may it please the court appellant is here because the district court committed violations of the law in its denial of the rule thirty five motion brought by the government we seek to vacat remand to a different district court judge the violations of law consisted of abuse better views of discretion and it's relying on fantasies that are not supported by the record material facts that it relied on that really were almost as if they made them up or misread the record in addition the method that they used in denying the rule thirty five motion conflicted with the two stag decided on united states versus parks is the procedure to use i'd like to first focus on the facts of this case which are not really in dispute the government argues that because  complaints are about we don't have jurisdiction i believe that's wrong your honor because when there is an abuse of discretion in finding those facts i mean its core principle you cannot deny anything any court decision on anything on arbitrary decisions and that's what happened here what happened here when you look at the facts that are on cunt tested and the court's decision they don't melt there's something else as if he was thinking of another case so let's talk he was arrested in april of two thousand wealth in georgia where he lived on an eastern district of no new york it's at that the only decision the only issue that's before the court on a rule thirty five is whether or not the defendant gave substantial assistance to the government is that the only question before the court and then of answer that either yes or no then the next question is and should be should there be a sentence reduction yes that's a two step process but not the only question we start with that acknowledgment of for example u s versus scapa which made very clear that the first thing that must occur for any for to be a rule thirty five is the government makes make the motion and that's what the quote was saying and yes we could defendant substantially assisted in to that the district court must look at what we're custom to was five if the answer to the first question is no then there's no ability to reduce the sentence and here the district judge said yes i have the ability so implicitly at least he answered the first question yes he answered the question that he had the authority because the route thirty five motion was filed but he did not answer the ignored many material facts which again you get when you're looking at a whole record you need to look at everything such as all the substantial assistance from day one that appellant did which didn't cooperate gain a cooperate against the west and destroy of north carolina which was the companion what's the rule twenty case that came from the western district north carolina with the cooperation occurred that's just not correct from day one and it's uncontested that when he was arrested he gave up his computer his telephone he looked at photographs he named names and that information was immediately  communicated to the western district of north carolina sending six people to jail on his evidence did absolutely and in fact prior to sentencing he testified before the grand jury and there was a letter written that what judge gleason had before him by the way a western district of north carolina by the eastern district of new york prosecutor saying look you know this agreed that all of those facts were before district court and the court recognized all of those facts and if the district court then did not reduce the sentence no appeal would lie isn't that true well your honor i'm not sure about that i'm going to tell you why first of all judge johnson said no for example he said well everything was before the court and no five k one point one motion was made well of course it was in may we didn't have a cooperation agreement and in fact the letters before the district court from the prosecutors as well as myself said look this investigation is continuing in the western district of north carolina judge gleason anticipated that rule thirty five as well as the prosecutors in the eastern district new york and said so  he didn't have a cooperation agreement he had begun to cooperate he had begun to proffer will of the milieu with that process and with so three weeks that's all three weeks he was out on bond there after the eastern district of new york said we're not going to cooperate you and as the east and the prosecutors said in his sentencing memo there were two fact is the fact that he committed during that small three week window continue crimes i don't  the district of new york did not or for him a cooperation agreement but in addition their investigation into the crime they were investigate and wanted to prosecute in fact was taken up by the by brooklyn by the a da in brooklyn let me make clear one thing before you leave the podium isn't it true that the sentencing judge said all this was before  judge gleason and it couldn't have been because judge gleason left the court before the corporation took place yes that is accurate thank you thank you then we'll hear from the government five proceeding there is no jurisdiction for this court but the challenge is wrong facts water for a judge johnson had confuse this defendant was someone who was a mass murderer and sentenced him based on that with that we would not have jurisdiction to look at that i think that there is some sort of basis we not have jurisdiction to look at it if there was a just wrong i do think that there is some sort of baseline  complete disregard for the facts that might give this court jurisdiction just based on an incorrect understanding of the facts is that sense not in violation of i think that it might be but here the there is no sort of very erroneous factual findings that would even constitution was aware of this when he couldn't have been because he left the court before this cooperation took place is that correct you're under the direct could you just have to question i don't think it's exactly correct and i will i will answer it so what was before judge gleason was almost everything except didn't know about the fruits the cooperation isn't there that know that six people would be convicted that's correct he did not have that piece before him and i'll note that if you take a look at judge johnson's opinion he does know that you know the government's moving papers it's acknowledged that it was aware of all of these facts at the sentencing stage and then he goes on to address that extra piece those six people who were indicted and convicted in north carolina opinion but he did acknowledge that he was not impressed with the fact of what happened in north carolina given the whole history of cooperation in this case which is that he only gave up and there's this finding that he only gave up the six north carolina defendants after committing these additional crimes and getting caught doing so and i just want to make it clear for the