recommend that certain guideline provisions applied and that no others would apply the increased his maximum exposure mr too thought was denied the benefit of doubt bargain right in the light most favorable to mr attack with your i believe read in the light most favorable to mr t stock of reasonable defend it will construe that as an attack not directly on the sentence itself is being unreasonable but an attack on the representation that he received could be deemed a collateral attack that has some pretty broad ramifications or any case law you have to support that just us the clarke your honor saying that or maybe close to us ultimately issue comes down to whether the government abided with the plea agreement or not i believe the primary clean your honor is with the ineffective assistance of counsel but the ineffective assistance of counsel wasn't not objecting hundred and eighty eight mines and therefore it didn't breach the plea so you're saying that the plea agreement got breached by ineffective assistance of counsel is that the argument and i thought your argument was it was breached because he failed to file a notice of is under plain breach but the separate and i believe now that the government breach if it stood by its obligation to recommend one hundred and eighty eight i mean then this comes down to whether or not the government honestly or is the duty of candor to the court to answer any questions that the court may have with regard to the defendant's conduct and the police rumah contemplated that that the government was free to address those issues yes your honor i believe the primary breach is actually with regard to section ten a of the plea agreement with regards to the guideline provisions that would be recommended when government counsel stood up and took advantage of the defense and competition and said actually your argument if defense counsel had argued for one hundred and twenty months a downward departure but had not asked for the enhancements your problem is what was done in the middle there that that he actually agreed to the enhance what you say ten now give me a page number i don't see eight i see a section well maybe i'm looking at eleven which is the that's thirty three of the excerpts of the record sentencing guidelines relations where the parties agree what specific guidelines provisions will apply and no other and this is the primary breach from defense counsel is that you know even though my client gave up constitutional rights to have these specific guidelines calculations apply i'm going to go ahead and give for why isn't it just a strategic decision i mean at st blush i was a concerned about the same thing but then as i looked into it it's absolutely obvious that these apply it why can't defense counsel make a decision that he's going to be also you know have some candor with the court and say look i get that my client is probably falls within these enhanced months but even given that i'm still going to ask for one hundred and twenty months because the downward departures that seems like he at the end of the day he still argued for a downward departure two hundred and twenty months i believe here your honor that there's actually also a contractual obligation m signed an agreement saying that the guidelines weren't going to be argued for and defense counsel open the door to that waiving any claim for him to object based on importation and roll and then opening the door for the government to come in and say your honor it's defense counsel actually arguing for these and they're not unreasonable and clearly under the facts with the just the district court departed downward below the bottom of the sentencing guideline range the law the bottom including imposed or would it have been below even that guideline right i believe it stays within the range which is why we're having this discussion about whether the appellate waiver bars the ineffectiveness i guess and my question really is is where's the prejudice here if the guideline range as you would urge it to be calculated would still result in a sentence that fell within the lower guidelines right believe it undermines the confidence here in the outcome because once the district court saw the offending statements in other words the sentencing document they were going to have agree with the importation and roll and handsome and the prejudices  denied the benefit of the very bargains the czerny got i keep going back to look at just twenty seven and twenty eight pages four and five of the police agreement on the admissions of the factual basis that he obtained approximately fifteen to twenty pounds of methamphetamine per week from several suppliers so if the total exceeded forty five fewer grams of methamphetamine that the district court here was doing with huge quantities i mean if if he'd been asked maybe there's another way to phrase that is if he had been asked defense counsel i've been asked by the judge do you think these unhandsome and should apply what would that what would the response a bet could have it could have the appeal waiver so that's where you started when you and your argument seems to be that this is comes within the collateral attack pr this case does have somewhat of an unusual procedural history but the government's position is that no matter which way you look at it the judgment should be affirmed now our st primary point is that this case isn't even four claims the unusual thing all comes from the stand of all lopez problem which is basically as soon as a defendant makes a post sentencing claim that i asked my attorney to file an appeal and he didn't lucas's even if we assume the best appellate waiver in the world there's a two part process that happens you know either the state we have a hearing as to whether that actually happened or the state can go you talking about the timely fall within the hell of we ever it's because of this unusual thing where understandable ok is because the claim that was made the district court was obligated once the state chose option two to allow the direct appeal which is why we're here but it doesn't mean that the defendant basically said isn't there is that the government may decide that it's less work to go ahead and let this formality happen and then move to dismiss and we did that but there is a lot of cases that says what that would that just  would be for defendant to say you know what even though i told the district court at the end of sentencing which is exactly what happened here i have with my right to appeal i can