morning me please the court counsel i'm going to reserve about four minutes for rebuttal i'd like to start off my argument this morning focusing on the two entrapment issues and then i will take a little bit of time talking  guilty or not guilty also applies on the sentencing entrapment because the whole series of facts relate to the government's conduct in setting the scene and in second phase where we're looking at pla he had a history of being a drug courier and his earlier conviction for which he was on supervised release at the time of this offense involved him transporting multiple loads of marijuana from the district of arizona into michigan and that was over a three year period we don't know how many loads from the record he transported we don't know what was the quantity of each load we just know that it was estimated that the total amount over that three year period was around ten thousand pounds of marijuana which i grant you a lot but that was his history he doesn't have a history of being an organizer he doesn't have a history of being a drug rip off artist now what have you have a history with cocaine no there is no cocaine charge in his history at all and that's one of the factors that i submit it constitutes outrageous government conduct what happened in this case is october twenty he's doing some deal for sixty pounds of marijuana with the government's informant who at the time was a confidential informant she wasn't supposed to be doing her own deals he says that he lost that load it was sixty pounds he lost it because he got kidnapped by the buyers she says he ripped him off several months later i think about six months later after she had been unsuccessful in tracking down mr mirrors to make him pay for the last load her f b i handler notices that she's not driving her normal vehicles and asks her about it she tells the f b i handler that it's because she had to pay for a last load but she lies about when that occurred and the f b i handler says well let's get him back and that's the bait this is for going after mr ramirez is to get revenge for an f informant who is doing something she is blatantly forbidden from doing let me let me if i may move you to some of the sentencing issues which are of concern ok with respect to  the sentencing trial and as distinct from the guilt phase entrapment there was an express argument made yes and i was not able to find specific findings on the part of the district court and so regardless of whether you're right or wrong wouldn't we have to send it back to the district court in the first instance doesn't matter what we think of it it's not her  initially isn't that the only possible outcome is to send that back well the this court should send it back to did to the district court but at this point in time with the ruling in u s first as cortez it's now a jury retroactive well you know the case has been pending on appeal and cortez was issued in i believe october of two thousand and thirteen after the opening brief was filed and i did address it in my reply brief so it's not really asking the court to apply something retroactive it's a matter of law that came out while this case has been pending on appeal so wasn't resolved i mean  doesn't seem feasible to me at all ok well i will take a print and take and take blakeley you know once you have those rulings then if you're going to send it back for re sentencing then the question is well if you're going to send it back look this this judge who sentenced your client is very experienced judge he's actually a very fair and careful judge he listened at some length to the arguments it's clear that he wasn't persuaded i don't see any thing to be gained by sending it back and telling the judge i guess you would say what tell us why you didn't believe that he should grant what's in and what's in essence a downward departure right because it is mainly the cocaine that really is problematic i agree but the judge heard the arguments it's not like we have any doubt as to what his ruling was on that where you know judge wofford i agree with you that just collins is a very attentive and very smart judge but in this case he sentenced mr ramirez to two counts for which he had neve charged or convicted because he was just following what was written in the pre sentence report so at some point we all we have to recognize we all make mistakes and there is an issue about the cocaine because mr ramirez had never had a connection with cocaine and i do want to speak a little bit about why this is so important why there is sentencing entrapment particularly as to the cocaine could we could we go back there to the question because i don't know how we could decide that myself but her and her stand there possibly there's some implicit finding i don't know that sufficient but the issue that was that you just raised about being sentenced to the wrong on the wrong counts which was in our order for the parties to to discuss i understood the response from the government to be that it wouldn't have made any difference to the actual sentence is that what schumer sponsor that it's ok first of all you have the fifth amendment to the u s constitution that says nobody shall be deprived of liberty without due process of law so what follows from that is you cannot sentence somebody to any amount of time for a crime for which he has been charged for which he hasn't been found guilty but what if there is just a typo and they put a five instead of a well in front of it is subsection number it is a typo your honor i know that but but it can't be it can't be true that no that the sentence would have been different there is a possibility because the the sentences are not necessarily identical the maximum is certainly still available the minimum mandatory of twenty years was only on the charge involving the cocaine which was count one which is the conspiracy charge and then there was no mistake is correct and count fo as to the attempted possession of cocaine charge but the other two were there was the count four the judge sentenced him on conspiracy to possess cocaine which was not charged and so on counts three and