the chronology of events because i think they're very important this particular case we had a change of plea that took place on may third of two thousand and four and this is the time period where there's there's a significant change is brewing in the law that was clearly everyone in the court was proceeding at that time had a change of plea under the assumptions correctly at the time that the guidelines were mandatory two months after the change of police we had the decision in blakely two months after that we had the  july first rather one month after that we had i'm only one and then it was it's on september twenty seventh of two thousand and four that we had the sentencing hearing written objections were filed prior to the sensing hearing b appellants trial counsel and the government had an opportunity to respond and did so in writing i'm going to direct your attention to you first just take me through this is there any evidence in the record that your client did not understand the so i really can't i don't believe i have a case in front of me at this time and i'm not familiar with the particular facts but i think if we're dealing solely with the time of the change of plea and then move forward in time and you have a trial counsel advising the client of what is happening with regards to preparing for the sentencing process you have then these changes in the law i think you can address floyd and i know that we i understand judge but the reliance that we're placing on is the representations that happened in this particular case in terms of the pronouncements by the judge to the defendant that's where the focus has been and why  appellant chose to appeal it was those oral pronouncements that sensing that he relied upon and actually even before we got to the sentencing hearing in the course or preparing for the objections the understanding was that blakely preserved his right to appeal because there were now issues regarding what the sense in court could and could not consider at the time of sensing and whether certain announcements would it would apply so when we get to the sensing hearing we have those pronouncements and the trial attorney did everything she could at that point to preserve the sixth amendment claim and in fact when the judge reaches the point of saying well essentially that's not there's nothing else that needs to be addressed with regards to appeal and so forth she says yes judge except in the blakely arguments so if and that's been she was doing everything she could and in response to that comment the sensing judge said that you never waive your right to appeal any legal sentence effectively advising appellant directly that he had a right to appeal my client at that point doesn't necessarily do anything except think that if the sentence imposes an illegal one and i'm sure he would rely on trial counsel then he would have the right to appeal and this is where the silence by the government comes into play because the government did not object when that pronouncement was made when he was the problem with floyd i mean floyd basically addressed that that where that  precludes him from appealing despite oral statements made at a subsequent hearing the stated rationale for this holding is that a non contemporaneous statement cannot relate back to the time that the play was made so that's why i'm asking you about floyd and my my guess is to the extent that the government's silence at after the pronouncement by the court can be taken as assent then i think everyone's understanding was that he in fact had that right so i can't square it other than to say that the government's going to get up here today and say they had the same understanding that you give everyone no i don't think that's what's going to happen judge but they didn't raise the issue until the the appeal was actually filed and i just not true how would that have changed i mean we still have to go back to the original light that brings us back to the buchanan situation though where the court said that based upon the oral pronouncement a defendant has a reasonable expectation that what the judge is telling him something that he can rely on and that differs from the shoeman case where there was an objection and which case the court said no now you don't have a reasonable expectation because now you have been put on notice so essentially review and we don't read the case the same way at all cortez area had to do with the shooting of an inhabitant while eating and how that would whether or not there was a crime of violence under the california code and so forth amended opinion dealt with the waiver issue and the fact that he had waived everything basically without reservation except for the interpretation of the term crime of violence and this court did not think that every man was appropriate but in our case acquiescence issued by the government so in essence we see that case which they recently cited as being in opposite and not exactly relevant to to our case now the issue as far as we're concerned is the calculations of the guidelines so that we can get at what was the proper base level since that's so important the defendant because the plea agreement would allow for him to receive or require him to receive the mandatory minimum once that this term a nation was present any evidence before he did so and that pre sentence report included all of the enhancements and although to the government's credit they did in fact make an offer to present testimony but that offer was rejected as player time has expired we'll give you one minute in rebuttal but l  please the court good morning my name is emory hurley from the united states attorney's office for the district of arizona representing the apple e in this case your honors in this case there was a valid waiver executed during the change of proceedings which occurred on march the third of two thousand and four sentencing did not take place until september the twenty seventh of two thousand and four at which point at the tail end of the sentencing proceedings the district court judge did not tell the defendant he had an unqualified right to appeal any aspect of the prosecution the defense made the comment that after the judge went through the waiver language and said to the parties that he believed that he had sentenced the defendant in conformance with the plea agreement thus rendering the waiver completely valid and that he had waived any right to take up any issue regarding the prosecution the defense just got a little bit extra i'm sorry your hon the the judge went through though the judge went through the the waiver language and said that he believed the defendant had waived his right to appeal he had sentenced the defendant in conformance with the agreement it was then the defense attorney said except with regard to blakeley issues he can still appeal and the judge didn't say even if he didn't even acknowledge the agreement yes you can still appeal blakeley issues the judge said simply you can always appeal an unlawful sentence the government did not object to this statement since this is a correct statement of the law a defendant can always appeal and unlawful sentence but an unlawful  defendant would still be able to witness who would still be able to appeal a sentence if the sentence is illegal to the extent that it is either exceeds the statutory maximum of a year now you're saying something different from what the judge said well hundred four sentencing date there was a discussion about whether or not he could withdraw from the plea and he had even desire to withdraw from the plea the judge then had a conversation with him about the fact that he could always appeal the court's sentencing findings and gave the parties more time to work out some sort of an agreement on january twentieth the parties filed an amendment to the plea agreement and on the twenty first of january he went through with his sentencing and again the judge made the same sweeping hanumant that the defendant had the right to appeal there the court's comments don't have to relate back to the time of the waiver they were contemporaneous with the time of the waiver what we have in the instant case situation very much like floyd or like lopez our mentor where the sentencing takes place months after the execution of the waiver and the court's comments cannot possibly create any confusion in the mind of which is an opposite to the case at bar that case address is simply the standard for a court to consider a request to withdraw from a plea after the pleas been taken but before sentencing takes place it has nothing to do with the facts at hand in this case the defendant did not make any effort to withdraw from the plea it is clear at the time of his sentencing that there was no reliance at all upon any of the judge's comments regarding the  availability of waiver your honor if we get to the merits of the case itself the defendant sentence was established by his base offense level which did not involve any judicial fact finding at all it had to do with simply the fact that he was a felon in possession which establishes his base offense level and his actual sentencing range was established by the fact that he had a number of prior criminal convictions his prior convictions are properly found by the sentencing judge those are the only things that enhanced his sentence in fact the plea agreement specified that he would not get an enhancement for the firearm being stolen and that he would in fact get a sentence at the bottom of the guideline range and that was a stipulated sentence the judge accepted the plea agreement and sentenced him in accordance with it giving him a sentence at the bottom of the guideline range your honor this appeal shouldn't have been brought because the defendant did in fact waive his right to appeal all aspects of the prosecution including his sentence even if the court reaches the merits of the case the defendant was still properly sentence with his sentence being a stipulated sentence to the bottom of the range if the judge were to do it over again the district court judge if he accepts the pl would once again sentence the defendant to the bottom of the range for these reasons your honor the united states would ask that the conviction be affirmed and the sentence  thank you one minute if you need it thank you judge the enhancements there were and has friends that were part of the sentence and the enhancements were significant and trial counsel argued that what the court should have done in light of the evidence and without requiring the prosecution to prove any of the enhancements simply took the p s r and composed all of the enhancements going from a category three to a category six so we think that that was significant and