a after that there was a before that there was a there was a guilty plea and after that there was a sentencing and there was a change of lawyers as a record on appeal show mr williams one of the other lawyer court granted him another one after his lawyer filed a motion  was eventually sent us one hundred eighty eight months the top of the guideline range his lawyer did not object at the at the sentencing hearing and the case was eventually pointed to me and as you can see in the record i'm usually upon file an energy briefing that was kicked back so the list of people who missed an issue is it is very long in this case the government mr williams counsel me at first but now we're here today on what is a breach of a plea agreement case additionally the government sites are cast in a to case and it's an analysis of breach of a non prosecution agreement a little bit of a different situation but they they get to where they need to go doing analysis of materiality and seeing if rescission is appropriate in that context you're correct that several of our cases do not discuss materiality but isn't that almost a necessary not necessarily but i believe in this case possibly well let me rephrase it but it always going to be applied materiality is this breach material i believe it is i believe the breach is material because of this know we don't only look at breach in terms of general contract principles which is what is applied the most of these cases we look at breach in terms of general contract principles with kind of a heightened look at it because of the constitutional principles involved and i  think that's that's really the difference here to me any breach that you bargained for and was mr williams understanding that he would get what would be material in this context if to promise you the government may not remember charges and then that's when they didn't live up to that was considering the materiality factors what worked was that number one one of the factors brought up by the government was whether the not breaching party is innocent and i've referred a case to the center belo case understand the case a little different because in that case error was preserved is different but in the sanibel case they did talk about how really intent if you will or whether or not the parties meant to do what they did really really doesn't have any effect on the analysis and then the government goes on to talk about if a party is not performance does not work the purpose of the bargain i could see that both ways that might my problem with that when i looked at me that part of the analysis is i just kept thinking it seems to water down really what's going on here the heightened scrutiny we need to look at i mean i can't think of most of these cases are going to come deal where the government has done something i would think and i would think it would probably be pretty easy and a little tilted toward the government to say we can we can get through that who pretty easy by showing at least we've done a few things and the same for the the the other factor of holy if the party is not performance is wholly dwarfed by the party's performance i think in both of those a lot of times your honor i mean we will be here when the government has done one thing but not another and most oftentimes that one thing is a large part of the agreement seems like that's easy to coast through and it seems like these material at materiality of factors in a way just kind of watered down the constitutional issues that are also played here that i think court needs courts need to look at when it comes to breach of plea agreement i understand that  or get specific performance and resurfacing before different judges as a practical matter at what point does that choice get made do we at this point say you've asked that be set aside the conviction vacated so let it be done or does this go back to the district court as your district court has a hearing where he makes that election in the first instance  i would think it would be done here your honor and then it would go back down the district that would be my why do you think that well because at least with one of the options there would need to be a district and a new sense in judge in one case if it let me the use of the government conceded plain air and that's how i read their brief as well but our case law says we're not bound by that and so on affecting substantial rights where you bear the burden of showing prejudice  what's your best case to show that the government's failure to make this recommendation impacted your client's sentence just i think about that's about all i have but it just again it seems to me the materiality analysis that we were going through seems to retreat from the principle that the government must honor its agreements and that's the concern i had and over surgeon should be tough and it is tough in a commercial contract context but again with the constitutional concerns of play here you know if one can make please the court lesson works on behalf of the united states the government recognizes that it failed to sell its promise to recommend a low in sentence at the sentencing hearing but it stands ready to make good on that promise by agree to remain on for re sentencing the government however cannot agree to the relief requested by williams which would send the parties back to square one in this case because it is more than mr williams bargained for  the government has conceded that the third prong is satisfied here for two primary reasons first the case law under similar circumstances indicate that this court has remanded signing play in error for the senate in those cases are belo a matter on what the difference between the top of the range in the lower or end of the range years or why would it why are you conceding it here but saying it's not as a matter of wall always going to be in effect on substantial think pocket of the supreme court of pocket answers that question there may be countervailing circumstances a time where it's player the government reached clear an obvious error but some other countervailing circumstances present such as all right the government agreed to recommend a low incidence it didn't do that but the person got a low reengaged in criminal conduct at that point the government said we can't allow it and the probation officer also in p s r said except it would be inappropriate here in the