there for the two d one point one drug quantities don't automatically convert into the career offender context what we're in argued however was if this case involves seventy six point one grams of powder cocaine as opposed to cra i would be looking at a sentence of twenty years without the government falling the age fifty one no if you correspond that statutory maximum to the crew offender guidelines my base offense level with instead of being a level thirty seven it would be a level thirty two with my two points of rigor of acceptance responsibility i would be at a level thirty and looking at a guideline range of one hundred sixty eight to two hundred ten months the government countered that blake not powder cocaine then stead of looking at a twenty year maximum for his offense he would be looking at a thirty year max and the only way you can get from twenty to thirty years under the drug statutes title twenty one u s c section eight forty one is through the effective filing of an eight fifty one no less and i would submit the court that's effectively what they did they brought the quote sentencing consideration the prior conviction they have promised that they would not use to increase his se they promised they would use it or they promised they would file well you're right that the language since is laid out in the plea agreement it's not very long the united states agrees not to follow information pursuant to twenty one u s c section eight fifty one stating prior convictions as a basis for increased punishment well how can a promise not to file it mean and we're making reference to it will pretend that all that other stuff doesn't exist i'm not saying that they couldn't make reference to his prior conviction i an eight fifty one and then they literally follow it no but they didn't have to they got the effect that they needed without following it convincing the district court that if this were a power offense that it would face those elevated statu government because it is the drafter and because we enforce the rule of law and because the defendant is giving up so much because of the vast disparity in power that the government has negotiating these agreements and because our our reliance on things if we don't have proving it's a federal criminal court in this district and then we shut down i mean we need to have plea agreements and we need to have defendants who can believe in the promises that the government makes in those plea agreements and they can't be allowed elimination of the crap out of disparity in this case third circuit precedent demands that it would go back before a different district court judge that's just simply the law from santa bello and this is that this court's precedent on but that that is what he wants in this case us to import into this written contract all sorts of covenants that aren't there the covenant is we won't file and there's no doubt they didn't concluded that the analogous guidelines provision would be to tend to sixty two so the court agreed with the government if the district court says it specifically i thank you for that information and done whatever it is that it shows and if the court did that that then i would have no argument independently but what i am arguing your honour's is the court was convinced by the u s attorneys  argument and argument that actually misstated the law when pressed this was something that you could tell was troubling the district court because he wasn't sure as to whether this would really be that the right numbers it's kind of a complex argument and he asked the court is mr cogan right in fact and tended to sixty two and the port explicitly found it was too ten just to sixty two when it made its ruling that that is plainly in the record is that it says two tended to sixty two and from there it fashion the appropriate as cooper responsibilities on the responsibilities it's call responsibilities to do a guideline analysis and determination so there's nothing in the plea agreement that says to the district court we're taking away the responsibilit sentencing judge you do what you're required to do to calculate a guideline sadness and that's exactly what the court did here i would also point out that also was well aware of the government's position with regard to sentencing fire sentencing but never filed a motion to withdraw leave so it was never a request to withdraw this played no matter what the remedy requested here before this court i'm a little interested right talking about rights at any time during the process and obviously right to an attorney was not specifically stated and how you can use that catch all phrase light and have the rights at any what we go in turn in the d a s office the following summer and i remember talking to police officers who are now in this revolution that changed their lives as police officers so i do but since you hearken back to miranda marimba clearly talked about the end having the right during interrogation actually not exactly and the reason i say that is you disagree with the quotes in how from miranda i don't disagree with the quotes from justice ginsburg goes back and says what about miranda you know we have to go back to the classics a little bit with go back to the original iteration of what miranda told us and one of the important things that she found important was that the f b i was statements of rights was looked at by the court and ran as consistent with what we are deciding to that and the importance to me of that was what she found consistent and what she really emphasized that your argument ali was that the importance is that the right to counsel be not modifier before with no catch all as you have and how and no whether at occasion for the person who's receiving right now i know the context of this case is not the deciding factor but i would just point out here that we do not have a freshman you know it in this presentation of the issue because mr warren when he was asked you want to speak you want to talk sergeant begay says i had to slow him down he wanted to talk i had to tell him i understand that they're fair enough he's a problem but so is the sergeant and there at the station house he court would not want to hear argument if the card was read and it contained the additional words with regard to during our presence or for those words i would point out that there are cases in that footnote and footnote n one justice stevens dissent where the placing of those words during present raise other types of problems and