us all of this week he has sat with us many times before and it's great to have him back to assist us in our work senior judges  a form of great service to our country that work for free showed about twenty percent of the caseload of the federal judiciary and we'd be in a world of hurt if we didn't have them and it's great week and we have looked of course not only the record in the authority cited in your brace but we've read your briefs and there for mill your with your cases in the limited time that we do you this morning you should feel free to get straight to the heart of your argument here not going to waive anything by not arguing something that is in your brief we're probably going to have some questions this morning  so when we do be helpful to get an answer please don't treat the red light as aspirational when it shines it's time to read things particularly this morning the young woman involved with two months shy of her th birthday and she initiated contact with mr pemberton by responding to an online advertisement posted in the adult section of a web page soliciting women to work as prostitutes when they met the young woman told mr pemberton that she was eighteen years old she worked for part of one day then chose to leave the location where she was working and at that point her so say sion with m knowing and intelligent because of confusion about the mens rea element of the offense permeated the rule eleven hearing it seemed to medo that when they came back the nd day that in so far as the district court did not just start a new start from scratch go back to the beginning however you want to phrase it that any error about that it was waived  because the district court asked whether we could go straight to the reasonable opportunity to observe the victim and an defense counsel said yes we can do it that's acceptable defense counsel was willing in terms of describing the nature of the offense to go directly to the issue of the mens rea element i am not sure reading i'm not sure that the that the defendant the defense attorney waived all other parts of the rule eleven colloquy just to be clear you're not arguing that because the plea proceeding went into parts that that was somehow an error in and of itself is that right i am not presuming that argument this morning though i will note procedure is highly irregular in terms of once something gets set gets delegated to a magistrate judge i've never seen a case where it bumps back and forth without becomes unavailable death illness or for whatever reason someone else who is authorized to take a plea they still were goes over the scene matters is one hearing isn't it judge i believe that you've described two hearings where the st one clearly the st hearing aborted the judge the magistrate judge said i can't take your plea i don't think there's a factual basis that satisfies the legal elements i need to step back now i need to return this to the district judge and i think that the district judge started over even though the district judge did two or three times say let's start a start up where the magistrate judge left off that is that seems to be result in a report recommendation that goes to the district judge here you know but here's here's the problem it seems yes you're right so when they come back the judge said judge need took a lot of time yesterday with them and it was a one hour hearing i think she went through everything now i'm happy to go through everything again if anybody thinks we need do that and i think everything was covered now i need to finish out the guilty plea but i think we left off of the elements of the fence it was just it just kind of came to a halt so i'm willing to continue where she left off she then asked counsel is that acceptable to you or do you want me to go through all the questions again he replied judge that's acceptable and i think that in terms of whether he invited error at that point i don't think he did i think it's important to look at the context and the two remarks that surround the the remarks that the judge just read immediately before the judge said would you like me to go would you like me to go through all the facts in the plea agreement again or you want me to focus on just the facts that relate to the reasonable opportunity because the judge had asked her to illuminate her on the facts that would satisfy the mens rea and then after the judge says those things you've quoted that's where they had left off right but the day before i was on that element right they had left off on that element that's where the confusion arose a confusion you know from our mozy opinion which has since been clarified and so the defense attorney did say yes we can start off my read i think it can be fairly read that the defense attorney is speaking only about that's where we'll start in terms of our discussion of what needs to be proven to stablish the offense rather than that what is what needs to be done in terms of completing the rule eleven hearing but nevertheless i want to concede your honour's nevertheless the even if you considered the nd hearing to be a complete hearing most of the rule eleven requirements were were covered and so you know it i must acknowledge it's difficult to prove it to establish care in this case where the error doesn't come in that i think it's very serious error was that confusion about the mens rea it permeated the sentencing or the plea and the judge although she made diligent efforts to determine what the appropriate mens rea it was she didn't come to her final conclusion about that matter until after the guilty had been entered so in the beginning judge the magistrate the judge that on the nd day told the prosecutor i need to be satisfied you've met the requirements of the statute which are he had a reasonable opportunity to observe  the nd victim so tell me again how did he have a reasonable opportunity to observe the victim right the judge said that your honor so i mean it seemed that the nd day there was no longer confusion about the elements of the mens rea element and what the government has to prove is just that reasonable opportunity right the judge had come to that decision but i don't think that the