four amendments and far as i know there is no federal case that is actually interpreted the significance of that deletion the other significant point is that rule eleven a does provide for a consent requirement in really three situations conditional plea of rule eleven a that creates a specific consent requirement limited to three instances also supports our belief that there is no more consent requirement the only case that i think really causes me trouble on that point is the hyde  i think it is that i can see that there are cases post nine hundred seventy four from other circuits that have reiterated the discretionary angle but none of them have addressed the amendments to rule seventy four or the surplusage argument that i just made the o thing is that that the absolute discretion to reject the police kind of thing consistent with the way that plea agreements are later addressed it gives the district court powers to reject a plea agreements and when the district court rejects the  implications number one mr vasquez is valuable right in the plea agreement to not be prosecuted on thirteen twenty six would arguably not the enforceable the government on the other hand would lose mr vasquez his promises not to appeal and his promise not to file a twenty two fifty you doing merely ministerial accept here and he wasn't if he had followed the way rule that in the structure he should have expected the police and then the extent he has discretion to reject the plea agreement then he could have done that and that would've helped the parties contractual agreements where you don't bring charges and also agreements where you dismiss charges the agreement that mister to present to the district court provided that they would not prosecute him on the thirteen twenty six and i think those are let's say he and i mean let's he work would be subject to very limited discretion under rule forty eight and i don't think that there would be any basis for rejecting i think one of the things that it's odd about this case is the district court never really articulate why mr vasquez and similarly situated people are getting clear offers which is the executive has made a choice that it's better to have a lot of guys get less time than to have less guys get a lot of time they basically don't want to go for volume and that's because that's effect problem that is in executive decision about whether you know i looked at that our internal records the average thirteen twenty six case in my office is like thirty six hours this case we've spent something like three hundred sixty hours so maybe that means that by refusing this plea ten other guys didn't get prosecuted now i don't know how much time they devote these cases in the prosecutor's office but the bottom line is that they give these guys three months so they can get more of them the cases go very quickly you know this one because the judge didn't accept the plea didn't go along those lines and i think that you know the fact that the district court has never really articulated why this case shouldn't be treated as a fast track because of the executives allocation of its resources which is cited and alice in miller charge because the maximum was too low is precisely what happened here and when it gets down to it the district court judge thought that the maximum sentence out of the thirteen twenty five was too well that's precisely what this court rejected in the alice case so i think that if i leave the nder under the program that was approved by the attorney general to allocate resources in a particular way and mr object is correct i mean we we do this so that we can prosecute the maximum number of people  a minimal amount of time just to share with the court in fiscal year two thousand and four of all the criminal aliens that they came in and there were a significant number we chose to prosecute one thousand nine over a three hundred cases that were set for trial in fiscal year two thousand and three we had one thousand nine hundred fifty two people that were thirteen twenty six olive oil if you will and of those one thousand seven hundred and eighty five of them were disposed of by way a fast track leaving a smaller number for trial and we do the act specifically so that the office has time to do other things such as investigate  investigate the the city's pension fund investigate the city council and do a lot of other things that we that we are charged with doing so what's happening here is that we've set up this charge bargain situation so that we're able to do that and the attorney general is specifically said yes you can do that what's happening is that the judge burns is trying to is making a decision that  receive an answer to a to a telephone message and so we proceed in the grand jury and return an indictment and we review that in the in our in our brief and thereafter defense counsel came to us and said well we would still like to accept the fastrack and we agreed to do that but what's happening again wha wanted to plead guilty and they came forward close to the end of trial and said ok we want to plead guilty and the court denied the right to plead guilty and the court of appeals upheld that that decision not to accept a guilty plea however in the cases  d interference with the charging decision my separation of powers mean that the judge not only has to accept a plea he also has to accept plea agreement so i can't say that i cannot say that the the cases are very clear that the judge has the right reject the player i understand that they base that on their interpretation of will level and i know that judge tried at least in his concurring opinion in the ellis case sort of gave a different interpretation of will that that's there i think and they have decided to concentrate on giving on getting a lot of people through this program by giving them very attractive deals making sure they suffered some punishment and the second assistant who came down to court in september when they moved through it for the acceptance of the plate when judge burton said are you the one who made the play or why are you here he said i drew the short straw and the only thing he told the court was well the last thirteen twenty six was a fifty one month thirteen twenty six conviction but that happened in arizona and i wasn't involved in negotiations in this case but you know it seems to me that you know maybe that's what they consider that's partly maybe their maybe  government says look we choose not to prosecute him on this of the charges because we're lazy because we don't feel like doing it you know for whatever reason because we think you such a good looking man that we just can't get ourselves punished and then moved back across the border and then up this policy what what possible concern is that of the cork well i think it is a concern of the court because the thirteen twenty six charge was pending it was going to be dismissed for some have with the government's decision to charge one and pursue one charge and dismiss another i baffled well i think your honor when you when you get into this situation you do still run into that area where the ple in the ellis concurring opinions you know now the court can defer the plea to further please consider i'm all at once and i think that's what this judge was doing because there were other charges being dismissed and the court was being asked to dismiss them mr h not unfettered discretion there's clearly that conflict between the judiciary from judiciary is right to sentence and the government's right to charge and so every case that deals with a charge card in the situation says the judge should treadwear and what it tells the judge to do is ask the government to state its reasons for why it's making this charge market and then you state your justifications for rejecting the charge wagon and then we can review it for abuse of vestigations we don't get involved in deciding how cases are signed three assistant united states attorneys and why why why the good of government's reasons good or bad for years that's one issue i think when you're talking about whether the court should accept a play i think when there are other charges pending i think the court should consider and why can't my can't the court just accept the plea reject the plea that's the question for the day hundred and and i think the answer is you know i hate to say this but this is sort of what happens with wal mart justice everybody goes into court you're going to do the plea the police room and the sentencing at the same time and the party she asked for the court is given enough information to make a decision but i think when you look at the reality of this case the defendant said well you know i could still plead to the thirteen twenty five and then i'll try to bring specific this condition subsequent to the green and and so you didn't have a situation where the defense that i'm just going to plea i mean the other way this case could have been handled is if the government indicted the got by mistake they could have moved to dismiss the indictment separate and apart from any what he clearly didn't want my street go ahead and accept the players before stand thirty month sentence because he thought i believe and i think it's very clear from the record he thought that was going to be the end of it no matter whether he page twelve zero nine when the district court made a further decision that the second degree charge itself was too lenient it intruded into the charging decision of function generally within the prosecutor's exclusive domain so i think that the remark that we would be happy to go back and play that is true but we do believe that it violates the separation of powers to reject the plea agreement itself and we also believe that even if he has discretion to reject it that he abused it by not considering that the fastrack items rest of what's going on what is involved is an agreement between you and the united states government things having to do with waiver of appeals the potations issues and so on situation is that a fully enforceable except the plea agreement but as a practical matter i have no expectation that this man will get less than thirty months when he enters those two police that's your only hope your only hope in saying  is fully aware of what the fast track program is all about and why it is implemented you can tell after just i mean it's been going on for several years and also he makes remarks in the record that indicate that he's fully aware of what the fast track program is all about and whether we have witnessed problems or whether we have document problems or so on that would compel us to offer a better deal that's just simply not his business and