morning your honor smith please the court that martin on behalf of college ordered like to save three minutes of my time here in the district court erred here in denying carl george's request for a sentencing reduction under thirty five eighty two by ignoring that his plea agreement explicitly used a guideline range from the drug guidelines that have now been reduced the parties agree that the controlling law in this case comes from justice or my or concurrence the freeman decision which requires a focus on the content of a written plea agreement justice sort of my or concluded that a sentencing range is evident from a plea agreement when the agreement explicitly references a guideline range about the test was expressly based well she would then i'd say there are multiple ways that she formulated the test in the concurrence sometimes there is usually only uses the word expressly or explicitly but there is used there is employed there were days it was the one i was more focused on as opposed to reference i mean there's a difference in referencing something and basing a decision on something yes i mean basing that seem to have a higher and require a greater showing is that fair yes i i think that the way that her concurrence is that you're looking at the basing is the language is used in thirty five eighty two and so the whole question in that on current eyes when can it be based and so then she basically imputed these other words these expressly employed is used and said that that is enough to make something based i know there's no circuit court decisions that i'm aware of after freeman where a plea agreement explicitly includes a precise guideline range from  point one and yet the court found a defendant an eligible for a reduction and if there's a second is it your position that any time the plea agreement references the defendant's guidelines range that  taming anything else in the agreement is expressly based on the guideline range i guess we're talking about eleven ones we're see once he's right yes it's saved for i could i would make an exception if it was made explicit that that wasn't the parties intent that it be based on that range even though it's included and one of the things the justice out of my or explains that when you just put when you put a guideline into a plea agreement  it demonstrates an intent that the parties that the defendant would be able to take advantage of a later sentencing reduction whilst put in there did that there is a specific plea agreement here which is not just there's one the agreed guideline range that is discussed and that's just like this court's decision in garrett they found that enough to have it be based on a guideline range to the clear it says the court must consider that range in of this plea agreement and then third as in smith but they also had detailed work sheets setting out that this was based on the drug guideline and justice sotomayor explained that if it was the drug guideline and they could secure a waiver of the rights under thirty five eighty two c and that does happen sometimes there are ways i think the government if it wasn't their intent for it to be based on a guideline range could make that clear in a plea agreement and that wasn't range is really defacto the test for applying she says that that that would be an option if they wanted to make it clear but ok but is that it seems to me that's what you're saying is the test we should apply for government if there's operative provision cites you know it says one hundred twenty months and then says that's the statutory maximum i mean doesn't that support instead an inference that it's based on the statutory maximum not on the guidelines range no i don't think so i mean it is true that that was the statutory maximum and he got an enormous enormous benefit from this corrupting like two hundred months in prison he saved right right correct so i mean is that something that we should take into account here based on the concurrence in  know is that diving in to the negotiating history is something that's in all not just a fact isn't i mean right i think it's a fact about the negotiating history though yeah ok that's fair and she wouldn't with another way to answer that the the even if we agree with you and send it back the district court can take that into account deciding in its discretion whether three five three factors indicated a difference it's right one hundred percent have hundred percent agree and i think that's actually noted again that's another thing that just is sort of our discusses in her concurrence she says really the appropriate avenue if you're looking at these facts that someone got to such a terrific break is not to find them ineligible for reduction at all but for the district court to say you know you've got a fantastic break i'm not giving you any sentencing reduction because of that and that would be highly ordered just a large the whole question of eligibility and let's just see what the court wants to do you know an issue before says eligibility right now should the court do it but may the court consider it i mean it's a final judgment normally we leave those things alone you know the government has an interest in a criminal case the final judgment supreme court's very clear we have to respect those things and i mean you're just you're just taking a very broad view express it based if they mention it and the government doesn't disavow it then it the based and i'm not sure the english language really works that way that it's expressly based even if they don't say expressly it is based on us right i mean i  think there are reasonable arguments both ways on