opens on behalf of mr rove mr rojas ascendency district court directly questioned the prosecutor about the government's four level fastrack departure recommendation the prosecutor's answers to this to these questions indicated that he did not believe there would be sufficient deterrence and also indicated that the departure would be inconsistent with the guidelines the d o j guide guidance on these charges you know what was the prosecutor supposed to do the prosecutor sa sticking with the deal didn't you know so was a prosecutor supposed to lie to the judge no actually i think that the prosecutor should told the truth and the truth was that this was the four levels was consistent with the  e that was what should specifically the prosecutor because your client had a prior well it was associated with a murder charge went to prison then he came back to l a to lay a couple of times right so what good news should the prosecutor of said why guess about your client but facts should the prosecutor have said that you didn't say the prosecutor should have said that even with this conviction which is an accessory the vehicle at the sentencing hearing is fully discussed that he did not know what these two individuals were going to do those two other individuals it's like a drive by right without without the person that's driving knowing that before ok well that's so the deal was the prosecutor had to recommend something but the judge didn't have to do it under the see the prosecutor would recommend and the judge either had to accept it or the end and could withdraw his plea and it looks like you're to a specific question and that's where the district court asked if you've got anything that would help me decide whether this fast track is in line with your guidance and that's what the prosecutor said the best i think i'd be able to say at this point your honor is we're prepared to submit on on our twenty four month recommendation the problem with well the guidance doesn't matter to the judge either that's just guidance to the prosecutor the prosecutor told the judge here's our deal i recommend four levels and i'm sticking with it even though it's obvious the judge doesn't like it and as for the guidance the judge doesn't have to follow the guidance it's just like another recommendation that's not binding and it's the recommendation not to the judge the guidance is a recommendation to the prosecutor what it is is the attorney general telling the prosecutors it's ok to ask for a four level downward departure just to clear out your offices excessive load even though it's not justified by what the guidelines say i wish the government counsel would have said that but he actually said something deference in response and that isn't even negative implications that this wasn't required that this was that there was no reason that this was part of the guidance only now i see what you're saying i didn't understand you to be saying that i guess because they didn't understand the prosecutor to be implying that it was inconsistent with the guidance that's because of the exact question the district court i asked which is do you have anything that will help me decide whether or not this is part of the guidance and that's where the prosecutor said nothing and you have to go back a little bit because the district court put this prosecutor in a difficult position he initially said the district court that is that you rubber stamp all of these private prosecutions and give four levels regardless of the circumstances it also said that this is the guy fired and that is the guidance sandiego you can give four levels even though it's some justified i disagree with that i think if you asked this opposing counsel right now do they just rubber stamp for four levels for all and don't look at the cold memorandum whatsoever that he would say no and he'd also say that no this this this actual recommendation of four levels in this particular case was consistent with what the guidance the fact is there was nothing that precluded the district court for doing this and that's what the district court wanted was face actually the court only gave one level downward departure in this case so he would have been facing i think a guideline range thirty to thirty six in the quiet thirty months here basically he didn't get the benefit of the bargain no no no if you asked to vacate the play if he said that you want to enforce the plea agreement essentially and plus then you want to have a bite out of the apple have another touch write well that's that even though to put it the judge do wrong my judge should judge doesn't do anything wrong in breach cases it's the government and it's because of the government so why can't i go back why couldn't i go back to the same challenge as this court case law says it's no reflection on the judge when there's a breach you have the remedy is specific  four months before a different judge and that's all we be asking for here how how did it comport my own and since i was never a prosecutor my own reaction would have been as when i was a district judge what do i care about what this fella cole says the prosecutors ought to i'm the judge i decide what the sentences but this judge evidently was more deferential to the prosecutor than i would have been and he knew something about these coal guidelines and what i'm wondering is how did this for level departure comport with the guidelines it's not the guidelines for the guidelines memo from cole how did it comport it looks like eyes i can't remember the exact criteria but if it's a bad enough criminal he doesn't get the four level downward departure correct it less than a couple disqualified things and one is eight a violent offense but it lists things like murder subsequently manage to prevent apprehension that is the california conviction that he was after convicted of is after the fact meaning he didn't know that these people were going to do until they jumped back into the car after they please the court zach how on behalf of the united states can i ask you a question so you know this is it is that this particular district court judges practice to inquire whether or not the government has abided by the school memorandum  but i do think the district court recognized that here i believe it page eighteen and also twenty four dollars of the record this is part of the sentencing hearing the court ultimately says that i have discretion regardless of the call memorandum i have discretion  on change to that memorandum so whether or not you know it was his role to to to sort of look over the prosecutor's shoulder in making the recommendation did they did the government present a united front in conjunction with the defendant in support of the of the plea agreement you know if so can you point to me how they did that certain how the prosecutor did it so the prosecutor made the recommendation that it greed to make in the plea agreement both in writing and at the sentencing recommended a within guidelines sentence and it factored in the four level departure into its guideline calculation and it never said anything to contradict or undermine that recommendation and there were no inflammatory comments like the comments and her ready or whitney well why wasn't it just a wink like her ready assets well i think the reason is because if you look at cases like johnson or coleman from this court the court has or on enthusiastic recommendation does not amount to a breach in fact in johnson the comments were virtually identical to the ones here the prosecutor said i am bound to make a real low in directing and asia and under the plea agreement and all comply this court found no breach in that scenario this case falls well within this court's colman decision because in that case the prosecutor actually in response to the court's inquiry asked to withdraw his sentence recommendation that he was required to give under the plea agreement and still this court held that there was no breach because however unenthusiastically or begrudgingly the prosecutor acknowledged the recommendation he was required to give and made it by negative implication so here we're not talking about