we'll hear first this morning kerry seventeen one fifty five used versus the united states mr chief justice and may it please the court the plurality and the concurrence and freeman recognized two ways that a sentence following a c type agreement can be based on the guidelines both are correct now those opinions differed in their reasoning such that freeman itself has no precedential of fact under marx but the two approaches can be united under a common namely longstanding principles of proximate and multiple causation and that's because each form of guidelines for alliance bears a close connection to the s first could you address one issue for me on this question in a sea agreement the government is giving up often certain things sometimes they dismiss additional charges sometimes as here they give up filing a persistent felony certificate sometimes they agree not to prosecute someone important to the defendant  there are many things that go into that bargain how is a district court judge she determined whether a departure from the guideline range is justified in what circumstances is what the government given the valuable enough to keep the original deal and when is it not just a sort of my or let me answer the question in two parts if i can first of all those conditions the way your honor describes the type agreements or true also for b type agreements and for the sort of sea type agreements that the government conceives open the door to eligibility for relief under thirty five eighty two c two so that this particular category of sea type agreement that the government is proposing to carve out is not different in that way then all of these other categories of agreements let let's take dismissing charges i think it could be seen as relatively easy how different were the charges and the exposure from what was kept and what was the strength of the government's evidence in the government justifies giving up that certificate how would a district court make up for the loss of that belief by the go just to sort of more let me push back a little bit still on the first part of my answer and then  get to the second part again that's no different then in a sea type agreement in which there is a range defined by the guidelines and the government agrees that those sentences are eligible for a leaf under thirty five eighty two  the only difference there is that rather than a number potentially moving a bit a range will move a bit so again i don't think it's categorically different in that way but to answer the second part of the question the district court judge exercising her or his discretion will apply the thirty five fifty three a factors just like they do in any other case where there is a request for discretionary relief under thirty five eighty to see to remember that this is only a question of eligibility it's not a guarantee of relief it just enables the case ordinarily to go back to the very same district court judge who is the one who approved the agreement in the first place and determine whether under the circumstances again the thirty five fifty three as circumstances some adjustment is appropriate when w any what would disqualify a defendant from eligibility the plurality said this is terminations has to be made on a case by case basis but as i read your brief i can't what are the scenarios where you think someone would now and which will let me answer again in two ways and again maybe in exactly the same two ways this is no different than any other sentencing determination in the sense that it is predicated on the thirty five fifty three a factors no i'm saying we read the transcript government comes in under a c agreement where it says we're not recommending a guideline sentence we want to deviate from  because we think he cooperated but not enough to be substantial he has an ill child whatever the reasons are we think a lower sentence is appropriate and this is the sentence we cannot drop below the bottom of an amended guidelines range so there's a floor on on how much the movement can be but again it will simply be the district court considering all the so you can imagine a scenario where someone wouldn't be eligible no your honor i'm sorry perhaps i misunderstood the question in a circumstance for instance under which the district courts using the discretion that it has post booker under cases like gall and spears the district court says i'm not applying the guidelines at all i disagree with the guidelines as a policy matter under those circumstances it's very hard to see how in any ordinary meaning of the term  sentence is based on the guidelines but absent circumstances like those ordinarily a sentence will be based on the guidelines and that only makes sense this court has said over and over and over post booker in cases like gall and you and most recently in molina martinez that sentences are ordinarily based on the guidelines and so it won't be surprising if indeed a district  concludes that that's what occurs not only is a sentence bargain for in the shadow of the guidelines as concurrence in freeman put it that is where the parties start the united states attorney's manual directs prosecutors not just to charge but to make plea bargaining determinations consistent with the guidelines defense attorneys do exactly the same thing when they sit down with their client for the first time they look at the guidelines and say here's what you're looking at and so it shouldn't be surprising that ordinarily other than in the sort of relatively extreme circumstances i was alluding to a moment ago sentences indeed will be based on the guidelines the first question we posed was how do you apply marks to the situation and i wonder if i'm a court of appeals judge it seems to me the most important thing in deciding the case is to make sure that i'm not