because the government broke its promise in the plea agreement to recommend a sentence at the low end of its calculation mr martinez has guidelines for the government calculated the low end of mr martinez as range to be eight months as reflected in amended sentence amended sentencing chart but instead of recommending eight months the prosecutor at the sentencing hearing explicitly recommended eighteen months and the district judge confirmed on the record that he understood the government to be recommending eighteen months when i objected to the breach prompting the prosecutor at the hearing to look at the amended charge for the st time he immediately corrected his sentencing recommendation to eight months because he understood that was his obligation under the agreement but by that time the damage had already been done for an entire for the entire  of the sentencing hearing the government had put into the district judge's mind it viewed mr martinez as deserving of eighteen months and once that bell was rung it could not be on run separately the district court miscalculated the guidelines for which independently warrants vacating the sentence of you oh sorry go ahead counsel one thing that i'd like you to address as part of this argument is i understand your argument that gomez leon if that's all there was would control what i'm having trouble with is distinguishing the parties free gomez leon the case didn't discuss gomez leon at all and the st line of the case is we hold that a johnson waiver in california state court has no effect on the determination of whether a defendant qualifies for a point increase now i understand your argument that the ada is actually different from this case because there was evidence of the johnson waiver but i'm having trouble getting around the st sentence of those a beta where the court says that's what it holds so you don't have to do a right now but i'd like you to address that misleading and this court addressing the guidelines issue would promote additional economy so that it is fully briefcase to search the this court to clarify and correct here rather than sending it back to the district judge who could potentially make the same mistake having trouble with is what the court says it's holding we hold that a johnson waiver has no effect now i understand your point that they didn't explicitly overrule gomez leon and it strikes me that to reach that holding they might have had to have done that but what i'd like you to explain to me is if we take that as a holding what it says beholding is how do you win here on the substantive issue if you take that as the holding i think of as leone and was once a bit it can be reconciled as follows when there is out when there is evidence of a johnson wave which permits the state court to sentence the defendant in excess of three hundred and sixty five days then the court can calculate that sends is being longer than three hundred and sixty five days because of the johnson waiver it does not matter that the state court received a sentence in excess of three hundred and the johnson waiver in other words where there's a johnson waiver stated maximum sentence is higher than three hundred and sixty five days because the defendant agrees to a sentence higher than three hundred and sixty five the whole thrust of the cases we don't care whether there's a johnson waiver he got x the st time he got why the nd time we don't hear why we had x and y and if it's thirteen months i guess what the on the import of the absence of a johnson waiver that was did because those were not the facts before the court and the controlling case would be gone as leone which directly applies this case where there is an absence of evidence of the johnson waiver i do want to take the opportunity to explain because there may be some questions of how mr martinez could have received the additional sixty days without giving him johnson waiver and the explanation lies in the difference between a waiver of custody credits under johnson and on the other end waiver time credits under california california penal code section four a nineteen what likely happened in this mr martinez waived his time credits in the crucial difference is that when you wave your custody credits allows the state court to sentence you in excess of three hundred and sixty five days but by simply that you make that argument the district court here i mean that argument and but this case it could have had no waiver it could have had a good time waiver it could have had a johnson waiver i mean there's nothing about the facts of this case that would have  way i'll be very brief because i do want to save some time for a bottle but i don't think that the record for clues absolutely precludes but it's not important to point to documents precluding it those same records the ambiguity the lack of evidence of scored either under the specific offense characteristics of the guidelines or with respect is colonel history score in this district it is routine that the parties in some cases do agree on how it can criminal  martinez negotiated the base offense level negotiated a rd point for acceptance for fast track and what he bargained for was that at the time of sentencing the government would recommend what it believed was the correct scoring brief recommending at the sentencing didn't reach the plea agreement not just because it was correct but because even if he kept to the eighteen would i have a problem with your i've read this fairly long sentencing transcript it is very unclear to me that this had no impact on the district judge i mean i can see the sentencing transcripts where it would be very clear that the judge didn't care or he understood or or whatever but i mean in this case the judge got mad at the disc or it sounded