kim your honor under the plea remain an issue the government made certain promises to breach those promises and a result there was a significant increase and the level assigned by the judge there is no factual dispute as to the terms of the three agreement or the actions of the u s attorney's office in this case so our position is that essentially this we have an agreement here's what we agreed to here's what i believe in my you're out there really are here your honor i would respectfully degree understand the judge silly took over at some you look at the record what he did is he asked the government if it was ready to put on witnesses in if they were there the government said yes it is the government the called the witnesses your honor it is the government that conducted the during the testimony of the revenue agent after judges in italy philip finished his examination and first it was started by mr mr sullivan that the agent indicated that she really wasn't the one that not testified the court by some statements would have not found we believe what he did and even if that didn't make any difference if he says that we cite say that the government's got to cut four corners if you bargain a deal you are entitled to it and that means the government can't make any comments that might suggest they're in agreement with the pre sentence report which say for obstruction they can't make any comments that would suggest that there is a higher reiterated those objections and he did state after judges only heard the evidence he said if you have any objections and counsel got up and said i understood under the plea agreement that the government was not going to ask for an upward adjustment committed here the appellant says here that the government agreed not to put on any evidence from the special agents and i would point out that the reason the special agents were present in the courtroom at the district court was because the defendants were exceed one hundred ninety nine thousand dollars and i understand that but i think the bottom and was that there was nothing less than twenty five thousand dollars and then you and this is what the range was between twenty five one hundred ninety nine thousand dollars so you weren't trying to put on some proof there was about one hundred sixty five thousand it was even less it was less than one hundred not that that is as we get to one hundred ninety nine thousand dollars you would have had to put on evidence from more than sixty five clients to agree to that's right that is correct and i would point out that that as to the stipulation that document of course was the plea agreement which was a joint recommendation of the district court for purposes of sentencing and as i point out it's the defense raised the question of what the actual number was and i simply see that the terms of of looking back on a plane appellant's aren't before you arguing that the court of use discretion is because we know well the court simply has discretion to disregard the agreement of the parties so the government is in the unusual position here today of saying that the that the circuit cour district court but we certainly recognize and respect the district of the district courts of delivery and and discretion to go beyond the agreement of the parties i think it's clear from the case live here that the that the responsibility of case agents and the prosecutor in the district court was to honestly answer the questions of the court and it was clearly the court that had an interest in knowing what the basis was for additional damages the government may have suffered the government purposes of sentencing  and will agree to the sixty five cases induced receipt the plea the parties agree to that to the plea agreement however there were many different views of what damages may be and i really want to make this point to the court that the material before probation came to probation because there are many different ways to calculate the loss that the government could have suffered that in other words it would have been asserted at trial the agency simply gave all of that evidence to the to the probation department and obviously that piqued the interest of the district of the district court  at the district court my reading of the record is is i think the same as yours or driver i believe it's pretty clear that the judge is really asked if the agents were present that you're silly wanted to hear from the agents and obviously the court i suppose the court could have conducted all aspects of the examination but it's clear that the government of the district court was attempting to provide the district court with a basis for limiting its plea agreement to sixty five he says it's also pretty clear in the end as as the court stated the district court stated that it didn't agree that in fact the government suffered greater loss and the court was going to impose a sentence accordingly and i think that is the facts the understated facts of the case on appeal and finally if there is the opportunity to go in and make it even more clear although i believe it's clear or not nor was the government given an opportunity to respond to a claim by the defendants that they had breached its agreement that is only made on appeal and i believe the appropriate standard for abuse plain limit that twenty five thousand dollars your honor what happened is the facts show that counsel as a result of judge silly raising an issue about the scope of relevant conduct conceded both before the hearing and i think hearing that we would agree that it was one sixty five and under that assume that there would be no more testimony in fact released our witness i also want to point out your honor that there are number of different kinds of of breeches here one of which not the least of which are comments even if you assume that the judge zilly was going to call these witnesses the government can't speak it can't commit affirmative conduct for a higher tax loss or higher of struction and what that the prosecutor did when the when he pointed out there was a plea agreement to talk about one ninety nine that the court said well i think the evidence strongly disagrees with that and it's much higher and was prosecutor do on an excerpt of record one