reversed and it seems to me the best way to do that is through the if you want to call to walking through sort of counting out what would happen if you count where the different votes are and it seems to me if you take any other approach you're subject to reversal because by definition a majority of the court here would would reach a different result i would say a couple of things about that mr chief justice first of all marks focuses on the holding or the judgment of the court and so under mark's what we're trying to figure out is whether there's precedents ordinarily only a court's holding qualifies as precedents in a holding is the reasoning that's necessary to support the judgment of the government's alternate approach it's one the facts through the opinions approach first of all i'm not sure it even purports to be an application of mar in that sense second of all it is predicated upon counting dissenting votes and marks itself says quite specifically that that's not what mark says about marx talks about the position taken by those members who concurred in the judgments and odell at page one sixty speaks in similar terms of votes necessary to the judg as a practical matter though in a particular case that would have the court of appeals writing an opinion that would be subject to reversal and that and that mr chief justice is the other thing i was going to say i think that the way you put it a moment ago a moment ago and in asking the ginsburg we think that that is exactly correct a lower court is wise to pay attention to the votes of justices but that is a very different question than whether there is binding precedent and here what the eleventh circuit concluded was simply that it had to follow the concurring opinion and frame and that it was the vote of one justice was the law of the land notwithstanding the fact that eight justices had sharply disagreed with that reasoning and so justice ginsburg we think that that's not right now to be clear a lower court would say i am going to count votes i am going to predict what the supreme court might do but i think that a slightly different hypothetical points out the difficulty with this mr chief justice if you imagine instead of a case that comes right back up to a nearly identically constituted court on the exact same question fifteen years have passed or twenty years have passed it would be quite strange under those circumstances for a court to engage in that same kind of knows counting and say well because that one justice twenty ago thought this thing that is the only decision we can reach full marks has been the law for forty years and for better or worse it has had a big effect i think on what we have understood to be the jurisprudence of this court and with the lower courts of understood to be our precedents and on the way in which justices of this court go about doing their job and if we abandon anything like marks perhaps it requires it certainly could benefit from some clarification and maybe some refinement but if we abandon it completely  it could have pretty profound changes why should we do that justice alito our first argument of course is that the court should refine marks and we think that the logical subset tester is this  in nichols looking for a common denominator is the most sensible way to do that consistent with the norms about precedent and holdings that i was alluding to earlier where you know lesser professor ray wrote an interesting in the brief in this case and arguing that the logical subset approach is illogical and i think there might be something to that let me give you this example let's say that nine people are deciding which movie to go and see and four of them want to see romantic comedy and two of them want to see a romantic comedy in french and four of them want to see a mystery now  is are the are the two who want to see the romantic comedy in french is that a logical subset of those who want to see a romantic comedy it justice alito the answer is it depends and those people could say what their view about that is and  as we know nothing more than that then it is a fair presumption at least under certain circumstances i can't speak to romantic comedies in french but there are a couple of this court's precedents under which contrary to what professor ray has said logical subsets do in fact make a great send a great deal of sense if not all the time the nearly all the time if that's the logical subset i think there's a serious problem with the argument because the four who want to see a romantic comedy might think i don't want to see anything in a foreign language particularly in french i'd rather go see a mystery or something else so justice alito and i think this is the key to the puzzle any time two people be they justices of this court or people going to see a romantic comedy can say here's how far i go but i don't agree with that thing over there and so sometimes we see justice is saying i take an absolutist view when anything less than that is legally wrong and under those circumstances we would know what those justices thing and of course justices would have like they always have the prerogative to articulate how far their view goes and whether something last makes sense but it lisa also way of understand i'm sorry but that means that you would want them to engage in in dicta in other words you're saying let's say someone has an absolute view of the first amendment you can't have any restraints at all and the concurring opinion says well i agree with that except when it comes to you know communist and i think they shouldn't have the right to speak  you don't know that the people who think there's an absolute right may say well it's an absolute but if you're going to carve out anybody you've got to carve out everybody and what you're suggesting is that to make things