imagine the court has had time to review and look at the brief so i'll be very brief in the time that i have i wanted to address just two issues with the panel first the issue of what it is that mr rat in order to be entitled to relief from the government's failure to file a three fifty five three thirty five fifty three emotion and second the issue of the language of the plea agreement as it relates to mr it must have made a substantial showing of an impermissible government motive in denying or in failing to make the thirty five fifty three motion we believe that's leonard knights and then also in this circuit mccallion which in which the district court remanded the case for a hearing on whether or not the government acted in in good faith whether or not they acted in bad things why are we talking about that there were two separate aspects to what they gave themselves to do the first was to file a five k motion allowing the court to move out of the doubt the guideline sentencing range the second was to file a thirty five fifty three emotion in order to allow the court to move below the mandatory minimum they swear is are separate obligation for the government to move under section thirty five fifty three then for a five k one is there a separate obligation on your part there legally there are two separate motions that must be filed that's what the melendez cases thirty five fifty three requires a motion as well as five k one point one there are two separate new york as i understand it was that yes there that the only thing the greenman talks about mr rudd is cooperating pursuant to this agreement that if he feels his obligations under the agreement you can only do this one thing you can file a motion under both provision saying they have this power but nowhere do they say where we got this power that that we kind of gratuitously even though we are obligated even though we entered into this contract with you mr rath we were going to move outside of the contract and we can motion will allow to add two things to happen not one thing to happen which is that guidelines you can blow the guidelines and move under the guidelines sentencing range and the second is that you can certainly under the mandatory minimum so your are that argument the guidelines for fish well but i think that any time i mean that's one way to look at it but any time the government wanted to look at that way well any time the government wanted to get outside the scope of an agreement that obligated to do them have them do something that nobody's ever stablished that he didn't fulfill its obligations the court never made any findings about that to the girl is it your position that he had a different obligation under five k one that he had under thirty five to fifty three it was the same obligation and that's the way the world works outside an agreement and the real question is is there some rule that says once there is an agreement they can't do anything that they don't have to do just because they choose to do it and i would number of issues this was an extremely large case mr ruff was debriefed by either state or federal law enforcements on thirteen occasions for several hours and acted in many after many many afternoon throughout these many many debris things the government never raised the possibility that mr rath had been untruthful it was only the seven years later in two thousand and six that the first phrase that he had been untruthful they they interviewed him on and hundreds of topics and what they were saying was on two very isolated topics one was his participation in the next single armed computer chip company roughly a single one even though he had admitted to participation in dozens of them or a dozen over dozen i should say and then second on this topic of whether or not he had skimmed computer parts from other coconspirators in the case rather than you know putting them giving them to the leaders of the organization on these two very isolated very good morning mid please the court i'm going to jump in here while i have a chance and i look at this is a breach of contract speaking personally as the government  met how can you claim was met with respect to five k one point one but not with respect to thirty five fifty three eeg when you had agreed to make a single motion the that statement refers to the fact that the defendant had condition that would have been necessary to bring the paragraph fourteen c into a fact which was addiction a discretionary governmental determination that not only substantial assistance had occurred but also that there had been full and truthful cooperation and that the defense would otherwise complied plea agreement by bringing the five to one point one motion the government was very clear that it was it was acknowledging that substantial assistance had been given the defendant had provided truthful information with regard to their role to other people in this from the enterprise ahead and make under some other circumstance at least if it's going to work for the defendant right and i think that could be an argument the government be acting in bad faith of thought to punish the defendant through a departure emotional i find it hard to imagine such a circumstance and count the government the court would not have been able to impose since the didn't pose which is two hundred forty months but effectively a two hundred fifty six months that means without the downward departure motion the existence of the downward departure motion keep in mind the government is already making the lowest possible sentencing recommendation the plea agreement entitle it to make by bringing the five to one point one motion that empowered the district court to the part of the thirty two months below that recommendation which both parties had single most and containing both the both of those and then where in the in the contract that you had with him allows you to file one motion for the guideline but not for the statute the plea agreement is utterly silent on what the government's obligations will government can and can't do in the thirty five fifty three and five one point one that is it is possible for the government to bargain away some of his discretion the plea agreement ten bring additional constraints on the government's question under that if that's what's negotiated for here it did no cried in the circumstances in which the government were running a five k one point y motion and that's it i mean was without the addition of the sixteen months concerned the two hundred twenty eight months since recommended by the government was without the sixty month consecutive sentence the total sentence it would be two hundred seventy and two hundred eight exactly that's the number that i mean that thirty five fifty three he was the motion because he is serving one hundred sixty ninety six months under the state so if you run the sixty behind one hundred ninety six it's a long it's over twenty one years and that is more time