district court judge at sentencing said it's almost never ever ever done that we give exceptions when a defendant has reamed age in criminal activity the supreme court in pocket there said look we know that this except it should not be given here it's of substantial rights are are not affected those countervailing circumstances none of them exist  here unfortunately going back to the cases you cited you said they're similar and i think that you can certainly draw some principles from them but there's really i mean seen anything right on point below and torres was a case where the government failed to follow through on its promise to recommend a lower guideline range a downward departure so there of the government of the up to its promise that the guideline range probably would have been different and i think we know is justice kennedy emphasized last week about eighty percent of judges are still sentencing within the guidelines so that seems to me an easier case where the government fails to follow through on a promise to recommend a lower guideline range versus what we have here where is which is just a recommendation that we are to be within an otherwise proper  guidelines so given that distinction why do you still think the defendants met his burden of showing that the judge like we basically the like the judge likely would have gone with what the government said here to two answers first my recollection of  most likely better than mine is the government agreed to do two things and the lawyers towards one filed some form of a five k that would recommend every duction of the guideline range but also to recommend the low incentives within that range and it broke both of those promises so the second part is very similar to what we have here more broadly at the government for the reason stated in center belo it's very important that we be seen as an honest broker and that we live up to our promises and th circumstances simply isn't satisfied and fun and the government can absolutely accept that we felt like we could not in good faith go forward with a highly technical too cute by half argument why we still win in the standard if you will we clearly did y have we ignored it have we created a rule in this circuit that whatever you make of whether it's a defendant's option or not to choose between recession or getting the benefit of his deal those questions about whether we accept concessions from the government on the plane or it seems to me you're saying those cases allow the parties to discharge what they wanted to do without really deciding whether this violation breaching plea agreement was material or not and it seems to me that it is either always an issue or it's not regardless of what the parties have agreed to on planar view the question would come down to was is there a reasonable likelihood that there'd be a lesser sentence and under cases like the law and tourism munoz this court has held that when there's nothing in the record to indicate the judge would not have gone lower then the third prong is satisfied and it goes back i think implicit within that is a fin breach is material it's an agreement from the government it's one of three agreements that were made in the plea agreement and when the government stands up and recommends to a district court judge that it should be a low incidence there's you know i think with with most courts that carries at least some weight it's considered they might be disregarded but it's considered and for that reason it's material in the sense of should there be a remedy or not should the defendant have some right to seek relief or not but castrated presents a different question cast in a to present the question of ok there is a breach there should be a remedy for that breach but what should the remedy be and there that is should we allow it to send it to a draw or send a plea agreement that question just is not litigated  them southward and maybe that's why cassidy does not show up a lot because people don't want out of their plea agreements but that's my speculation you're correct it's not in the case law i do think it's instructive in cases like to think it's one i do think it's was a state prosecutor's office but turnover in the government high case loads people moving too fast probably on all fronts defense council prosecution and the government this is a usa added to the list even defense counsel gave his probation i missed it because normally i think cooperation there that's where our sealed portion comes and we did follow played unsubtle in this case we stood by that promise but this promise was at a publicly available plea agreement and again it's an explanation it's nine excuse she was covering for someone who's no  explain to me why you don't think this promise of the low end was material as i see it there's only two promises one is this one that the government didn't follow through on to recommend the low end the other is to dismiss accounts which basically meant that  he wasn't going to be convicted of the higher the count with the much higher statutory maximum and you argue that's the more important part of it i mean they can both obviously be material but i'm not even sure that this isn't the most important part because sure in the abstract he got out of a forty year maximum in the abstract oh my gosh that's that seems huge but again in the reality of sentencing it's almost all guideline driven and his guidelines when going to sniff forty years in the way i look at  statutory maximum didn't really matter all that much what really mattered is is what sentence he was going to get within the guidelines in the the recommendation here what a shave three years off the what he ended up getting so why wasn't this actually the most important benefit he bargained for a couple of answers first like any plea agreement the central purpose in our view of the plea agreement is for the parties to reach finality and for the defendant to limit his criminal culpability as noted in the in the p s r on page one twenty two of the record not only  did he get rid of the mandatory minimum five years by pleading guilty to count two and not one decreased as set for a maximum by half he also limited his guideline range as guideline range would have been one eighty eight to two thirty five almost twenty years with a judge who is known to you know possibly up really varied or part and instead he limited his