asked the district court for a blow guideline sentence based on his agreement to waive his right to appeal the district court however believe that she was legally barred from considering his appellate waiver as a basis for a non guideline to sentencing when this all occurred that's right right he agreed to waive to  right prior to sentence and was there a recommended sentencing range in the plea agreement also there was the government agreed to the equivalent of a one level downward variance in exchange for his agreement to understand i guess about your position is if he had just gotten exactly what the plea agreement agreed to he would have gotten anything specific for having you know i'm not sure i totally understand the question but by the board's means that what difference does it make at this point in the proceeding because he was given a sentence higher than he wanted and he was appealing mi so he didn't lose anything by having given up his right to appeal well what he lost was i know what he wants but what workers you get what he missed out on was the opportunity to receive that lower sentence that the government agreed to because the district court misunderstood that it wasn't allowed to consider his appellate waiver well at the point to  section thirty six sixty one which says that there is no limitation to what a distro understands there who could have would have might have is a little different sure and that error here is that the district court misunderstood the law and believed that she was categorically barred from considering his agreement to waive his right to appeal at sentencing so the problem is that she gave no consideration whatsoever to the fact that he agreed to waive his right to appeal when in fact an appellate waiver is relevant is a relevant sentencing consideration it's relevant under thirty six sixty one which says let's just assume that  that was not one of the circumstances she took into effect would he still one or further reduction because of the appeal where you are i know you're i thought i'd believe that if he had received a sentence within the guideline range is does not apply if the government had imposed a sentence within the guideline range associated with an offense level twelve so if she had well does apply if he if he  appellate waiver still would have taken effect and we would not be good but when you say that the government agreed variance is that reality isn't really the fact that the government is only agreeing not to apply and will occur that's true and i do believe that in the government's response to our motion for a variance i believe that's what language is it might be in the plea please remember i'm i'm not sure that you understand what i'm saying i mean there is a good difference here between what you said initially and the point i'm making now that is you cannot agree to a variance true and it's certainly not binding on the district right right the the the sort of check on that was just that the appellate waiver would not apply if he did not in fact receive the benefit of the equivalent of a one level downward variance in the sen that was the government agrees a defendant's willingness to to waive their right to appeal is a permissible consideration at sentencing and that's under section thirty six sixty one and it is also relevant to the factors that the court district court must consider under section thirty five fifty three specifically is relevant to the history and characteristics of the defendant a defendant's waiver of the right to appeal suggests an even greater acceptance of responsibility than simply just pleading guilty we have cases that talk about the court is entitled to consider anything and everything do the public interest in saving the government resources and in promoting finality and that they do represent an extraordinary acceptance of his responsibility of up above and beyond simply pleading guilty admitting to the between a district court believing that it legally cannot consider a certain factor at sentencing and understanding that it can consider a fact at sentencing and giving it little to no way the right she said that well what she said was that none of the thirty five fifty three a factors concern appeals which which she which i interpret as her saying that i'm only allowed to consider the factors that are expressly laid out in section thirty five fifty three ebay and none of those thirty five fifty three a factor say anything about of peel's therefore it is not something that i can give consideration to at sentencing this was like a procedural error in sentencing specifically as regards the lack in your view of consideration of the request for a variance and also the appellate waiver all of that was not said the district court right well it's a procedural error in the same sense that you know for example of a request for a minor participant role would be still a you know a procedural right reasonable issue as opposed to a substantive one but the only and you agree that this is a procedural error that you're asserting on appeal correct but it is nonetheless preserved by asking for the one would have to do to preserve an error is to file a motion and if the court denies the motion you could come up on appeal and say we've preserved an error because the court did not grant our motion  rejected that motion and categorically refused to consider the appellate waiver as a as a permissible sentencing factor if we are at plane air have  understood the thirty five fifty three act she understood thirty five fifty three actors as categorically proceed if we if we walk through plane air it's air it's plain air doesn't matter substantial effect on his rights it does your honor all we have to show for that is that there's a reasonable probability that it would have affected the outcome of the sentence here both parties district court was pretty vehement about the rationale for the upward variance in this case i would agree with that and she did make it clear that she wanted to impose a sentence more than twenty four months because that is what he had received last time and it was not a sufficient to turn effect what she actually imposed was thirty months so there really is a six month window wherein she could have imposed a sentence less than what she actually did had she understood that the appellate waiver is a consideration  t sentencing and still be greater than the last looking at this record do you think it's believable that she would have ever sentenced him to twenty four months to twenty four months i think the most realistic scenario is that she would've imposed twenty seven months i think that is that would have given effect to what the parties were suggesting was appropriate for the appellate waiver that one level reduction at which would've put them at an upper guideline range of twenty one months and if you still assume that you would give a six month upward variance that would result in twenty seven which is within that thirty twenty four to thirty month window i see that amount of time  do we do with that if if if there is an ambiguity either through an abuse of discretion standard or plain here with whatever the standard is it seems just counterintuitive that we could or should reverse speak sometimes with a lack of clarity with twenty twenty hindsight with a microscope one can later evaluate so so should we affirm if we if we determine that just readers language could  if if if it's ambiguous i think this court still needs to decide what what what her words meant and here are i submit that it's