came out in december of two thousand nine hundred which states that record sharing conspiracy is a guidelines crime of violence if the predicate is a crime of violence i would focus my argument this morning to whether the appeal waiver and i know that appeal waivers are typically ironclad but i would say that in this particular instance how an individual is sentenced whether an individual sentence correctly is that is goes to the fundamental fairness of our system and the plea agreement itself contemplates that is the guidelines range is incorrectly calculated if we receive some new information that might change or adjust the guidelines arrange if there's new if if the defendant is not being to be a career offender and there's new information that comes to the parties that dean to defend to be a career ender the parties agree  that the guidelines range would be changed so i think we have seems in vichy in other cases the city you've proposed so if there is some decision that  because that that the court make that particular carve out in this particular in this particular case and would be good there is because the sentencing enhanced me with respect  yes mostly yes that's that's correct drummers i would i would simply argue that in in this case we're talking about a defendant status as a career offender the enhancement is is is so serious is so significant to a defendant that i think the carve up should be made in this instance with respect to what he kept in one sense you get a benefit because the sentence imposes one hundred and twenty months substantially lower as i understand it  months left on a sentence from another case and yes i would agree with that your honor but and i guess a lot of this may be academic exchange for that appeal waiver mr santiago had two counts one in our conduct count with a ten year mandatory minimum one a firearms brannigan count with a seven year mandatory minimum consecutive sentence dismissed against him in exchange for his pl sixty months plus there was sixteen months to run consecutively to another case your honor and that's why it ended up being one hundred and twenty dollars at the net effect the judge was taking that into account for the the pharmacy burglaries case that this defendant was already involved in but the evidence is clear that that waiver because it was knowing involuntary judge could probably allocute the defendant very carefully twice during this plea agreement proceeding to plead our future proceeding to ensure that he was aware of the  waiver of his appeal rights and specifically came back to another nd occasion on the issue of whether a concurrent or consecutive sentence would nevertheless still waive his appellate rights mistress ideology advised that even if his sentence was consecutive to that other case he was us points to that section of the plea agreement to say he that permits his client to bring up new information that provision allows for the parties on either if they learn of criminal history that was unaware the government often finds out for example that a defendant has a youthful offender conviction that was sealed and the government is unaware of that conviction comes out when the probation after prepares the pre sentence report then either party under that provision is entitled to advise the court and say despite the stipulation that we've agreed to in this agreement we can argue for a different number because we have learned subsequent to the entry of the plea that the guidelines should be different for the objective fact of appealing also allows for your information in the form of the new decision the decision by this board while you're on that would be squarely and consistent with the expressed language of the appeal whatever itself the appeal waiver is intended to take into account any way that the judge gets to a sentence at or below the stipulated range it covers the waterfront of guidelines calculations that covers the waterfront of any arguments that might be made what the defendant is knowingly giving up is any appeal of page five of the appendix that the provision is binding on the parties even if the court imposes a guidelines analysis different from that stipulated to hearing and that any appeal of a sentence that is not for closed by this provision will be limited to the portion of that calculation that is inconsistent with the stipulation that applies whether the term has to run consecutively or concurrent and i intended to cover anything that relates to the implication of the sentence the point is that the defendant is getting the benefit of their bargain which is if i get a nd black actor below this then that's what i asked for and the government is supposed to be getting the benefit of the resolution of the case and no further litigation by among other things dropping to very serious counts that apply in this case might be more accurate more would say it's probably implied your honor but the provision again is i think better understood to be driven toward correcting any misunderstandings factually about the criminal history of the defendant the criminal history is not something it's bargain over between the parties it is an objective fact if more information comes to light that defendant has criminal history that was unaware of the parties were unaware of at the time it would be inappropriate for either side to try to manipulate that process and pretend that those criminal history categories didn't exist and that would go both ways if there is something on the defendant's criminal history that turns out to have been expunged for example the defendant would get the benefit of that recalculate so i think that's really the best way to release to the extent that the court is concerned that the sentencing guidelines crime of violence under section four b went on to if the underlying offenses are themselves crime or via the underlying offenses here are three robberies the defender was charged with a racketeering conspiracy that involved murder new york state robbery hobbs act robberies obstruction and narcotics the three robberies are all new york state robberies this court has held in moore and created gomez that new york state probably of any variety both attempt and substantive is itself a crime of violence because hob black is just new york robbery plus interstate commerce and i would do what i would like your honour's to consider is that the career offender status polls on my client does not apply if he were re sentenced maybe possibly the district court could would see a scene a different guidelines range lower guidelines range may impose a reimpose ill will or sense even though the sentence that my client received was beneficial given the circumstances given the criminal history on i think that  there is a meritorious claim here i think that these how objective robberies which were discussed in the in the government's brief the government the government  robbery was broader than the generic version of robbery and the government rests on the fact that they believe that extortion is at the the extortion part of the guidelines the government ignores the fact that the generic definition of extortion to obtain something of value from another with his consent induced by the wrongful use of force or threats does not