ingle hard who's worked at our court now for twenty seven years i came on the bench the first debate when i do ninety and she had beat me by a few weeks or so so it's always good to see us  c agreement and then turned it to the second issue the government's breach but to the extent that this court has questions so at heart this is a contract law case the parties the government mr and the district court once agreed to reviewed and agreed to be bound by the eleventh see lindsay entered into a binding contract and at that point the district court had only two options to accept the contract entirety or to reject it in its entirety and personally offer mr bermudez flora's the opportunity to rescind the contract and withdraw his guilty plea now the parties here disagree about the extent to which the district court did not follow the eleven c one c agreement but even the government's argument concedes that the district court did not follow in its entirety the contract provided for all four level downward departure pursuant to the fast track program and that downward departure was not provided under at the sentencing hearing who was present that had signed this plea agreement mr bermudez floors and signed counsel had signed it and i believe that different counsel for the government writes of the only two people at the sentencing that it signed what's a five page single spaced agreement with the defendant defense counsel correct on this is just one clause in there were you know it i slip into it and i guess what i'm driving at is it just looks like ineffectiveness to me i mean that the unfortunately judging the heart of on that corona he had to defend it's being sentenced that day looks like the transcript reflects it was a classroom in there it was two months after the playground would have been submitted to him and so there's one clause in there that says government court part of the binding is that you'll give the downward departure but but it's new government counsel and it's a district judge who just no one brought that to his attention so instead of him ignoring what he knew was binding no one had pointed that out to him isn't that the most plausible reading of what happen so the two questions i have is how is this not ineffective the p s r says it's a downward departure the agreement these the defendant is counsel sign says it's a downward departure there the two that would know and no one brings it to the judge's attention and the issue here though is that the way that we all live and please as a specific onus on the district court at your trial and i think because the district court didn't have the power to order the downward departure that you' negotiated until the government moves right this particular departure turns on a government motion so judging the heart couldn't even give what the binding plea required him to give until the government moved so to the extent that that the agreement here i've provided for an eleven c one c was to the appropriate disposition that's the operative part of the contract and i understand your honor just comment that that's a single provision in the contract but it is the most important it is the most important but he can't he can't legally give what he's bound to give until the government moves forward and so in the clear agreement the parties agree that the district can provide further briefing on that my understanding is that the pretty clear agreement is sufficient where the plea agreement is an eleven c one c and that's for that provision that sufficient i believe that's my understanding of the local rules that have been fined here that that's how the fast track program operates i certainly can look into that and provide for their government the court can't move itself too big provided a trigger five report my understanding is that this is sufficient to constitute that motion but i certainly can provide for their briefing mike my understanding of the practice is that it's routinely provided i would base it on your love and keep it interesting thing is that when the judge was  amend or change any of the provisions of a binding contract particularly here where the information that both the district court relied on and that the government argued at sentencing was not mean for mission it was in fact in the criminal additional time on it and also your honor to you know that would be mr bermudez flores's just vision whether or not he wanted to maintain the guilty plea or whether he wanted to return to being cloaked in the presumption of innocence and to the extent that this court would find that ill advised and would find it proper for him to maintain a guilty plea respectfully if that is not a decision for this court to make so to the extent that the relief really think the district court can move that quickly you know this case is certainly limited by outside realities i don't think that this court's ruling is limited by those realities and certainly there should have been a attempt to so the law is absolutely clear this is clear error even if it were an oversight even if it were unintentional the district court has agreed both at three arraignment and at the start of the going to reject the plea agreement and i don't think that there is an intentionality requirement i have your honor asked earlier if the district court is going to reject the plea agreement which it certainly did here it is required to should have under the rules been personally addressed informed that the district court was rejecting the plea and offered the opportunity to withdraw his guilty plea that didn't happen here and that is clear error both under th failure to credit this floor level downward departure confusingly referred to as the acceptance of responsibility but from context it's quite clear that it is the floor level acceptance of responsibility under the fastrack program and there was not an court's determination that it was a level six rather than a level as you and that can only be understood to be a disagreement about whether or not to impose the four level downward departure that's how you got from the level six to the level