and that is especially so given the tenth circuit decision of yesterday which we sent to rule twenty eight a letter upon and in which the government conceded that enough were departure that occurred without any notice statement and its motion for a downward departure based on cooperation didn't identify any factors warranting an up or departure and we think therefore that rule thirty two required the district court to give reasonable notice that it was contemplating a sentence exceeding what with the advisory guidelines which because of the application of mandatory minimum what's in this case one hundred twenty months and once you get by the end the mandatory minimum and we' right can he do that or does the plea agreement lock him in two to the violent sentence as well as this particular case which was a pre book or plead green meant there was an agreement between the parties that the district court would be bound by the guidelines and we think that contract when it was accepted by the district court in the day of sentencing actually did lock up make it mandatory orders of the district court have leeway i think that when the district court accept the plea agreement which included an agreement between the parties that the district court would be bound by the guidelines that district court was bound by the guidelines but it's not it's a question that didn't actually get specifically addressed in this case and the reason of course is that the language of the police remit in the preview of her context was essentially telling the defendant what the state of the law was pre book or which is just a court of bound by the guidelines but if you're getting my problem but if you look at it as a contract and if the district court thought that there was some problem with that or if the district court wanted to make it explicit look booker has changed the scape of the legal landscape has changed a legal landscape here what does this language in your don't think that because he went on that didn't exactly sentence and then one of the things that i think sort of pervades this case is the proposition the defense counsel was more or less asleep at the switch but with the record we have here in the archives we have here  not raising that obviously without the plea agreement give the district court even after having accepted the plea agreement the authority to the part of which point so the jurisprudence of this court in the cantrell case in the mix case decided within the last a week or two and he sent a letter on wednesday about that i don't think anything has changed because what cantrell said and what  clear is that the guidelines have to be dealt with correctly and if they're not dealt with correctly there has to be a reminder to reset the scene and so here it's clear that the district court was engaged in an up departure and the reason that's clear if there was any doubt about it all is that the defendant had waived his appeal except in the case of an upward departure and immediately after announcing the fifteen year sentence the district judge told the defendant as he was advising him of his right to appeal well there was an appeal waiver in this case but that's done away with because in effect i've upwardly departed so your appeal right is is is existing it's  report right whether we have the old one or a new one is i don't think that important but what is necessary right then twenty seven hundred what do we direct the district court to apply in imposing the sentence the guidelines or the statutory grayson's or both i think that's because of the terms of the plea agreement which contract the parties and they just accord except that the district courts apply the guidelines i think that it would have to be it should be remanded  well i think that the way to harmonize those provisions is to acknowledge that the league remit found the court to apply the guidelines regime but within that regime the court could reject or make other determinations a fa may please the court good morning tommy look for the united states your honor my understanding now is after consulting with the office that the department of justice now as a policy decision is conceding that thirty two h notice is thirty two h we concede i think you can say that the i could make some argument that the error is not plain because it's not clear obvious under the law to point we cited the garcia case but i would rather go and argue for this purpose or can see for this you know if you listen to t v in your find some schoolteacher takes advantage of a fourteen year old student and then gets probation and then you look at this case in this guy's in for fifteen years and you're wondering you know what's going on in american society anyway i get the feeling from reading the plea agreement the parties pretty much came to the agreement if we got one hundred twenty months both sides would have had to give a little and take a little to get it and and it seems to me because congress has said that's the minimum and this is an indian reservation case then one hundred twenty months is what i sort of feel was a reasonable sense but i'm not the trial judge and i shouldn't be imposing my thoughts on the trial court well i but i want to know what the government did to a certain hundred twenty to the district court as a reasonable sounds and if you didn't why didn't you well i did i was not the the prejudicial or substantial the defendant had already been noticed through the pre sentence report and the court was well aware that he had molested a daughter the court was put on notice in the defend it was put on notice that early on in the court asked who is who are these people here circumstances to mount the best he can we're going to be i don't understand how you might have heard this a card if you noticed is required how can one take a look at what happened here on the ground without notice and doesn't affect the integrity of the sentencing or the public's confidence are in the judicial system you're on under this case the defendant agreed there was no medication in this case the defendant agreed to ninety nine percent of the aggravating factors that were listed in the pre sentence report the court is well aware and under thirty thirty five fifty three the court should take into consideration these factors these factors this other criminal conduct although it was not charged other defendant agreed as part of the playground that the government would have a right to prevent agora to present matters in full aggravation and mitigation the defense presented those the defense had an opportunity to rebut those to contest those to argue those they did not  as far as the the the sergeant of the the the father of the one victim who was a defendant and not object it was that it was bland we submit compared to what it was the e was told the victim was told to to keep problem or indicated that he didn't object to the the statements the guidelines were advisory and that in the pre sentence report it was clear that if that booker came down every everybody was aware of that the pre sentence report called these guidelines post booker these factors in aggravation are proper for the court to consider and fact and we submit the court would be derelict if it didn't consider these factors in forming an appropriate sentence to protect society to recognize that repeated violations of the guidelines were advisory the court was free and had to consider them certainly and did but was free to go outside the guidelines and consider the factors of thirty thirty five fifty three but the the court at the time the plea agreement was taken  time the plea agreement was signed in the change of plea yes but all parties understood that the law has changed and that the guidelines were only advisory and the court was had to calculate them under under well certainly under mixed and head has made that calculation did make that calculation of one hundred twenty months was a guideline but that by statute which the defendant was well aware of by statute he was up to twenty years it was a ten year twenty year life a statutory guideline so to speak with a mandatory minimum of ten that they admitted that there was there was no mitigation they admitted that this was a terrible situation and that and a terrible tragedy in this family i don't know that they had noticed of all the bad all the aggravating factors in the pre sentence report there was nothing that was sprung on them they knew early on in the in the argument hearing that the court saw this was a very serious offense that his remorse was that i think i think the critical aspect of this case to recall is that the no is the defendant have a head of any departures was the government's motion for downward departure based on cooperation so based on that i think it was unanticipated despite the negative attacks that were in the pre sentence report and so forth that the court would be kind of fighting going off court any track judge jester of purported to grant the government's motion for downward departure and then he said some things that seem to suggest that all government agreed to forego prosecution of certain other information if there had been notice of this it's possible the government might have been put in a position with where they had to urge the judge not to grant the upper departure because