for not being present on time this morning as a practice i am not late for court and i do not miss court and so let me just say that this is an extremely embarrassed and i apologize to the court you may please the court mr so participant i think that really what the question that this case with the government's response to boils down to is whether or not sense of guidelines to state with some specificity to the defendant or misters about this but why it is giving the sense that it's giving and i think that when the parties enter into a plea agreement there or has explained in my reply that they're the parties are giving up certain  defendant is giving up certain rights you clued in what we would expect would be a pill waiver and in this case that appeal waiver also comes with certain guarantees that is that he would be sentenced according to then see through f and as the government pointed out the language of that appeal waiver in the plea document was crystal clear i think also that the language is cool to clear about what the  expectations were about how he would be sentenced i don't even understand your argument mr stewart so are you relying on the district judges failure to comply with rule eleven b one and and make sure in open court that the defendant understands in particular the terms of the play room a provision waiving the right to appeal what would be filled to do that right but i didn't see you relying on that or citing to that and then i didn't see you addressing our precedents you know highly brown and the circumstances under which an appeal waiver is or is not a barrier to appeal i mean you're arguing a merits issue without an argument about why  why isn't a the barrier yes well when one of the cases that the government relied on was piles and piles there were no co defendants and there were a number of statements that were made throughout that he substantial rights as a result of that failure and i thought part of your concern was that while the district court made a reference that neither generalized reference about your argument then what is well ringback so that of course that that's that's what where arguing the issue is but generally i think that when you have that failure  to address one of the issues that or one of the waivers that is present in the plea agreement and then there's no discussion about where there is no opportunity for the how he would be sentenced and so there's no there was no conversation or there with by and by by not addressing the appeal waiver effectively that during the plea call it the defendant then had no opportunity to understand how that provision interacted with other provisions of the plea agreement and specifically how he would be how he could expect to be sentenced let me ask you this so put aside and in the having of the player and if you just read that the way the waiver provision do you disagree that the waiver provision covers this very issue i think so in a vacuum i think yes but then the question is yes you agree that that what this would have been waived if not for the issues that occurred subsequently ok yes just on the plane reading of the waiver provision it controls but then something else must have happened to render the waiver  to certain extent yes i think that at that moment i don't think that the parties couldn't tis a paper how the sentencing would play out but it but i don't  and so the issue then is there but running low on time but the issue then is when you have that vagueness that is interjected during pleat hearings and you have other provisions that create certain responsibilities are for the court and expectation and the defendant is the how they're going to be sentenced then that is where the suburban wording is where did you raise the vagueness issue because i didn't see that anywhere in your great i didn't see you ever say that something the district judge said during the plea hearing created vagueness and i thought the way starting your argument today sort of the gist of that and perhaps i was not specific enough and how i addressed that issue is exactly how do we get to the merits argument and so when  ever done you know whether my recent b s my understanding is that all these documents were translated to him in their entirety prior to the plea hearing so he wasn't just walking in and having this english document you are the government may have the right to appeal whatever sentence same post that's the that's the entirety of the reference to this i believe that's that's my understanding and what's wrong with that why doesn't that exactly say what the plea agreement says because under the waiver provision there are some things that can be appealed and there are some things that can't and i think that had the court made a more complete description of what was being waived that and that would have that waiver completely enforceable what would it would it certainly and it would have been more clear had more been done there's no doubt about that that's always the case but we also know that had nothing been said that still wouldn't mean that your client would win because that's a lead rather than the question is was something that was said was something that was said make it worse than nothing being said because if nothing said then under your own argument you can't get home because the plea agreement says what it says so the question is whether the something that was said gives your client an argument that they wouldn't otherwise have had and i'm not sure what that argument would be because the court just says that under some circumstances you or the government may have the right to appeal and that just seems like that's true that's what the waiver provision does say right and it but it's just two points i guess the st one is whether or not this vagueness opens up some sort of an ability for him to challenge the waiver right as under united states versus brown ready eighteen versions where we held that the court's statement in open court you may even have an opportunity to have a sense on grounds of reasonableness the bench did create some conflict and as i'm reading agreement and i think the question is are you making a similar argument here and if so can you explain how that conflict where where in that conflict occurred yes so i think i am making a similar argument here i'm trying to and the where that becomes important is with these other provisions that describe how he used to be sentenced and so there is the appeal whatever but then also language be sense but it does create a certain expectation and with this big statement made by the court well there may be some circumstances where you're able to appeal then after that when it comes to him being sentenced and the court addresses him along with his co