it from the other direction your honor i'm thinking that the government should have advised the defendant that if they were going to stick up with departures for kidnapping and for rape that they should have told them and made that part of the fleet agreement so that he understands what he's getting into now we don't have record i do think it's clear error as far as finding that there was a rape as far as finding that there was a kidnapping especially when the court has to find it quite clear and convincing evidence is very i have read the record here and i would like to start my argument in response to judge ward last question with regard to the plea agreement i would direct your attention to the excerpts of record at page twenty nine which is part of the plea agreement and which was translated according to the record in spanish for the defendant and it sounds and i quote the parties acknowledge the recommendation is not binding on the court and the united states reserves the right to seek a court departures against the defendant the defendant will oppose those enhanced months and may argue for any downward departure clearly this defendant knew that the united states reserve the right to argue for upward departure whether he knew which specific departures is irrelevant it's not required by rule eleven and i believe the decision of the circuit of variance with terrorists clearly says that the district court need not outline the parameters of any departures for reasons that are obviously understood by the court that that there may be a departure from the guidelines you'll find that in two separate instances one of page fifty five and one at page fifty eight where the court clearly says you may get a sentence you don't expect here consequently i believe that rule eleven is fully wide with and that the argument advanced by the defense in that regard is simply without merit moving to the  next very briefly touch of organized organizer leader the law of this circuit is that the defendant need only supervised one person but there must be five is where he directed samuel a codefendant to hide narcotics on his person that shows control of one person and it is remarkably consistent and similar to directing his rape victim to conceal narcotics in her bra while he was making deliveries i would further direct the court to the paragraph thirty two where he was described as the person who always carried the drugs paragraph forty two where he was described by coconspirator as the leader of the group and stupider graph forty two where he was described as the person who had access to the source in mexico that i believe carries the day for leader organizer with regard to the other arguments raised namely the five k two point four there is a requirement that the a ctivity by the defendant there needs to still the tate the criminal activity where the rape victim was forced to accompany him and forced to carry the drugs on his person or her person at the direction of the defendant again i direct your attention to paragraph twenty two where he directed yet another coconspirator samuel to conceal cocaine on his person and carry the cocaine in the event they were apprehen distance himself from the drugs if apprehended clearly that's what he was doing here he was controlling the defendant as the leader and the organizer he facilitated the  drug conspiracy through the abduction once he had abducted the victim he then forced her carry the drugs in this manner finally with regard to the extreme conduct upward departure the rate should be counted separately from the abduction the court the district court clearly found the defendant to be incredible or uncredible in his testimony and found the victim to be credible as judge noonan coins out there should not be a disturbance of that finding by the district court the district court heard this woman testify heard the defendant testify made the credibility finding and found the defendant to be totally incredible found that there was a rape on ten separate occasions and i think it's very well written by mr vander weathering in the brief that the enhancement here is for the sake of the cruelty and cruelty alone there need not be any connection with facilitating the crime with regard to the extent it's one of reasonableness we laid out in our brief a comparison of kidnap in violation with a comparison of this violation and a comparison of sexual abuse if you look at the numbers the upper departure employed by the district court here is very comparable to those and that translates down to be unreasonable under the circumstances and i think that with regard to the numbers you've come up with the same numbers as a kidnapping or a sexual abuse in terms of enhancement and that's reasonable that is my argument if there are any questions i'll be happy to answer them for the court and i thank you for your time first fights that everybody would share the proceeds of these testimony to that effect from codefendant and there's no showing that this guy actually got a larger proceeds and the leader middle of nowhere on maybe most of my patterns the middle of nowhere but she's in downtown manhattan downtown missoula montana and he's sydney showers she's meeting all kinds of people she's taken prosecuted for selling drugs why wasn't you prosecute and a lot of the other is a lot of the claims made about the defendant are from people who are being prosecuted he says are and where they believe