good morning your honor is and me please the court my name is margaret here and appearing on behalf of the defendant and appellant nike for asian and i would just request to reserve two minutes of my time for rebuttal i think the core problem in this case and a core error that occurred below can best be understood by looking at this court's one thousand nine hundred and two decision in the united states versus fernandez in which the court said this court said the district court erred by failing to either accept the plea agreement and sentence fernandez accordingly or reject the plea agreement and allow fernandez to withdraw his guilty plea i really think that that's the core of what happened here and i think that should tell me how  appeal waiver for you from challenge your honor it doesn't because the reason is that the appeal waiver is a part of the agreement itself and if that waiver is going to be enacted and carried out and the agreement itself must have been validly put into place eleven according to brill eleven's procedures and that didn't happen here it doesn't doesn't the i mean haven't we said in the past that an appeal waiver covers the bad guidelines calculation it can cover a like to point out that if the court accepted the agreement which i think it it intended to do here it said a few times it wanted to do that under eleven c four it's entitled to tell the defendant that at that point i've accepted the agreement and he will now be sentence according to the terms in your plea agreement those binding terms that were set forth the court the court didn't say that's what she but your client was sentenced was in the range of the plea agreement he was sentenced within the range but that range that he was in his within range but according to a different if that makes sense i don't want to be say and i think that more and more and much in this case from the supreme court two thousand and sixteen talks about how that is an area that affects substantial rights even if the sentence falls within the guidelines range if the different guidelines provisions that you and the government had agreed to is that right guy lying calculations the base offense level particular start at a certain point that's right here and the district judge here though at one point nineteen defendant gives up the right to appeal any portion of the sense that's in the record your honor but i think once again that that and then mr frazier i don't think you have you necessarily disagree with this  or say this is not true he confirmed at the change of plea hearing that he understood the waiver included the way in which the district court calculated the sentence the court says you are giving up your right to appeal the length of the center the way i calculator or arrived at the sentence do you understand that and he responds yes so we have case law i think it's medina carrasco says because defendant expressly waived his right to challenge sentencing guideline determinations a sentence in accordance with the plea agreement need not rest on a correct guideline determination so i'm trying to figure out exactly what it is that you below agreed that the court now contradicted the terms in the plea agreement that were agreed to and the government agreed to my question is where does the plea agreement limit the district court i mean we can fix the plea we i don't want you to spend your time and other yes what did the government ever agree that the district court was barred from imposing additional constraints i think well you know i think that the they agreed with you but i can't remember i can't recall a place that they said that now but i think should the government agreed that he could appeal because this is you've opposed conditions in addition to the police but yet we're in the plea agreement was the district court required to only impose the conditions noticed there and they had to in the it was i believe it was paragraph but doesn't likely agreements just let me finish i know your doesn't apply your game and say including the following conditions not limited to the following conditions i believe that i think it says well i don't want to misrepresent what it actually says and i think your honor is correct i think that that's right  court said rejecting any part of what's agreed to actually constitutes a rejection of the entire plea agreement and officiation of every part of it i don't think that's what the court and i'm sorry can you remind me and point in time prior to they defended it wasn't notified of his opportunity to withdraw he didn't say that but any time he's proceeding to sentencing and at the sentencing he sees what's going on the calculation is not going consistent apparently to what he and the government agree c we did not agree to this we object and we want to withdraw from your honor they didn't go so far as to say we want to withdraw from the plea going to the estate pointed out the o and his government i would also say only if there was the defense objection to the guidelines calculation was different guidelines would be refused yes the same e r thirty three dollars line thirteen actually twelve if i may point out the government has indicated the government's asking we are asking the court to follow the guidelines that were contemplated included in the plea agreement that stated the government also  that's very different asking from objecting to the district court and saying your honor this is a violation of the love and see one seat i want to you know but with object and so once again that's the duty of the court to inform the defendant of that that's not the defendant was there a day she told me in the th circuit that says that morgan actually says that that if the district court is not clear and doesn't really say or i guess  really clear well if it says that it's accepting but then does not in effect it does not actually implement what is agreed to that actually constitutes a rejection but that doesn't mean that we assume that the remedy for that is going to end as a actually out of time oh yes i'll consider correct right ok so if we remained for a reset and saying under supervised release and of this case the judge can then figure out whether she meant to or he meant or who was he she meant to in this case conditions in the supervised release we know you tried to fix that a couple times but it appears that he didn't fix it in time for us to review it we can take care of that part of the case separately care yes or ok so then you agree that you agree about that know ok so now get with get back to the hard part the part you were going to address thank you for this case because that poses somewhat unusual set of facts there's certainly i think no shortage of different ways to look at the record and different ways to approach those facts but i would submit that one approach makes the most sense defendant basically contends that the district court violated rule levon c one c by disregarding the guidelines calculations contemplated to and agreed to by the parties but defendant failed to object at the time of the sentencing and state with the specific grounds for that objection and miss morgan tell us anything different or can you respond to your colleague across the aisles argument that it was the burden of the court or the government to point that out as a factual matter you honor the court did apprise defend it at the st sentence saying that if the court wasn't inclined to accept the plea agreement that defendant would have the right to withdraw all what is the case law tell us because your colleagues saying that something so tell us why the guidelines calculation in plea agreement wasn't as your friend says part of the eleven c deal the guidelines in the calculation were part of the law so it didn't get to court then not agreement as as to the guidelines issue