clear for the courts of appeals down the road those justices should talk about these hypothetical cases about how they would apply the rule in the event you know that this or that happens and i wonder if that's more problematic than the difficulties you have with just sort of the county counting through approach i don't think it is your honor the point is simply the justices have the prerogative like they always do to articulate how far their rule goes but i do want to make sure justice alito to get to at least a couple of examples that demonstrate that the logical subset while it may be imperfect like all of these rules are at least has some significant utility contrary to what professor ray said so if you look like at a case like ford that was interpreted and pinetti you have a plurality of justices saying we require full competency proceedings with all of the hallmarks of a trial and justice power writing separately saying something less than that is enough we don't need cross examination we don't need live witnesses there it's pretty fair to say that the lesser version under that interpretation the literal interpretation of marchers situations covered we're talking about a situation where the reasoning doesn't necessarily overlap completely again two points justice sotomayor i think that the language of narrowest and marks is frankly part of the problem here and that is the strength of of what professor ray has said whatever guidance marks may have provided it's probably caused more c split decision by the court you want some even handed predictable and consistent development of the law at least on some level and even if there is some confusion there is some predictability that's going on under the rape test there isn't any it's as if the decision was made and nothing has happened because we're still sending it back to the lower courts to be without real guidance i think the strength of professor resulted from efforts to attempt to apply the mercs rule and so the idea would be simple mr m typeless continued well simply that that to return to the older historical norm of actual majority rule would provide clarity and absent that percolation could occur in the lower courts which would discord in its ultimate decision making the question is what is the second best really we're in a world in which the first best option which is five people agreeing on the reason then that doesn't exist and so everything else is going to be is going to have some kind of problem attached to it and where really picking among problems like this what i wonder is why you say the solution that we should pick is just a solution and which this court is given no guidance and courts are out there on their own and doing their own thing and splitting with each other dividing with each other not having any way to resolve these cases which sounds cut chaos to me and what the government says is look this isn't the best approach but it's the second best approach is if you don't have common reason and just ask about results and if you can look at a case and know that there are five justices on the supreme court who think x rather than y then you should go with x and we can talk about how that counts  it's or you know give various theoretical objections to that but in the end we do try to get to five here we know how to get to five and some of these cases even if the five depend on different reasoning why isn't that just the second best approach so just to clarify if i may just escape and then to turn to that our position is not that there should be chaos nor nor at least in the first instance that the ready argument is the best one logical asking why vote for chaos in all of these cases or even in some of these cases to be clear justice kagan and i don't want to quibble but i mean the idea is not that it's chaos it's that the lower courts can then percolate the issue as sense that is quite contrary to everything that this court has said for not just decades but hundreds of years about how to identify precedents and holdings if dicta is not precedent it doesn't count as part of the holding of the court then surely that votes that aren't even necessary i think then i think your approach relies on dissent sometimes too because take one of these logical subset cases you have a concurrence that is a logical subset of the plurality and you say well the concurrence controls and that's true even as to times where the concurrence lets off with the plurality and joins with the dissent so you're counting dissents to i think it to be very clear about this your honor that is not our position that concurring opinion would only be given force in so far as to or to be extent that it is an opinion that is necessary to the judgment but i do want to necessary to the judgment but the result of applying but you know the plurality would grant relief in this much this many cases the concurrence would grant relief in many fewer cases  relief in lots of cases where the dissent would also deny relief so by privilege in the concurrence you're essentially saying that when the concurrence agrees with the dissent the concurrence wins which i take it is a way is is is because the concurrence plus the dissent equals five i don't think so justice kagan in just a sort of my i think this gets back to a question that you were asking earlier if the venn diagrams overlap if the russian balls don't fit then under those sometimes instead reaching the result the dissent would end by saying the concurrence controls in those cases you are given effect to the times when the concurrence plus the dissent equals five i think that for the same reasons i was indicating about reliance on about the importance of holdings it would not say that it controls under those circumstances now perhaps the next case might come up and there would be