resulted in this direct kone and sentence sentence of almost twenty two years was this three sales of crack cocaine to a police informant over a two month per the parties disagree on almost everything in this case except some of the underlying guideline calculations there's no question that under the pre fair sentencing act career offender guideline the sentencing range was two hundred sixty two to three hundred twenty seven months also i don't think there's any disagreement that after the passage of the fair sentencing act the career offender arranged for mr melvin would be one hundred eighty eight to two hundred thirty five months and also that the non career offender range would be eighty four to one hundred five months mr melvin contends that he was entitled to be sentenced under the changes brought by the fair sentencing act and under the supreme court case and dorsey versus the united states which resolved the issue of whether individuals like him qualify for sentencing under the new law two issues i presented to the court one is whether easier question is the plain error issue clearly planers determined based upon the status of the law at the time of the appeal dorsey versus united states is the law and clearly the district court plainly erred in not the fine the statutory changes did the error affect mr melvin's substantial rights were clearly a did because there is absolutely no overlap between the pre f s a and post office a career offender range the district court in this case found no grounds for an up departure or an upward variance and therefore absent such grounds the court would be required to sentence within the advisory range which is one hundred eighty eight to two hundred thirty five months and if assuming that the court would have sentenced mr melvin to the bottom of the post f s a range it would be one hundred eighty eight months so there's a seventy four month difference between what he actually got and what he would probably get as far as whether the error affects the integrity and public reputation of the proceedings i think we just need to look at the attorney general's public statements regarding the f s a he said that  a has corrected a discredited policy that resulted in racial disparities and draconian sentences so we would submit that even the attorney general would agree that the public reputation of the proceedings would be impaired if somebody is subjected to a clearly excessive sentencing range so that takes us to so i would submit that all four prongs of the plain air standard are met here and the only issue that for this court that is germane would be whether the appeal waiver applies now in the briefing pages in our reply brief it pages seven through eight the government attorney should disregard the appeal waiver and plea agreement and argue the merits of the appeal and we would submit that egregiously incorrect sentence applies to mr melvin sentence in this case the district the government relies on an agreement or a language in the plea agreement that mister melvin waived his right to appeal any sentence  except a sentence above the advisory guideline range as calculated by the district court whether it's correct or incorrect and therefore  advised mr meldon that he retained the appeal waiver did not apply with respect to claims of ineffective assistance of counsel government discussing the change of plea hearing which was in two thousand and nine i understand but it is never been quite clear to me why he wasn't when he was actually sentenced why wasn't the f s a applied because he was sentenced in may of two thousand and eleven and i think in august of two thousand it's our position that the court's advice to mr melvin that he retained the right to appeal india event that there was a change in the law applies here because there was a change in the law and  that became part of the plea now the assistant u s attorney who handled the case who had written up the plea agreement was present during the change of plea hearing and he did not object he didn't say judge which you've just told this defendant that he could appeal a change in the law is not what's in the a plea agreement and therefore we object advise him that he doesn't have that right he sta silent the government has now taken the position in this appeal apparently that mr melvin should have figured out on his own that the district judge deviated from the language of the plea agreement he should have just disregarded it even though the a usa who was present during the change of pleas hearing didn't disregarded it so we think that it's pretty clear here under the line of already several published decisions from other circuits and an unpublished decision of this court sorry log versus united states that the appeal waiver cannot be enforced against mr melvin and finally there's also the miscarriage of justice exception to appeal waivers that even if an appeal waiver is deemed  valid and otherwise binding that the court can disregard it if in force and it would result in a miscarriage of justice and we've cited a seventh  circuit case which deals with a very similar situation where the defendant was sentenced based upon governing circuit precedent at that time and he was considered a career offender and then a couple years later the u change between then and now because there's a three step process to sentencing determine the advisory guideline range determine whether there's any basis for departure up or down or any basis for a v were applied the sentence would be lower correct you know unless mr melvin has done something in prison that i'm not aware of i there's no basis for an upward departure and therefore a new sentence would have to be within the one hundred eighty eight to two hundred thirty five months revised range which is less than what the two hundred sixty two months that he got  brennaman for the united states i'd like to start by pointing out one thing that mr belly and i both agree on but the dispositive issue in this case is whether or not defendant knowingly and voluntarily waived with the exceptions listed in the plea agreement there is no well established authority and lots of it from this court and the supreme court that the defendant can waive any right statutory constitutional so long as he does so knowingly and voluntarily this court of course is applying it to no standard of review to make that determination and that will become the dispositive issue in this case we would submit if an issue violates an appeal waiver it finds that the appeal waiver was knowing about terri the best evidence we have that it was in fact knowing involuntary is that it was first of all the language in the plea agreement is unambiguous and straightforward and defendant said that it had been explained to him by counsel and he understood the written plea agreement later on when the court referenced the waiver provision the court did to say did you not use the same language as the plea agreement and the court reference two separate subgraphs paragraph thirteen in the plea agreement paragraph thirteen a reference to the waiver of the direct appeal rights and thirteen b reference the waiver of some rights to collateral review under twenty two fifty five and  ways in which the district courts recitation do not exactly parallel the plea agreement but at the very beginning of that the district court said do you understand that under the terms of your plea agreement in paragraph thirteen referenced that precise language that defendant already knew is supposed to figure out the script that even when no attorney comments on it i would submit that here there's th district court covered a lot of ground in a single question ended with that do you understand that and then which whether they're going to publish we found that to be if a if the statements by a district court mistake the waiver provision and do so in the circumstances that caused the defendant to misunderstand i think that second part is significant here because we don't have indeed indication that defendant necessarily misunderstood this in starlog of course the course specifically said you retain the right to appeal three things here the court didn't say you retain the right to appeal specific things didn't go through a long discussion with defendant instead referenced the language of the plea agreement and provided a one sentence over simplification with an additional element of the language in that plea agreement that one sentence  finds that defendant did not knowingly and voluntarily waive his right to appeal under the language in the plea agreement then we agree that a remained for further reconsideration by the district court is appropriate for the same reason if this court finds that defendant did not knowingly and voluntarily waive his right to appeal under the conditions in the pleas agreement then a remained for further consideration by the district court would be appropriate for the reasons this court found and void now the recent void case of course is different because boyd had no plea agreement there was no appeal waiver and the court had specifically considered whether or not the episode should reduce the sentence and imposed a below guideline sentence and this court found that you know knowing of dorsey the district court might have granted a lower sentence so we would agree that if if this court finds that the appeal waivers on enforceable then every man is the appropriate remedy here