record establishes that pemberton understood the nuances and understood that that was different from what his attorney had told him previously previously mr pemberton's attorney had told him a reasonable opportunity but then the court says you had the opportunity m reasonable opportunity to observer is that right are you acknowledging that and the defendant said yes i am the court said you are admitting the defendant said yes your honor and then the courts and all right you admit the government would be to prove that fact you had a reasonable opportunity to observe the victim and the defendant says yes your honor right yes your honor nevertheless i think the record reflects that the defendant still thought that there were only two ways to establish the mens rea and that would be when you say the record reflects i will point to this defense counsel repeatedly said there were two ways to satisfy the mens r knowledge or reckless disregard it was consistent and defense attorneys position was that you could prove reckless disregard simply by proving reasonable average to and in the final analysis asked the defendant you  enough to show reasonable opportunity to observe just turning mistakenly equated that with reckless indifference to we know we know based on the recent opinion our approach for the court that that's  right that's a correct statement of the law that that proof that the defendant had a reasonable opportunity to observe the victim is sufficient you don't have to prove anything you know it's important to note that in white in the white decision free referring to and also in the judges and now losses it was important to them the may twenty two thousand and fifteen amendment to subsection c was important in their analysis because that's where the words reckless indifference were added to subsection c i want to note that the judge made a factual mistake in that this offense occurred in february of two thousand and fifteen it occurred before the amendment on which white relied to say now everything is clear misunderstanding about this by emphasizing that that she said after the end guilty plea she said she noted that the statute was amended in may two thousand and fifteen to include reckless disregard and she said that clarifies everything i think that solves the issue that i was grappling with it was that amendment white also relies on that amendment to say it's very clear and in fact amendment in her analysis i just think that this establishes that confusion permeated we know that if the judge had applied the understanding that the record reflects the defendant had she would not have accepted his guilty plea because she did not think the facts established reckless indifference she both the magistrate judge and the judge had a real problem with finding that after mr pemberton asked the young woman how old are you and she said eighteen they were very uncomfortable with thinking that that amounted to reckless indifference even though mr pemberton with his misunderstanding of the law and his confusion about it was willing to acknowledge that they were that reckless indifference and or reckless indifference and the  opportunity to root observe were equivalent so for those reasons your honor i would argue that mr pemberton's guilty plea was not knowing and intelligent when you have a judge and a defendant who have different ideas of what the statute is what the statute means and what facts are necessary to prove and when the judge relies on that very distinction to accept the guilty plea that plea was not knowing and intelligent thank you raised in the appellant's brief there was some amorphous suggestion that there was confusion regarding the elements of this offense but not a contention that the plea itself was not knowing and was not voluntary that being said with regard to a period of months difference between the offense in this case and the actual two thousand and fifteen amendment of subsection c which also has not been raised prior to oral argument today mr pemberton actually admitted reckless disregard throughout the plea proceedings in this case he certainly was not required to the government's theory of guilt was that he had a reasonable opportunity to observe under subsection c rendering it unnecessary to prove either that he actually knew the victim's age or that he recklessly disregarded it nevertheless there were repeated admissions that he quote did not do enough or could have done more to verify the because we had a missions on the record that he doesn't matter that he committed the offense before the amendment of the statute it would not matter your honor because he if if if i think what counsel may be suggesting is that because your fence was committed prior to the enactment of the amendment that the government may have been obligated to prove both a reasonable opportunity to observe and reckless disregard if that was the case he did admit reckless disregard for the age openly before judge covington and the nd day of the plea proceedings so he admitted to any behavior that would form the factual basis for a conviction under a theory of reckless disregard yawners i am i am looking at the green light as aspirational so if there are no further questions for me when i address the question of whether there was one hearing or what i consider day two a continuation of the st hearing really and as your honor has already pointed out several times over there is no rule against that and i think a characterization that it is somehow irregular is a little bit unfair it just depends on the circumstances whether that is necessary sometimes as a scheduling issue in this case the magistrate judge wanted to ensure that the district court judge had a chance to  address the elements of the offense and ensure that this particular defendant understood the nature of the charges against him and was making a knowing involuntary plea so again there's no rule as we've briefed extensively there's no rule against doing that and in this case all of the the goals of a rule eleven colloquy were were met what about the right to counsel well the right to counsel was specifically addressed by the magistrate judge it was not specifically addressed