of our criminal justice system but if the supreme court noted in sanibel of new york such agreements depend on fairness and transparency when it criminal defendant bargains away constitutional rights the prosecution has a duty to execute the terms of a plea agreement in good faith rather than executing and runs around those terms today's case represents a troubling breakdown in the plea agreement system m gave up constitutional rights but the deal he was promised by the government was an allusion now there are two points i'd like to focus on today the first is the government's breach by promising to recommend safety valve adjustment and then that is that something to break the chain of the promise and they know your honor we don't believe it breaks the chain of the promise for the simple reason that the government beyond letting the district court and the probation department make that independent determination the government affirmatively argued and even put on a witness that the district court said it relied on to a great extent in reaching its ruling on a managerial enhancement that precluded that safety valve adjustment the government had promised that determination and let the district court make an independent well let's let let's walk through this the government makes an agreement which it says we will recommend a safety valve adjustment if you meet the conditions and it says one in two pieces including one and two i take it i think that everybody says that the lawyer knew what safety valve required which requires five things so then p s r comes out and i suppose the government could have objected to the p s r but the government did not affirmatively promise that we know you're not a supervis s r comes out your folks subject the probation officer response so it's well laid out and now it's before the judge under the rules the burden is on the government so is it your view the government should have in effect taken a dive and say well we know the p s r says this but we're going to stand silent and therefore so there are responses to two components of your question the first component is that the government didn't need to take a dive here but the government had already taken itself out of the race when it stated that it intended to promise a safety that just now takes me into the the intended to promise it was we will promise a b c d e and at least one of those is now in serious contention maybe the government didn't know it at the time government frustrating the purpose of the of the contract and violating it's to give good faith that this court's precedent in mind c v s and lucy has essentially barred from contract law that you don't try to defeat the occurrence of a condition precedent that you wrote into the contract to protect yourself do you have any evidence you sort of say that this could be used to trick people but do you have any evidence that they really did this i mean doesn't this happen in plea agreements all the time where you say we will do x and y if you have less than three criminal history points and then it turns out they find you committed murder in oregon fifteen years ago and they say sorry you've got more than three criminal history points that's certainly conceivable  how is this any different now what we do know is that the facts upon which the government based its managerial role and hanson argument were known well before this plea agreement was reached now we're not saying that the government necessarily trying to trick someone what we are contending is that the government probably didn't even think it was possible the local drug courier like this would get hit with a managerial role and hence meant until probation brought it up and then they took the burden on themselves to affirmatively argue for the argument probation initiated now distance to try to draw a general principle here you're saying that when the evidentiary facts let's put it were known in advance then you should not be able to tell the court the truth certainly not your honor that's not mysterious contention the contention is that the government made a promise after they knew all the facts related to the managerial enhancement and when they put in his term a safety valve adjustment that would indicate that they are going to try to defeat or make an end run around promising that safety about recommending that safety now this wasn't a situation where we saw a defendant who committed a subsequent criminal act it was in a situation where new facts came to light which as you alluded to can happen all the time it can change a plea agreement you also have a  you know we believe that x or y will be the guidelines range but we know that it's up to the court how is that any different from from this when it turns out that the argument comes out differently so we don't believe that's actually different from this case in this case if there had been a clause saying we'll we'll let the district court make an independent determination that would have been that different from an implied promise here that they're  both sides so the you're just just to be clear you're narrowest point is at the point that the judge says i've got this p s r recommendation counsel for the defendant opposes that what do you say government the government should have said we stand mute in the case where they have made a promise to send in that essentially takes that argument off the table for them then yes they should  it was that argument made at the time for example when the government started to speak to whoever was counsel at that point say wait a minute they promised not to say anything unfortunately the trial counsel did not object to that point and that was incorrect that's why we have to satisfy the plain error standard but counsel absolutely should have objected at that point in the trial when the government started affirmatively arguing for the managerial role now we can't satisfy plane air we have united states we barnes and play we do have the plain error standard being met in this case so yes that is the crucial point in that trial that objection should have occurred and that's what we're trying to remedy now the district court should not refer that information and this case should be remanded to a different district judge to hear the case and sentence again in accordance with