here where your client agreed with the p s r is a problem which it just makes it very hard to say why the government changing positions is the real problem here with this that's the sort of why the analysis doesn't even fit your honor because if you're not asking for a substantive remedy for the breach said i think the government is breaching there they shouldn't be saying that the p s r is correct that and the government might say oh well we change our mind or something and maybe the it would have been clear in the district court whether it did make a difference what the government's position was but if you're not asking the district court to do anything about it then why bring it up a different didn't make a difference then it doesn't make a difference but it does make a difference in that if the government breaches under gonzales they're not allowed to claim the benefit of the waiver and that's what how would you know he was he was a well behaved prisoner right there's no question i think there's not but there's certainly no question your honor that this to use my original concepts was unfair and more than that i do want to get back to my stat there's one one particular statutory interpretation point here on the substantive issue that i'm not sure highlighted well enough in my brief that as i thought about this case really weighs heavily in the favor of the fence sitter potations here let's go again course the guiding principle first after interpretation is look the language of the statute let me take your in reverse and here and now i would grant you that the word shall be imprisoned and shall be sentence they could be read either way they could be read to not count the time in state custody and they could be read to count the time in sta he elected to have a higher sometimes because he thought he was going to work something just this looks kind of like buyer's remorse to me more than anything else but he also asked the court to in his words credit the state time against the sixty months you've made a much better argument tha that's true but all you have to do is raise the issue i mean you know i'm doing this on appeal in the higher chamber and so on but if i get back to my point well i think we can you want to save some time for about all and i think we may agree with you about this but we have the waiver problem still so why don't you save some time so that we can talk to the government and then hear from you back how would that rule of living here i think the rule of lenity is one supporting principle for my statutory interpretation argument but i think the language and i'll say that for rebuttal if the court wants the language just supports it equally well once you already have the holding and drake and kiefer and rivers but the rule of lenity is certainly i mentioned in my papers and it's certainly a strong well you know the sentencing guidelines are an abomination they ruin the whole of the sentencing i think i didn't think they'd last five years because we got rid of all the other rotten systems we in the past and actually this is a unique case as the district court recognized in that sentencing the government was the one that stood by the plea agreement and argued in support of the lower piece offense level of twenty four while defendant himself was the one who argued in support of the higher base offense level that the probation officer calculated in the p s r the government said that twenty six was correct why didn't the government just stay silent about that because the government has a duty of canned or to the court your honor what the case says that the government has to take a legal position that is contrary to its agreement in the plague deal rather than correcting a fact this is not a fact this is a legal position about what offense what form it has a duty to provide complete and truthful information about facts and guidelines calculations and the cases that say that from this circuit are multan oddo and manzo and the government was doing that one is it was telling they don't go back a fact like i factor in the world that is incorrect or like literally a mass error i believe this is a position about how to interpret the prior conduct and what the offense level yes they talk about a math merom alternate who is directly on point if the government submits as in that case there was a mistake in calculating the appropriate base offense level based off of the number of the the quantity of drugs that were at issue i believe there the prosecutor calculated a base offense level of thirty two the p s r said actually a higher quantity of drugs was involved and so the base offense level is thirty four that's precisely what happened here the relevant conduct provisions of section one b one point three instruct the district court that it shall consider relevant conduct if i may turn to this that relevant conduct shall be determined with respect was offenses that must be grouped together on the bases of all fourteen is the paragraph that i see that says the defendant in the u s attorney agree that the base offense level is twenty four zero yes ok right now is there anywhere in here where the u s attorney's office agreed that they would advocate twenty four only commit to twenty four and if anybody on the other sorry piece defendant p s r of the court said it should be twenty six u s attorney would say no we've promised the defendant we're sticking with twenty four this is the agreed to it but i don't see anything in the plea agreement to your point i think that says the government will be an advocate for twenty four the government does agree  no higher than the low end of the applicant pool sentencing guidelines range and it goes on to clarify that you know provided the offense level used by the court is a certain offense level or the statutory mandatory minimum sentence whichever is higher government was totally consistent with that i'm sorry the government was completely consistent with that was yes the government's position is that it was completely acted in accordance with the terms of the plea agreement it provided truthful information complete and accurate information about the crux sentencing guidelines calculations to the courts how is this not a legal argument about what conduct should be considered rather than a correction of math or  correction of a fact in the world again it's not a legal argument because the sentencing guidelines section one b one point three eight to instruct the district court about how it's supposed to calculate the total base offense level plus specific offense of crack cocaine on january fifteenth under the ide isn't legal question whether those should both be considered for this prosecution i understand the question your honor but the examples provided  application note five are directly on point and those examples instruct the court that when you have a drug quantities like this at issue a defendant doesn't need to be convicted of both of those offenses and the guidelines instruct that you need to aggregate those drug quantities and so when you have direct examples on point in the sentencing guidelines the government felt that about this case is that it was defendant who actually recognized that yes he agreed with the p s r as calculations and he recognized that by doing so he would receive a benefit the benefit to him was that he would receive credit for the eighteen months that he had served on the related state sentence why did the government prosecute him for this you know it already served time for basically these crimes and if he had government prosecuted him for this conduct are not in the record my understanding of why the government prosecuted him