go ahead and make a claim that i asked my lawyer to anyway but you know i think our position is that this court still has the power to find that there was waiver in and this goes back to the sister court and the defendant is free to raise these claims in the twenty to fifty five now even if you don't find a waiver there seems to be a common thread to both of these claims that ineffective that because i mean if we don't agree with the way and we may or may not agree with the way we if we do agree with the way we're would we still want to get into some of the substance in the alternative or would that be the government's position is no we shouldn't because ineffective assistance of counsel ineffective assistance of counsel claim is not properly before the court at this stage we need to wait for a b s if we said something on that would that prejudice a b s in an opinion or you think that maybe this would still be ok well let  me ask about that because it is an odd procedural posture if the sole role of this court understandable opas is simply to examine the enforceability of the appellate waiver on direct was that issue would still be open but it couldn't be because it hasn't or another way it had no precious off that they did to get to file the appeal so i guess that is the nd option that he though so the district court i think i'm with you so the district court would then be free to consider as in any twenty two for five petition whether there was ineffective assistance of counsel correct based on what defense counsel did or did not do was them and that's within the plan language of the appellate waiver because it's the to the time of the sentencing hearing the defense already had a sentencing memorandum on file requesting one hundred and twenty months and massive variance from whichever guideline range of his court wants to consider our position is basically two fold one when directly asked by the district court in the district court flag this and almost the nd basically in its nd breath that sentencing said good morning i've read all the papers i've seen your recommendations i want to hear from the parties on these two and huntsman's at that point the prosecutor said look he moved quickly on it he said it wouldn't be you know not unreasonable and he said i'm sticking the government's not recommending those and even if was no objection on breach below i think when you look at this record the prosecutor just basically touched those guidelines issues quickly but then ended up saying eight separate times one hundred and eighty eight months is the right sense not only that the prosecutor actually echoed at least four or five of the mitigating equities that the defense was arguing the fact that no violence was use the fact that the defendant pled guilty at the soonest opportunity to the fact that the defendant was instrumental in helping as his mother and brother also plead so when one looks to the breach cases i was rereading i think it was either whitney or her radio the other day that the pinion says you know one is left to wonder why the government in that case even agreed to a low end because never even mentioned a single mitigating factor not so with this record you're going to ask i think your points are well taken at the government seemed to act entirely reasonable here what's odd is you have the defense counsel who actually agrees to the enhancements that weren't even in the the agreement would it i mean is your view that that is a strategic decision by defense counsel or did defense counsel i mean maybe it's not before us but it does seem odd and what the government twenty five dollars kilos per week this defendant was looking at a lot of time on the defense strategy was a variance the guidelines are only the initial starting point there just to be kept in mind throughout obviously any i think having to do with these two adjustments for which there was overwhelming evidence if i were a defense attorney i'd say you know what let's just move past this quickly and then let's get to the meat of my three thousand five hundred and fifty three and that seems to be reflected not only in the defense sense and memory and but also the idiot in front of the judge to try and backtrack from what your client admitted to when the court took i mean there is that in the last thing i would just but with just one thing i mean it seems that what this really  thank you maybe i'm a minute and i had thank you ana i think here there is no reason just to send a spanish speaking indigent defendant back to try to do a hey vs corpus petition pro se again under gun but we have two problems one is the of the plea agreement which seems to contemplate that into a general rule that you don't kill i see is on track appeal and i think you're the district is we constantly hear arguments that the government has breached the plea agreement i care remember the last time i heard counsel argue that the police grammont was breached by the defendant and his counsel and i think this is because a competent would never file a sentencing memorandum rock after your client has admitted that he gauged in a drug trafficking enterprise those are involving twenty five kilograms a week for two years those were the very enhanced months were unequivocally necessary competent counsel would have made sure they were included in the plea agreement and out with competent counsel wouldn't have his client give up certain rights so that they weren't included and then say under the same facts that you just admitted to in that same agreement i'm going to go ahead and say it should be four points higher but if the defense strategy was to focus on the three thousand five hundred and fifty three a factors in mitigation that's not a irrational position to take as it it's not irrational to argue for a variance but it is irrational and incompetent to admit to four points higher than what your apply to a defense counsel just as it should apply to government ok very quickly where a thing and is ordered to the court you say invited him to appeal the i o c i have decided for  was just with regard to the limited scope of the failure to file a notice of appeal we already have this is your honor said we dealt with this perhaps it's unsurprising the after breaching the plea defense counsel failed to file a notice of appeal raising the sixty minute ineffective assistance of counsel claim but here we have other plain instances undergoing the ignacio of ineffective assistance of counsel of breach by defense counsel ok thank you very much