anything like that the prosecutor didn't ask to withdraw his recommendation he simply said i'm bound by the police agreement to make this recommendation at any point in time there was no objection and i think that raises two issues one is the waiver that is contained in the expressed terms of the plea agreement saying that one preserve for each claims or waived on appeal and the nd is that even if you were to set aside that breach waiver then you would still be on plane air review here and so certainly under cases like johnson or coleman or been jamaal from the supreme court and here here would not be clear  obvious what did defense counsel say to the judge as to why the four level departure was appropriate and didn't the prosecutor at any time say well that's not true  so the defense counsel talked about the kind of mitigating circumstances of the accessory to murder charge said that the defendant than actually know that the murder was going to take place the prosecutor dispute that never disputed that the process the defense counsel also noted the time period that had elapsed since the last illegal entry it was three or four years the prosecutor never disputed that i think the only claim here is that the prosecutor should have affirmatively taken actions to explain why he agreed with the fastrack recommendation the problem with that argument is that the plea agreement nowhere requires an explanation for the recommendation and under bench from all from the supreme court under mol donato from this court unless there is an expressed term requiring an explanation of the sentence then b the prosecutor doesn't have to give one so i think those cases are dispositive on this but if it went back what could you say i think the only thing that the prosecutor would say is this is consistent with fast track it allowed us to obtain a swift revolutions resolution of the case  again that wasn't required but i think that's all the prosecutor would say here and certainly if we're looking at the prejudice inquiry that would not plausibly have changed the court's mind the court focused for nearly at the show and in your view so all the government have to for about a dozen and a half pages in the sentencing transcript focuses on the three prior deportations the one thousand three hundred and twenty six dollars conviction what the court term values its words complicity in a gruesome gruesome murder  the danger that ross poses is gang affiliations and based on all of that the court said that before a level departure was not appropriate because there was a need to protect the public and there was a need to deter future well is there anything new that a prosecutor kind of sad on on the convictions was there anything wrong sat no i mean let's say if let's say the judge made a misstatement about one of the convictions with the prosecutor have had a duty under this play agreement to correct that not under the plea agreement that might have arisen from any duty that the prosecutor has as an officer of the court so i don't know that it would implicate this appeal but it's possible that duty would have a risen from the officer to the court duties but here the court had all of the correct information before it simply interpreted that information differently because again fast track is a discretionary consideration and the court simply did not think it was appropriate to exercise its discretion to give the four so when the when the court expressed concern that the didn't appear that this recommendation fit within the fast track guidelines didn't the prosecutor hav prosecutor have an obligation to sort of say your honor does here's where we think it does no your honor i think this goes back to the interim all and maldonado those cases that hold that unless there is an expressed term in the plea agreement requiring the prosecution to make that recommendation that the judge put the prosecutor get on the spot that's correct but again if we look at i think coleman the court did put the prosecutor on the spot and said you obligated to make this recommendation for a low incidence under the plea agreement aren't you are you going to make that recommendation and the prosecutor said yes but actually i'd like to withdraw that recommendation because of this new stuff that i've learned and still this court found no breach so again unless there is a requirement for an explanation under the plea agreement then the prosecutor doesn't have to give that actually i think i think you'd have a problem with the prosecutor said judge i didn't think about it i guess it doesn't fit the call memo advice and then you'd have a real problem i agree with that and here the prosecutor just said well that's why we're actually i'm sticking to it then i agree completely with that and i think that's probably you you know if you just want to submit on the recommendation to avoid breaching the plea agreement i think that's probably what the court had in mind because you may want to avoid saying anything to undermine the notion that this is consistent or that this is not consistent with well if he hadn't gotten fast track in the st place what was he looking at sentence him twice it would have been i've believed the top end of the guidelines range would have been thirty seven months i want to say maybe off by a month or two with a one level fastrack departure of the top end of the guidelines range was thirty three months and that's what the court ultimately imposed so but he wants twenty four he actually asked for one thousand eight hundred and eighteen dollars so he would be out basically credit for time served for when would he be out don't know how long he has been in custody but yeah it wouldn't be much longer and so you can see that there's some problems but the supervised release  can see that on conditions for seven dollars and eight dollars those should be stricken and the one special condition of supervised release it's kind of a tangential issue of the one that the one that says if you illegally come back then you have to report right so just come back as well i mean just say what you want it certainly could much of that condition is already covered by the other condition is pretty simple the judge  is presumed to have advised on the standard conditions and any special conditions he has to say it or it doesn't work that the law but that's exactly right your honor and here the court did say that one of the special conditions was not to illegally reenter the united states and not to violate and he will also mean that this guy is going to by late the law again yet again the judge says that if you judgment together that's correct and that's what the problem is that's that's the only piece of the condition that would be problematic that's correct so argument would be that that's simply putting meat on the bones of the condition that was in the p s r it's part of the standard conditions for questions then i'm ok thank you happy smith thank you i'd like to make three foot points st point is this district court from the start indicated that it was interested in hearing about whether or not to give a fast track departure and how much the sentencing began with i'm happy to hear from you to give it and what level the other thing is i do believe there is an express term in this plea agreement that gotten both based on the district court question when the district court was questioning whether or not this was in fact pursuant to the guidance and absolute of record fifty three dollars the police does state the disposition contemplated by this agreement is pursuing to an early this that early disposition fastrack program authorized by the attorney general of the united states thus when the district court is saying i don't think this is accordance to the memorandum that guidance the prosecutor did have an obligation to affirmatively state yes it is finally the government mentioned the coleman case and where the during the sentencing the prosecutor tried to backtrack from the agreement this court found in coleman that they weren't going to find a breach because the district court there actually said now i understand your agreement and gave the