that afternoon good afternoon may have please the court my name is stephen r jagger and i represent tracy baskerville i reserve two minutes for rebuttal i asked the court to please let me know if you have difficulty hearing me motion to dismiss was referred to the panel for consideration and i will address that st no waiver occurred but even a step in the interest of justice are not served by a strict application of the a forfeited issue it is permitted and may be noticed other not brought to the attention of the district court whether the circumstances of particular case justify deviation from the normal application of the waiver doctrine again is discretionary in the waiver must be considered in the full context of the case the faction that mr baskerville entered a plea of guilty based upon a pl agreement that does not classify him as either a career offender or an armed career center in that agreement the government maintains that mr baskerville is entitled to a three point reduction because of his acceptance or responsibility if that had occurred the penalty range which would have been one hundred and twenty to one hundred and fifty months with a maximum sentence of twenty years but no mandatory minimum explicitly consent to the district court's sentencing scheme he doesn't knowledge we will concede that he says the p s r was accurate as tendered the interesting thing about this case is the underlying convictions which ultimately gave rise to his classifications were the same convictions that were present in the st pl so i don't think that we can say he he waived anything because they had they had looked at those offenses or those convictions i guess and he was not classified as either that he has no object and did not found any objections i don't believe amounts to a waiver of the issues this court is not for closed when the interest of justice demands otherwise otherwise and the court has the discretion to consider the assignment of errors on the why but i mean he says he says you have no discretion to give the sense that there are fifteen years before the minimum for a career offender i mean he's basically admitting that if klein is a career offender and saying i know i can't ask for anything that's under one hundred and eighty months or whatever so that's what i'm asking for and i just don't see and eventually i just i don't see the objections of the sentencing i don't i mean i just i mean if i'm missing something what is the one thing that i think the the implicitly i don't think he agrees to the sentencing range he has for sixteen years number one the syncing ranges to ninety two dollars i believe to three hundred and sixty five dollars with the with the fifteen year minimum which he which i think i think it and that's just when our argument is pretty clear here a vase on the full circumstance of the case which we're asking the court to consider how this all comes out  explicitly in the plea agreement in the state case stated he did not stab or cut a victim he did not put him in the trunk of the car he did not drive the car with the victim in the trunk and the kentucky judgment that was entered by the circuit judge down there player review his substantial rights are clearly affected by this because without the designations defense level as i said is much less than it is with the arm career criminal or career center statute or sensing mind the district court seems to have recognized that indicating that he  is i guess feel sorry for mr are the words that he uses the sort of stuck with the but the syncing guideline he does deviate he does give a variance down to two hundred and forty months which is fifty two months below  the guideline range but even with that it is still ninety months higher than what the maximum would have been under the original plant that designation completely changed the nature of the case and if you do if you look at the comments that made by the district court at sentencing it's likely that he would not have since him to the maximum under the under the other guidelines because  scheme that was imposed the government had previously agreed to the three point reduction and nothing really changed about acceptance of responsibility from that st plea agreement to the that he didn't he never denied the factual elements of guilt of the underlying cases in the federal case he demonstrated throughout he accepted guilt for his criminal conduct the ron talking about acceptance of responsibility for the federal case he never missed in the state case for the predicate offense he always admits the underlying facts for the federal offense and that never changes appeal because of the waivers in the district court time and again in the district court defense counsel conceded that all the parts of the p s are were correct  as the court is already excuse me my voice is stating a little as the court has as mentioned already the p s r does talk about several things it talks about the criminal   mr baskerville is a career offender and career criminal talks about the appropriate guideline and before the district court defense counsel did agree with every part of the p r and not including just that but also regarding having only a two point instead of a three point reduction credit for acceptance of responsibility under thirty one point one so because of all of this i don't think there can be any reasonable to steve that all of these claims that he now raises on appeal were waived before the district court and therefore should not be reviewed by this court qualifies as a predicate crime for purposes of career center or armed career criminal status and then rd regarding the rd point every duction  brief the rd point relies on a motion by the united states and it's clear here that the united states didn't make that motion because mr baskerville waited until the morning if in fact the jury was already ready to be impaneled as i understand it wait until the morning of trial to plead guilty again the st guilty plea that resulted in the written plea agreement  out and said otherwise and at that point defense counsel didn't object simply accepted what the t s r said about the career center and our career criminal status and it was and in fact the defense counsel to moved to withdraw that guilty plea and the united states agreed to that motion and at that point the slate was wiped clean  several months then passed before the trial was scheduled again and at that point mr bascomb real baskerville wanted to plead guilty again this time without an agreement and so i don't see where in the record it indicates that defense counsel ever actually objected to the p s r's characterization of the career offender or the armed career criminal classification so your honor i'm happy to address any questions but it seems to me that st of all this case isn't even properly reviewable but if it is then it's clear thank you again the argument would be that in the interest of justice in this case because of the mistakes that were made in the district court in the process in that case my counsel would call for a review of the case on the merits starting the only other things that i that i want to say is that it's either acceptance responsibility or it's not and it seems to me that when the defendant accept responsibility but withholding it not because mr bastable changed his position but because they had to prepare for trial is completely contrary to their duty to act in the interest of justice in the prosecution of the case and i think i