well here the next case united states versus vargas this is a unique literally unique case as far as i can tell in terms of the district court having denied the additional rd point for acceptance of responsibility in which both and i submit to you the law of this circuit is that the government does not have discretion are our secondary argument is that the court of courts and district court does not have discretion how come there was no defense request of russia back i would venture frankly around are the everybody was completely taken by surprise by that because of the back that this was unprecedented that i did substantial amount of research on that and there were no cases mr elman repeatedly said but it's in the present report they asked for it the government and of course of the government didn't go on record the judge what are you nevertheless them it was really not the way things are supposed to work engage in some speculation as to how things might that many cases plead out within a month and at this point the decision to enter a plea was entered roughly a month before the scheduled trial date and i did hellman had alerted the court that he had a lengthy trial and that took up several months of his time prior to the anticipated plea here and otherwise it would have been was that the government was on in saying it had been saved substantial time because maybe they could have tried the case using only the witnesses who'd already testified and been prepared to testify a the suppression hearing but there was nothing but the court to say that and the sign that now i can't fill that trial time now you know my calendar is disrupted by having this last minute or last month with multiple plea and there's nothing you're absolutely correct your honor and yes that is what i was going to say and it's absolutely true the judge for whatever reason the to result in a plea is not something you know there are many cases where people have complained about the lack of the rd point where it was literally on the morning of jury selection beyond that your client moved for a suppression hearing we three months in a are and it's worth pointing out that it's a motion implies that a district court has to rule on it it can't be that that if it worked and it was supposed to be automatic it would say that the court has a say in whether to grant what will this is going back towards the discretion question which is it's a question matter of discretion it's a matter of a factual finding the court has to find whether the facts  give rise to an adjustment apply and in this case the reference in the statutory text is to a motion and the reference in the commentary to the guideline talks about what the court does in determining the motion so there's a lot to indicate i think it's a question of discretion the court here didn't say well yes all the conditions are met but i think this is discretionary and in my discretion i think the defendant is a bad guy so he shouldn't get this extra point or any other external reason why you shouldn't get the point that the court said i don't find the acts that i need to find in order to grant this adjustment  commentary is very helpful there you are because it makes clear that the government is in the best position to make the determination of whether it's time has been saved as well and that may be a reason for a reman and to ask the judge to be clearer about exactly what her findings are and to give due deference to the government's assessment in making that judgment but that's a far cry from saying that at the end of the day the government the fact that the government made the motion is dispositive would be very easy for congress to have written something that changed the rule as it did with changing and if the government certifies that its time was saved then grant one extra point but it didn't do that it said the rd condition is on motion of the government motion motions a request to the court to do something or find something when they can be granted or denied an appropriate certain that is true your honor i think it's important in my brief time allowed to point out  least this court made very clear that preparation for a hearing is not preparation for trial granted that was a fat ago hearing there and it was a pretrial suppression hearing here but  of our request that it be remanded to a different district court judge for the reasons we make clear in our brief one thing that is obvious though you know what the government was not about is the informant didn't ball which is why it's expressly limited to trial and not a hearing but yes indeed that the trial in preparation for the trial including dealing with an informant a good home and i suspect would you'd have to submit requests for instructions like done in a case like this the police something out of the the files and reproducing you to submit to the court you have to decide on strategy perjury selection you'd have to figure out whether you wanted to use the informant or not or whether there was additional evidence that ought to be provided and it would course you decided that there would and then you'd have to prepare those witnesses for the trial or there are a few other things that we pretty much what you told the judge that shot there were a few other things that the government had not yet done that it would have done had you told your o about the chemical tests of the drugs that were seized and that's not something we had discussed with counsel because in the nature of the suppression hearing discretionary you know and at the point the drugs are seasoned the fact that it actually was drugs not relevant to the court determination that likely would have been resolved by stimulation is not something we had discussed aside from that we're not sure what other witnesses you would have considered a sadness c i and to judge when she is question to counsel the c i did not testify not because what he told the agents was not relevant to