maybe mr graham is like the greatest who she here in history maybe that's what's going on here or maybe there's a problem with your case that you're trying to mask now maybe you guys don't want to try cases anymore and i don't know what's going on here but to say the least this resolution on its these is grossly disproportionate to his conduct they must be so afraid of trying he's against you that they're willing to take the one down the years these statements found if he just thirty one and thirty alternate outcome here was still a plea and the district court be able to impose a sentence which is the same outcome on those points that one of them in place you're going to discard had immediately accepted the conduct when it reviewed the agreement it reviewed the agreement it analyze the agreement it pressed the prosecutor to consider pursuing additional charges all of those aspects of the court's conduct and work it were in excess of the court's constitutional authority and although he didn't take that final affirmative step to reject the agreement we would contend that that improper behavior by the corps impacted mr jones and it  outcome exactly the same as a one of them had the original agreement been accepted if if that's true oh if there if there is absolutely no chance then of course the outcome would be the same and this this request would be essentially means but the government statement and appeal that the government's not likely to prosecute further is not the same thing as a written guarantee right now i agree that i'm not question s the first is the conduct that the court engaged in that i discuss that implicates separation of powers concerns but it's not technically a separation it wouldn't be overturning on that constitutional issue but the court's conduct what it did was it broadly in order to implement the rules primary purpose which is to totally eliminate judicial pressure on the plea bargaining i'm still stuck on the impact i guess because if the impact of the problems you're describing from the intrusion on the on the executives authority to negotiate the poorly but here the impact all to money and i am probably repeating myself now seems you're not seeking even today to withdraw all the current no no you have decided to proceed in this fashion to appeal it instead but if you're looking at whether his substantial rights were actually impacted by the court's behavior  's a reasonable probability that mr jones would not have entered that same we absent the court's improper conduct and we contend that there is a difference between entering a naked guilty plea without the benefit of the plea agreement no matter how how significant that benefit was there was definitely a benefit to that plea agreement and he would not have abandoned that benefit if the court had not engaged in this improper behavior and because of that his substantial rights were in fact impasse there is no link between any of the cult judges conduct and his decision here and from our perspective there is no harm to that and what about the possibility of future charges your brief service appellant has not been charged and there is no reason to think that he will be charged with any additional francis no sunscreen courses many times we don't usually trust vague promises from the government court that the government intends to abide by its promises in the plea agreement and that we will not prosecute cornell jones further for the conduct in the state of the offense we will not prosecute michelle jones for any tax related offens all a moot issue but if you'd like me to address further the judge's context here we do not agree that there was any constitutional violation certainly the judge made some intemperate comments particularly at that may fifteenth hearing and we print them quoted today but the chronology here is important and that shortly after that hearing in the june fourth pleading that the government submitted to government its claims that fact this  extraordinary position this was typical of plea agreements in tax cases the judge after that did not question the terms of the agreement although the judge did it in the september fourth hearing request for information about the plaintiff criminal history about the sources of income the judge did not suggest that he was going to even reject the plea agreement on that basis in fact later made clear that he had made this decision on the another offer services appeal but unlike in parker services where the judge actually made a ruling that affected the government's prosecution of the case here the judge's comments were just that they were just words and ultimately have tell us some months and had to judge certainly if the judge had talked about the impact on sentencing if the judge actually said something to indicate where the judge was going to hear the judge is not is not indicating what he's going to do i'm like and you did it and did it maybe well may well be that he had not focused on tax evasion policy or perhaps the tax evasion policy had changed since his years with maine john three years but yes and that may be why when the we know of no case where a court has found a rule eleven c wanted hair where there is already a final agreement now certainly there are cases where courts have rent will let them see one broadly despite the pla language that it prohibits only a judge participating in a plea discussions but we know of no case like this one furthermore to the extent that appellant suggests in his reply brief at pages fourteen and fifteen that any point that appellant has raised for the first time in his reply brief that is that judge fails to consider his claim that his good works in the community entitle him to a lesser sentence again because that i a new claim in the reply brief we did not have the opportunity to address that and his general is not appropriate for a court to address the claims raised for the first time in over five great in his opening brief he just argued generally the judge had not given sufficient is again talking about the pre sentence report here the only violation is alleged is after september twenty twenty ninth to the september fourth hearing when the judge is a listing from the prosecutor divulged were some of the bare bones facts about that case if you look at the pre sentence report you'll see that it's much more wholesome in terms of alerting the judge to the details of that case we know of no case where will thirty if i may i'd like to briefly address the point about the rule thirty two violation the government has argued that the inquiry the court conducted into mr johnson's criminal history did not cover it was not a full demonstrated that it is unable to render fair judgment in this case when it relied upon clearly erroneous facts at sentencing to calculate the guidelines range and it did so in the face of statements from both the government and defense counsel  sentencing that the facts it was relying upon were wrong the courts and this is even more plain when you consider the fact that these great pains that that the the court took to deny mr john's credit for acceptance of responsibility if you consider that in light of the court's self proclaimed practice of awarding that same credit for acceptance of responsibility to criminal defendants who have gone to trial and it's for those reasons that we are past that this court reassigned the case hungry man to a different