administered to mr russell or because of the government's breach of the terms of the plea agreement in addition we are seeking a vacate sure of the sentence and it remained for reset and seen in addition because the district court committed reversible error by failing to disclose in the sentence seen whether or not the recommendation of the probation office issued prior to the sentence was was followed or not i felt he said he didn't follow it did he say on the record that he didn't follow your honor i believe that the record is a little murky on this point as far as we are concerned the question about the specific recommendation which was given to the to the court and sealed pursuant to local rule sold the defense never had a chance to see it i don't believe the government had a chance to see it either i think that this is a central issue and while i you know framed it does the second issue in this case i think it's a very important issue because we know from the p s r that as the probation office interviewed the the defendant in the victims and analyzed the case and conferred with the prosecution you know received our submission regarding the pre sentence report it's important to point out that the pre sentence report that was was given to the court prior to the day of sentencing indicated in nor uncertain terms that the guideline range that had been agreed to in the plea agreement was excessive under the circumstances we know that we have we are able to see the p s r what we were not able to see was that the specific recommendation from the probation officer that as we know from the record was was delivered to the court some time just shortly  before the sentencing proceeding was to commence that day was made effect at some point in time late in the proceeding the the judge stood up and generally asked aloud to the courtroom if we had seen the the recommendation that had come in that day obviously my response was that i was not able to see it pursuant to the local rule and i don't believe that the government indicate i believe the government indicated that they had seen it either so i think that this is this issue when when taken with our  contention that the government breached the agreement that this issue concerning the set the probation recommendation is critically important we know from the p s r that the  probation took the position that the sixty three to seventy eight months which was the guideline range agreed to in the plea agreement was excessive under the circumstances i doubt therefore even though i didn't see the specific recommendation i doubt therefore that on the day of sentencing that probation would have recommended sixty three or up to seventy eight we don't know whether the recommendation was sixty one sixty two or forty for that matter and i think that it's critical because of the recommendation to the court that day was for a sentence that was substantially less than the sixty three to seventy eight based upon the think that i'm sorry i think that you know that you are correct your honor correct that is that is  from the position so what i do believe and again it's i am speculating that the recommendation that day was something less than the sixty three months that was administered here there were times was for this regard and there's no question the judge was free to disregard it but in disregarding it and the point of our appeal on this point is that he didn't explain for the record why he was disregarding that specific sentence  in the context your honor the totality of the circumstances from running from the plea agreement to the elocution at the time of sentencing i think when you take the totality of the certain circumstances and into account that recommendation was critically important we we know the the the other point that i want to stress here is that we believe that the government begin reviewing the totality of the record the totality of the circumstances  think so i i i was there that day as mr my learned colleague was as well i believe that it was both i think as as i reviewed now the transcript of the proceedings in the stark light of you know the ability to deliberate on the proceedings that day that what happened on that day a sentencing was very reminiscent of what happened in two cases that this court has previously reversed and remanded one being lawler and the val i think that you know the government's conduct that day was you know to to chastise the defendant for his extensive criminal history on the record since you were there spitzer no question the record reveals that we did not object but i don't think that that prevents us from she came up i know what we're view it from plane air rather than exactly i pads are harder i much harder call there's no  think i think that you would prevail based on the record as i read it i think the government was very cute in the way they described their previous agreement they came very close to the line of reaching the that it said the defendant council of ten markedly more than typical defendant to address the consequences this office is determine that a departure is warranted under the circumstances but it's for this court to evaluate what credit is appropriate i mean they advocated as as promised for requesting a department unfortunately your honor they walked that back at the time the way i read the transcript they said we here's what the starting point is and they said and they said yes so what was the the starting point and then there was the rain that was the agreed upon range in the plea agreement but the government ordered that phrase no fewer than thirteen times starting point the starting point being sixty three to seventy eight was uttered go back to the transcript as i did call them up thirteen times their phrase was uttered eight after i had submitted our witnesses and my presentation eight of those thirteen came after my presentation but i think you're right or more directly to your question the position of the government that is most stark here in my estimation twofold one was the fact that during my presentation i advised the court that my client voluntarily came forward with counsel to cooperate with the government without a proffer agreement those are facts he came forward he wasn't arrested and he was just on just on the verge of being arrested not the business and what was the government's position but i believe the deposition was inconsistent with the spirit of the agreement you have to you have to look at the agreement from the perspective of what the parties intended when the end entered into it and i believe that deposition wen rebuttal as i characterize it mr schweizer gets up there and says well he was going to get caught anyway and he you know he we were we had substantial evidence against him that it was designed to simply undermine the fact that my client came forward even before the as one of the express that came in before the d m burst