is because the government felt that what he had received in state court was not you know before we had  it does seem the reason he ended up in this very odd position of having to argue for a higher level is because he was in a situation where he wanted to get credit for serving time for basically the same crime that he was being prosecuted for again which the unfairness here seems to have happened in my mind that many levels here that he it's unclear to me why this prosecution was delayed and then it happened in a way that put him in the position of then needing to argue for the time he'd already served for this whole thing crimes and you're saying i really bad conduct so it was the same crime yes as far as the delay in my understanding this is not of the record is that this was part of a larger investigation involving a larger just gang but didn't his lawyer kind of blow it from the district or you know i can't speak to what his lawyer did or did not do correctly whether or not his lawyer blew it all i will say is that he was sentenced to a mandatory minimum term of sixty months that clearly fell within the  long as the punchline was sixty months imposed by the court now and that the government's position in other words so long as the court has sixty months you were really bound by anything in this you know that is not the government's position why not permit why isn't that the government's position that's a fair reading of the waiver clause in one thousand nine why would you give that up the waiver is contingent entire the print condition precedent is what the court does why is the government in any way constrained well how would they be triggering how would they be waiving the waiver if the court ultimately had sixteen months which is the statutory minimum i understand what you're saying your honor and that is one way to read that appellate waiver position that so long as the district court imposes sentence of sixty months the defendant waived his right to appeal regardless the government's position here is that it did not breach the plea agreement did what it was instructed to do  it provided truthful information and accurate information about the correct sentencing guidelines calculations the district court did what it was supposed to which was supposed to calculate the correct guidelines calculations that's pursuant to statute and under this court's precedent p carty the starting points are always the guidelines and then from that guidelines calculations of eighty four to one hundred five months the district court granted the defendant full credit of eighteen months for the time that he had previously served in state custody that brought him down to sixty six months and the court went one step further it then under thirty five fifty three a factors impose a downward variance of six months which is how it got to the sixty m that it ultimately imposed here but it may have believed it couldn't go below sixty months right that's because it had no authority to go below sixty months if in fact it's very minimum i can only go below of there's a section thirty five fifty three emotion it's i was a statistics major in college it's almost what they call conditional probability it is very you could go either way on the question of whether the word shelby in prisoners shall be sentenced include time in state custody on another related contact but once you reach the conclusion that they do for discharge sentences just looking at the plain language of the statute shall be imprisoned shall be sensed there is absolutely no way to read in a distinction between discharge sentences and then discharge sen so given the holding that we now have in kiefer drake and rivers there is just no logical way to draw the distinction the government wants you to draw which also gets back to when this prosecution began correct your hon why did the government prosecute this i think the even more troubling question or equally troubling question is why did they wait two years to do until he was already out of custody i didn't want to and if they had done it sooner than th under these cases if they apply it would be the kind of gondolas it was about is no brainer the judge could have given him concurrent time minus and subtracted from the sixty months whatever had already served at the time she sends him i didn't want to address a couple more points about the e not oh so much just didn't do the math right that's not what we have here what he we have here is a question of well applied to fact about whether this was quote the same course of conduct unquote the government had second maybe they did make a mistake and didn't think about that issue but they had the obligation is advocates to come in to make this argument this gets to your question they didn't have the obligation is your argument right they didn't have to correct this legal position that's how they got to the breach right there to advocate the twenty as the punchline was sixteen months you're done but the way i feel and this i think is it's established by lots of cases in this court and other courts that waiver of appeal is part of a contract a plea agreement with the government the court but with a government it is hornback hornbook contracts law that if a party breaches a contract they're not allowed to claim the benefits of the contract so the government can't claim the benefits of the  and force it if they breach the plea agreement so that's where that's why i'm spending all this time arguing about there being a government that doesn't fit the plain language of paragraph nineteen no it doesn't but the plain language of paragraph one thousand is out the window because it's part of a contract that the government breached and the government can't use a contract they breached if the government breaches a contract you know if a materially breached the contract ok there is the doctrine of the material breach which does not relieve the other it's not strict contract law necessarily because you're dealing with a defense constitutional rights and the cases require quote strict compliance unquote from the government so i'm not sure there is this materiality and even if there is your honor it was material here for two reasons it was material because it made the starting point higher so the district court was sitting there thinking it varied by twenty four months which sounds like a lot more than ten months so psychologically it may not have cared a lot about going west and second it was material because it was making that argument it was saying the base offense level was twenty six that let them argue for the gun in hand spent that attitude levels so as material in that way to your honor asked well  you know how is the player concept here i for the reasons i've articulated i don't think you can find gonzalez clearly or corruption sila ball and throw it out the window but even if you could i said i'd suggest the proper play in our analysis is this obvious i think it is obvious it is crystal clear that the government didn't argue twenty four but argued twenty six with a variance to twenty four your honor then asked about prejudice i would submit that in this context where you're not seeking an actual substantive remedy for the breach that last two prongs of or at least the one about prejudice in the plane or standard doesn't apply because it doesn't make sense if i'm not asking for relief because of the breach it doesn't make sense to you know does it affect the integrity of the process and things like that that actually i think is really implicated when a government breaches a plea agreement i don't think there's any question that implicates the integrity of the process and s