an opportunity to evaluate that but just as kagan i want to make a little of stances there is no result well there would be a bare result certainly but the concurrence would not be controlling as two cases in which it has to be paired with the dissent i want to make sure to answer directly your question justice kagan about what's wrong with the government's approach and then i might try and turn back to the thirty five eighty two question for a moment if i can what is wrong with the government's approach is not just that it is contrary to these pretty fundamental notions about precedents and holdings but because it would stunt the development of the law it would say at precisely the moment at which this court is unable to reach a majority the lower courts should stop trying to development of a stunt that completely you tell us that there's confusion and a split which suggests to me that the split is occasion likely in part by the circuit's view of the persuasiveness of the split of some other side's arguments on the split so it's not i don't think necessarily that it's time for this discussion and any meaningful when you're just you just don't you say this kind of confusion i don't like i think the point is a bit different justice sotomayor in the following way the idea would be that once this court splinters and when there is no middle ground as the government puts it at that point all that is left for a lower court to do is run the facts through the opinions you don't think about the issue further you don't attempt to resolve it on the merits you just plug things into the vote counting algorithm and get bear results in baier ok what can i just ask you this quick question suppose that there's a majority of the court that bill that agrees that a particular party is intitled to relief but there is no majority as to the provision of the constitution that provides the relief what happens in that situation so that's never a precedent unless one of the two and both of these groups feel very strongly that the other is wrong and identifying the constitutional provisions so one of them has to give way or else this issue is never going to be resolved i think that and let me answer your question justice alito and then have my time i think that that is the quintessential case in which there is not precedents if we have less than a majority of this court resolving a question of constitutional import on different grounds that it would be very strange to think that the constitutional issue has been resolved for all time so the lower courts would then be pretty to deny relief and in all these cases in a case just like the one that had been before the court surely and this goes to my answer to the chief justice surely the lower courts would be wise to pay very careful attention to all of the opinions of this court but if there is no majority on the question then there is no precedent if i can reserve the balance of my time thank you counsel  governor mr chief justice and may please the court the circuit split your concerns the interpretation of the marks rule in this court should decide this case by rejecting the view of the two circuits that treat divided decisions of this court  presidential effect unless the separate opinions of this court share the same reasoning that approaches flatly contrary to what this court said and marks it's contrary to how this court has applied works and undercuts the principle of vertical stor that generally requires lower courts to decide cases in the way that this court would decide them or take petition and raise to manage actions to that the first is an argument that marx's this court has developed it requires considering dissents i do want to make clear that's only true in a limited sense when this court applies the mercs doctrine it's picking one of the opinions that lead to the judgement in the case at hand and treating that judgment treating that opinion as in controlling that little four for one and he was in the middle but none of the others to the position that he did describing that is the controlling opinion i think the reason justice ginsburg is that when the court applies that opinion it's not applying an opinion that leads to the result that's favored by only one member of the court it's applying an opinion that  majority of the court and in every application the application of that opinion also is supported by the reasoning of the majority members of this court might be true but it might not be i mean there are middle ground positions that if it in and for one fo h case where the four would say well if we can't get what we want we'd rather have the middle ground position but there are some cases where there are middle ground positions which seem utterly incoherent to anybody else incoherent or maybe it's based on what you think is an impermissible criterion or for some reason the middle ground is the worst of all possible worlds so how do you deal with those sorts of cases so we think ordinarily that the opinions in the case itself will deal with that in the following sense or to take freeman as an example there's i think a sort of broad opinion a in between opinion and a narrower opinion and it's true that some opinions in freeman criticize the middle ground but nevertheless the  opinion but we think the proud the indicated through its vote that that's not what it wanted to have happen it wanted to join with the concurrence and have that control the day so how you don't know what i would write in this case and the reason i would write if we have to get to this issue the reason i don't know is because i think law is part art and part science and you learn in law school and thereafter how to read an opinion there are no absolute rules marbury versus madison two thirds of it is not necessary to the conclusion so should we