two so there there was an objection to want us to write an immediate opinion then you want us to send it to a different judge and tell him to immediately reconvene a plea hearing and then you want to bermuda flores have a choice whether to withdraw his plea or  would seem almost arguably the plea of blown up what has happened here and then you have to enter into more plea or whatever and he's got less than a month to serve progenitor that is that is the remedy that is available  again you know that remedy is quite unfortunate and my participation in it i regret but it doesn't change this court's legal analysis of regarding what the error is and whether or not it affected mr bermuda's lawyers is substantial rights i'm aware of no precedent that size that because the remedy is limited if it isn't available so the question prong three his whether or not the error here the rejection of the plea agreement without offering mr bermudez lara's the opportunity to withdraw it whether or not that affected the outcome of proceedings several ways as we argued in our brief first the plea agreement system is central to the proper functioning of the district court defendant should be permitted to contract with the government and to believe that their contracts will be upheld and in the center of the supreme court discusses this at length in particular that argument is strong in this case where there is a separate incentive being created for defendants to move these cases through quickly in the fast track program for its proper functioning it the defendants must be able to rely on the fact that they will get the benefit of their bargain these are all low level crimes so they are all defendants who otherwise might receive low sentences they need to be able to believe that they in entering into a fast track provision will receive the benefit of that bargain particularly in or to the extent that this is created in order to limit the court's backlog and finally the bargaining power of the two parties to this contract requires or to suggest that this court should exercise its discretion mr undocumented immigrant from honduras with a sixth grade education from honduras on the other side of the other two parties for the contractor a federal judge and the united states government and to the extent that this court finds plain error in this case that the district court got the most important thing right when it said the correct guidelines range of zero to six months and then second on top of that the dish record gave reasons for why i believe that the zero to six month range was too short and why i believe that the two year range was appropriate  focus is going my focus is not the district court's actions here i'm there's no question the brian letter here balance it's a c one c play right that's right and there's no question that on pages wanted to that plea it bound that early disposition program upon the motion of the government the court may depart did the government ever move before sentencing at sentencing ever did draw my understanding is that the government's not explicitly moved so if the government didn't but it negotiated it that it would how is that not a breach i'm sorry your honor and if the government's negotiated with them that they would get a fast track departure and that fast track to partner is triggered by the government moving if the government never moves how is that not a breach well your honor i think look at to answer your question in two parts first i think even though the government in the explicitly move still think that because this is an  it walks in busy sentencing and it thinks ok it's an odd language it's not a point specific sentence and i see this guy's criminal history doesn't restrict me from an upper departure i've got no downward departure in front of me so i can  but instead what happens is the government the court says i'm thinking about doing that i'd like to hear from everybody and the government says look at this man's group immigration history artificially low guidelines complete disregard but the only way a defendant becomes eligible for a u s attorney discretion to give a departure is if the u s attorney decides he doesn't have a criminal history related to immigration offenses so when you promise them you'll move for a downward departure it's your having concluded that his immigration history at that that is not correct that what the district court was bound to do in the terms of the plea agreement was to use this mechanism to determine the offense levels of the ip in this case which would have resulted in the two to the discord had already accepted the the third and fourth problems maybe when the when the whether the judge accepts an eleven c one c first i'd like to point to a case cited by opposing counsel throughout their brief are you saying the judge accepted the eleven c one c let me your honor i'm saying that the  substantial rights and tell us how he is not entitled to or in our discretion send in this back and and when you do that don't rely on this discretionary prong you argue in your brief that my team which comes from a dissent urging a much more stringent test for discretion than the fairness integrity or public reputation of a federal court on review that the court would have gone that other way if not for the air and in this case we just simply don't have that we have the error of the district court not imposing the two not imposing the two in a set imposing the six but no matter what if it was the six or if it was the two it was going to be the zero to six months range what what government breach of plea agreement case is cured by rule fifty two cite any case where the government explicitly breaches the plea and the court of appeal says harmless or no miscarriage or i can point to a case specifically and that's because we immune as an roberts in a line of authority have said we construe it's a separate issue whether the government's not fulfilling its bargain so this man had no option to go to trial that's what c one c gives him if the plea is only taken piecemeal so by not getting that term he should have had