james failure how a day that we tired prosecutor and now court appointed for this case to the federal public defender's office as a c j a panel member may please the court the facts of this case or clear and the case reduction prior to his sentencing hearings the grand in any case is one the court brought to my attention i did not have it originally in my brief to the court i find that case clear and compelling in that he had gone to trial well actually he had prepared to go to trial and then went to a plea hearing and then a sentencing hearing twice for the first time a new group of prosecutors came in did not advocate the role reduction he was sentenced harshly to two hundred twenty two months in prison the government on appeal confessed that it had not abided by its plea agreement the second time he went back to court with a different attorney and with the original prosecutor for the government who had sponsored the plea agreement he once again did not receive the benefits of his plea agreement instead of supporting a roll reduction which was allowed mr c s to then qualify for the safety valve provisions and therefore be sensible of the mandatory minimum threshold of ten years the prosecutor inform the court that after the plea agreement was originally reached that the government had found out new information about mr christie this and that they no longer the government no longer believe that he was a minor participant or deserve a minimal role recommendation doesn't the government have continuing  ethical obligation to present to the court all the relevant facts it's it does your honor point questioning by the court it was not the government was not questioned by the court those were two of the statements made by the prosecutor so you're saying the answer is no with if the court hasn't inquired about it the government does not have an ethical obligation to come forward with significant relevant facts yes your honor the primary ethical obligation here was to support it contractual agreement in the role reduction that was sponsored within the police supplement to the remit and i mean it sounds like i don't mean to be giving you a hard time but i want to be sure what your answer is so your answer that there's no independent and separate ethical obligation on the had a more demand on this role the ethical obligation of a prosecutor is always in any of the court is always to be completely candid to the court with any questions the court mascot however the president of this circuit obligation i'm sorry i don't understand where you're coming from that's a go obligation here was for the prosecutor support his recommendation for roll reduction but they were reduction was based on an iranian fact so that would be misrepresenting the facts to the court misleading the court i think be the answer to that is the prosecutor prior to any hearing such as this case the sentencing hearing if  the prosecutor had learned new information concerning the defendant the options of the government at that point was to withdraw the plea agreement and offer another point agreement based upon the new facts or take the defendant at trial the ethical duty of the prosecutor was not to go to court and then support something different than its promises to the defendant that's what happened here whose case lower statement over the rand statements and a lot of cases against that the withdrawal of it no statement that the prosecution thought there was no longer to be honored by the judge and then explain the facts as they knew them at the time he said there was no other option before the hearing  are you saying that e d negative information from the prosecutor that was not understood at the time has to be either withheld of the plea agreement withdrawn or is it is that the matter of degree was it the seriousness of what was the new information that creates the problem because we are looking at fairly difficult situation here when it is effectively the government no  longer supporting the plea agreement and when is it just providing other information the issue that the court brings up is well taken i think if we look at your decision and sailing you'll see there where the prosecutor  during the during the sentencing hearing had obtained information after the plea agreement and gratuitously provided that information to the court the same as happened here with mr a c s the court and sailing ruled that in fact that was a breach of the police agreement you can also look at harper your honor and harper it went a little bit farther where the prosecutor was actually became an advocate for the p s r guidelines sentencing range which was in direct opposition to what the plea agreement called for so looking at sailing and harper in those cases those two together combined with granted netty expressing reservations all three of those things occurred here with the government and mr casinos is sentencing and in the minos case which was cited in the government's brief this was first circa two thousand and five our court said that there's a this is a quote duty to provide the sentence in court with relevant factual information and to correct misstatements what is should we make of that case i think that duty does exist roger but i think the primary duty if the government has agreed to make a recommendation to the court for sentencing that the government stand by that recommendation was taken had taken the position that something like this was going to be presented to the district couper learned after the fact no bad faith or whatever that after the fact that the government has to go to the fin and  withdrawing or green jacket where you stand otherwise the court can't be told about all of that would be that according to the case all that would be the prosecutor's option prior to the sentencing hearing if the government bans on not coming forward and not telling the government everything about himself and therefore not qualifying for a minimal role but actually playing a much larger role than the government at that point in time when they found out that information could have said mr  the plea agreement and withdrawn it and taken him to trial or offered him a different play based on the new information the critical element for the court here is to review the case under the factual scenarios presented to the court within the record is that the breach of the plea agreement is through the eyes of mr to see if the defendant what was or his were his reasonable expectations his reasonable expectations were that even if the prosecutor was candid with any questions from the court the prosecutor would still in this case the government would still stand by its recommendations so even if the court had inquired and the government responded about his increased role the government still should have advocated that he in fact deserved a role reduction in the government's opinion instead the opposite happened the prosecutor informed the court that it did not believe he played a minor role and in fact it went even farther by sponsoring a dea agent to put on testimony showing what a larger role mr casey is it actually played based upon that information to the court the judge sentenced him by denying a minor role and by denying him the safety valve it is not the prosecutor's position to support a probation officers recommendation or analysis of the case the probation officer is an officer of the court is allowed even ex parte communication with the sentencing court the prosecutor the government is a separate distinct entity and should not have involved himself in this case with supporting harsher recommendations of the p s r the prosecution has stood by his original recommendation based on mr purcey is expectations that he would receive a minor role reduction that he would qualify for safety valve and be sen much less our sentence that's the standard in the rulings of the cases under random netty sailing and harper wasn't or wasn't there something specific in this plea agreement that reserve the government's right to inform