yes however if he is to have a remained in the court where just a court would be persuaded to accept the government's thoughtful recommendation for thirty five years he would trade the opportunity to go back and be recent instead and get the one possible outcome is that it will go back in the get forty two years plus to revise release the thompson opinion and its successors are clear that the reason for the fall remained is because the district judge may want to increase the length of the imprisonment in order to make off or lax terms of supervised release lower duration or lack of terms so one thing that can happen on remand is that your client will end up with forty two years and supervised release and be worse off your part i understand that can happen yes we discussed those possibilities all my clients and it was his decision to file the appeal and proceed in this fashion he's aware of the risks your honor but there's also much to be gained here if the ok so he hopes there's something to be gained but it certainly wouldn't surprise me if the district judge said what do you mean rehabilitation in prison there isn't any opportunity in prison for the sexual abuse of minors and so the fact that he hasn't done it is no evidence of anything i believe they have treatment program in the bureau of prisons or that your honor and it wouldn't be limited just that it's whatever evidence of post incarceration rehabilitation that he could present by way of a disciplinary look he's entitled to do that that's what a whole re sentencing me yes and i just want to make sure that he really understands that things can get worse as well as better yes as a form re sentencing which he agreed which he sought and which was part of the joint motion he understands that the court would always have the authority to impose whatever sentence it could have at the original sentencing so he's well aware of that and if i may then proceed to the issue of the breach because i believe that is very clear here record twenty one paragraph twenty two specifies that the government was required to recommend a term of incarceration of thirty five years the government's brief at page fifteen specifically acknowledges that it did not do that yet it contends there was no breach of the plea agreement and frankly i don't understand how that can validly be asserted that it wasn't a breach when there's these acknowledgement that the recommendation that was required by the police remain was not made so i believe that for purposes of plain error which is the governing standard of review there is breach and there is a specific clear violation of the requirements of the police remain what was their response to today make a recommendation estimate the number of years now not a three sentencing hearing so ask that was my question if they did dispute the thirty five but they didn't seem right and they had an affirmative obligation to the terms of the police remit paragraph twenty two required them to recommend a thirty five year sentence so under this court's jers prudence the appropriate remedy provided that prejudice has been  not stated nobody brought it to say when you took it to chicago it would have been wonderful right but it wasn't done and so here we are and it provides mr orlando with the opportunity to go back  and hopefully with a different judge who would be now persuaded to have a recommendation by the u s attorney's office and in their recommendations therefore they carry clout why do you say by different judge because i think under specific performance the law requires that not only is there a requirement that the government goes back in front of the court and make the recommendation but it gets assigned to a different judge what decision of the circuit do you think supports that i believe it if the decision would be otherwise would be in conflict with santa bella not to mention the on this court so this is a little less odd where we've got a plea agreement specifically sets it out that's before everybody and he end up with a different sense that nobody said anything about the time was handed given out i don't think it's much different than the context of sanibel if in sanibel oh the prosecutor went in wasn't aware of what the plea agreement required and made a sentence recommendation that was contrary to what was required and i w affirmative recommendation though here there wasn't anything yes in the plea agreement specifically required a recommendation so by saying nothing there is a breach and it's a serious one and it was under pla him would been influenced by what happened before the likelihood of the outcome that's necessary for it to really be affected is to have a fresh set of years and then you that the as human as required that it was not only different judge but it was a different prosecutor who would go before the new judge and make the recommendation and honoring the plea agreement as the terms required were being pushed further and further for us to make that sends right i beg your pardon oh no sir no this well that's where a monster because we this is thirty five years in a playground we know what it's going to be when it goes back he's not going to go contrary to that i would think contrary to i don't know why the judge what country in the first place the government doesn't always ask for light sentences and thirty five years isn't like it was thoughtful and considerate of them with the seriousness of the offense to recommend in the police remit what they chose to agree to and they should go in and recommend thirty five years and probably could have saved us a trip to chicago today and the government certainly bears some responsibility in my view for not matching judge randall in the direction of a full recency we could go on a detour about why the government didn't do that i'm not sure how fruitful it would be the fact that it was not a full recent thing though is very consequential the term of imprisonment was not on the table and mr orlando's resigns for that reason there couldn't be a preach proceedings so we would request simply that this be remanded to judge randall there was no breach and therefore no reason to resign it to a different judge when he goes back yet again happy to answer any questions that you may have certain well remain with directions perhaps or on the right i think it would behoove the prosecutor to handle the next parents to go before  all i'm saying is that these were things that both sides knew a simple comment to the district judge would have indicated he's going to say well i'm not sensing i'm into that i'm going to give him what i gave him which would have been unlikely fairness i think first of all the judge was very forceful almost the first words out of his mouth were i interpret the remainder this way it's going to be very now i understand there was a little bit of confusion in the case law most certainly was trending in the direction that these different components of the sentence are part of a package and you need to be considered to gether so if it goes back again obviously it first of all it has to be a full resentencing well the best could reject a sensing agreement to if we'd still be bound by the plea agreement so that would be one thing there would be the post incarceration we have military action there would be avoiding the errors that happened at the first sentencing hearing and then i think there are some questions that aren't really race in this appeal but they have to do with  whether you have to impose a term i think probably in a case like this it was mandatory and whether you have to impose conditions or whether they can be delayed again those aren't squarely presented in this appeal but those are things that the government will want to think about carefully and we go into the nixons here whether it's in front of judge randall or some other  impose a term of supervised release or conditions of any kind and indicated there will be supervised release will address the conditional sure that a clause blatantly illegal has no effect and i rather trust that this won't happen again on remand yes or that's exactly what i was alluding to the first of all for starters there would be a five year mandatory minimum term of supervised release that would in my view have to be imposed actually something of a that the united states does not follow this case supervised release is mandatory was not imposed by the district or there's a legal error but of course you have to peel and that this is one of the reasons why thomas answer mr orlando is taking his risks it's an excellent point or i guess in light of our concession we didn't think it was necessary to raise that affirmatively as an issue but you're right you're absolutely  yes the government filed with mr orlando a joint motion for resentencing per thompson there's no mistake about what it did and there's no mistake about what thomson required full recent it's in hearings aired a member this  it was a full recent thing so there could have been no mistake and even if it was it comes back to sort of inadvertence which sanibel a contemplates and rejects as grounds to do not relieve the still appropriate understand about  singh was required under thompson and yes my client would willingly trade five years of incarceration for five years of supervised release that be statutorily required and live under the necessary conditions of supervision