defendants and makes those general statements about having read the pleadings and listen to the argument and then sitting that they agree with the government in th and what should have said that the judge didn't say what was i maybe another way of putting it was the defendant belief that had the judge only had to explain what he did and he realized that's about the should have gotten a lower sentence like one of the other defendants or there's some inconsistency between the way the appeal it's difficult to speculate as to what the tipping point or the important arguments were in opposing the sentence and so as some of the case law points out we're left to guess what he must have a sense of i didn't get my day in court because if the judge had only had knowledge fill in the blank i would have gotten a lower sentence and i don't have a feeling of about from your brief what is it that there was because unexplained  recognised that could have made a positive difference for your client well there first i think that any defendant who is before a court being sentenced should has an expectation that they're going to the court's going to explain why it is that they're giving whatever sense that they're giving notwithstanding the fact that that's required by the notes and five k one dollar and so one expectation that he would have had is that the court would actually articulate why it is that he's getting the sense that he's getting beyond i've read your briefs and agree with the government and so this is where you are in piles the court would was able to sort of look at some of the other statements that the court had made prior to imposing sentence where they were interacting with defense counsel about arguments that were being made and making comments about how the sentencing guidelines related to pile specifically in the court was able say you know there is enough in the record to justify the sense that was imposed in that case here it's very different in that you have these defendants all being addressed simultaneously and there aren't any statements made about mr as a participant as a specifically now what what what sentence would he hope for what's the what's the argument that he made that i think would have made a difference to the court or that i think was important for the court to address you know i don't i don't know  recollection is that he suggested a sense of twenty five years and so there was you know it wasn't that the parties were even in agreement about how much of a departure he should have got it what the ultimate sense should have been he in again in my practice i try not to at the district court level i try not to make one argument and say this is the one that's go make a difference and try to make a number of arguments i don't know if any i understand why and one of the reasons that i didn't address the specific arguments is that i think that this is this is one of those cases where we're really about t why the recommendation i mean i think that the parties all made their arguments and that's all a those the description of what happened is also accurate yet on detailed description of the waiver that was part of the plea agreement neither removes this case from lee which says that on the failure to the defendant could not make a motion for a down departure the only reason that this and the other defendants were entitled to anything other than a mandatory life sentence is because the government filed a substantial cooperation motion under five  and under that sentencing guidelines provision the court is supposed to give substantial weight to the government's recommended sentence because only the government knows the extent of any given defendant's cooperation it was that is not only that but the government clearly treated both in its papers and during its sensing colloquy all of these defendants sort of as a package comparing their conduct during this murderous assault comparing the level of their cooperations and explaining to the court why their recommendations were structured as they work and so under those circumstances where the government has explained at length each defendant's cooperation each to the defendant's conduct during this assault and sort of structure that package i think when the court says i agree with the government's recommendation as i did earlier this morning and as i did the day before that the same level of individual ised assessment is not necessary so i appreciate that and did see there was some amount of particulars in the record about which defendant was getting the kind of sentence and why but and i'm just trying to imagine what it would this defendant's concern is but it seems to me the only concern is he doesn't get as low as somebody like who actually tried to open the door or cop show who was one of the people who put the long gone in and actually did some huge thing so he's maybe one and and i think it's got joe who had given some truthful  some on truth as we couldn't call him to testify and obviously in this circumstance with these cartels showing up in court and testifying very risky undertaking even or someone's going to be imprisoned so i guess he's kind wondering like why you know when he was a leader and they weren't so that may be why but but he doesn't get at the end of the day some of them act so i am fortunate i don't know the defendants by their nicknames your hon or ok but but the only dispute between this defendant and the government was how the court weighed otherwise undisputed facts the level of his cooperation which he fully credited the governments of thank you to the government for fully crediting my cooperation his conduct during the assault which was largely undisputed i believe in which he testified to at trial so there was no dispute about what he did during this assault that he was the leader that he started the whole thing by deciding to pull this vehicle over there was no dispute about the level of his cooperation the only dispute was whether a plus b equals twenty five years or a plus b equals thirty five years and the  court adequately responded to that extremely narrow issue by saying my instincts are to agree with the victims who asked for a life sentence but given that this defendant cooperated given that his cooperation led to the convictions of other people i'm inclined to agree with the government's recommendation so that there was no comp claimed that his sentence was wrong viz a viz the other defendants his only disagreement that the court needed to address at sentencing was whether pick thirty five or whether you pick twenty five and the court's explanation although relatively short adequately addressed that narrow conflict which is why we think in addition to his appeal being waived is otherwise merril