defendant was getting a slightly higher sentence due to the fact that he had not entered into a plea agreement and the prosecution sought to justify the slightly longer sentence two grounds they said first of all defendants who accepted a plea agreement actually get a five k one three motion for early disposition on their cases by the government but he also said that the justify a lower it violates a defendant's due process rights where the court considers something that he should not consider in determining what's an appropriate sentence after booker and given the case law after that now if in fact  the the defendant had been offered a plea where five k one three motion was possibility i don't think we'd have anything to compare it to complain about mike my concern and our gesture is that the court stated that it was imposing a higher sense because one of the defendant did not enter into a plea agreement and the government in essence was arguing that besides the absence of a fight he won three motion that the defendant had not waived his right to appeal and we submit that that's an improper consideration for the district court to take into account in determining a sentence to be honest with you after mr sanchez thought it was sentenced we didn't have really and i didn't have any particular objection to the sentence because it was in fact the law of the guidelines it was only when the judge mentioned that the reason he was getting a longer sentence was because he didn't have a plea agreement and when the government sought to justify the lower sentences on the basis  o the defendant pleaded straight up to the indictment because if he hadn't he would of course lost the acceptance of responsibility and safety valve eligibility and that's what's really our concern in this instance i have to i will tell the court i've had cases where the we've gone to certain scenes after the senate has pleaded straight up and the primary objection from the government to any downward departures is that the defendant has not saved the government any funny because they intend to file appeals either to sentencing  calculations done in the in the pre sentence report here's my problem with this case and i'm finding it actually a little bit hard to fit into the slots the analytical sort of categories that i have that i think i have and that is there was actually no requirement of course for the prosecutor to offer a plea agreement now and as you said and i think we're on agreement had the district judge simply not said anything of the sentence was fine thanks i was pretty good because you were happy with other guidelines it may be that it was an improper factor to rely on that he had not pled when in fact he had not been given the opportunity to plead it's i said maybe i'm not sure  and if we affirm and if we let stand the judge's statement that this was not the reason but one of his reasons what that really does is give the prosecutor some control over sentencing by his or her decision whether to offer a plea agreement why would that be wrong this is a why is that not properly in the hands of the prosecutor all kinds of things are in the hands of the prosecutor whether offer this or that and one of the one of the consequences of offering a plea or not applying might be three months difference in the sams well i don't think there's anything wrong with having the prosecutor have some control over the possible range of sentences certainly that's done on a daily basis what's inappropriate we submit to the court is where the judge tries to as the court in this instance say foster respect for the for the plea process i think that becomes very close to becoming negotiations and if it were the case that in all cases the prosecution offered a plea agreement then probably that wouldn't be a problem but in this instance where there is no plea offer and the court is  saying i'm going to give you a longer sentence because you didn't enter into a plea there it seems to me that it's the district court that has made the determination that a longer sentence or more severe sentence is appropriate because there's no written plea agreement wherein there is a waiver of the appeal rights and also there's no five k one three motion and as i say i was rather surprised to have heard the judge say that but but i do know  so it seems to me the only way you could justify anything less is under one of these really disposition motions which is i think what happened in this other case you're trying to compare it to so i don't think you're attacking that early just position motion that you know racially valid so as i see it practically speaking the difference between your case in this case to this s and thirty five fifty three he did he got left you say less than the guideline yes but what i'm saying is is this that even even after those considerations are taken into account if the court considers something that it ought not to for example that the defendant has not waived his rights or has not entered into a written plea agreement then i think that's an improper consideration because it's terminations of the sentence ought to be made on the basis of the facts and of the defendant given taking into account all of the factors that that have been indicated here i'm submitting to the court the judge does more than that he considers the fact the defendant has not entered into a plea agreement which ought not to to play any role in his determination of those factors which will ultimately determine the  sentence and certainly as i say the prosecution was arguing he hasn't weighed his rights to appeal he's not saying the government any money i think that's an improper consideration unless there had been a plea agreement and the defendant then decides to go ahead and file an it seems to me you know he was a little more tentative and and offensive at one point almost back off today well i think he did your honor and as i say i was i was rather the judge says says that the defendant is getting a longer sentence because he has no plea agreement any does mention that there's no if i k one motion but in the plea agreement it's not just the five k one three motion it's the included waiver of all the rights to appeal or collaterally attack the sentence that any later point that that in many instances justifies or at least indicates the prosecution indicates is their biggest motivation for for asking or insisting on a plea agreement that wasn't done in this case