three minutes for a bottle of wine and me please the court this appeal raises two issues the st is that the government breached the parties plea agreement by arguing for a more severe sentence than what it did agree to now it's black letter law a plea agreement is governed by contract principles and this contract this plea agreement the parties agreed to a particular base offense level and agreed that they would both recommend a sentence within the guidelines range determined by that offense level there's no dispute that the government's arguments violated that provision once the district court calculated a higher offense level than what the parties contemplated and the government's counsel rose to make his argument he argued for a sentence within that higher range and not within the parties agreed range that violated that provision of the police well you also said jett would object to but the one time when the government's counsel was given an opportunity to make a recommendation to the court on the actual sentence given there was only one argument made and it was a sentence within the higher guidelines range at what point was that was that was the district judge walked through the pre sentence report and addressed there was really want to objection and it was to this for point and handsome resolve that objection decided to include it then gave the parties their chance to elocute st the government's attorney at which point the government's attorney recommended a sentence within the higher range than the defense attorney and the defendant and that impose the sentence and then asked for objections so what the district court had decided that the caveat the government wasn't obligated to make any recommendation at all under the plea agreement the what it says is the parties agree on the space offense level and agree that they will not recommend a sentence outside that range so the government could have stood up and said we'd rest on our briefs but once the government decided to make a recommendation it was bound to make a recommendation within the twenty one to twenty seven month range and instead it adopted the thirty to thirty seven month ridge and made several arguments to the court suggesting why that range was the appropriate sentence but that i was just going to get that violated the terms of the early agreement where the government says there are in fact was a breach that the breach was cured against after the sentence was actually announced the government mick gave some indication that it wouldn't want to be inconsistent with the terms of the plea agreement and where they said the quote there was i suppose a larger sentence could be appropriate before the government's attorney made their point and cure they said that wasn't unequivocal starting with i suppose a larger sentence could be appropriate here what the government's attorney said was started with when i was arguing for a sentence and a lengthy sentence which i do believe that this just found it deserved and it's already been imposed by this court that's a page eighty to ninety four so the  thing the government's attorney said for this purported cure was i do think that this defendant deserves the sentence this court has already imposed that's not a cure that's that's retracting the cure before you've  also even ahead if it had been an unequivocal cure it came after the sentence was impose that's too late for it to be meaningful the court had already imposed that sentence now that point the court is asking for procedural objections made and it can cure procedural objections to it i mean that's that's what i think the question is all about to make sure there is no procedural substantive considerations i think i think you're right it's too late and the other thing here is that the cure the government's sutton's ends i mean your quote was that i think he deserves the sentence that was imposed of thirty one to thirty seven months however i didn't want to i don't want to be inconsistent it was the position i don't know what the rest of this i guess you have to read it in that i don't want to be inconsistent with my prior recommendation but it's it's not there it's cut off right that's correct and i don't i don't know how that can be a cure when it's it's only a half a sentence i'm obviously not going to dispute that your honor i would add that i mean i have trouble this is questions for the government but how that's a cure when it's left hanging that's correct and i believe the judge followed up directly with that with i'm not sure what you're saying it doesn't matter because i'm going to impose a sentence anyway right right and i believe that i would turn on that to the remedy the government says the remedy should be left to the district court to decide we submit the law is clear starting with santa bella versus new york out of the u s supreme court which has obviously binding that says the remedy is either specific performance re sentencing before a new judge or withdraw all the plea now withdraw the plea is obviously the more drastic remedy and we're not asking for that here this is the kind of breach that can be cured by re sentencing before a new judge i would also submit that santa bellows is almost on all fours i read it again yesterday in santa bello there was a group in agreement that the prosecutor would not make a recommendation and then at sentencing the prosecutor recommended the maximum sentence and the judge even said in that sentencing hearing well i'm not influenced by the judge i think the quote was i don't care one whit what the prosecutor said but the supreme court nevertheless held one that's a breach understanded contract principles into the remedy is resentencing before a new judge not quite sure i know that's exactly what the supreme court held but i'm not sure the rationale of a different judge in that situation springer doesn't it doesn't that's a good question and the one thing i glean out of the supreme court's decision there is we they they say we mean no criticism of the judge you know so why do you take the case from right right and i don't understand it that well so so we're not looking at things like reassignment right is there reason to question the judge no we're looking at what's a meaningful remedy for this breach and i think i think this is valid which is if we stand back and look at what is the appearance of this having all of us go back and hear it's ok right having us all go yes i think that's need actual projects but we're going to limit the appearance of prejudice i think that's right which is anyone looking from the outside saying wait you're going to go back and now go through the motions of the reason you're here it's more prejudicial because the judge says i've got no matter what the recommendation right so i mean your argument of a different judge here factually is much stronger than say well i i think it's actually the same as santa bell because the judge there said i'm not going to listen to the prosecutor i'm going to  i don't care one whit what what the prosecutor said that was the savior here yeah ok here it's very clear that i mean if we went back and the prosecutors that yes i'm going to recommend the original guidelines of twenty one to twenty seven the judge has already made it clear that he's going to oppose this that's again so it's