not a big was it's pretty clear that she says that that appellate waiver is simply not something that figures into a variance and i think that shows that she did not understand that the that they could be relevant to the thirty five to three factors and and misunderstanding the thirty five fifty three  district court didn't actually commit the air that the defendant alleges and the third is why even if the district court did commit that air the defendant wasn't prejudiced turning to the first issue that if one argues that he preserve this claim simply by filing a motion for a downward variance and then objecting when the court ultimately buried upward but on appeal the defendant's complaint isn't with the district court's actual decision it's with the court's decision making process and that's something he never objected to relies on simply asking for a shorter sentence or downward variance and then objecting when you don't get it simply isn't enough to preserve a claim about a procedural flaw are you familiar with the lopez of a look ace i am not your case the motion for a downward variance based on the district of colorado's lack of a fast track program is a ground for a variance did not object once the ruled in the panel in the published opinion said romero does not apply in that situation because the motion for a downward variance coupled with the district judges statement that that the judge is not going to very day downward with simply call upon the defendant to simply repeat what he or he had already indicated in the motion for a downward variance and i have trouble figuring out how one can distinguish defense counsel's argument for justify a downward variance but the question we're dealing with now is is that a proper consideration at all so i agree that second question is maybe lurking very far below you know the question in the motion itself but not something that's brought to the district court's attention and that's really will let me put me let me interrogate you about that a little bit or ask you about that in both situations the defendant whatever the ground is left of it a fast track program in the district or the granting of an appellate waiver is in both situations posited as a as a basis for the district judge varying down so maybe the ground is different but what what transpired is exactly the same the defendant in both cases it i the defendant should get a downward variance based on this in both situations the district judge says under the descendants argument of the merits i can't very down work based on that and in lopez the panel said that is adequately preserved we don't play here my response to that would be i don't believe we have a situation where the district court unambiguously said i can't very based on this factor i can vary based on that but possibly saying i won't vary based on that i believe that was the court's actual language or you know i'm choosing not to vary based on that or another interpretation that judge briscoe sort of alluded to was actually the court's just saying i'm drawing a distinction between a departure which the parties can agree to and a variance which is entirely up to me and the plain air rule acts to encourage the defendant to you know raises hand and say your honor i'm concerned that you're committing a legal error here and if that happened the court would have been given the opportunity to clarify what exactly they were doing or you know to hear argument from defense counsel and possibly avoid an error and you know argument that the language is really unambiguous that the district court commit this air if you look at the record you don't see any of the words or phrases that you would really expect if the court it truly believed it was categorically prohibited from waiver the court never says this is an impermissible factor the court doesn't say i'm barred or prohibited i thought well just defining in describing what the court did as a categor bar putting in the license on the cake i agree but the court did say that an appellate waiver is not within the factors that it would consider so it's not the same thing i'm not going to consider that no your honor myself to those factors and i am coming to the decision that i don't think an appellate waiver falls within those factors i think that's a legally correct conclusion so you're saying that she's saying that i could consider it but it doesn't doesn't affect my decision here i do not find it as a positive factor yes yes there's either i can consider it and i'm choosing not to or i can't consider it i'm considering it and i'm a we had a district court very explicitly saying that it was prohibited from looking at the factor there which was the defendant's other ninety four c sentence and the district court explained why it felt that way and we simply don't have that kind of record here bet worst the record is ambiguous there are several ways to read it but the defendant's interpretation which is that the court really thought it had no power whatsoever to consider th seems to be the least likely of those interpretations and generally this court doesn't strain to interpret the record in a way that requires reversal of a district court especially where  ask you you know typically if if we were uncertain in many instances of whether the district court was adequately explain something if we were confused by the language often times we will remain for further fine or for for an explanation and here or if it is in big us whether the district judge misunderstood her ability to vary down were or was just something that's for the benefit of the defendant whereas here you know the court's just kind of stating the law at ultimately i think if this went down on remand it would be  situation where the court would say no i did not misunderstand the law you know that's pure speculation on my part and that's not something that the defendant has really needs in the way that he needs an adequate explanation of i guess the the reasons the court is coming to that decision and i give you point is your point is there's no point in re mend it because the result would be the same i mean yes that is obviously a strong point in our favor and i think one that requires the defendant had entered the country illegally five times the last time he did he received two years and ends and i'm quoting the district court here highlighting the fact that a twenty four month sentence previously imposed did nothing to deter your re entry into the united states the court talks about how it needed to impose a sentence higher than before to promote respect for the law to deter the defendant from coming back and to protect the public because every time the defendant came back he committed  so that's where the two and a half year thirty months on it's come from it's something that's meaningfully more than twenty four months under clean air the defendant is required to demonstrate a reasonable probability that he would receive a shorter sentence and the only argument i've heard to the fact is that you know the district court my the granted the motion and started from a lower point but that burden is on the defendant and there is nothing in the record that supports it and as just discussed everything in the record actually indicates the contrary that the district court was very set on this particular sentence has no further questions i will concede the remainder of my time thank you thank you thank you counsel thank you both for your arguments this morning case is submitted court is in recess until eight thirty tomorrow morning