by the district court judge the following day but our position is that the st day counts for lack of a more articulate word and again as the panel has pointed out defense counsel was given an opportunity several opportunities actually to raise anything that needed to be raised and what is actually interesting at the very end of the plea colloquy before the district court judge on day two there was one final opportunity given to counsel to raise anything that the district court might not have covered specifically the plea colloquy but anything else and counsel said there was nothing more also interesting directly before that counsel did speak up and state that there need be some sort of clarification the mr mr pemberton was pleading to a subsection b offense which came with a ten year mandatory minimum instead of a different subsection which had an independent mandatory minimum so mr pemberton had opportunities to speak up if necessary mr pemberton did so so there's no reason to believe that the colloquy continued from one day to another before the two before she actually took mr pemberton's plea i will try to find him under oath or after your honor i believe it was before he was under oath i'll have to double check that but she hayes actually acknowledges they went there a protracted discussion on what exactly were the elements what exactly was the united states obligated to prove in this case they finally came to an understanding and at that point the hearing shifted into a more formal tone where the defendant was put under oath and she ran through the judge ran through any additional parts of the role of an colloquy that she felt she needed to touch on and i if i understand counsel's argument correctly there is a contention that the district court judge didn't actually decide what the elements of the offense were until after the guilt plea had already been accepted but the hearing up until the point of the formal roll eleven questions was only about that one specific issue what were the elements of the offense what did the united states have to prove and did mr pemberton acknowledge those and the district court judge went through that with him both under oath and not under oath to parse out whether he understood what was as well i don't know your honor to be perfectly candid i don't know that that is a specific requirement but certainly if it was mr pemberton how an opportunity to let the district court know that and your honor i don't i'm still searching for this i don't know if you want me to continue doing so or submit it later or well let me make a suggestion was it at page twenty nine where the court says the government would need to prove beyond a reasonable doubt that the defendant had a reasonable opportunity to observe well that sounds good your honor and i'm on page twenty nine because the judge does come back later and talks about the elements again after taking the police so certainly just was curious what point you think she decided well i think she decided before she took his plea and i think the record bears that out and particular the passage that you just identified at the end of the hearing my perception of that the obvious for everybody they've been through this probably hour long hearing at this point to discuss this and what's clear from the record crystal clear is that this judge was not going to proceed with accepting a guilty plea in this case unless and until she was absolutely and wholly satisfied that this defendant understood what he was pleading to and not just that he admitted to the conduct that would form the factual basis to convict him under section fi c and she did both of those things repeatedly and i think to all of our satisfaction there's no question here that mr pemberton knew what he was doing and wanted to plea he had the benefit of having a nd count of sex trafficking of a minor dropped so this was to his benefit and even though he spoke up the day before to sort of make it known for his for for himself and this came up at sentencing of course that he didn't actually know the victims were eighteen it mattered not because that was not the theory under which the united states was proceeding and that was not the evidence that they had to show to convict him well i thank you for your time and i would ask this court to affirm the judgment  establish that that an error occurred but that it was plain yes and that he would not have pleaded guilty but for that right yes your honor it seems to me on this record a tough burden it's always a tough burden your honor but i would point to a few things concerning the nature of the plainness of the air or what is the statutory language itself subsection a gives two ways that you can prove the men's right in a case involving sex trafficking of a excuse me but most he said about that and it was wrong well i would point out that in white the court didn't say it was wrong the court said that it have to i but i would note that in court and white the court took that opinion fairly seriously and said that the statutory moment had abrogated that understanding not that showing that it had never been correct but that it abrogated it makes it clear that there that that cannot be the law any longer it doesn't mean that it was correct before hand though i understand that point there but i do want to note that in white the court truly did rely on the amendment and coming to the conclusion that in this point into that offense was after the amendment right excuse me a fence was after the i'm no it predated you know no no in white oh in white yes yes your honor and so yes that was a problem there but i do want to know that while the defendant did say yes i admit there's reckless indifference that was clearly based on a misunderstanding of that was a legal conclusion stated by a defendant that was not supported by the facts that he admitted defendants are responsible for knowing the facts that they're admitting they're not responsible for knowing the law that was a mistake i also want to point out that counsel has mentioned facts relating to other defendants but they were other victims but they were not part of the charge offense i see my time is up and i ask that you