pay no attention to it of course we put two and then i can cite five but i won't where  may be that on this matter there was a unanimous court but nobody believes it because it wasn't you see and they all go up and powell of course is in part p because he had a sensible view and the public the lawyers the clients the other judges are the ones who tell us that over time so if you ask me to write something better than barks i don't know what to say except what i just said which will help nobody so i think the question that lower courts are in need of guidance on in the so what yes so i mean what sure you talk about the french movie that was great i mean far in this area i think you mean they really don't want to see the philadelphia story they must be crazy all right but but but but you see if you have of course a real french comedy fine but suppose you have to show off this holiday you know it's a comedy but is it romantic and i mean that's what law about and now suddenly you want us to write a rule that they've done all right with marx leave it alone so and say i interpreted with common sense so i read that but i think there is one clarification that there's a circuit split on and it would be helpful for this court to resolve their two circuits that say contrary to the views of other circuits that you need to have not only shared results which say they're wrong that's right and then they say what's right we don't know i think if the court can say marks and i think the one thing that the court can ad marks if it wants to provide further guidance is that what the marshal is doing is achieving vertical started sizes it's a way of ensuring that lower courts decide cases in the manner that this court would and so to the extent that in a particular case there's difficulty in identifying want to pinion two questions i don't want you to ignore the third question of the petition but the first one is if we are able to reach a majority the freeman question should we reach the marques inquiry and i so how and why and then we usually that it would be pure dick there but i think that's right you're or and so the court i think has a choice about how it wants to resolve this case and we would urge the court to resolve the case on the mercs ground because that is where there is a circuit split there's no division on freeman aside from just a question of the underlying marks question of do you need common reasoning or only common result so that's really the issue that's devival or courts and the second to reason that relates to that your honor is freeman itself is a statutory interpretation question that this court you know we obviously took a broader position than your honour's opinion in freeman but this court resolved that issue it's essentially an issue for how the parties are going to bargain so the parties have arranged their expectations in subsequent cases including this i think that for the most part are prosecuted as have been understanding that freeman is the rule and we haven't seen to my knowledge the vast majority of districts actually incorporate those kinds of waivers now i have a question on the substance of  pluralities position there is some force to the argument and the examples provided in the briefing where the government goes to sentencing and says we did this in light of the guidelines and under the concurrence in freeman that would not count is is that right and why is that right if if the prosecutor is telling the judge jewing this because of the guidelines what difference does it really that it's in the plea agreement or not it's still representation by the government that's right you know i think that once freeman was a stablished we can expect the parties to negotiate around the rule and freeman and so to the extent that the parties have an understanding that this is a sentence based on the guidelines within the meaning of your honor's opinion and freeman that's something they know that they should be putting in the and we think that it's desirable to have that one place to look for that where the parties understanding is rather than combing through the background negotiations of the board except the plurality say there's a player that you're not considering which is and the judge accepts the agreement because the prosecutor has gotten up and said we think it should be within the guidelines it's not in the plea agreement but the prosecutor is guiding the judge and sensitising the judge to accept this agreement without representation so why shouldn't that be recognised so i think you know both your honour's opinion freemen and the dissenting opinion in freeman us your note that there's a real difference between background considerations that go into what the deal is and then what th ultimately in a sea agreement you know the parties bargained for a specific term of that sentence and the urged the court to impose that that sentence and that is as you know your honour's opinion in a kid and and for the justices agreed that is what the sentence is based on and if there doubt about that i think there are a few things that the court can look to to resolve that doubt the first is the sense in commissions guidance the sensex commissions guidance indicates that the only guidelines that should be changed through thirty five eighty two are the guidelines that were actually applied when the case the bio guidelines were sufficiently close connection to the sentence that's not in the midst were inquiry and then on the back end as your honour's opinion alludes to in freeman you're going to have a druid judge trying to deter i mean after the fact what is the alternative agreement that this every c agreement before it takes effect has to be approved by the judge so really it's the judge who has to determine would high have accepted this or not knowing that the