that and i think that's all answered it all comes back to how justice sotomayor defined even under this you know holy writ of her concurrence in that case i mean if she said expressly based   would know that it's not just a disavowing there's also many decisions on their side in the government's brief where there is no guideline range where there's love and see i mean that's very common practice as well is to do a lot and see remains with no guideline range at all and that would make very clear and they could have done that here to just say one hundred twenty and they didn't do that they put the governor not only that they put a drug quantity in there they tied the drug quantity to the two d one point one all of those i think especially giving that idea that it is an intent that somebody would be able to take advantage of a later drug production that that reasoning is right there  morning i mean please the court chain probably for united states this court has not had a post freeman case in a situation like this most of them the fall into two buckets one in which there's no reference to in which the court can discern the guidelines range and so the answer there is very easy in the other in which you can discern the guidelines range but there's nothing else that's relied upon such as this this is the first case where i've seen where there is some sort of you know perhaps not as clear as affirmative disclaimer or disavow of the guidelines range but here the parties made very clear what the intent was and that was in paragraph three on page three the plea agreement it states that mr george will not be sentenced to a it is the same thing but not that there's a causal relationship there i mean there's no the word because isn't there so why why should we and i guess we have to construe these things against the government  out of that well your honor i think you're quite right that there are lots of things the government could have done and i would note not that this excuses it but this was two thousand and nine this well predates freeman as well as any sort of inference that this could happen i think it is very clear from the plea agreement what the parties  doing this is a classic charge bargaining where a substantial benefit was given to mr george where he avoided five years mandatory minimum guy assume that all of that is true but give you the hypothetical that all of that is true all the statements it's all your question the plea agreement says one hundred twenty months which is the statutory maximum or something like that that's right it does and that's the only as i understand it that's i think that is the primary distinction if it wasn't for that we would've can see if it wasn't for that even though the smith case may have been ill advised if you look through the through the perspective of the judge down to that and  i guess that's what i'm asking so that's that's all there is to your case so i think that that is the primary all of this other stuff i guess what i'm reacting to is all this other stuff which doesn't really add or subtract it all works all we're talking about are those words and whether they change what otherwise would be the law under under smith regardless of what great deal they had your honor i think the question that this court has to ask is is a two step question one does the plea agreement explicitly things that might have changed not here in there for us for me anyway i agree completely right or not all we have are these words here right but i'm not really i'm not seeing how any of the other argument really changes anything why not say it was a terrific six pressley state what is the basis of this plea agreement and it is this court has said we will look not only to first whether the guidelines are expressly referenced or maybe to do so they are i can see that but the second step and the but you know i think i think each of you is you know sort of adding words to this agreement that aren't there i mean you know fairness i mean and where you're making inferences each of us i mean put it more fairly to each of us making inferences and they're pretty reasonable and you know but i guess number one i mean they have to deal with expressly based which seems to be perhaps a little more express than us having you know tease this apart in the manner we are but on the other hand we have smith and we have to give them the defendant the benefit of any ambiguity here  just getting back to this smith thing you have to sort of escape from that based on the language john judge rogers points to isn't that task made harder by the fact that the statutory maximum falls right smack in the middle of we relied only on the charge which of course is all that he pled to despite i thought the complaint included a a felony possession charge and not was not included here yeah and that's the problem your honor i mean this is there's no question looking at what happened here that mr george was negotiating one twenty and if the government was doing this but i understand that smith and what this court can look at makes a problem i mean i fully recognize that and that's why i'm obviously trying to hang my hat on the statutory maximum language because i don't have i mean this is pretty this is obviously and it's a reasonable argument you know if there's we were interpret in a statute you know we probably have the upper hand here right now i recognize that  the plea agreements are construed against the government and could we have negotiated thirty five eighty waiver perhaps although why we never thought to do that before freeman came out i mean this goes back to your point about fidelity of judgments