way the trial was all but none of the fall for the increase in mr gold sentence is attributable to any kind of mr ball whatsoever mr ball executed a plea agreement that was drafted by the government that plea agreement all for him leading guilty to desertion of child pornography with absolutely no mention in charge itself that it are read into the record by the government counsel with absolutely no mention of those facts that there is any prevention child pornography well you know i you know i'm stretching this but summarize the adjustment for preview besson and then the defendant said you know i agree i agree with that summary of the plea agreement is accurate i don't i know it's a reach but so then the question is did he had it with and if he never admitted it isn't the record pretty clear p s r said five year olds two year olds isn't it pretty clear beyond argument that in involved and so isn't this like an instruction where you failed to instruct on an essential element but the evidence was overwhelming beyond a reasonable doubt that element would have been established isn't that isn't this all in a pretty kind of lean issue well i think there is an element to that i'm not sure of but i think the more important point is that having engaged having drafted this weird dream and the government did nothing to having agreed to or the way the government wants us to view the case the plea agreement then said he's pleading guilty to that count but then when it described the sentence it did it and when it described the facts it'll need that down so the government saying it was inconsistent it was and they delist and all that was taken care of by agreement of the council when they brought it to the attention that there was a defect and it should be fixed in  the indictment in other words the government said count one and then describe the conduct and there's nothing in the did not in the description of the facts but in the description of the charges itself so on the first  riyadh aspects of it all taken together suggest that this is something that wasn't fact negotiated and wasn't simply a mistake and that even if it was a mistake having been drafted by the government he'd get the benefit of the favorable terms of the plea as you see them even on the government's account i assume is the theory and then the ineffective assistance claim is what business of it is the lawyer for that defend to be blowing up a favorable plea deal in order to get him an unfavorable one ok so ok so understanding all of that what's the prejudice claim here will be transcribed and then there is an off the record sidebar there's no evidence to comes later on as to what was said during that sidebar conference and of course mr ball for a crime that has a ten year maximum what would the remy if if we agreed with that what the remedy be on appeal would we send it back for recent unsing with in the plea agreement with all ambiguity is resolved against the i don't know whether there is a case of a meeting of the minds but i think i mean if it were put it no if the defendant wanted to get out of this clearly in his argument was this was a hopelessly ambiguous agreement no one could know what was being agreed to or involved there or you know i'm not sure i'd agree with you that it's an element it's a sentencing enhanced factor and it has to be either admitted or proven beyond a reasonable doubt and there but then you get to the point of did he ever admit it in some way you if there's any goof up in typing up like a typographical error that refers to the wrong statute or something like that the defendant gets the benefit of that in this nothing that the government can do about  happens i understand the argument there's ineffective assistance we're prejudiced by it we get the benefit of the favorable plea unremitting now sentence me knowing you can't go back ten years an alternative understanding of that is there was a screw up there was an ambiguity defense counsel had no business trying to solve that problem in the way she did by having him now go to a less favorable  but if the conclusion is that that plea is not locked on remain and what that means is there's no plea at all the government now knows that the judge is just sentence above ten sensible maybe why defense counsel did what she did which is if she was worried about this whole thing blowing not maybe she's just trying to think look let's just get this clarified now so he gets eight plea well defense counsel didn't best thing to do is make sure he gets out of here with the police with good starts to look like a reasonable strategic judgement rather than just the indefensible well again theoretically premised on misinterpretations of the record the one that subpoenaed the most is the one i was pressed here this morning is that the defendant originally pled guilty and that his defense counsel negotiated a plea bargain to a tensions to the district court and considering that the prosecutor agreed with the defense counsel's view of what was the actual point bargain in this case there was nothing on the record suggesting that the attorney was in this case considering the standard of review here which is plain error of the defendant has to prove that it is clear and obvious on this record that his attorney negotiated a guilty plea to a lesser offense excluding the pre convention children and he failed to prove that you're saying the agreement in fact if confirmed by both sides prompts the actual written agreement of the parties have used to memorialize whatever they negotiated in fact the actual we're dreaming but as written was we were made not a model draftsmanship but what's important is what was actually agreed to and the written the agreement never said that the defendant was pleading guilty to a lesser offense that is nowhere in the agreement it is true that the if you besant was not included in the studio version but rather was included in another section but the actual agreement never said that it was you get to two possible rules here one is written in big us agreement the rule is will always construe it against the government as the drafter and for the defendant given the allocation of that one possible other rule that i hear you saying is if you have an ambiguous agreement or perhaps even if it's not in the us it can be trumped of clarified by a joint representation of defense counsel to the projects the first will take the lead and affirms that we should use the one that you are putting forward the fact that in the written plea agreement there was no language stating that the counsel's candid representations to the court as agreed by the prosecution asked what was the party's intention and what was the plea bargain in this case i think i hear you saying there's no case law because you're not citing me any but well the absence of case will help you because a planner of you haven't said there's any case law then what is the case well that helps you there there's there's case on our brief case doesn't come to my mind at this moment but as i was stating our argument our main argument is that the we we bargain between the parties was not ambiguous because of the fact that as your honor mentioned there may have been a drafting mistake in the written agreement doesn't change what the parties agreed to and what the defendant pled guilty to but here here's the problem i've been having with this is