talk about the facts which i do want to talk briefly about procedural facts it's what strictly in the record what happened in this case in a nutshell is this the stick your gets arrested immediately decides to cooperate with the government he's debriefed four times saying what are you talking about over the last six months we were talking more along the lines of a fifty percent no meeting of the minds no meaning of the mines there expect all students will recognize that as a failure to arrive at a contract well let's be more asking us to rule at that point that no matter what happens there after no matter what the overall evaluation is he's entitled as a matter of law to a twenty eight percent twenty eight percent reduction in something but he turned is the wording is after you debrief we will determine what it's worth and we will tell you that he has already agreed he has already given them information they have already said it's worth twenty eight percent now they're plea agreements it was standard to tell a person listen this is an opportunity to help yourself you do what you think is right tell the truth and then we will decide what it's worth and tell the judge that's our take it or leave it that's exactly what the government did and they throw him a letter they put it in writing th zero we'll let the other side answer that question that's my question nothing changed nothing other than the fact that he went to trial and the way i read the way i read the record there was no objection tendered in the trial court that your client was being punished for having gone to trial absolutely there was he wrote a very long motion saying hey what's going on here i want to hearing on why i'm not getting my production yeah and that's the point problems and the standard practice standard plea agreement for the eastern district of california and the materials that's what we offered him later typically includes language from zero to fifty percent do you realize how dangerous that is the equivalent of telling somebody look so far you haven't told us the truth but we're going to put a big incentive in front of you to do better if you come up with more information that so far you have with help that's creating an incentive for a defendant to make g certainly in retrospect there's many many reasons that the letters never have been written you bet the reason it was written however was to put a limit on our typical fifty percent and to advise them that we were putting a limit at you're dangling an incentive in front of somebody who's been holding out on you and you now admit you're dealing with somebody who's who you think is not telling you the whole truth and you dangle an incentive to tell more and you'll get more this creates an incentive with own responsibility in this conspiracy if you admit to certain number of kilos if you follow this stipulation it's only that in the letter that's in the record the letter itself begins the government is prepared to make the following plea offer twenty  shown here is that he he showed up for some degree thinks he went to trial and he didn't get a five k there's no evidence of unconstitutional motive or any bad faith and i what is and what that isn't that what they're hearing is designed to uncover and to look at you say there's no evidence of this but there's a lot of smoke and he says we should be able to get into this and look for some fire after all you told me turned twenty eight percent and then that then we will consider making them we will make a motion for twenty eight percent none of those things ever happened there is no breaching of any agreement to explore because there was never any agreement there's any bad taste like you had in the  twenty percent letter there was no indication that there was it was connected in any way to going to trial and that your responsibility essentially we used the phrase it sounds corny but you have to come over to the other side you have to tell the whole truth the truth about your own wrongdoing because the i q is we're looking at these people as potential witnesses for the p c s and that's a problem with saying you know so far twenty eight come up with more and you can do better the track record  people like this and i'm not talking from just from my own experience but look at supreme court cases and if you give them incentive to come up with more they will well again the context it was written in was there's no way you're getting fifty  that and to the plea admitted responsibility admitted the fact to conspiracy and then we refused a motion perhaps we would have something for the court to explore but the court had nothing to explore because there was no pulmonary showing of that  keep in mind the whole time we're talking that this guy we talked to six or seven other guys who testified against him in orange jumpsuits saying a completely different story than what you say even after installing he said i like fact the district judge finds that there is no agreement in order to go any further then the district judge would have to make a finding that some evidence or hearing was required right i had an evidentiary hearing then the defendant would have to show that it would have the burden to show that there was some improper motive in denying him the five k one departure correct correct all right and assuming that he was able to do that he would th also have to show that whatever information he had provided was substantial assistance right right and it's your contention that the defendant never met any of those bur able to point us to the place in the record where there was an objection that the client was being punished as compared to simply asking for specific performance you never asked for specific performance that's one of the flaws there was no contract there was no just accept the government's word for that and that's what we need the evidence we're hearing on let us go back and show you where he provided substantial information and that was valuable to the government and the government has no excuse for not giving him some reduction that's  reduction do you have any other points in response to the government's present i could be here all day i think it's i think you get the issue thank you thank you very much the case just argued as ordered submitted as is the