remand talbot's claim of statutory ineffective assistance of counsel by section twenty two fifty five c j counsel for the district court for further consideration i recognize that a c e o is is required before the so pro se razan ground for his motion a claim that his attorneys his syncing attorneys were ineffective for failing to object to a breach of the plea agreement by the government the government in this case as part of the plea agreement agree that it would not  make any motion for a guideline departure in the case now there was allegation by the defendant that you can gauge and new criminal conduct while he was on release and that the government argued  to the district court that he had reviewed all the filings and he had made a determination that i'm going to proceed with the pro se submission now the off thing about that is that the time until this appeal was undertaken is that page twenty five of the pro se twenty to thirty five motion was actually docketed with the clerk but not image will on pacer i actually had to file a motion with the district court to correct the record with respect to that it is a court granted that motion and so the clerk inserted page twenty five into making an image on pacer so there's really no way for twenty to thirty five counsel to made any kind of assessment about whether or not this is a claim that should or should not have been withdrawn remit it it's our position that it doesn't matter that the judge ultimately denied that motion for departure because you have the issues attendant with they defended having an expectation that the government is going to adhere to its obligations in the league remit and perform consistently there with and so the fact that the court ultimately may have denied that motion in our position is irrelevant in fact there are cases which we discussed in our brief that suggest when a court does does not even consider a breach or maybe there was even a recent case from this court that i believe it was decided last week of the i mean unless you're arguing that judge wilkins would wouldn't have done it unless he first heard the government want to change its mind and say well i'm not going to grant that motion because of the but i'm going to grant a variance and said he never said anything like that he said out very specifically why he independently was going to the sentence as courtyard but we don't know how the government's forceful advocacy for the guideline upward departure may have played into judge wilkins calculus overall in deciding whether or not to grant that variance because in many ways the way the government presume that you shoes they presented as being one of the same that the departure and the request for a variance with the same although the supreme court's year was already case recognize that there's an analytical distinction between a departure which is which arrives of the guidelines  variance which is arises are thirty five fifty three and this is what should the seven seek counsel what should the counsel have done that was not done they should have objected they should have objected to the government's  responsibility ultimately didn't do that it's non obvious in a situation where the judge just went ahead and granted acceptance of responsibility but the court statement in there about that that is definitive are going to force in a scene proceeding which attracted would consider the government's relief appellant now presses arguments he either waived or hasn't presented to the district court to try to undo his plea agreement those claims fail not only for procedural reasons but also on their merits appellant started with  promise you can agree that ineffective assistance at a twenty to fifty five or seeing is so  crimes in between his plea and sentencing and there's no dispute in his case that appellant did commit crimes trying to open a bank account of the fake social security number trying to cash worthless checks and each and other kinds of financial fraud  government from its obligation not to seek an up or departure so there's no breach of the plea agreement at all and i think as some of your honor's question suggested even if you were able to show a breach it's not at all clear from the record that there's any prejudice to the district court denied an up or departure and the sentencing transcript makes it pretty clear that the court was concerned about would have reached the same result in any case given its concern about the crimes that appellant had committed understand that the history of how this claim unfolded a paladin made that assertion in his initial pleading as his counsel said in his argument but by the time he got to the twenty two fifty five proceeding appellants counsel made very clear that he was proceeding on not i don't think this is something that you know your honor the defendant this court recognized that a defendant did in the united states versus reciting our brief and this is the theory the theory is that by focusing on the sentence he received an argument sentence was too high as opposed to the plea agreement being problematic appellate avoided a potentially very bad outcome in the case which is actually doing the plea having to go to trial on a claim that all the lawyers  they say and this may be foolish but they say that he would withdraw all plead if you could as we sit here today and that's because that's clearly a position on the twenty t about trying to get a lower sentence and i don't want to risk getting all the benefits that the government has agreed to you know has given me in the plea agreement he was a risk at that point he may have he may have changed his mind between then and now but at that time  superseding information to which he pleaded guilty his claim out of people seems to be i would have agreed to go to trial on the initial indictment filed in the case and i would have done with yes saying is happening overseas half decent what i think that would be it would be one thing if appellate were now pressed in this court that twenty to fifty five counsel was ineffective for that reason but it doesn't seriously challenged in his brief that his counsel didn't actually waive that theory of prejudice as a twenty two fifty five hearing and i think that you know that waiver matters parties all the time raise arguments press arguments and they come back to court and say i don't want the court to consider that i'm withdrawing it and i think the well and i think the writer is consistent with his counsel having again having reviewed the document talk to have made a strategic choice that at that time it didn't make sense to press is that your prejudice that he's now pressing now and i think that waiver matters  to i would simply like to add just briefly to the procedural question that goes in counsel raise about this your way and with another court can get to that the statutory issue because it doesn't involve a constitutional claim we discussed this in our filings and in the supreme court has held in another context that it a situation issue on a non cost to tional perceivable matter provided that the underlying issue itself is a constitutional dimension and so the way we have essentially strong this together is is that while a claim of statutory ineffective assistance of counsel is not a constitutional dimension provided the underlying claim that is being asserted that twenty to fifty kept by counsel should have race is a constitutional dimension then you can issue a see a way just as you would be able to do in a procedural context cases