with no it ambiguity whatsoever that the plea agreement was unacceptable or unreasonable as a matter of law that is just incorrect we have a prosecutor who represents the united states government who agreed with the stipulated sentence the probation officer who works for the judge entered valuated the entire case with the sentence and recommended the court accept it and do the same under reasonable a matter of law unreasonable as a matter of flying not not not necessarily unreasonable as a matter of fact ok there is some confusion as to what the district court specifically was staying in my view and i know this court gave the district  opportunity to file a brief which for whatever reason chose not to but i think it's also important to consider the fact that the stipulated sentence was a sentence to the top end of the applicable guideline range which only a few years ago would have been the maximum penalty that the court could law to remain on the case to a different district court judge so that a different district court judge can exercise sound judicial discretion in deciding whether the circumstances of the case warrant the sentence that the parties have proposed to the court and if we have the authority to decide what agreements to accept in this court and i am stating as a matter of policy that i'm going to reject all stipulated sentence or sentence agreements i suggest that that's incorrect and i i'm comfortable doing that and i'm comfortable accepting stipulations why it's not wrong as a matter of law because one of the things that he said at one point and i don't have the exact page in the quote is that  circumstances hears from both counsel here is the defendant allocute and then decides whether the proposal and that's all it is the proposal from the parties is acceptable if he says it's not then ruhleben dictates what actions he should take he can say i'm not some some district courts in our circuit who whose judge just say we don't like these agreements and we're telling both the u s attorney's office and from the centers we're not going to accept them and so people tend to govern themselves accordingly and don't propose something that's real you know different from what josh martoma saying as a matter of his personal decision right that's correct i'm not familiar with those courts your honor cites but i'm sure there are and and i cited in my letter to the court you know shortly after filed  brief cases from other circuit that have held that such determinations by just requests are proper but in doing so those two are simply cited the subcommittee  judicial committee of the house and some objections by just the courts that in their belief that rule levon would require them to consider a plea agreements and then the subcommittee said no that's not what rule have been requires i suggest that those kinds of comments are not binding on course when you take into account the fact that rule levon when it was passed in effect sanctioned plea agreements it doesn't require plea agreements to be accepted but it's sanction and permits the parties to propose to the court a clear green that it actually says that the parties may negotiate and then propose the agreement to the court once it's proposed to the court the rest to rule eleven i suggest requires the court to use due consideration and judicial discretion in deciding whether the plea agreement is acceptable you combine that rule with the decision of the united states supreme court in santa ballo where it said  judges cannot reject plea agreements on an arbitrary basis and much must use sound judicial discretion that seems to me to say the judge has to consider this proposed plea agreement in the individual circumstances in her term and whether he went over the fact that he had previously accepted the plea agreement and the other is the companion case that's around and then he said that this is this is different this time you're you don't leave me anything to do just say take it or leave it that's right if i mean well suppose the judge i suppose we don't agree with you and if we get agree with you i think you'd be this was a good idea actually taking him out of the case actually i respectfully i don't think the judge talked quite a bit it was the parties on the judge asked us whether we wanted and i think we were all under a misconception myself the prosecutor and realized what he was talking about which is why should i why should i as a just record judge even accept stipulated sentences for get the facts and as you understand a few moments going quoting the record that's what he said i'm rejecting it as a matter of law i'm open to arguments later on  give us what we've agreed to as a sentence i'm not saying that or you have to say some kind of a mantra that will pass some kind of a muster of saying i am exercising my discretion and i'm going to well i have the utmost respect for the district court judge truly but that is one of the reasons why i think the court should remand to a different district judge because there is the possibility at least  possibility that the judge could just go through the mantra and say i say matter of fact i don't accept this plea agreement but i'm not asking the judge i'm not asking this court to make any findings that is to whether the sentence should be imposed or not if the judge if i'm out excuse me and it happens all would not have the need to do that first i wouldn't do that as an officer of the court but i wouldn't have the need to do that if this court adopts our position in x x x you know really that we were really senator just a district judge a then in his pleading that was filed with this court from january eighteenth i believe it was rejecting my request for state he said oh no i really didn't do that i fully consider the clear green in all the circumstances so you have two different responses from the judge it sounds with all due respect to judge march on that he's backtracking a little bit and given the circumstances and for the benefit of the defendant i think that the defendant should be entitled to a clean slate with a judge who comes to the case fresh and i also think that if your honour's rule as we ask you to judge my tone should