guideline was i i think that's the way in which a c please fundamentally different from other kinds of pleas as as you are as opinion in freeman alludes to which is part of a part of a see play is that the parties agree to it and so if a judge said i'm not going to accept this plea you'd be back to the drawing board for the parties and so that's why petitioners approach means the judge has to figure out ok if the judge said no what would the parties have done and that circumstance and as your honor alluded to in your questions often the government has given up for instance a mandatory minimum you know additional charges you know in this case i think there's no reason to think that the government would have agreed to a more favorable deal if the guidelines have been different than the sea agreement it says commission the judge it's the judge who will depart if that's the agreement says the agreed he has to write his reasons in writing as to why the agreed sentence depart from the applicable guideline range for justifiable reasons so if the god line range is one hundred twenty months he says why it departs that nias some reasons and if it's a hundred months he says why it departs from that now much of the time perhaps i don't know for sure but of course you are referring to the guideline and if the guideline is one thing you might do and you know if it's another thing you might do be and certainly you will have to say something different where the guideline is one hundred vs one hundred twenty not certainly but almost certainly so why isn't that good enough that's good enough to say that were the guidelines two levels lower you  know you can get that advantage because your original sentence was in some sense based upon the guideline namely the sense that i just mentioned so i think this case is or is a really good example just as prior of why that doesn't work you're not going to know one particular cases what the parties would have done absent the guidelines so that you know here all i have to know is what the judge would have done he is the one who departed and he had to put you know i'd just be repeating what i said so we know in every sentence like that there will be words about the applicable god law yes and much of the time it will have something to do with the applicable guideline and why isn't that good enough so just as prayer to take for instance this case there is no reason to believe i think in this case that the judge would have rejected the party's plea agreement if the judge of character would the guidelines differently for instance in this case the particular change the sentencing guidelines that the you know that was ultimately made had already been proposed the parties knew about the judgment but nobody indicated that that  fact if they got if that guidelines changed been in effect the result would have been different and here i think there's a good reason why the judge would have accepted this plea agreement which was for below guidelines sentence even if the guy would soon be different because the government was giving up a mandatory minimum in which the government could have a a life sentence in this case suppose we say you're absolutely right and that's why the word based upon cannot just refer to these hypotheticals we know nothing about therefore based upon refers to an instance where the judge made significant use of the god line either in his reasoning or in the reasons that he gave which of course would throw this case right into the opposite side that you've lost but nonetheless it would be a workable rule and we'd say based upon at least means that so i think there are a few reasons first of all we don't think respectfully than the ordinary case it's going to be easy to sort out whether the where the court was just calculating the guidelines what petitioners suggest would not be enough in a sea agreement it would be because he has to write it down i think all he has to indicate is that there were justifiable reasons for him to accept the sentence notwithstanding that notwithstanding that the sentence in particular case was outside the guidelines and i think there are some additional reasons why that approach would be a good one the first is the sentencing commission's guidance the sentencing commission has indicated it has to be in order for thirty five you to really have to be available the guideline has to actually been applied at sentencing and then i think there's a story decisis reason which is the court you know what whatever the merits of the ruling freeman and obviously the government took a slightly broader approach to the extent to which thirty five eighty two denied relief but this is an opinion of this court that this plea and other pleas have been so organized around since the case was decided and that's a case in which start statutory story decides principles have their greatest force so i understand it like us to decide what we're calling the marks question rather than just resolving what friedman means but to what extent is the marks problem real outside of the frame of context i know freeman has the set the lower courts with a lot of difficulty and generated disagreements but has there been real problems outside of that context so i mean that the the courts that have going against us on the mark's question have indicated it's there it's just their interpretation of mark's so it's the interpretation they would apply  done it in the context of trying to figure out what friedman was so if we relieve them of that confusion how far we go on resolving the problem i don't think very far your honor because in any future divided decision of this court those courts would go back to applying their lot of them by the decisions of this court though right and it doesn't seem to be a pervasive problem outside of the freeman