four he technically should have gotten different sentences they could have been clear and he could have been his group it was group but he has a right to have the right charges and he has the right to have his pre sentence report be correct the judgment and commitment order is correct right the judgment and commitment order are correct though but the judge might not have given him one three hundred months on every single  less serious the conspiracy exactly a lot less exactly and you don't know whether judge collins would have sentenced him to three hundred months on the attempt if he had recognised that but that he was reading it that he was but wait that's what i' telling me on this and i hate to see all your time get consumed on this is it seems to me a totally collateral issue but the sentence what's driving the sentence the quantity of drugs and that's going to be the same regardless of whether used to call the temp possession with intent or conspiracy right but the quantity coals him multiple times and she says you need to make this right for me you lost a load it starts out with you're going to you're going to pick up five hundred pounds of marijuana and you can give me what you owe me and you keep the rest for yourself and he says to her no you'll take half and we'll be even somebody who's eager to deal in a large quantity of marijuana isn't going to say that he clearly wanted to get her off his back he clearly was going to pay his accomplice who was actually going to get the the marijuana with the remainder and he just wanted to get out of it because he didn't want her after him for losing the load there is no discussion in may about him stealing cocaine as well she makes a mention at the beginning of the conversation where she says to him last time if i'm not mistaken they hid the they had ten keys inside the motor which is the marijuana that's an absolutely ridiculous statement nobody is going to stick to those of cocaine inside a bale of marijuana but he doesn't respond to that at all and then she says to him so there's also going to be money make sure you grab everything and that's when he says ok he did not conspire in may to steal any cocaine the next time they had the dry run at orchestration and i will point out to the court the government could have arrested him ramirez right then and there they had the conspiracy for the marijuana they had the attempt to possess they had what they needed to put him away they wanted to get more drugs involved they wanted to put him in a position where he had to have a twenty year minimum mandatory so what they did the next time was they was pauline said to him the next time there's going to be ten keys of marijuana of cocaine and it's going to be in the charcoal bag and is he eager he says to her i have to work tomorrow i'm not even going to be there that's not somebody who's really interested in dealing in a large quantity of drugs if he doesn't he doesn't say to her whoa whoa whoa cocaine no that's not my thing i'm a i'm a i'm a marijuana person you're right but he says i'm not going to be there i have to work to morrow which indicates that he really is good morning your honor may it please the court i'm chris cavaney assume the district of arizona the government respectfully ask this court to affirm the convictions and sentences and i'd like to address entrapment first as the court is noted the defendant was to quote judge gruber eager participant and judge white for it never turned down the cocaine i think that stuff is relevant because as this court said in black entrapment you know involves a situation where the defendant has to be induced plus he cannot be predisposed and the district court did make a finding that the defendant was predisposed to have some concerns at the sentencing stage then i'd like to go over with you if i may  assume for the sake of this question there that some amount of cocaine may be and involved in the sentencing that there isn't complete sentencing entrapment with regard to  amount or i'm a little bit confused as to why it ends up being twenty instead of ten because there never was supposed to be twenty on the location correct it was always tan because there were two separate acts in this case well but let me let me give you sort of folksy example and you can tell me where where my thinking goes wrong let's say our friends fired to  go to your house and steal your new car and i get there and i realize that it's still daylight and the neighbor is watching and i have broken in but i think well this is pretty bad time to stay home the car so i leave and i come back the next day and i said you know and now i'm ready to steal the car half i stole into cars i guess that's how i've kind of looking at this as it's the same ten pounds that unit on both dates to break ins separated by two weeks the defendants under the impression the first load has been has left that's one load the second load now figaro us shows up and he's breaking it so so to go back to my example than you would say you had your you know your chevy in the garage on day one and when i came back it was you know the subaru so it was actually actually i think the analogy your honor is let's say that he broke in to steal that he didn't take your car at the time that's an attempt on that date right he goes up the next day he breaks and he steals it those are two different acts yes of course they are but it's the same car and so the attempting to steal only one car and here the question is are you conspiring or attempting to steal one load which your for oil on the first occasion but you get to go back on the second occasion for the same recordings establish in black the recordings were very important because it shows what the communication is between the informant and the defendant and what the expectations were and we have the first break in where the defend its present watching his guys break and we have the second one where he doesn't show up because he's at entrapment it's about just figuring out how much he would be responsible for a conspiracy is it one conspiracy to to deal with ten key of a conspiracy to deal with twenty that