issues are presented by the opening brief and the government's response i am not going to discuss the waiver of appeal issue other than to note that this court certainly retains jurisdiction to determine the issues brought before the go by the waiver issue too fast because it's a big one for me ok we have a finding by a factual finding by the district court that there was no bad faith on the part of the governor and that in essence the a binding contract and in the face of that factual finding i hear you arguing that we nonetheless somehow retain discretion to go ahead and consider the legal the knowing involuntary miss of the of the agreement was not which gets me back to the question i asked you which is we got a factual finding by the district court the fleet agreement was that the government acted in good faith and therefore the she agreed to everything she had the creek to every single thing she got from the government sold me a three point reduction for acceptance of responsibility so the one thing that the plea agreement gave her lets her ability to well maybe but the point is that that is legal consideration for the agreement the problem i'm having is that she onus of cooperation was on her and as i read the record and when i was practicing both as a criminal defense lawyer and as a prosecutor i had the situation any number of times your client enters into an agreement your client doesn't want to cooperate with the government but you convince the client that it's in the client's best interest to do so in the hope of getting a five hundred one reduction and then the client blows that basically and doesn't cooperate and turns out to be very irascible and difficult to deal with that's the record that i'm reading here am i wrong in my discretion to make that call on the record seems to suggest that she didn't get the five to one reduction because she didn't learn it well she didn't wasn't truthful prior to entering a plea ok i think that i can understand your argument they did meet they took the information what they did what they did with the time they did well does it make any difference like the prosecutor is required to consider what she does to determine whether  before the sentencing did not have the time or availability to do that so his statement was something along the lines of the f b i if the f b i came back to me and said the information so good we're going to do something now then i would be making a how long metro and the f b i had been investigating various fraud activity that she may have had information about so i don't see how we can argument that they had no basis on which to evaluate the assuming we grew with all of your arguments at the end of the day all that happens is the police withdrawn once they get you in this case she goes to trial and she goes to trial taking the risk is that she's going to be convicted and she was sounds that the low end of the good morning dan your chief scrutinised states i am the prosecutor who handled the matter at investigation of the sentencing level the one point that stands out that council was over looking is that at the end of the day i recommended a downward departure of one level that's important because while i did not deem her cooperation significant or to be of value it was a matter of giving her credit for an effort that she made that the argument seems to be that you didn't give enough time for the f b i and others to evaluate the information and therefore you didn't know what was going to be valuable or not don't disagree with that necessarily but that's the claim is that really information was given and everyone blew it off what was supposed to analyze that and at that first thank you with that first hearing where the issue was raised with  hearing of the second hearing where where the defense counsel asks the court for direction from the f b i he wrecked the f b i to jackson and that more time yes well the f b i had already made their you know i understand that i'm just that that's the  that's the allegations made here that basically that that it couldn't be considered in that timeframe mean in a meaningful way but i don't know that there's any of them to rephrase that there is no basis in the record to suggest that the f couldn't review it meaningfully in the two week period the f b i had been investigating mr garratt for a substantial length of time which the record reflects and during that period of time they knew a lot about her they could take the information that she provided in writing put it in the context of what they knew about her knew about the investigation and in their judgment the f b i whose judgment  i thought that i thought the final information flow was that there was some promising potential leads but they didn't have the time or the manpower to to investigate them so right yes they thought that some of that may be useful but in their perspective and i agree with them because they gave me the information it was relatives you know they may say that you know it has an ounce of gold worth in it but the digging that it would take in the refining to build it on mine that of gold is not worth it for them not worth their effort so in taking all of that into consideration i said to the court look let's give her a downward departure i'll recommend one level for her effort by doing in light of all the circumstances the one of those how analytically do you think we ought to approach these cases because on one hand on the extreme end you have a case where the government refuses to meet it all i'm asking is to me that's probably a breach on the other hand you have a situation where it's protection will arguably pretextual or i mean as we move up the scale where you say well we'll give you the considerate we'll let you presented that we don't think there's anything there and then we have this which is probably a little farther up the scale analytically as an appeals court how do we how do we prove that the standard which i believe needs to take place is to look at whether the court either clearly erred or abused  discretion the courts on the front line the district court the district court had the opportunity to look at the facts as they were presented and to make its decision and i think this court then easy to look at it from a clear standard or abuse of discretion law in that situation and i believe in this area the standard of review is going to be split where the court can look at the law the district courts legal decisions they know vote but they can look at if factual determination is for claire but was reviewing the sentencing guidelines of the issues that were there well we think we throw these terms around a lot you know clear error of use of discretion as if they are analytically distinct and i think they're interrelated in this case the question is the enforcement of complete agreement to the factual finding that the prosecutor did not engage in bad faith and essentially declare that it's a binding agreement and if that's the case as i stated then it seems to me that  factual basis for that even the two weeks in the court's judgment the f b i s judgment was sufficient time for the f b i to review the records and then we go to the waiver and while this court has jurisdiction to consider waiver court in this case made a conditional acceptance of the plea now i know what your position is that really what the district was doing was conditionally accepting the plea agreement subject to review of the p s r but the court didn't use that phrase accepting a plea agreement and when it talks the basis that is in a binding situation but there's no animal that says to the judge you can conditionally accept a play and it's really ju i don't know that he thought through it completely i having practiced in that district in this district for many years that's the same call of qui the same present haitian that are used by all the district courts and with all due respect for the district and i think he was handed the colloquy that's passed down from generations and i don't think anybody really thought about it in terms of the rule i know i hadn't can tell the issue came up and i started looking at it more closely bottom line is the defendant was incredulous by what the court said and the reason i say that is there is no detrimental reliance on her part at the time she entered her plea of guilty she knew that when she entered her place that she could not willy nilly withdraw and the basis for that is this in the record on at the excerpts of records on pages fifty one fifty three the court says to her look i have the discretion of whether to impose a sentence more severe than that recommended by the parties and if i do you cannot withdraw your guilty plea you're still stuck by your plea agreement so she knew at that time that willy nilly withdrawal was not a basis so she didn't enter this plea agreement speaking of that this conditional plea gave her the right to withdraw for any reason so no prejudice there no harm and rule could willy nilly were tried she was told otherwise she was told by the court you will not be able to withdraw your play if you're not happy with what goes on so there is no worth and i'm not accepting your plea at this time and that doesn't make any sense i would think that with the court having been more spinning this level of of i'm not accept your plea as a very general statement when the court drills down into the thoughts of the details of it it says you can't withdraw your guilty plea for no reason whatsoever doesn't that reflect your you're making a value an argument here but i'm troubled by what i read in the record which is basically he suggests to me that the client basically shot herself in the four eyes by virtue of the fact that she got off with a bad start with the first interview the prosecutor gave her a second chance maybe out of courtesy because she came in with a better lawyer the second time around i don't know but then the information that she provided wasn't all that helpful or according to what the f b i told the prosecutors though it's just one of those situations where the client could have done better but didn't and now wants more