is that on the record at sentencing the judge orally contradicted the appeal waiver by advise ing my client that he had the opportunity to appeal under three very forced use me scenarios that would if he believed that the plea was involuntary which we assert that it was if he felt that there was some other fundamental defect in the proceedings which we also assert existed and he is thirty the judge advised my client that there was a statutory right to appeal under certain circumstances which he did not specify and if he felt that the waiver was on in forcible at the change of plea my client who was speaking through a vietnamese interpreter was only asked one question do you understand your waiver of appeal to which you reply yes that's the only discussion at the change of please as to his waiver of appeal in addition my client's plea was not intelligent and voluntary because he was not informed of the vast change in the law under the guidelines now under booker and blakely which both occurred following his sentencing and also the primary issue of this appeal which is that the district judge in this case did not disclose at the change of to my client or to his defense attorney at the time who was not me that he had a deep unavoidable and excusable bias against the defendants in this case because of the judge's recollections of the case six years earlier that had been tried in front of him when mr lamb the individual who hired the hitman to kill this individual mr try tran and who ultimately approved the firebombing of his home when that man was tried for sat as the case and six years later in judge i was a very experienced judge she sat on the bench thirteen years by the time this case came forward he had never denied a government recommendation for a five k motion up until that time at the change at the sentencing hearing that took place that ultimately was aborted and did not result in the sensing of my client that sentence that first attempted sentencing hearing so if you probably should recuse himself and i submit to this court that under the plane air standard when a judge says and he says it again at the actual sentencing hearing on june second that he should have probably should have recused himself that that a situation that calls into question the neutrality and fairness of the proceedings and of the judicial officer and therefore it is satisfies the standard for plain error for and also requires this court to as i'm not going to give this defendant a break because in comparison to other defendants who are involved in this case he was as bad if not worse is not what he what he sa this had this case had been sentenced with the knowledge of booker in this court we're looking at it to see if the sentence was reasonable the findings the judge the very that led him to make that determination that the court just said were unreasonable under v grounds first one is that the five k factors the court is supposed to consider do not include include how terrible the crime was or the role of the defendant and in fact i'm sure this court has many times the most culpable defendant sometimes gets the five k because they know the most information they're the most helpful and yet the factors that this court found in the case that the court is supposed to consider are about the nature and quality of the cooperation how much assistance was given and in making those determinations the court is required to give substantial weight to the government's recommendation the government's obviously not supposed to rubber stamp that i mean it's not it's not a notice it's a motion so i mean the judge  without any basis what the government was saying and in fact lumped the government in with the defense team which stated them on several opportunities they are all working together the judge will i'm sure you can see by the transcripts that judge  very hostile to the presentation made by the government partly because the government had presented a defendant prior to my client being sentenced who had already who had been indicted once as an accessory after the  then later when new information came in that employ implicated him as in fact a principal indicated that he had lied about his involvement that he had actually been present the night of the bombing and had been the person to drive in there and held the bottles and fill the bottles with gasoline and was either he or my client through the fire upon that ignited and both of those two men pointed the finger at each other but so when that man was really indicted as a principle he then cooperated and the government recommended a five k for him as well and just gave him seven seniors and he basically said i believed him and i gave sort of like he had been tricked i believed him and i gave him seventeen years and so i can't possibly give this other guy who says something different about one fact a break as well i have to choose between them and that was unreasonable the judge five k does not require the judge to choose between defendants and also although the judge is allowed to evaluate their credibility it's unreasonable for the judge to make a finding of credibility based on no evidence there is no evidence following the rules of evidence is required in buckland that was presented it was simply a hearsay statement by two different people saying he because he was busy pouring gasoline around the perimeter of the house and on the porch the judge's finding that what my client did that his involvement was as bad as the two individuals that got life that is also a finding that's an unreasonable the first  as mr lamb it was his idea he paid people he hired people to make the hit he incited the entire event i'm sure everyone would agree that he was perhaps the most culpable the second individual who got life was the person who was poor and the gasoline around the perimeter of the house who masterminded the arson who recruited all the other individuals who paid them and who received money directly from mr lamb so he is the lieutenant he's the talked actual person involved in the arson and nast reminded all of the events that occurred my client came in last he was recruited at the very end he had no involvement in the first attempted showing and by the way the second man to get life he fired twice in two different pay you higher recruited the people to do it said let's do it now told them what to do so judge shabbes reaction is the reaction you just had that at the moment somebody throws something that's what started it this but he did it and he's the buttons responsible for the death of that child he made that finding based on no evidence my position is that that finding itself is unreasonable he made that finding based on word of it finding that my client threw the bottle my client has denied