please the court to be in a chant on behalf of caesar read rodriguez i'd like to try to reserve two minutes rebuttal this appeal raises three sets of issues a breach issue a judicial participation in pleadings questions issue and several sentencing issues of like to start with the breach issue and then if i have time turn to the sentencing issues the government reaches its plea agreement when it refuses to defend the agreement to the court and make statements whose only purpose is to t had gotten a much lower sentence on a more serious charge why wasn't a strong defense of the plea agreement i think that actually was just answering the court's questions as to whether or not this particular defendant could have been charged with a felon in possession whether he was responsible for being the judge asked you know he the judge said well the p s r says that if he had been convicted of the felon in possession that would be eighty four to one o five did you ever consider charging him with that so that was required you know in candor to the court because my client fact did not possess firearms but when the judge asked the prosecutor specifically to defend the police cream to say is there anything that you can say that would get me to accept this plea agreement she did two things she first mischaracterized what the plea agreement even called for she then said i really can't say anything for or against a plea agreement when of course the clear agreement required her to say things for the pl agreement and prohibited her from saying things against it and then third what the what it did she did was basically agree with with the the court that given the unduly lenient sentence in state court that the was probably too low there was really no reason to make that statement except to communicate to the judge that she agreed with the judge that the sentence was too low and under the ninth circuit's case law when the prosecutor says something that has absolutely no purpose but to encourage the judge to impose a sentence higher than is contemplated by the plea was a clear breach this is a sort of unusual case because the breach came when the agreement to answer the judge's question yes absolutely yes and the mammas yes so the question here was is there anything that you can say that would incur you know that would put persuade me to change my mind so it would have been an honest answer to say for instance since i want to consecutive sentence i agree that the state sentence was too low that's why we reserve the right to argue for a consent so your sentence but we have agreed that a sentence twenty one to thirty months is appropriate for this case and we encourage the court to accept it can't can you point to where in the plea agreement the prosecutor has to argue for it and not just argue against you know the plea agreement is a little bit of an no i understand they can argue against it but where do they have to argue for it ok on page seven the parties agree that the sentencing range these are appropriate so i think that construed against th that means they have to argue for it but there are plea agreements that say both sides will support this agreement or have other words that suggest that the prosecutor is agreeing to support or argue for it this one seems different to me it doesn't say that this is an eleven  and eleven c when see what the government agrees to is to argue that or to take the position that this is an appropriate disposition of the case and so on what did they say that suggest that they thought it was not appropriate i think that the the worst thing it said really was on page twenty five when it said with respect to the state i think the state did it completely wrong especially with the charges that he was looking at and just how serious they were to run the two  wrap them up but other than that i can't fix what the state did and other than that i can't argue for or against you accepting or rejecting the plea agreement right so what is what what does that convey that arguing against this is i can argue for or against well argue against but it absolutely can argue for and when it's conveying is that it feels that the state got it completely wrong and there is absolutely no reason to communicate to the court that the state got it completely wrong when the court has already just said i'm going to give an above guideline consecutive sentence so the sentencing position paper the court that the government made it perfectly clear they want to consecutive sense that i mean i would have another argument that the court shouldn't have considered the state sentence but that's isn't that a different point than whether they're arguing for watched the federal sentence should be absolute no i don't think so at all because what the government what the court was saying basically when the court was saying the sentence is too low is that in light of the sentence that was received in the state sentence this sentence was too low because you know that the first thing the judge asked was was was he a felon in possession and that the government correctly said no he wasn't a felon yes and then the court said so what is it that required them later to go back and say judge i want to remind you what i told you less than five minutes ago which is the great difference between this guy and the other guy well i don't think that he was actually she was required to do that i'm not complaining that she didn't say oh you know the other guy was much worse it is interesting though that she told the the judge that the other guy got four years which was not accurate i got twenty seven months that was interesting i'm not argue the judge presumably had those  harmless or right that that is not what i'm complaining about what i'm complaining about is when the judge asked is there something that you can say that will encourage me to accept the plea agreement when when a defendant enters an eleven c one c what they've bargained for is for the government to say what i can say is that the government believes that this is an appropriate sentence and in the interests of justice that's what the plea agreement called for and i think that was already said by the prosecutor but assuming for the sake of argument that you feel that the prosecutor had to repeat that that would have been simply a conclusory statement what what facts would the prosecutor brought to the in which we are permitted to ask for a consecutive sentance but the sentence in this case should be for this offense and the government has concluded that is in the interest of justice and appropriate for the sentence for this case to be between twenty one and just pointing out really your argument about what you think was a mistake by the judge which is basing her sins in substantial part on her disagreement with the state  sentencing