but i used him coming in in my presentation as an example of the type of cooperation that he was providing which was the central premise of the the stipulation in the agreement that he was entitled cooperation in the five year one point one since the right it's not and frankly as we said in our in our brief i think that the government's reference to to the fact that this  not five k one departure it was another subtle indication another subtle signal to the court that you don't have to do anything more than the sixty three to seventy eight but the other thing that i find very stark is that the court asked almost everybody who came up to the microphone that day at least with the lawyers who who presented he asked the lawyers you know what do you recommend to be an appropriate range for sentencing here at the nearly end of my presentation before the the judge asked me i gave him i answer the question before it was asked and i told him that i thought that the range given all of the circumstances was half of the sixty three months which was the bottom end of the sixty three to seventy eight range when the government was asked the same question the government not only demure but more importantly the government didn't even reference the stipulation by saying that while i  have no i'm quoting what i think the government should have said more appropriately while i have no specific recommendation because i leave that to the court i want to point out to the court that we agreed that he is entitled to a downward variance because of his cooperation the government didn't even say that and at the end of the day i think that goes right to the heart of their breach that they were unwilling even when the court asked them for a specific range to not even acknowledge the fact that they had agreed in the plea agreement that there should rustler was entitle that's the word that's that's the word that was has been of course the government is empowered to determine what he is entitle to the court determines what he's in titles no no question government might use the word he has earned in our estimation you know a variance that this kind of cooperation is really helpful and you know we would urge the court to consider it more or less heilman i think it's not entirely i  premise your honor that the court makes the final decision so nobody's entitle to anything in the courtroom just as i stand here today and i'm not entitle to anything either but what was missing was you know as you just characterize what the government has said even that was missing there wasn't even just a simple acknowledgement that your honor pursuant to the agreement that we had entered into the defendant should be up  to change the word intitled for a downward departure based upon its cooperation when asked for specific recommendations they couldn't even say that and if you end of the day you might read and understand it then you want to of a key tour and re sentencing is that right and that cooperating your honor that in terms of whether you got the credit for the departure i don't know exactly what the district court was ultimately thinking in terms of their how they were waiting what you are thinking when you said that was the starting point is agreement the way it was crafted mr vaca was not involved in the actual crafting of the language their behavior were involved i was that's exactly right your honor you know what this meant what he meant was that defense counsel wanted an opportunity to make sure that there was an argument to go below the to guidelines right language that travels and says the parties i understand it's the government agree that the defendant is entitled to a downward departure or variance from the relevant guideline range and then when you come into court you don't say that you're asked about whether you should whether there should be a downward departure and you say the government submit that some page eight to twenty seven there's not a valid basis of bases that wa sentencing memo made very clear that it did not that three or four of those grounds were not valid grounds for departure if you actually go back and look at the transcript and that's why in the government's brief it took consider significant issue with the way the fence defense counsel characterized that section of the transcript that section of the transcript if you go back and looking at look at it is referring to the government's response the government took the said very clearly that there was no basis for departure based on the several grounds that defense counsel and advocated the plea and that there would be a basis i just what your honor my point i'm making is that if you actually look at the transcript the government said that as to does two or three grounds raised by the defendant for departure that were not the ground for assistance that that those were not valid bound grounds for departure there is one that's exactly right your honor then you go on in the transcript and it's not referenced in the defense counsel's brief which is then explained in the government's brief the government then went on and made very clear to the court there was one ground that was a basis for departure or for assistance which gets me to my big point about this is where you say not that doesn't cut the fact that the  government should get some credit for that and the other thing set forth in the memo that's exactly right your honor that's exactly right what i want to get sent to this court is that going into this whole process of sentencing the government was fully and in throughout the sentencing fully supporting  wrestler's ground for departure in the sentencing memo if you go back and look at the government's sentencing memo which was submitted right before the time that the court actually came out and considered this lengthy hearing the government sentencing memo went in great detail great happened at the time of the sentencing hearing i would say that it was it was laid out in great detail i would say at the sentencing hearing it was the government's intent to basically refer by reference and so court came out having plame plainly read the materials basically saying to the court judge here's the framework here's a framework that there's a guidelines range that is applicable here and then give the defendant some credit now throughout the time of that hearing that's what i was saying i was saying judge here is the original starting point and defense counsel takes issue with that was said thirteen times it was said thirteen times primarily in two ways one in the context of judge here's the starting point and then you give some credit that was the first three or four phrases if you look at the reply brief i got a chance to go back and look at it defense counsel doesn't mention what it says the government talks about this being a starting point the reply brief then does not quote the language that happens in the next two or