be given the opportunity to start from a clean slate and future cases and that's what i'm going to say to you your honor if your honor favors us today the ruling i would hope would come out saying district court judges can't reject pleas simply because they don't agree with stipulated sentences they must look at the proposal as a rule haven't suggests decide on the merits given all the circumstances everything here and then the judge decides to add an extra for five months because he thinks that the difference and then the actual facts appeal i don't know that i mean i can obviously talk about things not in the record but i can say i don't think that would be the case to be candid there is a reason why the parties or the defendant agreed to the top end of the guideline range and we  because i think that would be a determination based on the facts that would be reasonable and would not be subject to the use of discretion and if my client required me to appeal of course i would but i would be very surprised if any  judge using the abuse of discretion standard would say under the circumstances of this case that that's on this is unreasonable that that's a whole different issue i think i suggest and i think that's an issue that the court deals with every day regardless of just this issue though this is the first one i've seen where they this judge my tone will be in the position of considering or telling your client either plead guilty open or receive the trial  we'll get a sense of where the judge is going but i don't think would be appropriate for the judge to say i'll give you eleven months or thirty seven months or whatever if you continue with your with with the  this particular situation the government agrees with the defendants here that the district court made an error and in fact just so that we're clear the reason for inexplicable is because judge mark turned actually to a point did exactly what he should have done he listened to discussion about this particular defendant and this particular defendant's role in the case  he considered the co defendants role in the offense but when he actually came down to actually making saying on the record what his reason was he didn't refer to any of those factors and your honor i was going to raise by the way judge by the three fifty three five five three a factors he totally ignored those and the only reason he stated was that he was denying acceptance of this plea agreement on the basis that there was a stooping rated sentence and he was denying it as a matter of law not as a matter of fact and therefore the government's arguing that that w ruled in very many very similar cases and this court has repeatedly rejected categorical rules whether we are regarded sentencing or regarded charge bargaining or the difference we have to charge cited to the court and in that case the district court was given the maximum sentence or weight when ever an illegal alien was apprehended after flight in pursuit and this court rejected that a i mean that's that's why some district judges feel and that's why the government feels that this court should make a decision on that point your honor and give guidance to the district court is that a category  look in the comical correct your honor and i'm also not going to consider whether the giants won or lost last night but it doesn't make any difference what he has to consider is three five five three any and he ha matter of policy because it leaves no judging to the judge that's at the morgan transcript at nine to ten and then he also said that he was fact that the government would not be agreeing with my posts in counsel but in the fact that he specifically rejected as a matter of fact it appears that the district court rejected  i don't think there is anything wrong with that but i don't think that's what he said because i mean i'm sure you know we routinely issue please greens and we make all kinds of agreements regarding sentences he just objects to  believe that the district court and the fact that he has not submitted anything when given the opportunity is an invitation to this court to give him direction to either say yes we don't want a categorical rule or no you are within your just question plus the district court has made it clear that this is his policy and as this court is aware there's other this case but i don't think judge mark tone was unaware of what he was saying when he said what he said he was a judge on the supreme court of the state of arizona and he was i think the sole dissent in the supreme  to negotiate a plea agreement and presented to the court for the court's consideration the court's due consideration i think that to find that a judge can on his own decide to not entertain a particular plea agreement or any plea bargain it's true that this court has in miller rejected categorical rules out the charge bargains and in part there were three reasons but in part because of the separation of powers concern but that same concern applies here as well in the charge bargain scenario because of the great import so the separation of powers the court decided that district court judges have to give great deference to the executive branch in deciding what charges to pursue mean where there is a single count in the government and i'm not saying this was the case here but hypothetically the government decides that it has evidence problems or it has a child victim that does not want to testify or has it all number of reasons why it does not want to go to trial but the defendant agreement because we had good reasons and i just record didn't consider them and isn't that where we're headed on this it may be there may be that some cases will come before this court in that setting but there are and i  can't think of them right now but there are many scenarios in the criminal justice or arena criminal justice arena where the standard on appeal is an abuse of discretion standard and defend its appeal it and they would only lose as they should because the deference that and it comes before this court then the determination for this court to make is you know are we going to find that the judge abused his discretion and that's rarely a decision this court makes