like the judge got mad at the defense counsel or even to using the government of a breach i mean it's very hard for me to see to conclude without with any certainty that there's no effect on the judge what is your argument on that point well your i believe that the argument there yarder would be that this case is different because this is not a united front  agreement this is a plea agreement that allowed the government to make its recommendation for what it believed correct at the time of sentencing so so the government initially recommended eighteen months in its initial sensing summary chart and that was before the court and i think what would make next the point is that mr martinez never claimed that that initial recommendation was a breach because there wasn't there wasn't an agreement for a united front and we would certainly acknowledge that it was you know clumsy that the calendar assistant was unaware of the amended recommendation but this case is different because there was not such an agreement to have you know the united front at sentencing  terms of its impact you know judge burns went on at length about the reasons that it believed the sentence was correct so i have i believe that the record is well supported there but we do believe that this case is distinguishable from the breach cases because there wasn't an agreement about how discordant if anything this the conversation they were having about going as leone illustrates the reason for that and that is that sometimes it's not altogether clear how these convictions score gave the government the discretion to change its view of how it's cord and it did so in a way that was favorable to mr martina's even if it was somewhat clumsily executed at the time of sentencing was harmless st i would point out that the facts of goma's leone are in fact distinguishable from our case even though they are very similar and very importantly in our case mr martinez he was given three hundred and sixty five days of time right out of the gate whereas mr gomes was given twelve thousand and seven so once mr martinez had been given three hundred and sixty five days there is no way under california law which we should presume that the courts included in the st one and i believe that even even at the sentencing hearing you know while charging that the government had failed to get proof of the waiver mr martinez counsel you know explained over and over again at least on two occasions that what good time credits he would have been full no more local time would have been available so i think there is one factual distinction that's that's the one that that that i believe exists but then nd even if even if they're not factually distinct you know go laon this is with respect to the to the court in that opinion it's inconsistent with other authority that both preceded it and that follows it and that authority pretty clearly says that you're not to look and this was the point you're i was making is that you don't look to state court law when you're calculating the sentences so the case that comes before this side in our brief is mendoza morales three hundred and forty seven f rd seven hundred and seventy two i would certainly knowledge the facts are different but the legal principle is the same and that is that you're not to look to to state court law and that was another california case where you're calculating sentence so just as gone as lone couldn't have been overturned by by the case that followed you know so to go on as leon couldn't of overruled mendoza and that does appear to be the you know the prevailing view about how the court should approach this and that is that that state law is not relevant to doing this calculation finally if there was any error we do believe it was harmless you know i'm short on time the judge burns ticked off all of the factors there were four duis multiple driving on suspended license can twenty four dollars i'm thinking the sentence and he said whether it's guideline range in a or guideline range be but how do we know that it wouldn't have been different if he had had to pick a guideline range and had to apply gomez leon as the governments and the defense then had agreed how do we know that in that instance he would have picked the top of the range the twenty four dollars as opposed to going down from the top like he would have been doing with a higher rank i believe judge burns addressed that he did he did say and it's on the record he did say that they he did believe did believe that a departure would be appropriate from the higher range but then he said that a sentence within the lower range would be appropriate i couldn't find in the has repeatedly explain the benefits to a defendant in a plea agreement is a benefit of a united front with the government in presenting a unified sensing recommendation to the court and now this sensing recommendation is key i would say a key benefit the defendant such as mr martinez receives in exchange for giving up his constitutional right to trial so there clearly was you know there was the benefit that mr martinez  for was united front but the government failed to deliver on its on the bargain by giving what you mean by not holding up that end of the deal the government confuses its freedom to calculate the guidelines range with its freedom to recommend a sentence u did allow the government to calculate a range but it precluded the government from recommending any sense once the government calculated the range had to recommend the low end of that range and less a change it's calculation and here the government failed to do reading on appeal rather than the what we believe is the correct reading which is that the sens did not exceed thirteen months so that is why we're asking for the court to sue to clarify