issues in those cases and frankly i read  those cases again the last few days and most of those cases have other problems and absolutely i mean we're all worried and in those cases and now about various iterations of what fairly straightforward if you pick up the car  right so i recognize that this is this court's first florida versus power situation to look at and i would suggest however that the important thing that justice ginsburg limitation on the right to counsel but isn't high isn't the catchphrase the solace that she looked for and that she found i thought is not here i think it is here to us to a certain extent the question is if it is the should you decide to talk to me you can stop a question any time i think there was an implication there just like justice ginsburg said it would be counter intuitive to suggest that a suspect in custody hearing those words would believe that he didn't have the right to counsel during question but she relies on the fact that and there is this statement you have the right to use any of these rights right therefore i mean that basically says every write i've told you at any time in the continuum you may invoke it and knowing that you're covered and excuse me if if if we agree that power is the most recent iteration on this and that it speaks to the very issue that's concerning both of us as we try to grapple with this that when i look at the language used by the sergeant here should you decide to talk to me you can stop the questioning and then and any time doesn't inform me with regard to the right to an attorney and then another shock after he's been fully inform now i don't want to agree to disagree because i want to continue to to grapple with this but as you look at the the different circuits that have address most that have addressed the jury have found the absence of that language to  this is the minimum that has to be stated what powell says and what justice ginsburg writing him how is that this additional language adds to the totality of the circumstance in which to determine whether or not a reasonable person hearing these words would understand that they have a right unfettered right to counsel and i suggest based on the the wording here the district court analyzed the same cases that the justice ginsburg did i saw and of worth and analyzed and said we don't analyze just like a conflict a plea agreement we don't analyze it that way we analyze it you know i took  court and the supreme court said that additional language which may have been somewhat off line did not they happen the general of the statement that you have an unfettered right to counsel and i think that's what i would emphasize i think that's what justice ginsburg emphasized i would love to have the words during or present and in in the in the statement that was made to mr warren is my is your is your position that having before a spring and and then evolving and disappearing right to counsel and there's not a moment right because i think there's a there's a there's a feeling of a sea of a right to counsel that just extracted from this statement that's made to mr warner again i recognize that because he said not a freshman and because he's eager to to to speak he wants to make a deal he wants to  just briefly are i think the court is is correct in the position that you're taking i think the inference i'm not taking a position i'm asking question well i bipolar size you're right i think i would think but but but the question that you're asking yes you have the right to talk to a a lawyer before the interrogation but it implies does it not that once the interrogation starts that that that right no longer exists short can you stop the interrogation and go out and speak to the lawyer i thought it says you have the right to an attorney but my reading a wrong right that if god told him that he had the right to remain silent anything you say can and will be used against you in a court of law you have the right to an attorney if you cannot hire an attorney won't be a point to represent you have the right to an attorney is what warren was told that's correct there's the right temporal limitation on that empowered how was told you have the right to talk to a lawyer before right so  the response of the government i i think the language created that that inference that that he did not have that that that right to counsel that during the interrogation you have a right now with it so you want to read you have a right to an attorney to mean you have a right to an attorney at some point in our discussion but not throughout our discussion that is a reasonable objective inference that the defendant if you could have taken from the mirand supreme court case that the language is it's quote a page twenty eight of my brief and as quoted at that at the record as well as again you are the point that in just to respond briefly to two points that the government raised with respect to the plea agreement are the first is that what was the issue in this case at the time which i'm sorry let me let me just get through one threshold issue on that before yes we here use short so tell us what you want to say there it was your was there an objection to the little rudimentary calculations of that sentencing guideline based upon that no there was all right because i disagree that his guidelines ranges to ninety two to three sixty five literally and then you go to sentencing and you put forward all kinds of good arguments as to why under kim bro etc and spears in spears you should come down off of that yes and the trial judge agrees and gives your client to sixty eight excuse me to forty kimberly spears that that's too high this is crack different yes opportunity to come down trial judge agrees and goes downward to two forty eight that's correct forty two months forty four months below the bottom of the guidelines yes and your argument is that the government violated the plea agreement covenanting not to file any fifty one because in arguing what a reasonable maximum of thirty were applied and that is an appropriate maximum it would produce an advisory guideline range with a base offense level of thirty to two hundred ten to two hundred sixty two months the court agreed with the government's argument and the government's argument making that argument convincing the court of that position violated to promise that was made more and not to make that argument not to use a fifty one increase his his his is his sentence that was what he drew from that that's a reasonable in