has nothing to do with thirteenth and then we have to stop there that's what there is a conspiracy to do and the first time they try to do it they are for oil down the second time they are more successful but it's i don't understand how you get to t cocaine they apparently didn't find probable cause to believe that cocaine was involved well in count one it encompasses from a time to june first it's true the government charge ten kilos only that's true but what the jury is charged and what it finds is relevant to setting the stat max and min and the difference between ten and twenty is going to change that and that's relevant anything about the i'm sorry the jury didn't find anything about the quantity the jury did find the quantity of ten kilos on the june on the conspiracy and the june yes but my point is that the jury the district court is not constrained by the jury's weight finding other than for triggering the maximum the court can make a finding guideline finding the court did find that entrapment didn't apply and the court made no finding about whether it was ten kilos of cocaine or twenty well the court accepted the p s r which had twenty so i doubt it's action the p s i misstated the facts another ten kilos where did they get that from not from the indictment and not from the evidence the trial actually i mean i would respectfully disagree your honor here's why count one again they heard the evidence about the separate negotiation and conspiracy to break into the storage unit on may thirteenth they heard about the separate negotiation and conspiracy to break in to on june first and i would submit to you that those are two separate actions and that the order of the judge when pronouncing sentence appeared to think there were two conspiracies which is what you arguing but that isn't what he was convicted of he was convicted of a single conspiracy and a single conspiracy to try to get the same item twice your honor and i'm not it's the same as two conspiracies and i misspoke when i said to him to conspiracy that was my fault just now i misspoke because there's count one that deals with conspiracies but what you have are two separate actions well i understand them as an observer but i don't know that the district court understood that at the time of sentencing because of the misstatement about what the four counts were i would submit to you then what i said in the letter and that is that that mistake did not have an effect on the sentence and we contend we know that because we have concurrent terms given there are the exact same counts if somebody stood up said you know what your honor this count is actually this and this count was actually that do we think it would have made a difference to the sentence because i believe the records supports that it would not have and that's what i was trying to get at in the letter is that we have a guideline range that would have changed we have guideline parameters the would it change the st minimum of the same and the sentences were the same across the board so you're talking about a difference that i would submit does not justify a remount to the district court for re sentencing and i ask on the issue that you know my colleagues have been questioning about the extra ten  many offense levels that that had to mr and i believe i calculated in one of my footnotes in the brief that it would have been if you use ten kilos instead of twenty it's a two level difference in the guideline range and i submitted that it wouldn't have made a  difference to the sentence because the court was already given an opportunity to go below that and chose not to go but i but we have to always start with the right guideline range i mean that's kind of now a black letter law if there is a mistake in the guideline oh i guess i would submit on and i'm not sure if it would be because of if you're saying that there was an incorrect addition of what the cocaine was if it's a guideline again that was not objected to and i would submit that it's their burden to show a violation of substantial rights and i guess on this record we would submit they haven't of course the court could disagree but that would be our argument but it tends to do a trial judge would want to know when he's considering whether to very downward yeah or whether to go up above the mandatory minimum where he's starting with in terms of the guidelines and the supreme court and i think every circuit is that even though the guidelines are advisory you start there and it might matter a lot to a judge whether you started a level twenty four versus a level twelve now i know in this case it's it's only two level decrease but you know i guess oh i'm sorry your honor i was just going to say that i remember that there was an awful lot of discussion about the defendants criminal history in this case and you know when it comes to entrapment i see you know i'm getting low in time i do want to say when it comes to black we don't have anything like that in terms of you know there was no trolling for targets here they were aware that he was a drug dealer i respectfully disagree with the suggestion that predisposition rides on what type of drug there was no reluctance shown there was eagerness to the extreme you know i'm willing i'm ready to go on thursday you know i need it i'm broke you know sentencing entrapment front i guess it just seems problematic when you're you the government are introducing a drug that the senator had as far as we know no prior involvement right with the marijuana i'm certainly with you that we can look at his to stop the you know what i'm saying is just i don't know i understand your honor i do and you know this court has said in black that that those entrapment sentencing entrapment issues are very fact specific and in this case we have two things that i'd like to note with that first of all for sentencing entrapment you have to show the government pressures a defendant to purchase or sell more drugs than he otherwise would to for the purpose of increasing the a political sentence and i don't think we have either of those or what their purpose would there be in this case they had a