issue of first impression in this circuit and probably in quite a number of circuits despite being an issue of first impression i believe that for a long time most of you see courts have actually applied the same lord i am at least in the northern district this rarely happens and it is i believe for that reason that we have these for the first time before only the parties but also the conduct of in that case the time circuit also the conduct of the of the courts it's interesting though it's true the government by not  addressing this issue it's like a contract both sides and there's a waiver if they don't do anything but but you're on the other hand asking that court to reduce their sentence based upon its own judgment i mean to get c and put of the parties and so on it it makes some decisions in that regard if you're saying i want you to make a decision in that area but you have no authority to take into account the honor correctly noted the main reason for that for that ruling is the fact that an agreement with the government the if a plea agreement or a post conviction substantial since a remark is in the nature of a contract it is not a perfect analogy about the government disagrees please the court my name is mary jane chan and i represent the united states in this appeal this court should affirmed the district court did not abuse its discretion in forcing the thirty five easy to see to waiver that waiver was part of a corporation agreement that the district court accepted and that formed the backdrop to the rule thirty five re sentencing proceeding in two thousand and fourteen counsel do you agree that the case was pretty clear that when the government doesn't raise the appellate waiver that it is waived at least as between the two parties really that i well i think that there can be forfeiture and under the is an intentional waiver and all those cases where the courts have found an intentional waiver that the government has specifically acknowledged that basis and said i'm not relying on it the government has it all right you're saying that in this case intentionally for whatever reason strategically or otherwise we're not raising this that it would have an effect on the court is that correct yes that's what i think the would day line of cases very clearly says and to the extent that  burgess disagrees i think that this court is bound by the supreme court cases in day and would what about the fourth and the reasoning of the fourth and tenth circuit cases you know which ones i'm talking i've actually i wasn't sure i was going to raise that because i think that there are think it was mistaken but the facts in that case are also very distinct from this the court in that case said the civil rules should apply because this is a twenty to fifty five proceeding which is technically a civil proceeding we don't have here this is purely a criminal proceeding the thirty five eighty two proceeding is a colonel proceeding there is no kind of way to force the civil rules into this case to supersede the day with line of cases and also i think it is something that was raised earlier which is that plea agreements and cooperation agreements are interpreted like contracts but they're not purely contracts like private party contracts where you only have two parties that are interested the court here had an institutional interest in this because it was the background the waiver was the background against which judge johnson actually granted the extra reduction in the sentence let me pick up on your comment let's say that we agree argue window that the intention of the government in its that controls in this case what evidence if any did the district court have about the intention of the government when they didn't invoke the waiver it had no evidence that it was an intentional waiver or they were simply silence in all the other cases there has been a specific mention that the government is not relying on the ground in waiver particularly when there is no sort of prejudice to the defendant in this case the defendant has never despite having opportunities stated that the waiver was not valid so because of that this court i think should find that there is no abuse of discretion by the dish out of what you know there was no abuse of the discretion in the situation is the district court have to hold them out of an evidentiary hearing to determine whether it's invocation of this would think that i think that would line of cases actually very clear about the circumstances in which a district court mesa respond to raise a forfeited defense and those are where there has not been evidence of the government intentionally relinquishing or  the defendant didn't specifically have an opportunity in district court to talk about the waiver because it was the su sponte nature of the writings and the orders but what i'm saying is that part of it is actually harmless because in this case through the appellate proceedings the to require the government to come forward and say that no we're not raising that because frankly sometimes the prosecutors don't want to say what in fact because it's one thing for sometimes the ends of justice to not push on something but on the other hand they don't want to necessarily go on the record to say that they're not going to see that happening not infrequently but well the court i think in this case i think there was no evidence of that and i think that the government can in a way without and often does sort of slightly hint to the court that that's what it's doing there is no evidence of that and really that wasn't what was happening here and that is something that i think is explained and made very clear through the other part of the district court's order which is let's look at the actual merits of this and whether the exercise of discretion would be warranted this is a defendant who got the benefit of the reduction under amendment seven eighty two to the guidelines he did get the image and that was very clear judge johnson at the time of holding the proceeding under rule thirty five said i'm granting him a lower more of a reduction than i otherwise would based upon the substantial assistance because of the impending amendment to the guidelines which would reduce the offense space often spike to levels judge johnson said that he was doing that he gave mr staines the benefit of that in part i believe under against the background that mr sainz had waived his ability to actually i mean and i think that it might not be a total bar but judge freeman in considering that was not abusing her discretion the fact is that you're not supposed to get two bites at the apple you're not supposed to double count when there's an amendment to the c two is because he shouldn't get it he shouldn't get it even if he's eligible because he got it already he got he got the full consideration to myself analysis so she didn't do both well the two step analysis being whether he was eligible and i don't think anybody was really contesting that technically he was eligible so the real question was whether she should exercise her discretion once finding there was a finding eligibility to actually grant that so she said that under the unique circumstances here he already got the benefit so i'm not going to give him the benefit of it again and that i think also plays into why it's entirely appropriate for her to enforce the waiver because again the waiver was the backdrop for why judge johnson actually gave him the credit in two thousand and fourteen when the amendment had not been enacted yet that was simply impending he wouldn't be able to argue for it again because of the waiver so judge ansen gave him credit at that proceeding even though the amendment hadn't gone into effect yet so there is a great institutional interest in the district or in not being basically having it you know being hoodwinked and being taken advantage of just because judge johnson had retired and a new judge was coming in to say essentially well there was no wa i can go ahead and just ignore that i had agreed mr same's had agreed not to bring good woman always the judge being hoodwinked well in the sense that sort of saying like you know ab just like how the probation office was they had they had to go back and look at the sentencing transcript the recent scene transcript to discern that judge johnson had actually given the two points had given full credit in consideration of the impending amendments because that  reason we think we can still bring us they brought it to a new judge without mentioning the background of the cooperation agreement knowing full well that they had raised it with judge johnson a previous judge who had retired and that in the sentencing proceeding he had given them credit for this so i may be one just too strong i don't mean to connote that it was intentional but what i mean is that the district court itself has an interest national i think a stake in forcing the background waiver and so for those reasons i think this court is really balland by the day would line of cases issued by the supreme court and should not be swayed by the eleventh circuit or any other courts rational this is not a civil court case the effect of the last part of her or i or the reason i disagree is because she explains why she is not going to exercise her so a spontaneous authority and that's based upon and there's a because to that which is that it's because had recommended two levels for substantial assistance so the because portion of that decision i think indicates that it's an exercise of discretion because she wouldn't exercise her discretion to grant the motion she was not going to bring the motion  that she thought you know he although he didn't have the legal authority to grant you know grant a reduction under the statute he gave the defendant that credit as if the statute w then she will have to consider all the thirty five fifty three a factors including the fact that mr ses might have gotten some reduction already on account of the amendment before actually deciding whether