the option of going to trial but he never was given that option right at your are that's court's not accepting the plea in the other one is the government's breach and so i don't want to mix those two issues i'm only interested in would we ever as an appellate court apply rule fifty two to excuse the government's breach may not have been intentional it's a new assistant u attorney who walks in but the guy comes in expecting a downward departure because he's cooperated with immigration laws and instead the government says give he has not cooperated he's completely disregarded it and the court using that exact reasoning goes host of this court found that where it was clear what the and that's a case that we cite in our brief this court found where it was clear what the sentencing court was going to do with the should court was not going to grant this relief that the defendant felt he was entitled to but it was clear which direction the sentencing court was going to go that that was enough under the third and fourth promise to uphold the sentence in that case and in this case we have exactly that we don't need to guess what judging or it was going to do we know what judging or was going to eat he says very clearly in the record that he believed that the zero six month zero six month range which would have applied either way it was too short maybe too short he'd like to hear from the parties and then the government speaks and the government says it's artificially low when in fact the government had agreed to move to go even lower well your honor i think it's important to look at what the a usa said in the context of the whole sentencing by the time the usa is asked to speak at the sentencing judge englehart has already said given all these reasons he said in his words that the zero to six months would be a slap on the wrist that he believes that bermuda flores was illegally reentered at that point five times the show disrespect for the immigration laws and then in the context of the sentencing looking at what the usa actually he might not have felt that way if the government had interrupted and said no your honor he actually hasn't shown disrespect because he's agreed to the fastrack he's helped us in this context we've assessed in his criminal history an immigration history warrants a downward departure not an up or departure that's what the government said it would do and your honor that that may be the case although it would suggest that looking it but judging the heart set in the sentencing that he had a pretty good idea of where was going by the time yes the government to speak it it's also important to look at what the usa actually said in this case the usa didn't bring any new artificially that is guidelines range was in fact artificially low based on the fact that he had been prosecuted for these previous reentries and also that he has shown disrespect for the immigration laws are all things that were either in p s are things i judging larded already s brand new to the case or that might that's no excuse i notice you're a special assistant u s attorney tell me what a special assistant u s attorney in your honor that term for anybody basically anybody in the office who's not an assistant u didn't know about the contract confected too much earlier not up it's not arguing that and but it seems to me rather than trying to assign blame what happened here is you know one of these very dense five page single spaced it's got one clause that vital for level departure a usa didn't know about it so she does or he does commendably saying no this guy should go high artificially low district court can't even give the departure until the government lose for government never moves that red again i would respectfully disagree that you disagree there's a breach or you're arguing that under plenary view we shouldn't correct i disagree again and not to linger on this point but that it's an important point i you disagree that the government breached its agreements page one in two we will move for a ford level downward departure and i think that's a point of disagreement i don't believe that and that the plea agreement requires the government to explicitly move for the port for the four point actually move under five k what you're saying is by virtue of the terms of the agreement the only thing left for the government to do is because the exceptions included in the agreement says the government will not recommend the departure if and then a list of conditions but other than that you're bound by the terms of the agreement because he keeps the terms but doing exactly what you ask him to do pursuant to the terms of the plea agreement and you keep them he gets that now depart so what you're saying to give this four point two parter to the government's subsequent motion notwithstanding you've conceded clear or obvious or oh so now you're saying because under the third of pork wrong we should result obtained in this case as in that case well your honor it what's different about it the biggest difference in that case and the thing that i would like to highlight the most in this case is that in that case this record got the guidelines range wrong and in this court the guy in this case the court got the guidelines range right whether it was an accident in this case that the court got the guidelines right or whether it was the two or the six it was going to be the zero to six months no matter what and self in rejecting part of the eleven calculation was followed that only one result that that could have been removed it yes you are the calculation that specified in the plea agreement is that the four level departure the four point departure for the offense level and that's it  plea agreement doesn't stipulate to guidelines range it doesn't stipulate to a specific sentence and so you're correct in saying that the only outcome could have been the zero to six months but the outcome was still the same zero to six months whether it was the six or whether it was the two in this case the four level departure the four point departure doesn't wind up having a difference on this year to