breach i think that we can say that it is a joint strike which was the premise of the actual contract the contract was based on the mandatory breach i don't want to come down on the government too hard because there was a difficulty in so far as the church would simply not follow the joint requests of the parties to continue the sentencing so that the church really further t address that issue just basically we've demands had fine fine fine government do your motion later and then the judge also said we'll have a hearing on that you can make your arguments at the grocery pric sentencing we did not move for downward departure the homeowners he had not provided substantial assistance in the investigation of that point that's what they said that we would have they said that the cut it right there not to say here's a recommendation or not recommendation based on what he knows by the time sentences can put it off obviously the government can't complete the cooperation of the person i mean that's on the government's hand but the government has to make a decision once they said that the rule thirty five was back then we made the decision decided he hadn't cooperated that's with the step i think that's contradicted by the government statements i think that's contradicted by the government statements at the time it's the ongoing the preceding cooperation that agent had been unable to contact the initial d p p an agent so that they had not been able to truly assessed it furthermore you know we really can't address those comm the government in the rule thirty five motion as they are because they're in a vacuum we don't have the response of the defendant we don't have a hearing where the defendant had any opportunity to contest the timing of the cooperation how things occurred when the government had all the plea agreement the government is always held to high burden of proof that's addressed in the reply brief on the argument about waivers the government is really held to a very high standard in keeping it agreement i believe that under this high standard even if you have two conflicting statements you're going to have to look at it and say well at least the statement made to the judge at the time of sentencing indicates a breach under a  h that indicates a breach and even if maybe later on in its written papers the government was unable to finance its explanation for why it did not make the motion in a timely fashion we need to look at that statement and hold hold the government to its burden and that's enough and even in cases where it's questionable are ambiguous as to whether or not there's a breach this court holds the government to hide behind standard and fines for each if there's one clear language goes against the government finding a breach and in this case where we have the statement of the government at the time of sentencing to the court indicating court what what the damages here what's the harm well the problem here is what we see that the other circuits believe it was the second circuit discussed and gone she which is that the defense attorney and the defendant often had a different view of the cooperation the value of the cooperation and the danger to the defendant and every time that i had a cooperation situation i certainly asked for more time off than the prosecutor has and the defendant has that right under five k to a judge to impose a lower sentence to grant a larger departure based on the cooperation and particularly stressing the fact that the danger to the defendant danger to the defendant's family the risk that the defendant  do i want you to remain on for a full recency hearing before the district court and acts in a team hearing i believe that mr harkness has a right to address not only five k but also any other departures that might be appropriate or any three level reduction for a sort of overall circumstances it wasn't clear i think the government and the parties saw that may or may not go so that's why in the plea agreement they said thirty three however they both recommended thirty one the judge did in fact follow that and he gave him the low end of thirty one therefore he received the entire benefit of his bargain and therefore he's waived appeal his appeal should be dismissed if you which i think i don't believe the government breached at all but i do agree under that the ninth circuit cases just to make clear even where whether beyond the government breach when it did make a five k motion because if we don't like the thirty five we look at the earliest because it's the gosh we're not ready to do it yeah because we're not sure our agents are upstairs and we're just not sure whether he's cooperated enough and it seems in either case it's very i mean in answer to why you would make a five k well i think if you look for i mean i do agree this was somewhat  analysis i thought that's exactly what the courts had at the day of sentencing you can say we haven't seen enough or analyze enough yeah you got to do it or not do it and thirty five comes later on not make a thirty five zero but but a lot of success it doesn't it can't be for its recommendation if the cooperation is completely insubstantial however where it's not sufficiently developed that's what it was  a five k one but he had prepared the letter but he wasn't ready to deliver it that doesn't mean he's ready to go live or if he made it clear they needed to talk to him and it is clear in the rule thirty five motion why that was the case why it was the case because the person he had cooperated given information on had not even arrested nothing that happened in the meantime they talked to him again that person was arrested and he gave further information that allowed them to identify the place where the person he was going to deliver to had lived so at that point now the cooperation as act is at a point where it substantial i agree that this is the case it's this is an odd case i think the government was they could have said no we don't want the continuance let's have the theory they didn't do that they wanted to continue and in fact when all the said and done can still got the better of his bargain and that is he got  defense counsel the motion was it was off until three weeks they chose not to respond clearly they thought it was sufficient given that and that's all the opportunity was there they simply so not and given that it was fine now i've put my counsel not have responded because they assumed they were going to get an opportunity to hear appear before the judge i don't know what was in the councils might they may have thought that that was what was the council's obligation to to request a hearing i believe so because if that now the service with the wife why would it be why would be councils obligation request that well certainly when there's a motion there's a local rule that says you just respond and that and if i'm assuming if they were dissatisfied they would have at least filed something asking for fifty years and and  and that hearing never for place but again i believe that's because the judge didn't have any there was no controversy in front of he had the government's motion he made three weeks it was no response he made the decision so but but i really think here we have a case where this is a clear waiver the government did not yet not breach i would take if there i have two quick points one even i'm not sure that this is the case that have to go back to the one exception is that the records clear here everything that that mr hart is asking for keep the seat the records clear on everything the combination of circumstances the substantial assistance everything we can look at it motion of the moving parties do one week prior to the hearing so there's no timeline for the defense attorney to even you know again each when it's appropriate to file the response you know sure you know maybe his twenty first his counsel to twelfth i'm sorry august twelfth his counsel said i believe there's backspace i want to hearing on bad faith because the government has not brought the five k motion what does that mean that the government's the one who was  sitting around doing nothing from february thirteenth august twelfth and i believe that that's exactly what happened now we don't know whether or not