decision which is not a permitted factor well isn't that really the heart of that problem i think they absolutely go together because the court considered that the reason why a higher sentence w warranted the government was obligated not to say i agree that's a reason why the higher sentences weren't i see i've used up all my time and i haven't even started my thank you a little bit about i have one question for you because i'm inclined to think that you're right that there was a breach but because this is plain error review i guess i still find myself running into a roadblock which is designed or stand or cases your burden is to show that the government's the little thing that you wanted them to say that there's a reasonable probability that this record would have accepted the plea agreement and i guess i just don't see any probability that the district court would have accepted the agreement ok that's sort of a couple of things first i don't think it's a little thing to stand up and say we support we negotiated this cream in good faith and we did and we do believe it and we stand by it i don't think it's a little thing in fact that this court's cases say that what the defendant bargains for is a united front and there was no united front here but i think that in this case it's unusual in in that the court was actually asking the prosecutor is there something that you can say that would change my mind but that's why i'm saying it's a little thing what there something i don't know about that you guys haven't told me that it's not in the four corners this and what this court held in whitney which was also a plain era case is that given that this court recognizes that the united front to something that's important that you that you that a defendant darkens for that there's a reasonable probability that if the diff if the prosecutor unequivocally endorses the agreement that it will make a difference but let me  one more thing and i see that i'm over my time and if this court finds that there was a breach but doesn't find that it affected substantial rights which i would like to use my rebuttal time to argue that it does i still think that if this court finds sentencing including the guideline error it still needs to reassign because this court's cases are clear that once there is a breach all further proceedings before that same judge are tainted by the breach so even if this court were to find a breach and not find that it must there's a breach even if it's harmless if you're asking if it goes back it has to be before a different judge in a ready the night circuit sort of chastises trial counsel for act asking for the wrong remedy in that reassign and you order the government to do what it was asked to do and it says and the reason for that is not because we blame the judge for him but just focusing on the breach of focusing on just the if the guideline calculation was the only reason the case was reversed is because of a mistake in the guideline calculation you're saying that under nine circuit law i don't give a darn first based on the breach reverses based on the guideline error it needs to be reassigned because the judge has already been contaminated in tainted by the breach and under night circuit law and already and makes it very clear that any further government good morning your honour's i'm erica mccallum i'm here from the district of arizona and i'm representing the government turning first to the breach question that it was clear here is the government complied with the agreement they government made a recommendation for a sentence that was below the top of the plea agreement at twenty eight months consistent with the probation officers recommendation the only argument the government made was that this case warranted consecutive sentence and the reason for that was that the defendant had been on this crime spree for a series of months and the government was concerned that if he was given his sentence it was consecutive to the state sentence the message it was so why couldn't the prosecutor argue something for the agreement that prosecutors that i can argue for or against your opponent is right certainly can argue against but what can a prosecutor argue for in have to t to the point to the answer to your question because i think we have to look at that hearing in context and what happened was the moment the court came on to the bench she said i'm brit i've reviewed the pre sentence report i think this defendant's criminal history is severely uppers and represented under represented he's very dangerous i'm rejecting the plea range i intend to impose an above guidelines and irrespective of the guideline calculation so mean i know you want to get the wind up but the fact is the judge at some point in the hearing a little bit later said hey i mean maybe i'm missing something here so you know you the government gosh you guys look at the same information i got before me and you apparently thought twenty one to thirty was adequate what am i missing is there something you you know that i don't know about that you can tell me and that's when the response is well i can't argue for or against this your honor that strikes me as a as a plain breach of the least the implicit obligation that the government took on once it signed off of that what the court was asking was is there something behind this plea agreement besides guideline calculation in other words is there an evidentiary issue was the cooperation is there some sort of litigation risk that going to the prosecutor then i said no there are no other facts but the prosecutor was wrong or right to say i can't argue for the agreement i mean that's just a misstatement isn't it well the government did say there are no other facts and so did the defense counsel they both said we really have nothing to add yes it was not the best articulation for the government to say i can't argue for or against that but but what what the law is in this circuit is and we're looking here at the the gonzales case which is the government can't you know give a wink and a nod in support of the plea agreement while making in an inflammatory argument against the plea agreement and that's not what happened here there's not an obligation for the government to say court decided to reject the plea agreement i'm urging you to stay within the plea agreement so because i'm not sure i share the view that there was a breach but it seemed to me from this record than what the government was saying but they said it earlier was the reason we gave the deal we did is because the facts of what he actually did in this actual case where very much less than the coloration that arises from what his sister rebbie are so i guess it was the other guy did it and and if that is in fact all that was behind the government's decision other