done deal with five hundred pounds of marijuana and it very last minute said oh oh yeah and there was some cocaine to this ad ok but what what point does that serve in in the stay other than to enhance the san siro or i would i would submit that the record controls here and the district in the district court the agent at trial testified it was just an arbitrary month number he was asked why time why why why did he do it at all what was the point corner or in a warehouse and you actually give them ten key well actually there were drugs here there were marijuana but what they were saying was there there was no cocaine it was it was in you know the heat the defend it was under the impression it was going to be in charcoal bags and of course figaro is loading  up so he obviously thinks that there's going to be cocaine in there but my point is it's really important in this court standard not only the pressuring but for the purpose of increasing the a political sentence when we have handed way carry out any other purpose why isn't that a reasonable actually since the district court didn't respond specifically to this argument why wouldn't that be a reasonable thing for the district court to say is that there is no other apparent purpose for dropping cocaine into the mix of i don't think the defendant can have it both ways your honor i think that it trial the defense it was trying not to suggest anything about entrapment to say on appeal that there was entrapment you know the only evidence is that we have an agent saying it was an arbitrary number i don't believe rises to the level of sentencing trial based on this court's cases because we do not have for the purpose of increasing the sentence when there's no and on planar review i would submit that's not well but on sentencing didn't he make the argument that there was from the defendant talking about his violent background that he shot somebody in the face he is fully aware that this is a violent type of an action drug dealing and i would submit that all of that supports it again we have an undisputed p s r that's laying out all right let's talk about the gun issue real quick first of all there there were no conversations between either mr figo and mr ramirez or between mr ramirez and the confidential informant mr hall about using a gun more over she repeatedly told him that at this storage unit nobody's ever there it's safe so there would be no reason for mr ramirez to think that anybody needs to bring a gun along because there isn't anybody guarding it she said to him all you have to do is bring the bolt cutters go in there and get the stuff so there is no reasonable foreseeability there for the use of a gun additionally under the rose mund case which the us supreme court decided last march the standard now is there has to be evidence that the defendant actually knew and was a part of it that was an aiding and abetting case and that's what i think quite different quite different than the sentencing context where it had to be proved beyond a reasonable doubt in the context of an element of the crime and here we're looking at sentencing enhancement which is different and mr ramirez was acquitted of the gun charges and there's no jury finding for that sentence well that doesn't mean he didn't  figure or would carry a weapon well there is no evidence that he knew there's no evidence that he talked with figaro about carrying a gun and all the evidence is that the locker was a safe place and only needed was bolt cutter so finding yes and the judge just the he didn't make any specific findings but he just said to defend here's what i'm going to do the defense counsel go to the judge and say we disagree with the probation officer finding on this so therefore let us argue that and don't just accept you know i honestly don't remember i'm sorry it isn't that what typically happens if the probation officer resolves a conflict between the prosecutor in the defense the defense lawyer if he or she disagrees w statement was made that mr ramirez never turned down the deal when the cocaine was brought up and what i want this court to recall is pauline group all the made a very telling statement on the witness stand when she was talking about his need to pay back the last load she said he's he knows how this works this isn't his first rodeo and what i think that says to us here today is that mr ramirez knew that whatever she told him was in that storage locker was what he had to go in get wh liked it or not because if he didn't he was going to be in big trouble from her for losing that load of sixty pounds of marijuana the previous october thank you thank you and we appreciate the arguments of both of you and that segment of and we arranged to meet on a thursday and december at the starbucks at sutter and stockton the streets are important because they're all starbucks but we're a very nice one there i said but i  charger ok so let's get together friday night same thing happens i have a sick kid you see miss kevin is a typical dope dealer she is unreliable unfocused and self centered and she doesn't really care  so finally on monday we get together we meet at the starbucks she hands me a gift wrapped present with a bow on it which is a kilo of cocaine and i hand her a gift for a present which is twenty five thousand dollars and we pissed no one in this courtroom would think that i'm going to get busted for conspiracy to possess five kilos of cocaine i mean it's not a question and i don't i get arrested for conspiracy on the one kilo and the substantive underlying count of possession with intent on the same people as the case goes on miscavige nears rolls over on me trying to get a five k one point one and i am left with pleading to the charge exactly as mr figaro did here the one thing that no one has brought up so far either in the companion case of america's or mr figure is if you look at count one of the indictment it come binds the marijuana from may thirteenth and june second four hundred sixty six kilograms but he does not combine that may thirteenth and june second cocaine it says ten kilograms so count four is the attempted possession