a few lectures i think that's correct and the this court i mean the supreme court and then this court in fiction barnes you know have held that we don't look to harmless error we don't look to see with of the judge would have done the same thing and so no matter what the judge said the remedy is recent and soon before a new judge we did raise a nd issue i'd rather than dig into it i'm happy to answer any questions on that but my time is starting to drop the specifically by incorporating what all the parties agree was a just an inaccurate statement by the f b i agent and using that as a basis to enhance the sentence i believe that that's fully briefed though so unless the court has questions about that we would good morning may please the court james ewing for the united states the government did not breach the plea agreement in this case and the district court's factual findings were sound the government told the district court five separate times that it did not believe that the two k two point one hanson applied and bring that up the five separate times is that that was the pivotal question in this appeal was with me in the sentencing was whether the two k two point one and hanson applied and so the usa told the district court judge we don't think it did and so the district court judge ended up disagreeing with that but that was the benefit and the government also agree to recommend a sentance without the and handsome and which was the twenty one to twenty seven months we did and i agree with mike i agree with my so that was part of their their contract their their promise and why wasn't that breached when the government says that i think the appropriate sentence is thirty one to thirty seven and i grew with my colleagues kind of recitation of what we signed up for i think we signed up for both we signed up for and so i thought that was a moment you didn't breach the the lack of the enhancement but you did breach the it's too late the sentence hasn't been imposed at the time the statement is made and secondly the government's sentence here is i mean it to me it's incomplete it says we don't want to be inconsistent but then the government's attorneys cut off and i don't know it's not on the record exactly what he was going to say i would point your honor to further up on the same page page idea to ninety four where the a u s a says that what i put in my sentencing memorandum that was still the government's position so in the scenting memorandum the usa said we don't think the two k two point one enhanced when applied and we agreed to argue for within guideline range of twenty cases we know from cases like puckett in the supreme court and that's pens i paid one hundred and forty dollars says that some breaches can be cured and i would submit that this is the whole purpose of the boss to question at the end of a sentencing proceeding i that if there are any issues or concerns that need that can be cured right there on the spot without going through the process of an appeal then let's do it there we see general concerns and not substantive concerns bost the judge i'm i doubt has the authority or the total discretion to just change his mind at that point because the sentence has been imposed and he can't simply change his mind he can but my understanding was if one of the parties drew to the attention of the district court judge hey you made an error for example on the criminal history and the district court judge says you know what you're right i think the district court judge does have the authority to revisit the sentence while they're still there on the record they haven't they haven't for example they haven't for example closed the court it's still in the same sentencing proceeding this innocent proceeding is not over i think is a whole point of the boston question is allowing that district court judge who's best postured to fix stuff like this to do it and so that was the that was the response but i think it's the important aspect though that i'm trying to relay is that the cat was kind of out of the bag by the time that the u made the misstatement in the sense of the eight was arguing three times in written and twice on that was kidnapped three times on the record and twice in written form that the two k two point one enhanced it didn't apply the district court judge disagreed with that so at that point now momentarily the usa kind of played on the district courts field of the thirty to thirty seven months and that was wrong but that's the part that he didn't fix so that's our submission that how does it fix it when he says i do believe the defendant deserves and has already been imposed by the court said thirty one to thirty seven months how does that cure it when he says that i believe at this arguing for a term a substantial term of incarceration there are two in the twenty one to twenty seven month range so it's not he's not being inconsistent in the sense of he's saying i believe she deserves substantial period of incarceration however i don't want to be inconsistent are a p r disorder position has not changed from our sentencing memorandum so that was that i mean if he's not objecting to i mean if he's if that's not what he means why is he objecting i mean that the only thing that has changed he never said he thinks that two k two point one should apply the only thing he did was essentially what happened was you know when the when the defense counsel gets up to at to allocute she says hey that was in violation of the plea agreement and so i mean i didn't talk to the usa directly about this but i think that probably cued him in to say you know what she's right about that i should not have i should not have argued for the thirty to thirty seven month range so that's what he's trying to walk back and we would know but does he is the deserves thirty one to thirty seven that he says however i didn't want to i don't want to be inconsistent i don't want to be inconsistent that was the position well i don't know what the position is today i mean he doesn't say it's still our position that twenty one to twenty seven is the appropriate sentence you have to kind of read that in or imply it because he didn't say it  respectfully i disagree with that and again i'd point you did i read it incorrectly although he didn't read that part incorrectly but if you look about five lines up on the same page page two hundred and ninety four he says and this is the part that we this is our submission is this is unequivocal he says i would just really it reiterate that what i put in my sentencing memorandum that was still the government's position he's not talking about the enhancement because he never said the enhancement should apply in the past tense that was still the government's position and that is still the government's position maybe it's just a slip of was the still the still means still the good and then other words he's not talking about the enhanced because he never said the enhancement should apply he's talking about the twenty one to twenty seven months he's harkening back to that so that's what we would that's what we would submit is a government have to maintain its position of what its promise throughout the sentencing hearing yes you are and we're not we're not saying that the thirty to thirty seven months was not a mistake it was a mistake