united states versus bird argument the facts are very simple we negotiated a plea agreement of forty six to fifty seven months and when he arrived at sentencing he was looking at based upon the p s r double that ninety two to one hundred fifteen months at sentencing both the defendant in the government we both arrange the court asked the court to adopt the the agreement that we had negotiated and the court said he wouldn't do that and gave him seventy two months with additional information that that he had he had a conviction that the government did know one of the interesting things and one of the interesting things about defendants in criminal cases is and you always tell them this of course that we can't tell them exactly what they're looking at but the have some idea about the range so yes your honor he knew was going to be in some in the general range that we negotiated probably the top of the range but the other issue that i may ask what do you consider to be the error by judge shay at sentencing was it something wrong with the process of sentencing or do you just think it was substantively unreasonable in light of the party's agreement truthfully it's hard to say either i mean that i i stand here today really talking more about the different end as issue might my concern is that i think it's all of our concerns that that while it the negotiating certainly should be sacrosanct that's what makes the system run its seats important would your clients not have been needed to withdraw his guilty plea at the point of realizing that the parties had so badly miscalculated the guidelines that's correct he would've been able to read through there he would not have you would know he would not have the deeply agreement that he's executed and he was informed of this by the judge in accepting his plea that if you're not satisfied if you're not happy you can withdraw your police so they let me ask a question differently excuse me when when it was determined or when the pre sentence report came out indicating that the guidelines were quite different perhaps the parties thought that there might be an error with at least one of the enhancements but but given that could not your client have argued that the plea was not knowing and voluntary because the guidelines range was so very different from what the parties it stipulated to it may not have been a successful argument it could at least not if it made i think you could make that argument but but probably not successfully is your honor said critically based upon the language of the case is pretty strong my suggestion though in keeping with your honor's and see where querying their regard is that the defendant receive advance notice and so at some point that the trial judge would say you know what under fernandez i know you're looking for downward departure to give effect to your negotiating i'm likely not going to do this i can understand that argument in another context where the the premise of the agreement was not so dramatically wrong i mean here we went from a criminal history of three with an explicit reservation by the government to with regard to that saying this is just a national estimate and your client was an app possession of the information that would suggest that he was going to go to a six so the agreement but it seemed to me to lose all of its force with regard to our friend and us kind of sentencing heard by virtue of his his leaving the scene and it was negotiated part of the plea agreement was that wasn't included and when the judge said she asked the government about that the government responded well we think that the stick will take care that agreement itself is so i don't really understand what you seem to be arguing is that the judge was bound in effect despite all the disclaimers too you can't say that no i think i can't see he's bound to do it i just think obviously as the government points out his memorandum and i don't disagree my client was as was canvassed on that point he was canvassed to understand that the judge could in fact was not bound by the player agreement could do something different  effect that's what happened but because of the radical difference in this particular case it just seems to me that a better rule in following along on and maybe expanding for it is would be to have the trial judge say you know what i mean do something different i'm going to give you a chance to withdraw your a criminal history of three rather than the six that it turned out to be ok are you saying you can negotiate with a government that will overlook certain prior convictions no the government not intentionally i'm not saying that i'm saying that the same rap sheet the government was privy to i was also privy to the same rap sheet so in good faith we believe that was the case i suppose we could go back to contract law and talk about mutual misunderstandings and so for question who's we you and the government yes believe that yes your client had reason to believe he made these presumably knows his his crew experience certainly but i think if the client was also relying upon counsel on and on and on the fact that well this is this is what were the one to one crack to powder ratio that he that he customarily does indeed in this particular case that was one of the officers yes or that you thank you the end of the day was fair just and reasonable certainly higher than the one the united states i agreed to in the plea agreement but as your honour's of aptly put your finger on it as to judge shea the criminal history was skewed  fernandez departure and connecticut had the option to do that he had discretion to do that and he said it's first time i'm not going to do it in light of the factors he was looking at including mr bird's criminal histories prior sentences his  risk of to the public the need to protect the public the serious innes of this offense so the court came to a number that ultimately i think is fair just and reasonable he had the one to one ratio a guideline range much lower than the one of the parties and a stipulated tour suggested would be appropriate he also had the advisory guideline rains which he consider at the end of the day and sentencing is hard work and it's not as  today the judge weighing all the factors and and being very transparent took the time to explain to mr byrd the understood the power of player agreements and the expectations that that might have some force in an ultimate disposition but explained why he