because or never is really any drugs here it's all a government sting but look at the proceedings  on the eleventh of october two thousand and twelve mr mirrors because of stuff that's happened please to all seven counts in the indictment but the only judicial officer involved in this thing that got it right was magistrate ratto at the change of play on that date and i never read transcripts in oral argument but this is important because the government cho in the a language and the charges rest assured they did not call mr figaro and his attorney and say by the way what would you like to be indicted for that's not it they did they combined the marijuana they income kane involved in the conspiracy is ten kilograms and the amount of marijuana involved was four hundred sixty six that's exactly what count one says later on in page twenty of the transcript with respect to c for the government would have to prove that the amount of cocaine involved in the transaction was ten kilograms of cocaine do you understand the sentencing factors and finally once more she comes back and they accept her record page twenty three on the second ok zhen on june tenth that's mistake it was june second did you believe that there would also be in addition to the five hundred pounds of marijuana ten kilograms of cocaine answer yes so the problem here is and it's been raised in the briefs and in questions from your honour's what difference does it make it's ten kilograms twenty kilograms you're talking middle minimum mandator if you go through the sentencing we're judged collins and he's my favorite judge i love judge because we're not your favorites you know no up until today collins was my favorite but anyway he is just great i often tell ryan joe sat through and didn't say anything about up until sentencing and now we have twenty kilograms of cocaine the thrust by the government is that it doesn't make any difference this is ten and this is twenty if you read the sentencing transcript he is constantly saying in there mr figaro i wish i could not do this i would really don't think this he goes over and over that and his attorney at the mr dan cooper at the sentencing tried to get him to do the minimum mandatory on the cocaine case and the eighty four month seven year and handsome and on the gun case consecutive well for a total of seventeen years that's why in response your honor's question about how we know he would have done the same thing we don't in fact mr cooper is not going to be his attorney there's going to be another attorney if you send this back and we don't know what that judge is going to do what i want to make sure i'm getting suggested that it doesn't make any difference whether it's ten or twenty who suggested that not even well i get that drift from reading miss kevin is brief and your questions and stuff and no i mean she said a few minutes well what's the impact on the guidelines range i guess  guidelines my calculation is four levels from thirty four so to the thirty what i don't think she is considering is the probation department doesn't marijuana equivalent analysis so it's twenty kilos they add four thousand pounds to the four sixty four thousand to the for sixty six kilograms at ten it's only two thousand so i got four levels different now that's what i'm saying that i'd submit why you said you know people are saying it doesn't make a difference of course it makes a difference that's why we're talking about it and i guess i thought judge grabarz hypothetical sort of put the question in the nicest way when i was actually going to do my hypothetical before she did this and i felt about to say i like her actually and also that has not been brought up but the bureau of prisons uses that p s i i to calculate risk and a lot of things like that so it has to be correct in the case of your client the fact that there was a gun would also affect the scoring  it would i i am not challenging those things my client was a bonehead on june second and took the gun so i would like to go into a couple things on the question of waiver  because it was not brought up at sentencing about the twenty kilogram or ten kilogram discrepancy and i think what happens is the the case is here starting in  substantial rights affected which is the third step or for whether or not the the decision they're looking up goes to fairness integrity or public opinion of the judiciary which is a little odd step but anyway that's what it says so i would do it here now to answer the third one and substantial rights in three parts one goal versus united states by the supreme court in two thousand and seven says there is a right to have an accurate  determine guidelines the second one is is that in as i calculate a level thirty four to thirty is substantial and fine finally that i am a lien in two thousand and five says that an illegal sentence is flat improper finally the fairness integrity and illegal sentence that's kind of strange but i would think that being sense for something you didn't do didn't plead guilty to and didn't agree to and get more time he's kind of unfair and i would say that that's the type of question that they are referring to with the third section which is the morning your honor i don't know if it's just announced again that chris cavity has on behalf of the district of arizona obviously our arguments are going to be similar except in this particular case we have the question of the defense admissions and what effect it has first the admission to the weight is relevant to trigger the statutory minimum in man and mandatory and if that would have been enough just over five kilos so the defendant's admission to ten was enough to trigger that plus  to say though in this context we have the defendant also making post arrest admissions which i would submit again undisputed p s r we have paragraph eleven where he talks about his concern here arranged with ramirez to steal ten kilograms of cocaine and five hundred pounds of marijuana they talk about him receiving instructions on may thirteenth and again this is his statements as set forth in the p s r they proceed to unlock the storage unit and then they