from day one that he was the one who threw the bottle he was the passenger he was handed he wasn't even holding everything he was handed a bottle as the driver got out of the car came to his door handed him a bottle and they both got out or i think my client is holding i'm sorry i kind of holding the ball while the driver is driving the driver gets out and my client says he handed the bottle to him the driver says that that mike he saw my client thr just credibility finding that your client was the one not telling the truth based on no evidence he didn't have the individuals testifying before him this was hearsay that was presented just as a statement that was made to the probation officer and by the way rely on the proclamations of judges at sentencing and judge that says to him in a very long convoluted several times says in different ways that he has different possible reasons for having the ability to appeal and therefore he's going to tell you how long you have  good morning your honor may please the court my name is ken lay can i mean assistant u s attorney for these from district of california and of course i represent the united states in this matter i'd like to start that i hadn't planned on it with the area coun defendant was told by the court that you have a right to appeal on a quickly informed that you have a right to appeal which is on your contradiction to the waiver in the plea agreement that's not the situation we have here the court has two options one is just say you waive your right to appeal and that's that and you've got a defendant and it was nothing more than that the second is to do what judge shoved it and says that you have waived your right to appeal and i'm quoting those waivers are generally enforceable but if you believe the waiver is unenforceable you can present that theory to the appellate court he is informing the defendant i think that that event is a benefit that even though you wave your rights to say that it's an absolute wave that cannot be pursued if you think that you have a right to appeal you can try to present that to the appellate court and it's up to the appellate court to determine whether or not they should hear your appeal i but did not actually through the mouth of cocktail that person can be sentenced to life counsel does not quarrel with the fact that this is a heinous crime in fact she claims that because the judge knew too much he should have recused himself this crime was a horrible crime this crime was a crime that the judge knew a lot more about and the typical case this was the fifth the found and to come before the court in this case  seventh year after the case for saw first light in the court damn lamb had a six week jury trial that resulted in a hung jury he eventually pled guilty to finish quite fam and truong fam pled guilty but then a trunk walk was charged with being an accessory after the fact he pled guilty so by the time this got the judge he was exceedingly familiar with the facts of the case from four prior guilty pleas and one six months trial i want to discuss briefly the  nothing in the record to indicate that autopsy autopsy photographs were shown to the court i would submit that it doesn't make any difference even if they work the judge after seeing autopsy photographs can still exercise a fair and independent judgment as to what offends participation in a crime exceedingly familiar with the crime a horrible crime and he's decided that despite the government's recommendation that the defendant should receive a benefit for cooperation he's not going to give up now with all minds can differ another judge may have decided that the government's motion was proper but we want judges making determinations for five k motions not the government that's how the guidelines are written and that's what the law is every defendant who pleads guilty including this one where there is a five k issue is informed that the judge is going to make the decision this defendant was informed on two occasions when he pled guilty that the judge could sentence to life in prison the plea agreement stated that the court was not a party to the government's agreement and that the defendant could be sentenced to life in prison even after the first judge made his feelings knowledge that he was not inclined to follow the government's five k motion the defendant didn't bring a motion for ricky was ill or anything similar to that the bottom line is as counsel below recognize the courts make these decisions the court was very informed us of the facts of this case and based upon his examination of those facts and his knowledge of them he decided that in this rare case it was not appropriate for him to grant the motion i wa very briefly and i've only got a little bit over a minute left discuss the issue of the book or remain and i would submit that though booker was decided subsequent to the  and certainly before the appeal is final that are we mad on on booker grounds would not be appropriate the book record stated specifically that only when it cannot be determined from the record whether the judge would have imposed a material different materially different sentence had he known the guidelines are advisory rather than mandatory will the book or limit agreement apply and this is one of those cases where it is crystal clear that even  open on that the guidelines were advisory as opposed to mandatory he would have done the same thing first point to make is that the appropriate guideline range was thirty years to life even as it then existed the judge knew that he defended to thirty years he as we know declined to grant the government's five k motion in a term and because of the the gravity of this offense that the defendant deserved a life sentence it is clear that judge job had he had a crystal ball and knowing what was coming invoker would have done the exact same thing if this case is we mandated for limited book review then every single case the cons before this court will tha pretty clear on the record what he wanted to do in this case but that leaving that untouched assumes that the this court approves any determination that a judge makes whether it's made on no evidence where it's made on the emotions of the judge contrary to the facts that are before the judge and if there are no there's no evidence before the judge and there's no basis for the judge to make the finding and mr milliken is just corrected the record that there were two molotov cocktails so the judge just finding that the man  gave seventeen years to was less culpable than my client there's no basis for that finding remained to a different judge in this case this is one of those cases where there are unusual circumstances in this court already found in united states versus kwok one of the defendants in this