like to make up the government's argument that there's the midpoint sort of like what half a month away from what they recommended and so they're at the low end just because they're below the midpoint is that or is that a ludicrous argument of which they should be ashamed  i don't really want to use the word ludicrous but it's certainly borders on ludicrous your honor there are certainly cases that have addressed similar situations and said look when you're dealing with the low end the low end means low end it means the bottom of the guideline range if the promise had been will recommend their sentence in the low end would would would this case be different yes and no there was not an argument that a breach occurred the court itself was confused at the government's recommendation and actually at one point in question whether or not it was a typo in the asking there is it wasn't argued in the sense that there's a forceful discussion of it but but defense counsel did say and addition your honor the government record of recommending something if you are understanding that low and means eighty seven so given that what defendant did there was perhaps enough to preserve the issue i would also suggest the fact that assuming the court accept the government's concession this is already going to be going back for re sentencing so it's not clear that necessarily this court needs to even apply plainer if you two would and efficiently issue since it's going to go back anyway presumably the government will maintain its position and then we're just going to come right back up here again having already made the objection at three cent by that that's correct and then at that re sensing hearing if they take that position the defense will object i don't agree with my so my question is should we review it now so i think well i think the court should review it now because i think it's very clear there was a preacher and if it goes back just so as to not waste the court's time go back one step it's just the kind of error that has to be preserved in the sense that you have to make an objection to the center something like that for a breach argument yes an objection would have to be made that there was a breach of the plea agreement and you didn't make an objection not formally did the words breach of the plea agreement did not come from defense counsel recommended a sense that the low end and we're asking for the the law and would be any seven months or within that we're close to it well let me ask you a more basic question does it make a difference whether we honor all due respect anyone who practices federal criminal law understands what low end means is that you're there are cases that go the other way maybe not from our circuit but there are occasionally go all the way right now that i'm aware of in the government certainly demolition perhaps because in the circuits it's never been a concern people understand what low end means and understand what high end means but this is actually been i think the fourth circuit and elsewhere has had this very issue at the bottom so we have case after case after case which very clear we don't point would say this was plain error and multiple circuits we started all the cases and again the government has not gone into a single case that supports its position so you know i would call it ludicrous but it's it's pretty crazy your honor and certainly it would upset sensing throughout the country certainly within the circuit my office is in los angeles this is a very standard term in the plea agreement and if all of a sudden the government can come off and say well no we don't actually have to recommend the lowest sentence and that's real problem and we also know that in the record the at sentencing itself the the government actually then went a little bit beyond and said ask the court you sentence with place court garth back in your behalf united states good morning ours i mean i've been doing this long enough to know that mr libby is correct that the majority of federal criminal practitioners understand early's reflexive you understand low and means the lowest end in practice i do understand the night knowledge that but this is what i would not i would disagree with the characterization of our position as crazy given plain error of you in the record of this case and it possibly be that a sentence not lower below the middle the words end and that's what you put in a plea agreement blow him i'd rather be him than my say he's got the better argument i'd agree well let me let me ask you the practical question that sentencing if the government maintains this position which i suspect it won't given your recognition that it's not not the normal reading of these words an objection will be made and we'll be back here dealing with it so even assuming a plain view would apply on this record which i'm not so clear that given what defense counsel said sentencing why should we address this issue otherwise you're just going to either either will go away or when you go back down because you won't do it or not come back to us again so why not address it just the government i mean i've received authority to say that we're not going to maintain this position that we've taken peel below we will argue for the lower sentence and that's because there's been a grounds and just send it back and see what happens and the government has represented that it's going to argue for the lowest when it goes back but if it resolves if we if we do get to the plane to to the breech issue it really is just to determine whether to go and i just would like to point out just so i can have one good argument one up here is that the defense counsel disavowed the exact argument it's a little bit more so player really does have to apply here because the defense the judge picked up on it pointed at the defen required to do in that defense attorney below was asked that specifically and said no he agrees that the government is not obligated to ask for eighty seven months nor i said in fact not only for that question when the defense attorney makes the argument her should depend on exactly how many months you know the defense conceded was near the end point of the low end or you know how close you have to get to the midpoint to be away from the low end i  mean you know maybe opinions vary on that but the question is did he preserve the objection that sentencing somewhere other than the lower end would be a and so it just means only he's brought in from the northern mariana islands in case of conflict and so she her presence here leads me to believe and i'm sorry i'm unable to answer this question for you don't know why you don't know why she would but i think it's highly likely that that means a judge from the mainland or perhaps who briefly obviously we are a question that this be remanded to a different judge you cannot ring the bell the current district judge heard the government's arguments multiple both could we do that without finding a breach because we simply say could we just simply say given what's occurred in the government's concession and on remand it's going to not make take this position we think the interests of justice require absolutely this court has done this many times that have multiple cases and it's and while i swear the recognize it is difficult for judges to get to i've handled other one cases it which in which the judge from the central district fornia has in fact handled the case and had to fly back and