the terms of plea agreement now in the interest of time i would like to address our substantive point that the managerial role was not warranted in this case and we can evidence on the managerial enhancement for two reasons first on the accomplice point recruiting accomplices which is so crucial to the managerial and hansen in each of the cases cited by the government in their briefing all of those involved someone setting up drug transactions organized drug transactions or hiring and paying a courier to take drugs to acquire now mr reith is this conduct in this case doesn't even come close to meeting either moon or williams all three of the cases cited by the government he was a simple courier he wasn't organizing transactions he wasn't taking or giving money and both he and the alleged accomplice that he hired both paid by people who were actually organizing the operation but didn't he have some sort of managerial authority over the accomplice and he hired this accomplice to drive the truck from texas to tennessee and have some direction over the driver once they were in the truck and attempting to park it at a warehouse is that not enough to the detriment of the a manager under the guidelines your honor it might be but we don't fortunately don't have those facts definitively found in this case by the district judge there's conflicting information in the p s r that the district judge adopted the probation officer paraphrase mr reavis and said he said he hired this person but when you look on the next page that's on page a paraphrase the p s r they give the actual quotations from mr reavis and said i allowed someone to use my truck and the district court never made a specific finding on whether there was hiring resolves any of that they just accepted the p s o on its face and beyond that at the sentencing hearing when the district judge made statements i mean to did anybody testified to the contrary on the hiring your own mr reavis definitely gave testimony to the contrary there was no definitive can things what i allowed him that's right his contention was that there were organizers of the operation if i may answer your question or there were organizing operation who gave him and mr diaz who is the alleged accomplice directions and all he time your honors good morning renee please the court my name is daniel french of represent the united states in this matter first with regards to the the initially the main issue in this case about whether he doubted states i get the argument is essentially we agreement i think it's important to first know what the defendant is not alleging the defendant is not alleging that it's plea was a knowing he's not alleging that he didn't understand what the safety provision was nor does he say that he didn't understand it she had to meet all five of these requirements and of course his argument that the policing was breached is significantly undermined by the fact that at the lower court level there was no objection to united states putting on the seven events there was no objection to the united states my where i'm fine you're defending the managerial role but i think it also goes to his understanding of what the plea agreement was and what trial counsel's understanding of the agreement was and trial counsel along with the defendant truly understood the plea agreement to mean what appellate counsel is arguing then there would have been some statement at some point  explicitly states that he gave a confession after he was arrested and he admitted he hired mr figueiredo diaz he never contested that point at the sentencing or the p s r that's a simply not true your citation on that point is paragraph eighteen and then page ideal eleven forty seven to eleven forty nine whose testimony is that i believe that the joe holdings testimony i suppose that it back it was a big step because it was more there was more marijuana a bed net well doesn't that question his managerial role he had no idea how much how much he was running no you're i think it well first of all i don't i don't how do you work your way through this good studies concern then you negotiate a deal and someone gives up constitutional rights and then they get the benefit of that bonus or your honor i mean good faith it also applies to the acceptance of responsibility provision plea agreement and in equity in that provision we agreed or recommending acceptance of responsibility agree but it also states that if we find out that he's committed any conduct even before the plea agreement provision i'm not going to sit there and say it's the best drafted paragraph that i've ever seen an employer it should have listed all five or it should have just said you have to comply with the requirements and not listed any you know this is just a standard is that we have to look to the plain terms of the agreement we have to understand it is a reasonable person would understand it and when you look at the word including in the provision and it sends you have to comply not that you have complied but you have to comply including we know that there are five other requirements the defense knew there was five of the record five total recall having a weapon correct not having a weapon no threat of body saw he had a weapon right i mean there's there were five requirements this one requirement probation found on their own the united states did not initiate this argument and after probation found that the p s or the defendant filed a position paper and in the position paper he asserted not only should it not apply but he stated things that weren't simply true he said he didn't know where it was going he really tried to minimize his role but what did the government do in arguing against that put on this that planning hoeing joseph he was one of the case agents in the case but probably he testified in open court to pretty much what he had told probations that well he never spoke to probation the way it works in our digital but if we turn over our case out of a show he was just testifying from the why probation put it in there that's correct that's correct did you do anything else other than make ordinary argument no i mean we put that testimony on counsel cross examined him and i think counsel even in their argument to the court defense counsel said yes he hired this guy or yes he was