we sentence marijuana differently than we sentence heroin but the district court acknowledged that and or accepted i should say that the substance at issue was less harmful than the analog that it was being used in the guidelines in the district court already account for that fact no your honor the court did not account for the fact this fact and entirely because the information of the court had at sentencing and again in the twenty to fifty five opinion below with still not complete information about the harmful ness of this particular substance the only information the court had at sentencing was mr suppling zone articulation of his personal high with a drug that's entirely different in nature and the kind of competent empirical scientific d was on the courts mind at the time and again we know that in general and drug sentencing cases the relative harmless of a substance does matter the court was deprived her of any information to impeach the court's impression of what the court thought the substance was which is different the differently crack that it's in the class isn't that a catholic nuns with a three hundred and eighty dollars to one dollar ratio but the new amendment specifically references math alone as an example of something substantially less potent that would warrant a lower departure ok and let's why shouldn't we read the district court sentencing transcript has already have accounted for that in fact that's the kind of language the district court used to except that it was a lesser potent drug so where's the prejudice exactly the same  viewpoints that exists in the law today are those that were expressed by the district court the time of sentencing and so hearken back to judgment he's question how how can we say there's been a been prejudice here by counsel's lack of preparation from your point of view again your honor the district court made that statement about math one having somewhat less of an impact except in the fact that i have some of us have an impact based off of very little information and it also said that it thought the guidelines were too high that's true your honor but factors which go to his drug addiction but also the his criminal history which but for the plea agreement he received would have resulted in a career offender designation correct yes your honor but the fact that the district court acknowledged how high the guidelines was goes to more adequate information for example had counsel negotiated with the government prior to sentencing and received a lower stipulation which we think our government be hard pressed not to do given that they have stipulated in other cases to a two hundred and fifty one range he would have been at the lower the low end of the range of be one hundred and ten dollars let's turn if we could from moment to that correlated quota greenidge the language we have from the sentencing transcript is a comment of the defendant's understanding of what he thought his one of his attorneys had obtain some understanding from the government but even if that were true the court by virtue of the plea agreement was not bound by that three kilo amount and in fact there was sufficient evidence before the court an unchallenged statement from the cooperating witness if he now has ten so how could we possibly conclude that would be a non frivolous motion in light of all the appeal rather in light of those facts the government does not agree is that the metal in the agreement to roll the matter alone conduct into the g p l plea agreement was not precluded by the g p l plea agreement language mr supping is simply raising an issue about the scope agreement that it should be that he should have been held accountable for three kilos instead of ten certainly the district court would not have been bound by that agreement but had the government and mr suppling had the government either told probation that they were only prepared to prove three kilograms or told the court that their only prepared to prove three kilograms that assumes that they that the facts would have supported that in facts the facts are contrary to that based upon the un objected to factual suman in the present report so how could the government say that district were never solved but i can only relevant point for this is that at the time that was a non frivolous issue for mr suppling that was a viable appeal issue for mr suppling to pursue had the court if the court had concerns about the nature and scope admitted to the court that he was that counsel and that his client and the prosecutor tried to educate him about the substance he showed up at court that day not knowing basic information about the substance driving his kind sentence a lawyer is an adequate inclusion an adequate consultation and preparation cuts at the integrity of judicial proceedings are still looking at the prejudice issue here and how he was prejudiced you know i'm looking at the numbers the range was one hundred and eighty eight months to two hundred and thirty five months willing to accept arguments in variance and mr suppling failed mr somethings counsel failed to pursue any of these variance arguments so if the court was willing intercept of information about the substance and willing to vary down from that range he would have very further have you been provided w the mr stepan has the burden of proof i mean he has to show that it's reasonable reasonably probable that the result would have been different and actually judge i think that if we had gone down the road that counsel now suggests we should or should have gone on in this case that the result might have likely been different i think it would have been a higher sentence because of the way this played out the prosecutor and the judge really didn't have a sense of what this drug was other than what the probation office the any fear when appropriate equivalence there's still no direct guideline relating specifically to my fellow i consulted with the department of justice on narcotics and dangerous drug section there is no department policy on what what the guidelines are what the equivalent should we have when we have a new idea what we can tell courts that should be the appropriate or what science can tell the courts with the appropriate equipment should so it just sounds like which you're going to just just seems in terms of the integrity is receding i would sentence people for ten years and i cannot imagine imposing a certain someone especially this kind of turn the other knowing more specifically what is the of this drug and therefore what should be equivalent to bruce may be embarrassed by it at that at the end of the day judge judge computer oh accepted every representation made by counsel every representation guy he made he accepted every one of mr septimus representations and actually mr represent mr stephens representations are completely consistent with what the argument is now object computer go in denying the twenty to fifty five said i accepted this and i imposed a sentence that was way way below what the guidelines granges was and what the what i was driving at judges i think that one we sit here today and tried to decide what the sentence would have been if if counsel had come in and said t probation office presented in fact the last time i was before this court an oral argument i was here following on a guilty plea in a public corruption case where the probation department and host a four level high level decision maker rolling hanson if the government wasn't pursuing that at sentencing the government presented no evidence in support of that the court called witnesses suer spontaneous asked questions about it and then impos and the government is then here in the court of appeals defending the district court because of the clearly erroneous standard you know this is a situation where it could have been a very different situation but it's a complete speculation to to say what judge computer would have done know what the proper what the proper equivalency was so my the point of this is that if counsel had done everything suggested here that if the court had accepted ratio and the parties were all on the same page about