did you reported on the criminal justice act i was as we want you don't know we deeply appreciate your willingness to accept the assignment and i appreciate the coffins of course extend my pleasure good woman i may please the court we're here today to judge have recently been found and they are part of the record that's correct yes we have and i have reviewed these letters and i liked it i'm sure you would like for me to discuss what they mean i think with the discovery of these letters and some there are very many parallels to that case to this case but there are some distinct differences now that i've seen this letter the first letter mr randon wrote in december really doesn't touch on you as a preliminary matter you're not challenging the finding with respect to the amount of drugs that your client was involved in one you know or the determination of the base offense level other than a potential government's obligation comes and to give a three level reduction ok let me ask this because if we if we agree that that's the stipulation that talks about i think your client thought it was a level  thirty two when the government thought it was thirty six current right didn't your client breached first by arguing in these letters that it was from fifty to two hundred grams which i think is a level twenty six well and that's where i was heading with this this letter this letter and and in context appears to be mr brandon complaining about that's what was found it is house he wants to be separated from this conspiracy but he also acknowledges that he was involved in it with his wife which is an acknowledgement of a conspiracy page four of five of document the district courts document number out sixty in the letter he says there was never no five hundred grams or more during i can't make it out but i'm asking that you please find me guilty of fifty to two hundred grams right isn't that a breach even if we consider these to be sort of recommendations that the parties are going to stand by did he break first while the charges conspiracy to distribute and i believe my my reading of this letter indicates he's complaining that that's what was found in this house not that he didn't distribute t that that's i mean this is what we have your honor and there was never no five hundred or more grams of drugs and what he pled guilty to he pled guilty distributing that  think in context again that it appears that he's complaining that's what was found in his house i think another basis for making that observation argument  he says it again on page three of i'm sorry two of five towards the bottom that's the same thing no five hundred grams or more nowhere does he say i wasn't i didn't i didn't commit a complete i was involved in a conspiracy to distribute five hundred grams or more then we should give the defendant the benefit of the doubt but he doesn't in my opinion doesn't clearly breach this agreement by clearly saying i did not distribute five hundred grams or more of methamphetamine or conspire with others to do so he wants to get out of the conspiracy but he doesn't outright say i'm not guilty of the i think if we we have  know i remember getting a call from this court not a month or so ago about it and i don't know why they only showed up now i suspect it was still in judge the judge's office i really don't know and  remiss for not having pursued that issue a little bit more aggressively but in the end i think the analysis is going to be the same anyway the the difference would be the the and the district court apprised the parties of the letters at the sentencing and based off that conduct and in the latter is in particular what has now been docket is document five six eight which that march fifteenth two thousand and thirteen latter defended said at the bottom of page three of five that he was not responsible for quote five hundred grams or more then he asked that on that that the district courts separate him from the conspiracy he was trying to he was attempting to withdraw his plea of guilty through these letters and deny responsibility then he came back to make sure that the judge understood what he was writing earlier on page four of the bottle that he pleaded guilty and then he said he was under fear and intimidation and it appears that he's had in a direction for sentence but there was never no five hundred or more grams of drugs and i'm asking you please find me guilty of a lesser included  them she stayed ok thank you your honor just wanted to make sure you understood that we did have a right under the playground to chest to challenge drug quantity so she too had seen the letters and agree that he had attempted to on evidence of the drug quantity right yes come on what did it advocate was the was the amount attributable to the defendant the government advocated that it was at least thirty pounds which was the base office level thirty six and then later though the government's and that it agreed with the court that the base offense level was thirty eight right what happened there ok well when the when the government said thirty eight the  government but that the evidence was that the evidence to support of thirty or so when the government said that they were sitting up thirty eight actually meant to say thirty six and the reason why thirty eight was still in the mind was because of the passman for the possession of a firearm so i was thinking thirty eight thirty six plus thirty two a start well ok but then the court came back and said ok now the total offense level is forty and the government said yes ye so ok has what had actually been a mistake made here no no no there is not a mistake what it is is there was a baseball fans level thirty eight and the court found at the evidence support of the thirty eight which was true by the president of the evidence based on presentation of the evidence of support of the level thirty eight and thirty eight dollars as i understand it greater than fifteen thousand grams which is about thirty three pounds right and the government and that evidence was supported by the testimony of the judge at her and also as the judge was listening to the evidence and going to be objections he was making credibility finding as to the witnesses as well so the evidence supported the court thirty eight ok so the government breached the plea agreement by agreeing to a thirty eight rather than thirty six well the record shows that two things the government when the government was axed doesn't agree to release thirty pounds the government said ye eight well at that point the evidence had already established that was at thirty eight you know so yes the evidence does support a thirty eight but on the record the government twice our estimate it's it's generally ripped not allowed to to affirmatively put forth evidence of something more than that if the court requests it then usually i think you're allowed to do that the language was the government believes this if they base office what do they defend it believes it was a base office level thirty two so clearly there was a belief in the estimation as compared to the language in those other cases where the parties agreed to that specific amount there's that's where the difference lies are and that's why the parties were given estimates and that the government was free to put on evidence but also whil i mean a new right it's not as it's not as clear as to which may be but you know at least there's an argument to be made that in entering the plea he sort of relied that the government wasn't going to state its believe and then turn around and double cross and well he got a thirty eight which is thirty three pounds right and the green may clearly states out that the court is not bound by the estimates of the party i do you believe the record supports thirty three or more pounds for the oh yes the that this the government was required to file a written motion for a reduction for acceptance of responsibility and that's why this case has really on all fours with the jeffries case with certain exceptions in that case not the argument that if the evidence of the sentencing transcript or such a sentencing hearing varied from what the agreement called for that the government was somehow released from any obligation to move for well i mean there's no evidence this transcript doesn't show that the government saw all these letters and they heard what the what the district judge said which was what appears he's not even a now we actually have a lot of government can rely on the district courts for of course she is not i'm not here to say anything of the sort that district judge is not absolutely a reliable source of information but there's always room for well we will grieve with me if we construe these letters as a flat out denial of what he stipulated to the the amount in the amount that he pled guilty to does that relieve the government of its duties under the policeman well you know that's a tough question i think the answer has to be from my viewpoint that the agreement doesn't say can he cannot father reduction motion i think that the government should file the motion anyway let the court make up as it make up its mind which it appears to have done anyway paragraph one thousand says if the doc if the defendant provides information to probation or the court that is intentionally misleading incomplete or on truth for otherwise breaches this plea agreement the united that i believe it can be fairly read that he's complaining that the amount found in his house is the problem not the amount of distribution conspiring to distribute especially since he involved his wife and mr random blindsided his own counsel well she obviously wasn't aware of it and you know that happens from time to time