context at least that you've documented so far and i was just wondering whether you had any other evidence of problems outside of the freeman cup so i think an additional circumstance you know some effect and of course as your honor alludes to there are going to be you know future divided decisions of this court but are there actual opinions i guess i'm sorry for pursuing this but i'll stop but but are there any other actual decisions like we have in the marks part that's because this is essentially a recent split so davis is two thousand and sixteen and that's where the ninth circuit said ted pinion i think the d c circuit case it did arise earlier in one case that was king and i think that you know obviously involve the interpretation of a different opinion of th yes i take him to have identified cases where he asserts that this there's been difficulty applying marks in the past so perhaps that supports the idea that there is a benefit to be had from clarify what this court of said and done for about forty years where it's said you identify the nearest opinion concurring in the judgment and then you treat that is the controlling rule even though in some cases that opinion aligns with the the sentence some cases with the plurality we think that's the the members of this court could issue identical opinions to the ones they issued in first case because all of the opinions have already fleshed out exactly what would you this is our applying but if we need to change this court we need to essentially take the case twice the rule that was set out in the first case would depend somewhat arbitrarily on the vehicle in which the court initially grant cert we don't think there's any need for the court to expend its resources in this way and the effect would be an undesirable one for purposes of vertical started such as where for a period of time you would have courts not not being bound by i mean there are a article points out that courts have courts of appeals have relied on marks quite a lot there are over four hundred decisions of courts of appeals applying marks to over one hundred decisions of this court over a forty year period so we think there is quite a lot doesn't and as far as the other cases are concerned we don't necessarily have to go into them if we did have to go into them try to pick out something that is not an oxymoron but it's something along the lines of legal common sense and i don't know that i can do better than so i mean we agree that the court doesn't need to consider decide cases that are not before it but we would urge the court to clarify that there's no requirement common reasoning and you know to go on and say in this case the court was correct to apply marks to the straightforward application of march if there are no further questions we can be a front thank you you your honor justice sotomayor i'd like to start with your hypothetical in a circumstance in which the prosecutor says the sentence here the agreement here was based on the guidelines the lower courts following freeman have interpreted the concurring opinion in a free man as prohibiting reliance on that and you can look at a case like united states versus types and i'm not in disagreement with that but the one thing you're the solicitor general's office said when a to prosecute the dismiss charges or the charges that propose to dismiss in doing it this way they don't get that chance and let me get the way the plurality suggests they're losing that chance just to sort of my let me try and address this as sharply as i can this is where we started the colloquy at the beginning of this argument and i think it's critical the government is not losing the benefit of any bargain here and it is certainly not in any greater way than it is for any other form of plea agreement so you truly need it when you would be instead of to see a switch or say no this is the place all because because remember we have other types of sea agreements with a range and the government says those ones are fine we don't mind giving away the benefit of our bargain for c agreements with a range because they are again when congress in these narrow circumstances has said the commission again in narrow circumstances is applying a got is applying a change retroactively under those circumstances the bargain has changed what was here is now here and that just the same for these agreements i would emphasize that the record here shows that the judge the parties and the probation officer were discussing the sentencing guidelines at length this is not just a circumstance in which they're being alluded to it thirty two a deferred six a of the record they're performing the guidelines calculation what about the three point reduction for acceptance of responsibility what about two points for using a gun and it makes sense under those circumstances to send it back to the same district court who accepted the bargain and who had to rely on section sixty one point to assess the bargain that is the critical thing about sixty one point two congress when it in acted ninety four  he directed the commission to put the judges in the middle of this process the judges are at assessing the agreement to determine whether it is compliant with the guidelines or at least compliant enough to be accepted and so here we have a judge who sat there and differed with the party news over the guidelines and it only makes sense they are to say this is a circumstance in which you eligible to seek relief you're not guaranteed to get it but we're not closing the door of the final point i'd like to make on freeman congress did not carve out see type agreements it could have it knew how to do that it did that in thirty seven forty two in limiting appeals but it didn't do that for c type agreements when it could have thank you counsel the case is submitted