we this is a classic charge bargaining and these days things that were charged five ten years ago are no longer i mean johnson thirty five eighty two like there's no phonology and it's it's unfortunate in many ways this is this could be construed as a breach of the but we're not there and the question is is this distinguishable such that this court can distinguishment and i think that statutory maximum language in three a all i have but i think that does distinguish the two case law is very clear this court has not had an opportunity to construe a case like this but other courts have been that sylvester case i pointed to i know that mr george tries to distinguish sylvester but the third circuit made it very clear you could the guidelines range was to do could be deduced from that it had the offense level had to christmas or category but they said yes all that may be true but they're not relying on that they're relying on the statutory maximum it is a two step in what was the language in that corrosion in that case again i mean the language did it was it more express to have some of that connecting words like because in the third i don't think it was i don't think i don't i don't think it's i think it's better for they're not as bad it's not as bad as mine i think their case was  because it's the statutory max i think i would lose them i think that would mean that it's based on the guidelines or even though they explicitly mention the statutory max i don't think that would save the day frankly i think that  there were a prior ferry but it's hard it's hard i mean you both have a hard job we have a hard job it's it's different from most legal tasks i'll put it that way yes your honor like i said with in the end the problem is this is it comes back to the charge targeting i mean whether it's a you know we're trying to determine whether armed robbery for example still a crime of violence is something that we i'm still beating my head over but this is ten years after the fact and  unfortunately happening is that it's discouraging prosecutors from doing what we're courage to do which make an individualized assessment we're in a post ashcroft era where we're not supposed to charge the highest maximum fence and go the most readily provable but i mean th and this was a unique case there are not a lot of judges that take c one c plea agreements to a particular term of imprisonment these are just your michigan pleas are often to a range and then the parties argue within the range this was a case in which had we charged everything mr george was looking at fifteen years i mean atory minimum were judged on i would have had no discretion whatsoever and had it been a twenty four c it would have been i believe even one hundred forty months beyond that or perhaps as much as three hundred twenty seven months and so this was unusual where you know there was an indictment i mean that he was charged in a criminal complaint and then he pled to an information three months later where the parties and this was a forty six year old man where had the government charged everything he would have gotten hammered him probably would have died in prison and that's obviously too harsh for me obviously this would have had a sea agreement they certainly could have had some prosecutors like to do that and i guess some judges don't even take c agreements absolutely it's so it's so it's a mess a little so if you're talking about you know grand vision of where things went wrong it seems a little strange that if this is the sentencing commission can take a category of cases and reduce the punishment generally speaking and subject to protections and so forth with respect to cases that were pled not under sea but have all these restrictions on doing it when it split under see where where the great it justice basis for that distinction is really we're on our i think i think that that's the law all right but it's got an exception to it so the exception just brings a little closer to parity with cases where it was of the sea green here and i think that's keep in mind that he pled to an information he was charging a complaint three months later he gets information and he pleads that three days later we don't know who the district judges until the information is filed and so there's negotiation going on the background because the prosecutor  the prosecutor in the realizes once the they charge hey wait a minute this guy's going to spend twenty five to thirty years in prison that might be too harsh and fifteen years that's mandatory minimum doesn't matter who the judge as i mean whether  well that's that's certainly part of it and there was an issue about wanting to avoid the mandatory minimum here because like i mean as your honor is as noted once you get to a certain age there's less of a chance of recidivism and so like i said this is a forty six year old man and does he need to spend twenty years in prison perhaps not but we're going to have i ask well i will put forward the good factor notion gates or no in these cases there usually isn't negotiation as much as presenting the factors about mr george and what he's done during incarceration and around in this case yes he was yes is he right from the start and end i would agree that government refers to this as saying that the one hundred twenty months was the basis for the sentence i wanted to put on the record that i disagree with that i think that the way that this is written when it says one hundred twenty months and just puts a comma and says a statutory maximum for the offense of possession is an ambiguous phrase it doesn't make clear that it's based on that that being a statu