than the facts relating to consecutive that you've already mentioned then all the facts were before the judge yes and yes i agree the facts were before the judge one clarification that i leads to the question that that i had which is i felt that maybe i missed something i didn't see any real explanation from the buds for years but she's being told and there's no dispute that the other guy is the guy responsible for the guns and the shells this guy's only being charged with possession of counterfeit  money the other guy has a quote his quote his history is even worse than this the fed that the other guy was the guy who tried to run away in effect by gutting the car for a while and all she says is is well it's a different judge different case she's required under federal law  to say to take into account that kind of disparity it's about the clearest disparity you can imagine because it arises from the very same incident and she just says unless i missed it well it's another judge the other case is that sufficient don't we have to at least find out what her basis was for that well i think in your focusing really on the disparity between the two sentences and i think you know under thirty five consider codefendant uniformity because you're in the upper hall that they found it harmless or something because you could have considered it under a want but you and i my time is running out but i think the situation here is the court looked at this other defendant and said it's a different case you sense by a different judge the timeline of that case was different it was resolved before this and it was even charged even though it arose out of the same circumstances the court also looked at the fact that this defendant not only had twenty  thousand dollars in counterfeit money but he also had in the seat with him an airsoft pistol some shells binoculars camouflage clothing and what was clear and they were travelling at two o'clock in the morning in a remote area was that they appeared to be on the way to some nefarious purpose probably a drug rep but if a fair reading of the record here is that the judge even well aware that a the other person charged in the same incident charged with much more serious offenses who had a worse history et was given a twenty seven month sentance and assuming that the reason this judge decided to give a much higher sentence was because she disagreed the plain air standard however what that what the court was looking at here was this isn't it clear that it would be improper to consider the state sentences that i mean you might argue mean that there might not have been an effect on the substantial rights or do you mean that it's not clearly an error to consider the state i don't think that the court was looking at the length of the state sentence as the as the basis for her for for the sentence that she fashion for this defendant the reason for that is what she was looking at was this breed where he had run over his girl his ex girlfriends foot with his car and aggravated assault conviction he had been involved in a carjacking where he in person had a police officer involving a firearm that was the other aggravated assault but she was and her so she stated very clearly this defendant's criminal history is severely uppers and represented and it's not just those two offenses he had seven juvenile disposition between the ages of twelve and seventeen he had five prior felonies including the two felonies we're talking about today four of those involved firearms and one of a involve the car running over the girl from the ex girlfriend he had eight arrest stemming back to the age of eight and what she said which she and i'm quoting here that of court said he is a very dangerous person a very aggressive person with very very serious aggressive fairly recent criminal history and so her purposes were to deter further activity further offenses and to protect the public and she did balance the aggravators the mitigators she did look she did consider obviously the other individuals sentence but her purpose was to deter this kind of conduct not meaning counterfeiting but meaning the violent very dangerous drug rip aggravated assault history while we know that the prosecutor said that the other defendant had a worse history the record does not reflect even including if you did decide to look at the judicially noticeable documents from this other defendants case it doesn't indicate what kind of criminal history he had and it certainly doesn't indicate that he had this recent spree of sort of worsening activity that was not being deterred by prison sentences was i agree with you that the state did this thing completely wrong and other than that i have nothing to say so she did add something does also say though she can't do anything about the state sentence i mean there is a comment we can i think it's i can't do anything about that but there is could do something about that but i don't want to beat a dead horse really because i want to try to address some of these other issues i do agree with judge to a cough that when simply saying different judge different case doesn't come close to explaining why the defendant in this case for last egregious conduct gets more than twice the time and i think it's particularly troubling when it's juxtaposed with the fact that the court seemed perfectly willing to increase the sentence in this case based on it feeling that a truly different judge different case was sentenced improperly and this judge really had no information about the other case except what was in the p s r and what i've been noticing is that facts about other case are even being misrepresented not purposefully right but because we don't know enough so for instance we've heard that my client was impersonating a police officer but in fact he was the driver of that case it was the passenger who was impersonating the police officer not to say that that makes a huge difference but what i'm saying is that a judge heard that case and decided that three and a half years concurrent time was appropriate based on all the facts that that judge her this judge in this case not only ignores the exact same you know the exact same case by calling it a different judge different case but reaches out to a state case and says that sentence was too low i'm going to increase it and i disagree that it's not clear from the record that the judge was  crease it to account for it if you look at her statement of reasons which i actually don't have i think you file them under seal the course specifically says one of the reasons for the upward variance was that there was recent aggressive conduct that was wrapped up with c cooper's been submitted on the briefs so we will now call for pronouncing that correctly versus sessions counsel for that case could come forward