filed last week last thursday on the tenth and then the next day on the eleventh chief judge schroeder entered an order noting that there would be a rehearing in box on the emily decision so i just want to withdraw that reference since he made a specific instruction  cardenas made misstatements in the first two briefings that the complete disclosure in the thirty briefing was insufficient to satisfy the tell all you can tell requirement and that's contrary to the thirty briefing but this he ever tell you about his relatives well what's in the record is what the defense counsel said to the court in sentencing when he said he was asked about his wife and he said no that's the only reference to family well the sensing hearing in november of two thousand and one and that's all that is in the record in november of two thousand and one in the final sentencing hearing and the court didn't rely on that as a basis to deny the safety valve relief address of a supplier he gave a location your honor was by a bar it was in a volleyball court behind a bar that's in the record he gave a location he gave a full description he gave the name of volleyball court correct behind a bar good morning may please the court i'm amber rose and representing the united states in this matter i think this case can be decided on an even easier more fundamental issue whether the district court's finding regarding the safety valve was clearly erroneous and that is that the defendant had a full of hello waiver which he agreed to the government i'm sorry the defendant makes three claims as to why that waiver in which he waived any right to appeal his sentence should be held invalid and yet none of those have merit the first is that the waiver wasn't knowing or voluntary based on the supreme court's subsequent decision he cites lengthly but presumably now under booker but the defendant's waiver was no involuntary because at the time that he entered the plea he knew he had a right to appeal and he knew he was giving up that right and that renders it no involuntary and the defendant does not which the supreme court has held pleas made in light of that applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise or course booker isn't even applicable in this case booker would give the defendant a right to be sentenced under an advisory guideline skiing with the defendant wasn't sentence under the guidelines he was sentenced under the statutory mandatory minimum the defendant also claims that the government reached the the greenman states in paragraph fourteen the government agreed to recommend the guidelines calculations set out about if the court determines that the match for a minimum presence as a prison sentence does not apply well the court found that the man for a prison sentence did apply to the government's obligation to recommend the guideline range was not triggered defense argument ignores the fact of the parties had left it for the court to be the arbiter of whether he qualified for the safety valve and he bore in both sides for the risk of the court's decision if it went place seem to suggest that you can count against them the fact that he took them three sessions before you came clean and glossing fairly clear of the question of whether or not he's fully cannot be disqualified from consideration the safety valve but it's also true that a court isn't titled to look at that in making an overall determination as to the defendant's credibility it's still not relevant that he may not have been initially forthcoming but i think even more importantly is the fact that the court did not simply rely on the fact that he didn't give up his source in the first to do briefings the court's findings were broader than that the court sided to the fact that the large amounts of drugs and quantities involved and overall the dependence on twenty five thousand dollars worth of heroin and cocaine to undercover agent within a month's time the court said the large quantities involved raise dou to the defense credibility with respect to the nature of activities in other words the court found that those amounts were not consistent with the defendant story that he had met the source one time and was immediately supplied that he didn't know where the source lived or how to find diff the court also relied on the defendants in consistencies the defendant didn't simply with respect to his prior drug dealing for example it wasn't simply that the court initially the defendant initially said oh no i didn't do them and then came clean and said i did the defendant initially said i was never involved in any other deals except for the three that i was caught doing then you signed a written declaration saying oh i have done other drug deals and then at the third degree thing and at the sentencing in response to the court's direct questioning he went back on that statement and said i've never been involved in any deals except for the three for which i've been charged  alone the court denied the safety valve i mean how can you find a defendant gave all the information he knew and truthfully did so when you don't even know what the truth is about his involvement in prior drug dealing he was continuing to go back and forth on that  still not being completely forthcoming that he's still not telling all he knows and based that in part on his demonstrated record of not having been forthcoming in the past so i think you need to look at the full context of the full findings of the district court the defendant wants to single out the government had argued that the government in the sentencing brief for example claimed that his story about the full extent of his activities was not credible in light  of the three large drug deals that he did that but that his story that he met his source in a bar that the first time he met him he immediately agreed to supply him that he couldn't give any additional information and then have been provided as  infer that the court had clear evidence you had to sign declaration or the courts that where the defendant said he did other deals and then he asked the defendant point blank at the sentencing is that what you're maintaining on the defendant said no i've never done any other but i did let me go let me cut to the chase of what he disclosed in other words the government has made statements both in a sense the memorandum and the sentencing about the kinds of facts that defendant had not disclosed like he didn't disclose any further information about how to locate hadn't he didn't he you know his claim that he didn't know how to contact him and the defendant at the sentencing didn't dispute that and the defendant articulated facts that he had disclosed that his wife wasn't involved that that he'd given a description of the source and that he had given a description of the vehicles and the government didn't dispute that so there seemed to be there seem not to be any dispute about what the defendant has disclosed and the question was just was he credible in that that was all the information that he provided so i don't think the court needs to hold any evidentiary hearing to make that credibility determination it has defendant's inconsistent statements about his drug dealing it had the fact the defendant had been forthcoming only right before the sentencing in other words he the court knew for example that you know the day before the scheduled first sentencing that was the day the defendant disclosed in his declaration the name of his sour and that at that point the defendant wasn't was refusing to talk about his family at all then the court at that aborted sentencing said well you know you're not talking about your family at all and indicated that that was part of the basis for did not take you out at that time well then of course of the third degree feen apparently he did indeed you know what did answer questions about his wife's involvement so i mean the court would look at that and say look the fairness only giving information as he sees it may be necessary to get the safety valve and i'm going to hold that against him in finding that i still think he's not telling all that he knows so i really don't think that an evidentiary hearing would have done anything to further that finding because the actual fast of what you disputed the party seem to be in the this is a contract that the government drafted it's a construed against them and paragraphs twelve thirteen fourteen of the plea agreement clearly indicate that they're going to support the application the safety valve obviously the judge has to find it the government agrees to recommend the guideline calculation this is a paragraph fourteen your honor the government agrees to recommend the guideline calculations set out of of it and that's a reference to twenty seven if the court determines that the all the information to the court to have an appropriate determination made and what they gave to the court they said he breached and the basis was that they did not give that they made misstatements in the first two briefings that's the answer that  untruthful was mr cardenas the story from the first to the briefings that he had never sold drugs before his life that he had no idea of the actual name of the source and had no information about how to find him or contact him and as you know from the declaration of mr keating this came up with a name or told us but that did not render his story in the slightest bit more credible it's the same thing that the district judge did they were relying on misstatements in the first two