i think you agree if the sentence is to be enhanced based upon the fact the judge can't determine that the jury's got to determine it beyond reasonable doubt or the defendant has to admit when you're in this fleet colloquy or the sentencing procedure where can you point me to the place where he admits that he had reviewed this and shall form well as your i don't see it anywhere as your honor pointed out that the initial we hearing he did it m that when he agreed with the prosecutor's description of the agreement that it included we divest and chill no no he didn't really i overstate if i said that i overstated what he said what his constant was and he said what i believe was i agree he's accurately summarized the plea agreement and in that summary what i believe was an adjustment under the guidelines for preview best that's that's the best i could find your honor this record must be viewed as a  you can't find it is a you can't find it on his own there's no jury so there isn't the defendant have to read it or you get into this business about overwhelming evidence we believe that based on that second change are we hearing where the defects in the original change of plea hearing work here that based on the prosecutor's discussion of what had occurred which defense counsel agreed to and the defendant never said anything and  words right not your characterization of words as i look at the words and i'm looking at record sixty four the judge said he confirmed with all that he knew the statutory maximum was twenty years quote because the indictment charges pornography involving justin minors so just as judge mcauliffe said he didn't ask him if in fact he was guilty of that fact he didn't in which he didn't ask him did you when gage did the pornography contain such minors he simply asked him is he aware that that's what the indictment charges usually we don't find that sufficient we believe that it is sufficient considering that's entirely on the record your honour's can and take your views on that we believe that the record should be viewed as a whole and that considering the what was argued by the defense counsel and the government that it's obvious that people invest in children was included and that he wanted to plead guilty to the offense as charged we believe that ever there was any doubt as to what was the party says we bargain in this case it was resolved at that change supervisor i release you have no objection to the defendant's position that that we should we should they take the sentence for changing the supervised release terms of well defense counsel never argue that well as their escape there is evidence on the record suggesting that the viewing of adult pornography was relevant conduct to the child child pornography and the distribution of the child pornography is he allowed to have sex the report says that he would spend all night on the internet without sleep and then go out to work the the report suggests that this was going on contemporaneously the adult pornography and the child pornography perhaps  his partner was not viewing the child pornography at least should you not admit to it but it shows that this was a problem going on in his life and that allowing him in there when he comes out of prison allowing him to view adult pornography it will increase the risk that he will go back to the same type of activities that led him to commit the instant of france in the first place is until there is a there  and sexual pleasure following the associated words can we believe that is the more reasonable view of the condition and considering that the condition was recommended in the pre sentence report it was never objected to at sentencing this is something i review he has to prove he would have to prove that it is clear and obvious on this record that the condition would not be if it's not going after cases after cases from the circuit that require an explanation by the sentencing judge as to why the conditions being posted you may be right there may be a correlation there may be relation between adult pornography and child graphic activity but there's no evidence of it there's no explanation of that record and what's in the probation probation officers sentence report and what the district court did and here i would have to infer that there is such a correlation i would we know well as i explained the correlation this court recognized those studies and we cited in our brief but as i was explaining on this record there is evidence that the defendant was looking for was viewing the adult and the child pornography staying late at night he would stale all night would not go to work this was all combined robin conduct the fact if he is allowed to view adult pornography when he comes out there is a reasonable inference that that will increase the risk that he will go back to the same activities and ultimately end up watching the the child pornography let me make sure i understand it is that the way the government is construing this term supervised release the the agreement actually says he can't go to any location where sexually stimulating visual or auditory material can be accessed or or any business with a primary function  provide one of a fee of sexual services and i think i heard you say earlier that we should read the sexually stimulating visible at a location where you can access sexually stimulating visual auditory material as being qualified by the primary function must be provided one of the peers sexual services believe that the locations should be interpreted based on when there's the word including says including the words shall be interpreted in conjunction says including adult not a few shops strip or topless clubs such parlors or any business where the primary function is to provide for naga feet or sexual services under the associated words can be locations where he is not allowed to enter shall be tailor by the subsequent examples so you would have no objection if we clarified the terms of the court clarify the terms of the supervised release  rather than applying the doctrine that whatever appears after conclude including is not intended to exhaust the universe of the ten well you are we believe that would be or would not be right at this moment if if and when he were to enter these clubs this would be taken up before the district court and that would be the ordinary way in which this is carried out but we believe that the clause should not be interpreted in could be used i was looking through my brain i'm relatively certain that the case law does suggest the plea agreements are to be construed against the drafter i was unable to find that specific case i'd be happy document constitutes the entire plea agreement between the parties the parties deny the existence of any other terms or conditions not stated here and no additional promises terms or conditions will be entered unless in writing and signed by all parties so i would suggest that that merger clause in and of itself prevents any evidence as to any understanding between the parties kind of a second of court reject the plea agreement signed i don't believe that that would be the correct remedy for extent that there are uncertainties about what to do with the defense counsel's this isn't to try and correct it seems more reasonable to me because it guarantees he walked out of there with the plea agreement as opposed to being at the mercy of