the last case to be argued united states versus patrick  where within the spectrum between the united states versus coffin in the united states versus hollings this court stands in that regard i'm glad the judge chin one of the judges on the panel and hollings that was on the panel today because in hollings said the court made clear that it was only because of the uncomplicated nature of the charge that it was going to uphold and it will live in colloquy by the same judge all these have it the kind of predic question so is there any record in the end is there any indication in the record that mr lloyd would not have pleaded guilty and he does he want to withdraw his plea now and have a full recent unsing and renegotiation of his plea agreement b of appeal maybe some indication but you're on earth correct there is nothing in the record before the district court but we are safe and presuming that he will want he does want to try his plea i've done this i've communicated with him he's read the brief sees communicated with me and based on that because i noticed that there was some reference to potentially contact that could have been charged that was not i mean there are some risks but i understand that your honor i what i pointed out in my reply brief i think there's some question regarding the government's ability to do that certainly three days before trial they had not and they had years to do that they had not brought that superseding indictment on the notion that all the sudden they were going to  charge him with a another twenty five year offense i have serious constitutional concerns about the ability to do that particularly when they say that it's acceptable to them twenty four a plea of twenty four years  fifty years if you do go to trial i think this court would have serious problems with that happen at any time when it happens it happens at a time when i think here it's different because here the government did not bring that charge never brought that charge up until right before trial i've been in cases where the government courts as at this point you had the time to do to do this you had the time to bring the charges why you're waking up now so there's no indication in the record certainly that they were going to bring this charges there's nothing new that happened the fact that the codefendant pled guilty that was always the government's there so i don't think that that should like i say it's something that we could deal with in the future i discussed it with my client but i have serious concerns  that the government would do such a thing and i have serious concerns about the validity of that so the court in holland said you know that it recognized that even in that case it wasn't a model of clarity but it said we're going to uphold that because it's a very straightforward charge i think whatever the government will say about pinkerton it cannot say with a straight face that it's an uncomplicated offense i mean if you look at the government's brief it takes two pages for them to this to describe the elements of what pinkerton is yet none of this is was discussed during the plea so this is not the reality we are case that the cord in coffin referred to where the court said it was a brief page three to four where the court of the recognize that such a deficient plea colloquy violates a defendant's substantial rights so i think blade is made all the elements necessary to demonstrate a rule eleven violation will do away with the rule the government would read out the requirement to rule eleven when there's a plea agreement but the whole purposes we've all seen cases where the defendant has a plea agreement but he really doesn't understand that and then when the court probe through the further questions the defendant will establish that yes he understands the nature of what he's pleading guilty but there are times where the defendant will make clear to the court that the defendant doesn't really need to it's a situation where the real lawyer just said listen courts can as you questions you have to say yes we understand this is what you should be doing so i think there's a reason for rule eleven we all recognize that and the question is you know do we want to make it was asked in open court whether he agreed with the facts contained in the plea agreement and i said yes i understand that you want to but that's that's that's what you know that's what often happens with defendants and the that's why the rule says yes but make sure you want to hear in your own words make is that by virtue of this plea the argument was waived to two months ago the supreme court decided class versus united states which held that a plea does not waive a constitutional challenge to a  there is when it's looked at objective really and particularly in light of the supreme court's modern disputants i think it logically flows from that i know what i know it's it's hard but frankly the reason why i made the up with a theory but that's not what congress did and so i think you know at some point you know the court should revisit it i think this is a case where the facts warrant it and i think if you know if an objective that judge sharp seems to be involved in some aspects and judge mcevoy maybe and others and i was big because there are some things that strike me as somewhat inconsistent i was little confused and i wonder if i'm not coming outside the record had to do with scheduling and things like that there's no authority supporting that proposition that i can find anywhere then the government replied to respond in this brief then it issued a twenty ha letter which brought up the decision this court handed down and  then in his reply brief for the very first time the defendant raised that the fact that the judge incorporated the plea agreement as part of the guilty plea come so our first point with respect to that claim the claim that judge under oath in the court must address to the defendant personally in open court and during this address the court must inform the defendant and determine that the defendant understands the following there's a long yes then you're admitting them to me yes then as to the two counts counts in the indictment the drug count and the gun count how do you plead guilty or not guilty guilty and that that to me falls short of the court personally the defendant of the facts of the case in ensuring that the defendant understands them and i am your position that this does satisfy rowlett and i haven't said that i want to make clear just that's why when i'm asked i'm sorry let me there's two things i want to clarify here number one my first point was not whether it satisfied with eleven my first point was that it was never raised that the claim that counsel's making now was not raised until his reply brief and it's one that's point one point two judge you raise two different