the court of all relevant facts was that in the plea agreement no not that i recall your honor it was not it was if you look back at the plea when mr purcey is was in court there were statements made by the prosecutor that they would be making a well we ducked and recommendation to the judge when he entered his guilty plea and judge it and asked mr purcey specifically are entering your plea based upon those recommendations by the government as a minor role recommendation in mr christie has said yes that's exactly why he was entering  but judge with was talking about in the plea agreement was the line the government had the right to advise the district court of the nature and extent of cassius is the finished activities with respect to this case and all other of his activities which inquires into any further detail but i don't disagree with any of that i'm not all being argumentative with the court all i'm saying is that the primary duty of the prosecutor the government here was under randon any sailing and harper not to express reservations not to provide any information obtained after the plea agreement unless the court simply inquired and certainly not to be an advocate for the p s r guidelines that were not in accordance with the original government firmly says he did not have a minor role he was a significant player i'm not saying that you had an ethical obligation to hide or you could hide that information to the judge what about this other option can you go in t court on a plea agreement where you grade just to make this recommendation then and all facts and purposes withdrawing that recommendation when you're talking to the judge what about pre sentencing is out willian option doesn't go back to the defendant  could get the benefit of a prosecutor standing for the court and making the whole recommendation the judge accepted that the government was making that recommendation defense counsel except as the government was making that recommendation the defendant was was pleased with the result because he got a sniff of the lesser sentence on remand the prosecutor in this case did get up and in addition what was in the business report which incorporated the recommendation in the pl unnecessary in the context because the judge already knew this information was specific statement you think was i don't think the judge would like the prosecutor needed to say anything more than we said we follow up we make the recommendation that's in the plea agreement for confessed the defendant's role that was record of t seventy seven it all carry a lot of weight that the united states is willing to admit that it's not always less that's record of the seventy nine and the judge at the end of the day said the government has stood by the recommendation and that's record  two ninety three so you know points out that the government did sponsor a witness that witness went to the issue of the safety valve of the government didn't make any argument about the role or direction based on the testimony which the government obligated to make a recommendation some judges are willing to take the recommendation of the prosecutor and they don't shoot it settlement between the parties and that's all that they really want to know about now this defense this this this was  determined to contain text messages indicating some communication with the source of supply in mexico that's record three seventy eight that was from the first hearing the judge with are you aware of that situation and that was not the product of anybody advocating on the on the road option issue that wasn't addressing the importation issue which you see is his lawyer disputed in the first hearing so at no point did the government advocate any position other than what was agreed in re man and the judge having heard a lot of information i think that i think the prosecutor was just acknowledging the reality of the situation but he was not backing away from the recommendation never did back away from the recommendations of judge said he stood by the recommendation and of course it was incorporated in the the percentage report it was a non binding recommendation no that all just goes to whether there was any kind of error in the situation that needed to be corrected and then we don't know we've now we get to move on because nobody letter as requested on the ground in any case and you indicated that you thought the law had changed since granularity obviously that's that's a case that's that's four years old so it's been better around a while of the recommendation it was not really the recommendation of the prosecutor who was before the court at sentencing it was a different prosecutor was a little bit like i'm just asking you about how the how the law has changed or not about the other aspects of granting any other the  case it does say that there has to be a showing of an adverse impact on substantial rights and to prevail as your honor the gist was that in that he brought a case because he is more show that but for the air he would have received a lesser sentence and that's also  finding cannot be based soley on a recommendation in the plea agreement when there are other facts out there that may be contrary to the government's recommendation that's a record it to ninety five so even so regardless of the guidelines that's record at three o six so there's no reason to conclude the result would have been any different regardless of what the government had to say and they finally had a player view you get to what the the the test your orders is not what judge the judge did or did not do or what the prosecutor thought or may have thought or what his intentions were the core issue here before the court is whether there was a breach of the police agreement and certainly mr cleveland points out that there were no adverse effects which is one of the requirements under the plain error doctrine all the adverse effects were clear  was sentenced to one hundred sixty months when if he qualified for minor role participant and therefore qualified for safety valve with no prior criminal history he would have received one hundred thirteen months so that's thirteen point three and not here the prosecutor himself tell judges or them that they know that he the prosecutor no longer the government believed that mr to see this was a minor participant but played a much larger role both of them rang that bell and that caused the court to focus but that's not to test the test from this circuit is underground aneli if the prosecutor expects reservations there contrary to the point you agree that then the case must be remanded back the would overturn a new sentencing hearing sensing hearing held in front of a different judge and the government required to specifically stand by its plea agreement the test under sailing that was a two thousand case in which information plea agreement was reached was provided to the court the court there overturned that judgment we manage it back for sentencing in accordance with the police remit in front of a different judge and then harper in two thousand and eleven decision from this circuit was where the prosecutor advocated for the p s or guideline range which is what happened here when the government sponsored a witness which supported the harsher view in the p s r from what the police agreement for which was a minor role under the president of this circuit this case must be overturned the judgment bake a good return back to district court from a different judge and the government required to enforce it agreement thank you mr howe day thank you just as you indicated your court appointed and we wish to thank you for your good service you've done a good job and in the face of tough questions question from the court you've done a good job as an advocate for your client and we appreciate your willingness to take the point i felt i was a very poor vessel to carry the water here today to her but i can specially gets my childhood friend mr cleveland and i'm honored that you would say that to me thank you jasmine he south