employer for permission to plead guilty which is we believe kind of ludicrous but that's the nature of the rule that's rule eleven we gotta live live by it so the question is can we waive something that is really not existence now i take a look at the agreeing that the contract the agreement was proffered and prepared by the government and of course under the laws of this circuit of the united states supreme court documents are interpreted pursuant to contract law or construed against the maker in this case the maker is the united states government if you take a look at the waiver issue there are a couple of paragraphs concerning waiver explicitly reserved for the only issue that was in existence at that time which was the motion to suppress it that's contained in paragraph sex if you go to paragraph t and that's the clear language of the agreement however if the court reads further on in that agreement the remedies by the government are limited in that case and the remedies that are suggested by the paragraph have not been brought into force by the government there is one remedy and only one remedy available if we do appeal and that remedy is if the defendant files a notice of appeal notwithstanding this agreement the defendant agrees that this case shall be remitted to the district court to determine whether for driving while under the influence of intoxicants he didn't even get a sentence for that he got probation sentence mr rodriguez was an able to manage probation in that case ultimately his probation was revoked and he was language that the court uses when they sentenced mr rodriguez when he since mr rodriguez the court was clearly perplexed about how to deal with this issue i think the court wanted to clearly to set in simple low the statutory minimum which we have to gesture and pushed hard for mr rodriguez simply because his criminal history was clearly over represented in a category two in history category one and therefore become safety valve eligible pursuant to the statute well what is it that supports the proposition that the safety valve eligible to be considered after the court has made adjustment it chooses to make whatever departure it chooses to make from from the guidelines i think we have precedent that says that calculation comes before the court makes any sense you just me that's correct in the court clearly said he didn't think you have  authority to make that adjustment what i want this court to say is yes you do have the authority to make that adjustment and send it back to him so we can enter his discretion before he makes that decision that you're talking about and what's the basis for saying that we have the authority to do that and we have precedent the size of the country well you have the guidelines the guidelines clearly say over representation of criminal history the court should consider downward departure for the criminal that's what he wants to write if he thinks we're in which i think you would think that it was clearly an overrepresentation then the court can tell him he's got the authority if you wants to to consider the the over represented criminal history to consider him a category one to pursue to pursue a sentencing pursuant to the safety valve exception which would i think substantially reduce mr rodriguez the sentence maybe by as much as twenty or thirty month