for him to say that what we're saying is that under cases like purser taylor arch is going to be a clear cure i mean you're talking about part of the cure here is is mistaken language and i would think a cure would have to be totally on ambiguous and totally totally clear and hear the alleged minimum i would think you know respectfully or are we disagree and i'll try to explain again why so ok i think you've tried well right i mean so he i guess the important point is the a u s a never argued that the enhancement should apply here so the only thing he could possibly be referring to is the running so he by saying i'm i'm sticking by my sentencing memorandum he's talking about the range because he's realizing then and there in court that he should not have argued for the thirty this or thirty seven months and if you look at cases like purser taylor part is enemy go those were all cases where the a usa argued for something that was this idea of we're not saying that the usa should have argued for the thirty to thirty seven month range but our our submission is that that was cured if i may talk about the two k two point one an kind of the substantive claim that they've made that the district court erred in applying that enhancement we would submit that at least seven pieces of circumstantial evidence supported the district court's finding that the two k two point one has been applied st however i want to make one clarification for the record look on his character as a statement the f b i agent made in this is really looking at the reply brief mainly to the p s r p s our writer is discredited material materially false as the usa informed the district and the video of that interview is not before this court it was not before the district court to its extra record material but i would submit to you that i've reviewed it in getting ready for this argument and there are statements in there that support the f b i agent to the p s r writer i'm not asking this court to rely on that i'm just concerned a little bit about the ancillary ramifications to this f b i agent and i wanted to dispel any notion that he was intentionally trying to mislead the p s r writer on that looking at kind of why the why was not error for the district court setting aside that issue and we're not relying on it here because of our position in the district court why it was not error for the for the district i agent jacobs stated that peterson was involved in numerous violent felonies including multiple take over bank robberies in the cleveland area rd close associates of peterson used the rifle to attempt to rob a credit union seven days after he received the rifle mr court rely on circumstantial evidence and it's really yes your honor she did because it was this is this is all in the p s r that that i'm reciting here and i guess my point is it that it's not the direct evidence of the gun statement to the f b i but it's the circumstantial evidence and of my colleague has kind of care characterize it as well that's what the f b i knew about peterson i totally agree with that but this was her boyfriend so it's circumstantial evidence that she also would have known and i would also point to the discussion with the district court judge the district court judge found that look don had lied to the p s r writer about how she lost control that assault rifle and that was really important to the district court judge and so in reality what happened was well don told the f b i just days afterwards where she gave that firearm to peterson in the parking lot of the store and never saw it again so then she tells you the seat tells the story about having a party with seventy people in her basement and then she loses the farm after that the district court judge discredited her and based the fact that she applied the two k two point one and handsome and in large part i would submit on that why and so this is a clearly erroneous factual finding standard and we would submit that there was more than ample evidence that for the district court judge to appeal to apply it to take if there are no further questions on either issue thank you very much if you would ask that the court affirm the district court judge  just one point on rebuttal your honour's page id number two hundred and ninety four which we've been discussing as the purported cure there's two paragraphs that we're looking at the st paragraph says the usa starts with well with respect to the four level and a handsome one and that's the paragraph that ends with i would just reiterate what i put in my sentence in memory memorandum that's still the government's position that's what my colleague says was referring to the increased range not the enhancement has he starts with reese with respect to the enhancement he's talking about the enhancement he says that's when he moves on and says i realize what i was arguing for a sentence and a lengthy one and the defendant does deserve it and it's already been imposed that's the only time he starts to talk about the higher range and his recommendation and that's not an unequivocal cure at all that's that's he's there i'm well familiar with the case law that says once the court has orally imposed a sentence they can't go back except via rule thirty five proceeding this was kind of my understand right so there's all sorts of case obviously where if the judgment differs from the oral pronouncement the oral pronouncement controls i'm not exactly sure how that would play out here but i would add again the judge starts with to the i would say i would ask you to explicitly state your objections for the record that's the boss to question it's focused on objections he refers to the fo level enhanced men were resting are we're sticking with our memorandum for that oh and i said something about a higher recommendation and then it ends that's at the very least not an unequivocal retraction and i do believe it came  before and she told me that she knew he'd rob banks and that parts inaccurate did the judge also rely on those other statements it appears so but it's unclear exactly what the judge was relying on parsing those out or the announcement of circumstantial evidence and i don't believe so and my time is up if i could just finish answering your question yeah the my count my colleague relies primarily under statement saying that was false and that that discredited her but but two points on that one is she admitted transferrin in both statements the circumstances changed and i'm not going to find that but that she admitted transferring it to the boyfriend and that was the crime she was charged with the nd is i mean going back even enters and resists liberty lobby the supreme court has said disbelieving a witness isn't the same as affirmative evidence and isn't sufficient even on a summary judgment standard you can't just rely on the fact that we think you shouldn't believe this witness now she didn't say you know i transferred it and i knew he was going to use it this way she says i transferred it he took it with him so so the fact that she that the circumstances around that the district court didn't believe doesn't provide evidence that she somehow did know that he would had committed crimes and other than other occasions that's a disconnect to thank you thank you both that you for your arguments morning we very much