the two hundred dollars to one dollar ratio judge computer oh certainly would have had much more reason to believe that ok this guideline now seems right on point and the two hundred t one ratio leads to a higher sentence then what what actually was imposed in this case basic physics fair to say that at the sentencing the government didn't challenge the representation that this substance enough alone is less potent in some ways than ecstasy my correct about that you're correct about that and and i max question is is as i understand this isn't really a case about whether the guideline level was actually calculated it was whether there was a very  release if we have an incorrect guideline calculation i would say absolutely yes we would have a problem here but in this case which a position position is there's not an incorrect guideline calculation because the judge simply here accepted what was agreed upon by the parties what the probation office was recommending and there's nothing in the case law to suggest that he's wrong in fact there are cases that suggest it could be right within the court's discretion to find a five hundred and one but there were several courts it had already used a two hundred to one ratio i don't think so jeff you know there were there were some there was an independent district court decisions that accepted the two hundred to one roughly ratio at the time of the sentencing and others districts were presenting those arguments at about the same time this are but i don't i think that argument has also been the i am sorry but also at the same time there were courts using the five hundred and one dollars ratio at the time of sentencing her outs with the as i understand your position that's what the guidelines would have supported correct well yes i mean what i'm suggesting is the court could have found five hundred to one the guidelines don't specifically say five hundred to one you know i'm aware that the data that's that there was support for the judge's view and have it wasn't stuff that's the government's position there's no error in the government in the in the judge's guideline calculation and this it seems to me that this is a case about burden of proof or for one thing because i would suggest as i was it was  starting to say if we had done everything if everything had been done in accordance with ready what counsel is now suggesting the he was the the court i think i suggest would have been much more  confident that these guys that that calculation was an accurate calculation couldn't make it accurate if the judge if church computer had felt that ok we have now there with a hearing or whatever that shows this two hundred  dollar ratio and he's confident that this is what the ratio should be and this is what the guideline says should apply early on the judge says in his in his remarks at sentencing the guidelines are usually pretty good and pretty on on point but in this case they're not i'm seeing thinking they're not fair they're not just but if he did find that they ready were on point of a two hundred dollars to one dollar ratio then we're looking at a guideline range that's higher than what the actual sentence that he got in this you think  never once asked a judge to impose a guideline sentance and so you know we essentially said to the court judge and you can see essentially throwing up their hands and leaving it to the judge's discretion saying please judge just a sentence that's fair here and and impartial and try to account for disparate sentences and that's it and the judge did it but the best he could and i suggest that he went below what would have he would have done even if everything done everything suggested should have been done here was done if we could turn from moment to your claims concerning failure to file an appeal yes and as i understand there are two issues one  st of all there is no suggestion that there was a three to ten deal in this case there were as you know there were two different cases here and defense counsel neither defense counsel nor mr settling him into court and said the government entered into a three k there high and you know it's we're we're obligated to uphold the constitution and the laws and department of justice policies but in a case like this where the guideline is unclear and giving a whole lot of discretion to the district court and that gives the prosecutor the opportunity to come into court and say listen judge and do what's fair here the guidelines you know we can talk about the guidelines but i was asking about this agreement i was uncertain ok i'm sorry so that i'm back and you're saying there was no agreement as i understand the sense in transcript was mr suppling you said that he was under the impression that it was going to be three kilos not ten and it's in the context of a conversation he had with his government's position judge jimmy i'm sorry just on that one other point on the on the f l appeal issue you had the there was an argument about whether the district heard a knocking acceptance or responsibility as i as i understand their argument their argument is it would be error for the district court to say per se another arrest precludes you from acceptance or responsibility in reading the district cour can you say the district court did not per se preclude except in spacetime the prior arrest i can't say that judge however the record makes clear that both mr separately and his attorney specifically were indicated on the record that there were no objections to the pre sentence report he was asked specifically and and you know as a prosecutor my concern with making sure the record was clear and i asked the judge would you please make sure the record is clear that i almost made it out of here without you asking me that and so the whole getting into a minute saving the better so i have to say this do you reckon you've read the government's brief install what judge computer had to say my colleagues mooted me yesterday on this or two days ago on this same question you're asking me and i found it difficult to stand before them and say with a straight face that this wasn't as judge mckee suggested almost like a slap stick kind of a situation from the transcript so the amp however having said that i think we also have to look back and think and and understand that this particular substance methyl long was one of his relatively new substances a substance that no one deals with much at all and at the end of the day you achieved a great result for mr suppling it was it was an outstanding result under the circumstances and so if you would really like me to answer that question i will did with the government to forgo the oh yes yes yes absolutely i mean that's when you look here at the at the result in this case the government didn't move to withdraw from its plea agreement with m which we could have done he'd be facing in this case a career one hundred guideline we withdrew the other charges didn't pursue that so he's not facing a career offender guideline in two cases so this lawyer he did a lot of good things  and secondly if your concern judge frontage regarding inconsistency is across courts it's important keep in mind that our concern here is about councils responsibility to inform himself in this particular case the council showed up to his client sentencing hearing evidence and they can make a decision on a reasonable probability but we do think the record here shows that given his receptive ness to this type of information the fact that he said he was willing to accept that it was some of us have an impact and that was the only information he was provided that the fact that he was willing to vary and then the amount of information that he was precluded the mount information that he was not presented with we do think they are on the shows a reasonable probability maybe a basis for the thrust of your your your answer had there been an overstated and then again counsel in other cases were raising the concern about potency between one and m d m a so this information again was readily available and as we've said the government itself it's taken that position and other cases and so