six months  arrange about two minutes left and i'm still waiting to have you tell me why we shouldn't in our discretion vacate this judgment send it back well your honor i think for purposes of the first issue here is are you more concerned with announce or just answer my question ok well your honor i think really what's the most important thing here is is looking at the sentencing as a whole looking at what you're doing the heart said looking at the fact that he got the guidelines range right and that he believed basis since on his belief that that guidelines range was insufficient that the zero to six months was too short if you look at what judge in the heart said he says that in his words it has zero to six months range is going to be a slap on the wrist that he needed to or that he felt compelled to to encourage respect for the immigration laws and so with you counsel you know you've got three minutes i want you to answer my question you have conceded and you keep talking about issue one issue two i don't want to hear about that the government agreed on a sentence not a sentence but the government agreed on a procedure the government breached the plea agreement there's a question about that the a u s a shows up and drops the ball and it's no excuse  substitute why in our discretion would we not see in this back just answer that question and yes your honor so that looking at this court's discretion for the purposes of the obstruction by a lawyer in this court  i'm sorry your honor i don't you don't need to answer my question i only have room question given our questions how would if if in fact we determine this is a breach and it's not harmless or excusable how do we best get that relief as quickly as possible for this defendant who is now bumping up against maximum time with the oddity of the relief being he's got to go back to plead to a crime he's fully serve needs relief rather than say yeah this is a problem how can the government help solve this problem that began at its breach how do we get this man out of jail if that's what he's entitled to the neon around in the event that this  that that becomes an issue i would imagine that to be honest i really don't know the specific answer to that ok as you said there were running up against at the maximum that he would be serving anyway so i don't know if there is a sufficient answer that i behaved maybe should have moved re government maybe this is a case sometimes you need to look at and say boy our conduct was mistaken and this gentleman suffering because of it but and your honor that's correct and that's my fault i apologize for that i'd like to very briefly conclude just by saying that there is no reversible error in this case even though we can see the first two prongs on the issue of the eleven c one c looking at the fact that the guidelines are interest correct and the agreement it means one of two things under the rules themselves either that the parties agreed to particular provisions of the guidelines applying or that the parties agree that a particular sentence or sentencing range applies we disagree about which one of those two eleven c one c provisions apply but under either of those the defendant did not receive the benefit of that eleven thirty if it's a narrow eleven's you and only to the four level downward departure he didn't receive that either because the government breached or because the district court rejected the eleven c one c without providing him the opportunity to withdraw if it was an agreement to a particular sentencing range zero to six months and then the district court rejected that eleven c one c by sentencing him to the structure for a maximum sentence so the distinction between sentencing range and the provision here is of no moment since it would be an error under either provision the government argues that prong three the question should be whether or not the court would have done the same thing  be presumed innocent it's the question of whether or not he mr bermudez flora's whether there's a reasonable probability that he would have withdrawn the plea and i think that the balance of all of the evidence demonstrates that he would he didn't receive any if it for this bargain that significantly constrained him both by require him to plead guilty by constraining him at sentencing and constraining him on appeal there there is no benefit for this in the absence of that single element of consideration and finally we can't ignore the context of this mr muniz florence was going to have a zero to six month sentencing range or guard list of what happened he was a criminal history category over one which nobody disagrees with if he had gone tried gone to trial and been found guilty he would have had an offense level eight and his zero to six month range sort of the extent that the government argues that the only received was a discretionary sentencing range of zero to six months entirely defies credibility and there is no benefit of the bargain at that point because that's what he would get anyway if he pleaded guilty plea to guilty without a plea agreement if you want relief that is not a reason not to grant relief it certainly is a reason to to attempt to work as quickly as possible for us to do as much as we can but it does not change not move correct your mood and if you could move to expedite that's one point we've already discussed but again the two people that signed this plea agreement that were in the court at sentencing were defendant and defense counsel as court says i'm going to up really depart the person has signed that agreement was the defendant defense counsel and he doesn't say when you can't honor and that's why we're on cleaner review but because there is no absolute forfeiture this court still considers it and in fact i would encourage consideration of this court's ruling in self where in fact the error was even more grievous and both mr self and counsel were offered the opportunity to withdraw the plea in that case it just was technically not the right way to offer to withdraw the plea this case there wasn't even that pause in proceedings to ask