guideline range to one fifty five to one eighty eight a delta of almost four years in our view that is the central  purpose of any plea agreement it's just up to limit that liability now i don't stand before you saying that it is wholly immaterial they doesn't deserve a remedy he does we do believe it's material in that regard but under the castle native rubric because it was innocent because the central purpose of the bargain really wasn't this one isolated non binding agreement and third that reaches a wholly to war if by our otherwise performance of the agreement for that reason we don't think i just i don't  equitable or logical reason to send these parties back to square one when it's an isolated breach that's easily limited by recent so yes when we ask who's they go back to the one of the question should cost was asking about materiality but if you're any indication  that had the recommendation been made that the judge would not have followed it there's nothing in the record either way that the court said he imposes the senate's because it forwards deterrents of protection of the public is a very routine short sense in both parties adopted the p s r neither side made any argument the defense lawyer noted the work he'd done in the case pitted nardil one way or the other the government moved to dismiss counts one three and four didn't make an argument because of that i don't see how i can argue under the sports case law that the third prong is not satisfied once you get to what i cut you off from getting to before which is whether it is in fact the defendant option we have the statutory maximum there that if and it was an even better position because the error was preserved objection your honor there was no bar we would bargain against that and the judge said doesn't matter i'd still give them the statutory maximum i don't care what the government has to say about this winds its way to the supreme court in the defense still arguing for an automatic withdrawal of the plea agreement the majority of the supreme court in santa bello held now there is no automatic rescission or withdrawal of a player even under those circumstances instead it is for the court to decide based on a case by case basis in the particular circumstances and the minorities view the three justice minority did not prevail and they would have held that under those circumstances there can be an automatic right to resend that is the guiding principle and this court for the court to decide but what we're course of rationing is on are our rule of orderliness if in fact some panels which is not common perhaps have gone further than the supreme court might require we need to continue to apply them to say it is in fact the defendant george and we know well you would be bound if they were the first panel to reach that but the rule of what i know orderliness as i understand also provides if there are two conflicting panels the earlier panel referencing and in full candor i guess i agree there are cases where the language is stronger it's not going dollars in in preparing for this argument and doing for the research and making sure there were no new cases i did come across cases like opinions are a line upon they stand back to the language where a diff that says a defendant may seek one or the other and i think that might have been read as an assumption of if you can seek it you can elect i view those two things as very different seeking is you have one of two options you can ask a court for electing is it your right and center belo answers that question and answers that are in a resounding sashing it is the court's decision not the difference and the facts here remained for the district court to decide i think the issue is right for this court to decide i would tell the district court the same thing i'm telling you now which is the particular facts and circumstances here should result in agreement and as i read it it sort of the deference is to the state courts let the state courts figure out how to fix this which i think might stem in part from a federal court's reluctance to tell a state court how to remedy a problem here we're dealing with a federal case it's isn't it's not even for the federal district court to decide but instead just ordinary sentencing it said we're not in the exercise of our discretion we think we said it's seen as the right way to go i mean it wasn't really in dispute don't and i don't overstate those cases but recent scene was ordered the same result should apply in this point that you both were we to decide and three of us haven't talked about it but were we to decide in fact to order something here do we have what you would consider to be a binding position by your client on what he prefer or would that be something you would want to supplement and one reason to send this back is still that you could stand in from the district judge or however it would be done and make a same time in the exercise of caution if the court would let me allow me to supplement i'd i think that might be a good choice and the other way to proceed i wanted to see what you thought on that go ahead i wanted to add a option of seeking one of two remedies i also want to point out your honor just a similar case question a moment ago and i don't feel they answer it there is a case out there i think it's you know  i don't like to draw it you know it is what it is it's similar it's the puzzle lotto case you may have seen that when i did side it for a different proposition but in that case you know i think the what the government did was there was an issue as far as you click wilson it's citizen range not necessarily a recommendation but in that case they found no breach and that may go along the lines of what you were you were looking for i would also like to re emphasize  really number three in the play and error analysis and that rubric in that you know in the end in this case what mr williams saw in what he agreed to and what he thought he was getting was a real time right then in their recommendation to the district court and i'd like what you said about maybe that's exactly right in the abstract we can look at that one thing that yes they you know they traded away a much higher potential sentence but the real effect there was that recommendation could result in some real time that was taken off mr williams case and he didn't get that in that respect believe that it did affect a