what happened was not relevant but because we were able to get in his statements by hearsay through the agent so it actually was important to the probable cause in that you wouldn't be able to do the same thing in the trial that's correct your honor and we might have we hadn't made a final decision about if the case went to trial would we call the cia as a witness or not we we may have we may not have that judge to pony's intuition that we could structure the trial without the preparation for the trial because a month earlier they had spent one for preparing witnesses perspiration you know no question we would have spent additional time with the agents preparing them for trial but judge caproni was correct in so far as in our mind we were preparing for the suppression hearing i mean we knew that if it went to trial which we thought it might there is going to be a vast overlap which is perhaps adjustment when the government moves through the week in  through the sat through the suppression hearing for two days she no she knew that there are essentially were two witnesses that would testify at the trial what their testimony would be went through in great detail we put in a before trial a month after the motion has been made with the exact same hearing played out in the defendant agrees to play they're still exactly the same amount of work that remains to be done it looks to me as a large part of what's happened here is that the trial i believe i agree with you you entered this agreement with the defendant that you would make this motion for one point and then you did just isn't one of the reasons for entering the plea agreement precisely that it would be if the defendant does plead guilty that saves the government a lot of time and resources there's also you get certainty all of this doesn't once the suppression happen doesn't happen and this is not a high risk trial for the government right now you wanted him to plead guilty you wanted to plead guilty then he did plead guilty then and you agreed to give the one point and then you made the motion and i understand that the government has some responsibility to defend the district court here but a little odd to see the government do something st of all i've rarely seen the government do which is to disavow any argument that the defense is making that the government has absolute discretion over something at the expense of th protest and then secondly you're arguing against the motion that you made presumably in good play and of course you can take the position perfectly reasonable that position that well yes we made a motion and could buy it but the judge that it would have otherwise had to put in to trying the case and preparing the gangs now the standard here is clearer and we think the judge certainly could have granted our motion she had discretion to do that i think we made an adequate record that would have supported that question your honor we think the attitude the record is adequately the judge did ask didn't explain that she understood that if the trial went forward the cia might have to fire or not that was correct i agreed with the court when it posited that there really isn't much more to say about it certainly had the court asked more questions i would have answered the man had the defense asked a degree of deference of all the court to governments representations as to the government's savings that's a separate because what she was saying was accurate now a reasonable judge could take a view that our motion should be granted based on the fact that we could have done and would have done as judge lynch pointed out some additional work for a trial she i trust your honour's reading of the record i apologize find misstated it had i disagreed that i would have spoken up but obviously that's a hypothetical i do think that's accurate and she did make a record about the two witnesses that she heard extensive testimony from and that if you read the transcript would you say the government you with has not been preparing for trial we are preparing for the suppression of your record and it would be the same witnesses you said it would be some of the same witnesses there would be additional witnesses to trial this ruling with a court response to that is true but are you saying you did not have to do substantial trial preparation work to prepare for the suppression hearing which sounds to me like she's focused on the work you've already done and that's a problem and what remains to be done or doesn't remain to be done i think the district court was correctly focused on the criteria in the guidelines which are which is is the is the government essentially  benefiting in a way that it can avoid doing substantial work on this case in preparation for a trial the government made the motion because there you know in our mind we have been preparing for the suppression hearing as i said on the record  understanding that much of that preparation would be preparation for trial the one for which we we thought a very well may the district court took a very reasonable view we think and in denying our motion and it's simply not there  thank you your honors i don't have too much to add at this point although even that is as we've just heard the government continues to maintain its position that the rd point was warranted the  the guidelines commentary have made it clear that that's because the government is in the best position to know that with respect to what could have happened i know i said i don't like to read a crystal ball but i think it's safe to assume that  as your honor pointed out jury selection obviously would have taken place there's always a lot of work the lab technician would have had to testify and the confidential informant the district court wrong in saying this was probably two thirds of the trial you disagree with probably yes i would say that that was clear error it was obviously an important part of the trial but two thirds in terms of time in