then face prosecution on counts two three and four which were dismissed and potentially other charges as well certainly the government in the plea agreement does reserve the right to do that that doesn't mean that the government will in fact do that there are other options obviously the sentence was part of a plea bargain in the government for many reasons could choose not to do that but at this point what what we're arguing on behalf of this court is whether or not the district court made an error of law  thinking that it was bound by the guidelines after booker and the district judge unequivocally stated that he thought he was bound by the sentencing guidelines after booker that he that sort of doesn't answer my question and i know it's kind of  for a number of reasons which i can't get into with this court i don't think that that's very likely to happen there are other arguments that we could make both to the government and to the district court that i think would render it very unlikely that mr starks would get a higher s fifty one months those defendants got time served of about twenty months so i don't think that the government is likely to increase mr starke sentence here i think that's highly unlikely ok i take it your client is well aware o absolutely yes he is well aware of the risks involved ok so going back to the waiver straight on why why why there waiver this is what th are arguing for and you've got something in return correct at the time that mr starks entered the plea agreement obviously booker had not been decided when we appeared for sentencing booker was decided the very morning  not going to be able to heal if you prove that i agree with yes that's true and i'm sure that that was absolutely the case and you can into that that one goes over the appellate waiver but what happened in the interim was that the booker case was decided and once booker was decided that morning it's so changed the guidelines went from being mandatory to being advisory so complete up people and both the district court judge and defense counsel who was my mr stark's favor and then said well i don't just take me up on appeal let the ninth circuit decide so over and over the judge in that case said you can appeal and the government was silent well but it isn't it isn't a solution for the booker problem to go to the government and sa that when the government remained silent when the district court told the defendant he had a right to appeal that essentially the government now wait that issue the government could no longer argue appellate waiver because when the district judge informed the defendant of his right to appeal the government waiver they remain silent in the starks case the district court judge talked about the right to appeal over and over and over in the government remained silent throughout the entire record the government never once raised the  judge the district court judge said i don't know what to do here i feel bound by the guidelines but i think they're wrong in this case if i had any discretion after booker i wouldn't give this sentence so if the judge thought the defendant did not have the right to appeal he indicated on the record he would rule in favor of the defense and let the government appeal so over and over he said i authorized this record for appeal can you appeal after booker and never did the government say there equitable etc whatever i got the wrong formulation but the point the point being he made no effort to get out of it and i think i have difficulty saying now in that circumstance it can be said that he remind the trial angst at the point at which he was being sentenced as a matter of strategy he understood from his lawyer in the judge telling him that he could appeal the judge directly told him you can appeal either big difference it's true there that the court said well you can appeal and so he relied on that but but i don't i don't think that this situation is the same and i think we distinguish  it is true that if you can in the defendant did make a motion to withdraw his plea of course in this case you have the intervening landslide the decision of booker and if you're talking about what the defendant understood here anthony starks is a young man of very limited education i think obviously relies on what is attorney and what the judge tell him and his understanding when he played was that he was waiving his right to appeal that he was allowed to ask for a downward departure in the guidelines that if he didn't get a downward departure that he could appeal on the morning that he was to be sentenced the booker decision came down the judge on the bench said i'm just printing out the book or decision now and i'm reading it and i'll give you all more time to brief it subsequent briefs were filed at which time benefit of his bargain that's certainly true he was getting the benefit of his bargain there was a risk to withdrawing his plea and it didn't seem strategically at that point in time regardless of how it seems in hindsight at that point in time withdrawing his plea didn't seem to be would be invalid that booker was now the law that i am a lean had been we've been getting remains to the dish at the district court level things were in a great deal about people in the district court judge obviously completely believe that mr stark's had the right to appeal he says  over and over in the transcript he says in fact either side can appeal i authorize you to appeal i urge you to appeal let me make an argument for you i i i think we understand your point and i would just say that mr starks plainly believes that he had the right to appeal when the district court judge told him repeatedly that he did and he did rely on that right you for the new strict time your full time thank you issue the controlling case is this court's decision in zavala and there which that opinion came out after this case was briefed this court in a math case addressed a situation where the court below said that it presumed that the guideline range was the proper place to sentence in response to that the panel in this court said that that was not correct that the guideline range as a starting point in that nothing in thirty five fifty three as it stands after booker indicates that the guidelines are to be given greater weight than the other factors and thirty five fifty three any and here they want not just the presumption the government they want to brick wall that's the guideline  range that's inconsistent with thirty five fifty three and just briefly your honor i like to emphasize that thirty five fifty three i is a statute that list no fewer than thirteen factors there's fewer paragraphs nothing but there's multiple factors per paragraph and those factors one of them is considering the guidelines two of them concerned the particular circumstances of the defendant in the crime the other ten are a wide variety of considerations that the judge is supposed to take into account and not one of them is controlling the statute does not say judge you have to wait it one way or the other zavala is right in