responsible for this guy but he was the argument essentially was he was taking orders from somebody so that means he shouldn't get the enhancement an that that's just that's just not the way to sell that it puts it you know there is this sometimes we have to root for ash through is he a leader or an organizer a supervisor or manager but they're all in the safety valves and they're out or how low you go on that he got the lowest i mean he got the lowest form of it i mean he didn't get anything higher work or not it's certain that he was a leader or that he was an organizer that he was more of a manager and a supervisor and going back to your honor's original question about whether the records  what we have to support that is mr reavis in these are all facts on the record he hired mr figure and of the as detailed in the report which he didn't object to he hired him to drive his truck you know this wasn't just some random truck  it and then they intercepted him at the airport they followed him to a restaurant and then this where he met mr figure it would be as he was the only one on the cell phone he would go on the road to the warehouse unsupervised he's the one that told mr figure it  works officer holing he testified that mr reavis was the only one given instructions he was the only one directing he was the only one on the cell phone and he said based on his extensive training and experience that showed that mr reavis was exercising a supervisory role you know it's it's it's unfortunate that we're here on this language as though mr reavis was confused about whether he was going to definitely get the safety valve but when you look at the record and you look at the fact that he stood silent at the sentencing hearing his counsel stood silent there was a misunderstanding about what this provision provide and there wasn't a misunderstanding about whether the government could put on evidence to defend the managerial and handsome and when they alleged facts that were simply not true in objecting to it and the government did have a duty to let the court know what the truth was we couldn't just stand by and take a dive as judge boxes and when they were stating things that were simply not true as to whether the enhanced but should apply i've already gone through the facts about that i would submit we both agree even though there's a dispute in the court about  pull apply we both agree the clear error should apply i think the defense conceded that their brief and that we agree is one of the clear error should apply as to whether the enhancement was appropriately given the court as i've already noted went through those facts that i cited they specifically the court in imposing the handsome and noted that the defendant hired mr figurative or d s to drive he made the arrangements to meet up with the others including the unknown individual and individuals even for one time or on a temporary basis constitutes supervisory conduct warranting the enhancement if individuals direct another individual to act as a courier on their behalf it is irrelevant couple record citation seem to get confused over the course of this argument first in response to judge tranches question about whether there was an admission that both people were being paid by a third party i just like to give you the exact record cite that was not a statement by mr admission by a task force officer joe hoeing that that sentencing transcript record number two nine four one page eleven eighty and he stated in response to cross examination that both men were being paid by other individuals i thought that something worth knowing in terms of this dispute about what mr reavis is and mission was it's really about this word hire that we have in the p s r on page eight government site it's correctly paragraph eighteen and that is a paraphrase of what he told officers what he did it does use the word higher now what i would direct your attention to is paragraph twenty six on the next page of the p s r when we get a verbatim statement from mr reavis in which he states i let someone use my truck and that's reflected in the finding th district court judge made at the sentencing hearing now if you look at their same record i cited you earlier tonight before one to page id eleven eighty two the district court judge who is that saying read his did arrange for d s to do drive his truck we don't have any of this hiring language which is really what the government is hanging its recruitment hat on for the managerial role and hanson so with those clarifications i'd like to go back to the contract interpretations for just this one thing to be clear paragraph eighteen at page eight  s i read it it's not referencing an interview with the probation officer it's referencing what happened at the time of the arrest is that correct adler as paragraph twenty six is what he said to the probation officer paragraph eighteen first of all you're right you're my paragraph eighteen is a paraphrase by the probation worker writing up the p s r it's not an actual transcript of the interview but the citations that i've gone through and everything looked at it but presumably if i understood the back and forth right homing was the guy who was there when the arrest was made so whatever he said in court would be the best version of that we can look at the case agent that's right i don't have a citation and that we can we can look at it now go ahead briefly summarize your honor on that contract interpretation principle the government said we should look at this as a reasonable person would and the most basic principle of contract law is that when you enter into an agreement you don't try to defeat or frustrate the purpose that agreement so we urge you to reverse and remain but how how is the purpose see that we asked was that the question is the purpose of the agreement to get him the adjustment or is the purpose of the agreement to get him the is just if he meets the conditions well your honor you can try to frustrate the occurrence of that condition precedent now the government wrote in that condition precedent it would protect them but what they can't do is take that extra step to try to make sure the condition doesn't occur ok thank you counsel thank you may still be submitted may call the next  that will be so submitted you may call the next day