and it seems that the court may have taken that into account in determining the sentence and we submit that even though it's an appropriate sentence in the sense that it complies with the guidelines that in fact even falls behind below the guidelines once the court takes into account in proper consideration the sentence is unreasonable quite apart from from whether or not it falls within the guidelines if it takes into account  while you've reached in your time we'll give you a minute in response thank you backing off the notion that you sentence this defendant because he didn't have a plea agreement that's exactly the phrase i had in my notes that if you look at the record that's where the whole record really plays a part here i'd like to just explain what the district court said before it starts the defendant and then  the proper the government cited some authority to this quarter earlier this week that a sentence within a presumption within a guideline range would be considered presumptively reasonable now this defendant received a sentence four months below that reasonable guideline range when the district court sentenced this defendant there were what the district court did was specifically state correctly that he's supposed to consider the sentencing factors under thirty five fifty three and he said and i'm doing that and one important factor record actually the district court backed off of any notion that what it was doing was sentencing this defendant on the basis of the fact that he lacked a plea agreement that that's not the reason the district court sentenced this particular defendant and i'd like to part point the court to a couple of things in the record that show that when the court was first sentencing this defendant he stated mr sanchez doesn't have a plea agreement and there ought to be not a consequence for that but he needs to future but i need to foster effect respect for the police process but you addressed this for the moment on the assumption that which may or may not be true i'm not asking you to concede on the assumption that the lack of plea agreement was  i don't was that and improper thing to rely on and then the next step would be ok if it is then what but let's first off was that improper for under a law in that factor it doesn't appear to be constitutionally improper your honor and that i think is what the whereas other defendants who don't have playground it's just don't i think in what i mean just don't mean what i'm trying to say is that a district court can know this defendant has an agreed upon downward departure by the government this defendant doesn't appear to be so now i'm starting with this guideline range plus thirty seven to forty six and now i've got to select what i believe is a fair sentence and i think what the district court was doing was he previously had sent somebody to thirty months who possessed two hundred pounds less marijuana and he selects thirty three months which is four below that and i think it's ok for the court to have noted that defendant had a plea agreement i want to just respond to something that defense can assure you the other answered my question i'm assuming not only did he know it but that that was an ingredient in his it was one of the factors he considered relevant to this defendant michael had no plea agreement is that him i don't think it is and the reason is because it's fair for a court to observe that another defendant and again we have no idea that called for the sentence the court reiterates that what it was doing was sentencing him to a just sentence and then not only that but says i considers all defendants that i have sentenced with a similar weight and again this is tucson arizona  defendant and he said i'm i'm familiar with the ranges that i've given and i think that shows the court not only compared this defendant with the one thirty months defendant but also all defendants and that's appropriate under the sentencing disparity consideration that thirty five  the tucson division or not but that this particular assistant offered plea agreements only at the early disposition stage and you know that's the only chance a defendant had of getting a though is and what i want to make clear is the district court had already sentenced the defendant and neither the prosecutor nor the defense attorney had mentioned anything about plea agreements it was only after the court had sentenced the defendant gave him thirty three months talked about supervised release hey you have an appeal and and then the government just stands up and says you know your honor you mention that thirty month plea agreement i just want to clarify there might have been a downward departure motion in that case there might have been a waiver of appeal as opposed to what happened here and then the court makes the statement that the many whether that came out within the last month december sixteenth and i told counsel about it in advance and there's a little phrase in there or a paragraph where the court notes in the context of a government appeal that even if we thought the court erred with whatever it did at sentencing if the record shows that the court would impose the same sentence henri mand under its booker authority then remount is not an appropriate remedy and i'd submit that in this case it's the same thing if you look at the record at the court it's clearly stating i think thirty three months is reasonable there's no dispute from what i hear today that thirty three months was reasonable so when and in that context would be particularly appropriate ok thank you thank you  the the transcript i think gives probably the best indication of what the judge was thinking at the time that he imposed the sentence and one of the things that i think is most telling is the judges comment that he ought to foster respect for the plea agreement process and although he mentions that he's not punishing the defendant for not accepting a plea agreement in essence that's what he does and i think that happened certainly before the sen imposed a sentence just to answer the prosecution's citation to two supplemental authority we're not arguing that the sentence here is unreasonable what we're arguing is even if it's reasonable within the sense that it is falls within the guidelines there may be instances where an improper consideration enters into the determination of the sentence and we submit that that's what happened in this case but that's all i have your