reading that statute info in euro were incorrect stevens as remedy which would have allowed for uniformity at least it would have turned the discretion over to juries where there had to be jury issues made or questions of fact were going to be decided and so in making that decision the the court wouldn't shouldn't either blindly follow the guidelines or blindly ignore the guidelines that if it was going to do something different it had to do it on a case by case basis what's wrong with that approach and again i go back to a run of the mill case and he has in his view factually you're right what's wrong with that i think what's wrong with that is that he says there's no particular circumstances that would cause me to go outside he states very strongly that he would like to depart from the hundred to one ratio yes because he doesn't like the guidelines but that's not a basis for norrin them i mean they're still guidelines whether you think there's in telephone or silly when a judge weighs these many factors if in the end he doesn't choose the guidelines for dominic doesn't mean he's ignoring them there's no doubt that a judge has a duty to take the guidelines and aspirations of a particular back here and he says i can't see any here that would support guidelines is that a permissible ground for changing a sentence in your view your honor i think it is and i think that's what's in the statute itself when we talk about the intent the will of congress we have to start by looking at the statute because congressman what does it mean for the guidelines to be advisory if you say it is just i think this is stupid advice and i'm not even going to think about it your honor very often that's what advisory means i believe mandatory means that you have to follow it advisory means that you have to consider it a explicitly that you the guidelines should be used as a starting point then the court went on to talk about the consideration of additional factors and throughout the opinion if you go through and parse it with a highlighter as i have attempt to find the most reasonable sentence for that person within the territory of all possible reasonable sentences and then goes on to talk about the unique skills that we attribute to district courts to sort through i believe the calls that the nuances and possibilities of the human condition that the district court judges are so good at perceiving it's very clear from zavala in the government's view that the guidelines are a starting point and then the additional considerations under thirty five fifty three should be individualized considerations and that approach is entirely consistent with the vala i would just note in thirty five fifty three that there is there is no of all the thirteen factors not one single one of them says and consider the district courts own political beliefs or own policy decisions regarding the validity of punishing certain kinds of crimes that is a congressional role and the district court indicated in this case on these sort of unique facts that that was absolutely the sole and entire reason that he was debating at all in imposing this sentence was because he disagreed with the guidelines for crack cocaine his sentence was that he believes that the ratio was imposed to correlate to the simple fact that powder cocaine is the drug of choice among yuppies dot commers and movie stars in beverly hills that was the sole issue that he was struggling with  pronounce it just felt h c k hate her heart in the eighth circuit which is a marijuana case but in that case the circuit so you know you cannot impose your own belief about marijuana guidelines being too low which is the opposite notice to the conviction for it to kick in and actually effect a sentence regrade to waive that notice for not one but two prior convictions which theoretically would have subjected him to a life mandatory in real practice we typically only file one we need permission of the department guidelines is doing better than he would have done without the plea agreement he's doing better under the guidelines and he would have done under a pure statutory regimen is a government and not entered into that agreement so  this mandatory twenty year minimum that you could have faced and that is why he did not come in after booker and say i want to withdraw my plea booker changes everything i think have a shot that's why he did not move to withdraw his plea because he still wanted the benefit of that bar being able to avoid the twenty year mandatory the provisions of the plea agreement that i was questioning opposing counsel about earlier if the defendant succeeds at his own request you know reducing  self up to a bunch of other stuff opposing counsel said that it was not realistic to believe that the government would actually seek to reinstate earlier counts or otherwise to hardships do you have a statement a former government would do or do you not know i am not a small pond in a large bureaucracy i cannot answer that question at this point but i was hearing these repeated statements you can appeal you should appeal and so forth well why would counsel not say something say judge there is a plea agreement there's a there's a no  to file an appeal he knew that there was a plea agreement in place a lot of the discussion most of the discussion in fact goes through as if as if he's going to rule in the defendant's favor most of this question and then at the end he says he's going to switch around because he thinks maybe we won't appeal and that way he won't get the essentially the advisory opinion that he's seeking that he's asking for from this court so it's our position that he knew all along about the defendant has filed a motion withdraws plea and essentially got together and said come on take that motion back let's go forward with sentencing and you can appeal and based on that he decided not to pursue his motion to withdraw in this case there was absolutely nothing tending to nothing that he could and no action the defendant could have taken where there could have been any reliance by that decision was circumstance frankly because the judge was clearly seeking some guidance and he didn't want to make a ruling in the defendant's favor without having the comfort of essentially an opinion from this court so the whole discussion all along is basically i'm going to do what i want i'm going impose my own my own ratio i'm going to go against the guidelines and then kind of at the end he decided that what he wanted most of all essentially it sounded like was that opinion from this court he wanted someone to appeal and he thought maybe we might not well you know if he does say that the most useful thing for your opponent is what's happened since the very end of page thirty of the transcript where he says you have a right to appeal your sentence particularly distilled down to just notion that this record cannot undo please very meant by just saying you know i mean he could have said oh government you can follow your nose of of and give him a twenty year mandatory that would be fair and it's not