yes the court case so why shouldn't we just vacate the whole thing and throw out to play agreement and you can go charge this guy and send him away for forty five years well you  i think that's unnecessary because defendant here didn't state the the basis for the objection now there was an objection and the all the parties both the government and the defendant tried to convince the court to go along with the parties agreed upon the factors but i think the court the parties certainly defend it in order to preserve the issue needed to set the actual basis for the adoption in other words it's not enough to just such circumstances in which basically a a defendant objects on some sort of ground and then raises a different ground on appeal and basically the courts of appeal have said that that's not sufficient didn't didn't you object on the very ground i mean they said at some point i thought we'd agreed on a different guidelines calculation it's different your honor i think it's one thing to say district court please follow our agreed upon sentence or agreed upon guidelines calculations but what the parties needed to do what the defendant needed to do to preserve that argument was to say you honor you accepted the plea agreement therefore you are also bound under rule eleven c one c two except the guidelines tell you what would what drives me crazy about this case is it's quite clear having been through this three times with the district judge she entered three separate orders that now having been apprised of people's objections she was going to end up in the same place anyway so why don't we just vacate the whole thing and send it back and let her pose whatever said she wants to use if it's two hundred and seventy months then it'll be two hundred and seventy months if it's last it'll be l why are we why are we trying you know there were mistakes were made somewhere along the route here why don't we just vacate the whole thing and send it back to her and let her do what she wants to do well under a plane or review our defendant hasn't met that person i think it's important  to give judgments finality and hear the defendant has it if if the district court violated the eleven c once he has remit the only remedy is judgment here and there were several issues that's the part of the problem that's why this came back on appeal but just if you could address the core issue here you have an eleven c one c with certain conditions that were not in that the court didn't accept and then you have this waiver where the court clearly tells the the defendant you understand that even if i get to my sentence in a different way different from the eleven c one c that's what's going to guide in terms of your palate  waiver does it apply or doesn't it it does apply why because it defendant reached disagreement agreed to waive his appellate rights if the sentence was within a certain range and if court didn't follow that deal therefore my waiver is no good please respond to that or you certainly honor the cases that defendant cites in support of that proposition or they all happen although they are all rule eleven cases they all address the kind of the formation and the entering of that guilty plea here although here the defendant there is no i think doubt no challenge serious dispute that to defend it entered into deplete agreement knowingly and voluntarily and so by contrast those other cases that defendant had cited they were all they all had to do with basically you know defendant didn't wasn't appri the statutory maximum things like that in the role levin call it and therefore the formation the foundation of those pleading events were invalid and therefore the appellate waiver was invalid i think the situation here is different because no one's challenging that the defendant entered into the plea agreement let's take a hypothetical let's say the district judge said i'm going to give you two hundred and seventy months because you're an african american or some impermissible reason but stayed within the plea agreement numbers could could do any sentence so so that use an improper calculation of the sentence doesn't matter as long as the sentence was within the range allowed by the plea agreement that's the government's position that's government's position even though you've agreed even though you agreed with the defend it would be calculated in a different way correct john and i think i understand your position i'm just trying to figure out your authority other than you standing there telling it that's what it is i don't have any particular i haven't been able to find any cases that had this particular situation or i can say however that to defend it does not want to which all the plea agreement as set forth in the report right which is why i asked the to sort of why why should we worry so much about this question we send it to the district judge has already indicated what she wants to do she wants to go back to the original conditions of supervised release she can think once again a wet weather to seventy or to forty is the right send she can arrive at the have the authority to modify the terms of the supervised release even after the i believe it's the rule let's hear it already on that if he can correct clerical errors in it and the judge you know what that gives the supervised release i understand we're talking about the two hundred and seventy months now correct but that was never change that remained the same it was the supervised release conditions that were modified and that's under i think it's three thousand five hundred and eighty three of you to your honor and then without the hearing i think it's under rule thirty two point one thank you thank you for your art c agreement and what the with the district court did here is to get to the supervised release no your honor i think i think you want to withdraw from the plea no your honor we don't want to but i think that what all our of all parties here wanted to do was to accept know what we do don't we because shoot you you say you preserved it with an objection let's assume you did the judge then went back and said after we remembered it and said i meant two hundred and seventy months well but it can do you know what you do impose the sentence of two of two hundred and seventy months and i think that she knew she was imposing that sentence certainly but i don't know that she understood that she was i think for my reading of the record she didn't really like the eleven c one c from the beginning well but like a lot of mean felt like it was going to tie her hands and certainly in light of the facts of this case it may be so but she did take a recess during the two thousand and fourteen hearing think about it come back and say i'm going to accept it because i think that we shouldn't require this child  the court can can vacate or affirm or reverse or what all the things that are stated in that in that provision or remain for further proceedings and i think in for in fernandez and i think in the other cases cited in morgan what this court has done is say we're not really sure what the district court wants we need to send it back so that we can properly the district to district court says this is a really bad guy i'm not really crazy about this plea agreement i would have given it much more had i had the ability to do so she  applies and so i'm going to give us the top range of the police agreement that's what i think we're sort of in many ways we're wasting our time here and i think i think what's needed is clarification what did the district court do either one of two things i think will happen on remand you know the district court will say what i case united states versus frazier's now submitted thank you both for your presentations the next case on the docket is united states of america versus justin marc is heading