things and i want to distinguish them under eleven the judge rule levon requires that the district court judge addressed the defendant personally and inform him and make sure he understands the nature of the charge we agree on that it does not require that it personally address the defendant and make sure you understand the facts all it requires and this is a different subsection of what subsection not be three i believe it is required that the judge find that there are ad so this rule levon colloquy as to facts was perfectly permissible and i think judge chin's question got to that the the court's a did you read the plea agreement the plea agreement lays out specific facts and the defendant adopted those facts you know in the southern district where he would always ask tell us in your own words what happened and i and there certainly is a benefit to having the defendant articulated in his own words and sometimes the read something that at least you hearing it and we don't we don't have that here i would judge i agree completely that's the better practice but my point is is that rule eleven does not require that as to the facts it does however require it as to the charge or the nature of the char you think a question that you understand the drought that there's a drug count in a gun count that that's sufficient i haven't said that judge i i am not defending what judge sharp did with respect to the nature of the charge i think the court made clear in kaufman that it's only a very rare case where this practice is acceptable i am not defending it here but for three reasons i suggest you it doesn't decide the outcome here number one as i've said it was only raised that it was foreseeable to him and it wasn't for them it's the conspiracy so there was plenty here as a basis for answering that admission occurred where in the  that's all laid out in the plea agreement so my point is that even if there was a defect in the rule levon colloquy there was no defect in the appeal waiver so for those two reasons because it's only comes up in the reply brief and because there's been an appeal waiver here the defendant's claim regarding the failure of judge sharp to give him notice about the nature of the charges does not prevail here but there's a third reason and as one judge carney that you raised in your question as to counsel there is no showing here in fact there's no allegation here that but for this deficiency in the plea coming up way that we would have a different outcome it's inconceivable that this defendant had judge sharp explain to him the nature of the charges or explain pinkerton liability would have said at that point ok i'm not pleading guilty i want my trial and the sentence was a mandatory minimum rights are correct the sense isn't any lower sentence that's correct and so for all those reasons are i'm not i'm not defending the plea column that's not my point at all my point is i don't think it dictates the outcome that mr lloyd wants here that's that that's the point i'm making and i think the same is true with respect to his other claims the pinkerton claims fin any of his pinkerton claims have been adopted by a court in fact one of the claims the apprentice claim was specifically rejected by the third circuit in a case called chordal unfortunately it's not in the in the briefs of the court wants a citation i can provide here i can i can send the court a letter but that's been rejected by the by the third circuit a case back in two thousand and three the final point i'll make is on the ineffective assistance of counsel claim it's a novel climb because it doesn't talk about anything counsel did or didn't do here it simply says it's a bad deal therefore there must be ineffective assistance of counsel in fact it's not a bad deal it's not a bad deal for two the first reason it's not a bad deal is because it gave the defendant a lower low end of that guideline range so he got a lower guideline range and he got the benefit of that lower guideline range when he was sentenced the second reason why it was to his advantage is he avoided the consecutive nine twenty four c charge and i disagree with counsel that will have been somehow either legally or morally improper for the government to bring that charge three days before this guilty plea the codefendant who actually possessed the other guns not the guns that were charged here but another set  guns pled guilty and admitted they was transporting drugs in the same van those guns were found and the person who was transporting the guns work for a lawyer for the defendant here so the government now had a person that knew it could put into the grand jury and compel to say i was transporting drugs for lloyd in the day when i was arrested and guns were found in my van the government would have been well within its parag you'd have either at that point or somewhere down the road and still could quite frankly just to address him my out of a story was first argument for this was amazing the opening brief i'm just looking at page twenty of my opening brief which notes the fact that the court failed to file comply with both rule love and b one g and rule eleven b one  so both of these arguments were raised in in the opening brief as far as the appeal waiver the we've cited i've cited the cases you can have an appeal valid appeal waiver if the whole if the claim is that the police was invented knowing and voluntary i find it interesting that the government notes that there was an extensive colloquy about the appeal waiver which is somewhat odd you know you don't the district court doesn't determine to see whether the police knowing involuntary expends all of this effort to decide to see whether the appeal waiver is is is valid there's something in cancun is about that you know we should want to make sure that the defendant understands what he's pleading guilty first before we go he still would have been facing a the three points off didn't help him certainly the plea agreement he could have pled guilty without a plea agreement it wouldn't have helped them he still would have his guidelines would have still been two ninety three the government says that if the call defendant they would have been able to put them in the in the grand jury of course he still he didn't have a cooperation agreement he still had his fifth amendment rights he had not been sentenced yet so the government wouldn't have been able to do that was three days before trial there's nothing nothing that changed it was always the government's the was a problem and this is not the way that a court should be accepting a guilty plea if we're going to give rule eleven any meaning you know the court has to tell the you know the courts that we mean it it's the rule says what it's us thank you thank you will reserve decision the final cases on submission i'll ask the clerk to