record that the exact timeline of when the six specific north carolina defendants were given up is not in the record and a district judge has discretion under will thirty five to consider various factors but i i don't think it can be expected to consider factors that weren't even put forth to it true that that happened after judge gleason left i do it is true that the fruits of the cooperation here in terms of what happened in north carolina to those six defendants couldn't have the government's moving papers it is acknowledged and then he quotes that judge gleason was aware of all of these facts at the sentencing stage and certainly as well as all of these facts what is not correct and you know defense counsel had an opportunity given that this was in the moving papers to address that statement with the district court and i think it was clear to everybody that all of these facts refer to all of the facts that occurred you know when judge gleason was presiding over this case the six defendants in north carolina and that's in the order that comes immediately after the statement about what was before judge gleason so again i think that you know nobody disputes here that the source of jurisdiction is thirty seven forty two and that given that there is no i don't think that there are any what is the government's the standards that you are sponsoring that that only if it's an agreed just there are a factor we have jurisdiction but if it's a minor error of fact i don't is that the the position i think that the line that can be drawn from this court's cases on section thirty seven forty two  that and this is from campo the second circuit's decision in campo our task is not to question the merits of a court's discretionary judgment about the propriety of a departure but simply to ensure that the court actually makes the discretionary judgment that the law allows and district judge substantively misunderstood the case before him and i think there could be a lack of discretion with judge johnson was was in fact mistaken as to what was before judge gleason that he thought judge gleason ha x x y and z and that was wrong would we not have jurisdiction to hear that and that was important to judge johnson i think that that's not this case when we have jurisdiction to hear that case is what i'm trying to figure out what the government's position i'm not sure that that would evidence such a lack of understanding that the district judge would not there be still exercising his or her discretion so i do think that there is a set of facts that if he you know thought that the mass murder had happened but this case is is not about that it's just a and of a personal identity theft case the line you suggest is hard to draw we have to look at the merits in order to draw that line and you're say we don't jurisdiction to look at it so that's difficult i think it's sort of the same line that this court always has to draw from appeals of rule thirty five motions which can often be difficult and that's why in some cases you know this court has held that a defendant not even entitled to any statement of reasons whereas in other cases this court has held that you know there was a certain lack of process that entitled the defendant to an appeal and so the defendant is merely arguing i don't like the sentence the sentence is too high that's probably not a violation but if there is an alleged error of fact the argument is the sentence is imposed based on began cooperating with the rest of district of north carolina there's no evidence in the record that that's correct isn't true well i think that the statement was a little bit more specific and that it is the district defendant was incarcerated and so it would have been quite difficult for them incarcerated when he went to north carolina and committed some of the fraud while he was incarcerated so that's not the distinction he was incarcerated when he went to north carolina your honor he was incarcerated during the entire period of his cooperation some of the fraud when he was incarcerated he got out he was initially released on bail in the eastern district and during that short period when he was released the district judge notes fifteen days after while he was out that's when he returned to his fragile and conduct in fact the same scheme so i do think it's a very fair inference from the record that he came to the table with unclean hands and sort of all the other things that judge johnson stated his opinion the the fact that judge johnson says that he comes to the table with unclean hands anybody who's been practicing lawyer in the district court knows you don't get to cooperate unless you're an offender and so therefore in the sense you've committed a crime a crime in which you can give him information so i think it just doesn't make sense and that's why it's a misstatement it's just not reality and the fact that he came to the table with unclean hands is the fact that of course he was an offender and it wasn't without intermission in fact the eastern district of new york is very specific and it's  the complaint in which he pled guilty and it was not while he was out for three weeks it was like for a week period that this offense and it didn't have to do with the western district of north carolina which he's always been held to be very truthful exceedingly helpful in their prosecution which they say specifically without appellant they could not have gotten the inside person of the scheme they have that of course was so vital so it makes no sense you know it's offending to say that it is true that he was seeking to cooperate in the eastern district of new york as well as in the garage when he first got out yes that is true and the good while the and while he was doing that declared cooperate it may have some unclean hands at some point during his attempted cooperations plural yes but not as to the western district of north carolina and that's the distinction i would like to make because he can he began to cooperate with that immediately and there was never anything that he said was not truthful and the eastern district of new york did not give him a cooperation for that reason but in addition he was severely punished of the things he told the eastern district of new york which was much of what he said and was very and that there was a decision made that new york state would carry the prosecution that they had begun i must say that in my experience people time times cooperate is don't tell the truth for the first time and yet and commit crimes and yet i've seen them on the stand or i've been their attorney and cooperation continues but what i would like to point is the policy statement here when you have an appellate like we have here whose rehabilitation and twenty one college credits while he's incarcerated five years of cooperation so we would be asking for the two years we asked that it be sent back to a different district court judge thank you thank you