three sentences on the transcript where the court where the government is and saying then give some credit so in other words it was every time that the initially the mention of this the guidelines range was done was frankly to remind the court of the framework advocated by the government that you had a starting point of this range and then you had  credit afterwards later on in defense counsel gets up and said it was after his comments the government talked about justifying the distorting port of the guidelines range at that point having sat through that hearing defense counsel had come back and in his tone and in the way he was discussing the guidelines it was that this is this advisory range it's merely advisory what we have here is a bankruptcy case it's sort of a civil case and really sort of undercutting the whole idea that the guidelines for range really inappropriate starting point for the court to consider in addition the defense counsel who had not been part of the initial part of the investigation his co counsel willie dow had been part of that and had walked through this whole process it was he was the one who had been involved in bringing the offended in and all that initially and that early part of the investigation and so mr vaca made some comments on the record which strongly suggested that the defendant had before any idea that this was coming for the things were going to happen was bring it was coming in and was doing this in this context now i take duty to the candor to the court very seriously and at the time that those comments were made it appeared to me that the court needed to understand that this guidelines range was an appropriate starting point that it wasn't being pulled out of the air that there was a strong factual basis for this being the starting point but as i read to you the policewoman says that would be a departure from the guy like range that's exactly the point your honor in the policeman also goes on to say the the court if you look at the language of the next sentence that very clearly says as will be outlined to the court at sentencing at which point the court may determine to the what is the significance of these were those words are relating to the other grounds for departure he cited to parch or for extraordinary restitution which he started to parch or for family circumstances he sought a departure i believe for his wife's health conviction like the grounds he mentioned so those other grounds i did not think there was a valid legal basis for any grounds that you would argue that's not true if you look at the government sentencing memo in great detail at great length it says there was one ground as as it relates to the discussion the five k one motion in the in the sentencing hearing i think there's a little misunderstanding from defense counsel as to sort of connecticut's practice regarding assistance letters in connecticut the government does not recommend a specific sense it basically lays out the facts of what a basis is for downward departure and then leaves it to the court it's a court's decision to determine what credit to give any appropriate level of departure this is not a technical cooperation letter but it is equivalent to a cooperation letter and in essence we're going to follow the same procedure there as i do in in a five k one letter and in frankly most sentencings where we basically say word in title meant defendant is entitle to a downward departure may have created expectations i don't think so your honor because i think at the time it was being negotiated with attorney down and in the language was entered the idea was you had a guideline strange that you didn't want to do a district court judge even though it's a to be looking at and thinking if i go below the guidelines range i'm going to create an issue where the government's going to and there's going to be some challenge to my sentence and the idea of having language that says look the government agrees that the defendant is entitled to departure we're going to those facts are going to be presented guidelines range that's right your honor that's right that's what the government agreed to a level that there will be determined variance from the guidelines range and then you come into court saying and say we don't see any grounds for a downward departure but you're on i think that that last part is just if i would invite you to go back and look at the governments and zoom around you reach the sixty three number whatever defense counsel determined what going to be approach would provide the appropriate basis you said he got all the credit when you got to sixty three months i don't believe that's a correct accurate ing of what what the government said in fact the whole purpose of the government's presentation having done an extensive sensing memo which really outlined in detail what the government thought was to really give the court the justification for why the starting point of a sense and to allow the court information that to make an assessment as to what credit to give the cooperation if any and in terms of there's one other element as a relates to the defense counsel's argument in his pleading he talks about well the government didn't come in and itself put on a bunch of different evidence at sentencing having already said a bunch of it in the sentencing memo there was an understanding with counsel and i think if you look at the early part of the government's comments where it says this is the framework handled all of the civil bankruptcy mess that happened afterwards and handled that dealing with mr wrestler and was working towards getting that all result so it made sense from the government and i believe from mr backus perspective to call attorney katz to lay out a lot of this stuff during the course of the defense presentation so it because i wasn't there i wasn't in the bankruptcy court i wasn't arguing the motions attorney katz was with attorney wrestler to the extent of trying to wrestle was presenting it so in terms of evidence regarding a good portion of the substantial assistance or the assistance that he was providing made sense to come from attorney katz so from my perspective i believe that i fully complied  with the agreement that we had with the parties can i ask a question i was a little confused about restitution that was made in terms of the cooperation did mr ressler merely provide records that claims cremate on the state client security fund or did he in fact make restitution himself my recollection is that he did not make restitution himself that i can recall it was basically to facilitate the process by which claims are going to be made against the client security have contributed that's correct if for example if if a wrestler came in and said look i did steal this amount of money and they were able to submit a claim and the court bankruptcy court was able to enter an order in a certain dollar amount that could be