didn't find any contraband this is within one case is the use of the english language by the promotion of an equal amount another quantity more whereas the reality is it was the same hypothetical time kilogram and i guess i would reiterate for purposes of this argument your honor that we had two separate break ins two separate aqua thoughts that there is going to be driving here going to two separate entries into the units two separate actions to obtain five hundred ten and then five hundred ten now that again the court could agree or disagree with that but that's what we would submit and also you're talking about the total wait for guideline purposes you're talking about preponderance the decay says the defense relies on in the brief are all cases where the court's weight finding exceeded with the jury's verdict found and we don't have that here cases like ben well except era but in this case of this additional problem in your normal police i know you're relying on his his statements post arrest but in normal police situation where there's a plea bargain plea agreement will typically say and the defendant agrees that he is accountable for x amount  drugs this guy didn't want to go through with the plea that was originally agreed to because he didn't want to testify against his codefendant so he decided to plead to the entire indictment the government has nothing to say about that if somebody wants to plead to the entire name and they can walk into court and do it so would respectfully disagree your honor because this court has stated that in a p s r that is undisputed the court can consider that and so we have an undisputed p s r here that hooks the defendant up with an action on may thirteenth and action on june first adds up the weight to twenty kilos an undisputed and i think this court can consider that i would also submit that you know under the relevant conduct provision you're responsible for reasonably foreseeable acts on missions of others and further insecurity undertaken criminal activity and that gets us to the same t acts with regard to the violation of substantial rights i would submit again that this is a this is a situation where the court details the defense lengthy criminal history and and so then the sentence would have changed can you remember when we were talking about plane air review for mr figaro because there was just simply never an objection lodged against the twenty quite recht were asked if i remember with mr ramirez there was during when the first persons came out but then not with the second or something like as i recall the there was a sentencing entrapment argument made at sentencing and remarries his case but there was no challenge the plan our sense entrapment just drug quantity drug quantity as i of twenty obviously that same logic would apply to mr figaro's case you would say that what we should we would perhaps not be able to grant relief to mr figaro because playing a review well it plainer with you does does have impact when a defendant raises an argument that he hasn't raised below and when you think about all of the statements the district court made in this case he does make a statement though where he says i don't think i can go below i don't i think you can see how you phrase it i don't think i'd go below the guidelines you know really sorry i mean he's basically saying look i'm not going to sentence you below one hundred eighty eight now i don't know whether that suggests that if the guideline range was lowered would he have gone below that or would he you know if stuck to the bottom of that range i can't answer that but i think that based on the discussion about his criminal history anything else i think that the defense is hard pressed to deplane or review to show a violation of substantial right is one eighty the mandatory minimum one eighty eight i think that was the bottom of the guideline then as far as the third point i just want to say that you know there have been cases where we have agreed to remain and when somebody hasn't got i haven't seen the mother one of the government has not agreed and the reason that this has to be sent back the reason that this is different your  right yes but on planar review he would have to show where my model i'm sorry so as i understood of the the record here and the p s r the only reason that was ever give n to the district court was that there was no waiver of the right to appeal i think your honor that the record shows that the does that the government did not move the third point it is now incumbent  how can you now come in and say well we have some other reason that we never told anybody actually i think that the defendant would have to show that it was stand exclusively for that reason and i guess my argument would be that on this record when you codefendant case when going to trial we have the government withdrawing from the policeman on august seventh the case is set for trial in november sixth he pleads guilty on october eleventh which is barely three weeks before trial that the record supports the presence of trial preparation and for that reason that's one that's the reason why we did not agree to remain on the third point like we would in some other cases where we've had like the naked sorties with my case where you know i acknowledged and in the letter that it seemed that the guideline was retroactively a political and  except but those are fast track cases and thirteen twenty six where it was usually there was a notice filed that we're not doing it because he failed to waive appeal those are different situations than this kind of a case where you have a trial case and where and again i submit on planar review at the defense would have to show that the decision not to move was arbitrary and was solely based on the refusal to waive appeal and i would submit that the record as a whole doesn't allow them to do that in this kind of a trial case where common sense and the record both support that there would have been trial preparation so that's my argument with that i guess i would ask the court to affirm the convictions and sentences thank you thank you counsel both cases a