to ask the court and force the parties agreement about the same time telling the four that the recommendation is legally and factually wrong because the prosecutor did we had to rate the recommendation several times not enthusiastically but we had a rating so is your argument turning can you focus court enforce the party's agreement while at the same time undermining by saying it was wrong by saying it was wrong that's what the even even the you have to say for instance the trial  asked about the officer would have been would it have been wrong or reversible for her to say our office has had a change in policy yes i think so but she did more here i understand but again this is just for my my benefit in terms of understanding the program rice i think it would have been wrong for her to say i heard about it clearly even though the statement in the reason that i'm having a little difficulty is that it least the statements with respect to the office policy right were factual kinds of state never what i'm saying they were really legal office that seems to me of a different kind can you help me with that because it it may just be it i can see that being a factually accurate and b a conscientious to the prosecutor to explain why you might not why you might see the government taking a different tact in the future right and i understand what you're saying i don't think it was necessary to say that in this case the appropriate place to say that would have been in the other case where the government was changing its position right but next case you mean right right but it was wrong here too and you don't have to you have to agree with me or disagree with me because i can i understand what you're saying by letter i think it was wrong here too and i think the government's remedy if they have a change and oluseyi that disagrees with the plea agreement then they should move to resend the plea agreement and let the defendant start off as he was before if we don't accept alternative arc if we don't do it in order to go onto your next argument you have to assume that we don't find creech that you do find i'm sorry we if we find  argument it consistent with insisting on specific forms it has to be some kind of an alternative clearly an alternative well and conditional what i'm asking the court to do is make a ruling on those issues because warner if we're correct about those he's looking at a sensing range of fifteen to twenty one months so if it doesn't how does he how can we do that if it if we specifically info if we send this back right would not apply if you get specific performance you have to stand behind your agreements and you can't come up here and have us challenge aspects of the agreement  that a component of your agreement is now illegal in other words you either elected or not the government changed its position following the plea agreement and if you win oh the government will be held to it's agreement that it didn't apply and i think the government could still make that statement to the court based on facts as opposed to the law but quite apart from specific mormons as a dicey thing in other words to keep in this is the thing you're still going to feel if you want that if you want them to stick to their agreement that they're going to jointly recommand under pay under program seven that they would have to comply with the agreement specific enforcement means that we don't get to appeal other issues then if you're the appeal well because you're governed by the way on the breach you hear the appeal on the briefs so if you find that they are in breach you correct that mistake  thank you but no thank you this has been the most marvelous collaborative process but might not be over if there's reva you have a lot to say about it makes perfect sense and as i was preparing for learning when i thought why didn't i emphasize the fact that she specifically has he has specifically requested specifically or in any way part of why is because we don't believe that we breached so i suppose that's the way you all the press that issue that of course or that's right but i do agree with the collaborative process so far that suggests that if if this court were to find breach then based on the requested rel your office you or your office where you have to check the facts and the witnesses but we think we can go along with that leave it up to factually you're not satisfied that it was says well you know it's your position he'll take on responsibility right whereas if you say your position as that well i don't there's no one defending the district judge and particularly with respect to the letter right now that you know i want to make the point that the letter needs and i'm and i i think that the issue of breach is close and not the suggest that it's not but with respect to the letter i think it's important to appreciate the timing of this in the context this is posed them and but by then that was in october between such a law in october this court judge conrad had seen cases in which we had argued that the barlow issue we had said these are felony offenses look at it in that distinction i was making between the letter writer and the representation which i have a little more difficult i think is close because the prosecution has an obligation to order from something right and that seems to me you know a slightly different cast in the letter i also think it's it wasn't a change of policy i want to be clear this wasn't just a policy issue this was looking at this court's decision and out of the nose which an assessor and i happen to have argued and the footnote and i had said all along you know i don't know what the right answer is under the just justice reinvestment act we're not we really weren't sure but we were very sure that we wanted to respect simmons that was a hard fought case and we did not want to take it you know seem to be disrespecting it by immediately arguing that just as we just wanted to wait to see how things should down and then after we did after valid venus came out and there was a footnote saying this problem has been solved although it was dicta that was enough for us to say we're making this argument now and it wasn't a policy decision in so far as we suggesting which is though it is not on this record and so i'm i'm just saying that in the context of the post simmons litigation i'm not sure it was suicide fontenay in this case absolutely but the government did that with an awareness definitely and i think the question is in the context of all of it did we stick with it and when she recommends over and over again we ask that you honor the we ask that you don't when i looked at this record i felt like on balance e mail here is that one twenty three you say at this time i do not have information or your office i do not have information that would implicate him under this section of the investigation and talks with witnesses and the co de it here to our agreement not to make that fact argument or how it would impose specific performance what would you say that this court well what i would say to i'm not going to be the one but what i would say to my golly is going to find i'm light sometimes i you know they all they've asked for specific performance from this court right what they do in a district court perhaps they want to superstition i don't know but i will say that i don't think and i think it's important that this guideline range and she used that language was the lower guideline range she really said both things on the one hand she said that the probation officers conclusion was correct at least with respect to the legal issue of whether or not the breaking and entering of a it's but she also said in the same in the same document and repeatedly at the sentencing hearing that the correct dotted line went late range was the lower range so we really have both things being said and i just think i not trying to diminish the importance of that letter or what she said but i do think it's important for the court to understand the context in which that was written which was some some evolving that that that we wrote that letter she wrote that letter in response to valid venus and in a particular legal authority that if this court determines though that yeah i mean we've been put to work overtime and we didn't get the horse out in the group i'm trying to not only that but i will i will say that the government at least wasn't allocated additional positions in helping us out on this has  to start by bringing up something that i think i failed to mention when i was up here before and that is that you are not changing your position now you did not whatever it may have been it's the same only i just want to talk about the specific performance and what is needed to we're not telling them they committed there and they didn't they made a judgment call based on their own right and but based on the breaching documents so yeah i mean when i'm out in the court to consider is how can we send for here there's no provision in the contract allowing the government to change its position based on the legal authority and they're the writer of the plea agreement that should be construed and in warners they will help us to give the government act but in this case this is one reason i ask you to look at that second issue even though it looks like the court has decided it should address that but you can look at that to see all of a little i really think i understand but you should look at that second issue regardless of how you come out on that to see all of the difference several different legal bases for whiteness in the eye as well as an actual baby so i think the courts should take that into consideration too when when you're thinking about these things that