because if i want to focus my argument on the rehab issue in a sense i feel a sense a feeling of deja vu about a year and a half ago the usa this summer myself argued before a panel of this court in united states versus lloyd judge carney or wrote in one rd opinion in that case and the issue was in a sense very similar the district court had failed to comply with rule eleven he any fail to ensure that the defendant understood the nature of the plea and he failed to determine whether a factual basis exists so and the court ultimately rejected the defense argument that  the police should be vacated on the plane or the government i think that's really the argument that they make here we can satisfy the plane air requirements but really the similarities although you know  that's where it starts because our argument is not so much a rule love an argument but it's the constitutional argument whether it's plea was knowing intelligent it's due process argument in this case there was no plea reheat because i am getting from your brief is that you're saying that the defendant must be aware that his status will prohibit him from the indictment now is fatally flawed and there was no jurisdiction right to proceed with the prosecution right i make that argument as well and isn't that argument as i think the government points out or we be governed by the decision in johnson potentially i'm not we're i'm not i'm not i haven't focused on johnson the new johnson issue but it's prohibited from owning firearms yes one is is an undocumented alien one is a mentally ill person and so forth and included in that is a felony and the if if requires knowledge of your status which is prohibited it was applied in the context of the immigration office that you were you were unlawfully in this case in this country it seems to be his decision just to the gist of the immigration now obviously the logic of that and the the reasoning he uses would be seem to be make sense in other areas but it seems to me that we're talking about someone who convicted of a prior felony the knowledge is almost not a not he shoot because that person was convicted and particularly if he was sentenced to more that he or the knowledge would be would be there unless he or she just has a horrible memory or has a kind of no record no recognition of that so it's different it seems to me in it in that sense right i think a lot of parts that question but in terms of rehab and owns the way the court interpreted the start a statute i don't think there's any way to interpret the statute to say it's limited only to him and immigration status and not some of the other things on the list i just nothing would make the supreme court did limit right they said we're not addressing these other cases my recollection is what they said in terms of the knowing elop we're applying it to the status element there are other potentially for example that said we're not applying it to the interstate commerce element but in terms of this in terms of the status element i believe even gave the example that iran interested about somebody who was convicted of a felony  was sentenced to less than a year and the court said that would be an example of somebody who was potentially unaware of the status i noted that the court said we express no view about what precisely the government must prove to establish  defendant's knowledge of status but it made a very broad statement that the prosecution the government under one hundred and twenty two dollars g the government must prove both that the defendant knew he possessed the firearm and that he belonged to the relevant category without any limitation though obviously this came up in the context of immigration so i mean it may be that i read that to mean that knowledge is going to be a status is an element now of the crime but we might make a different rule or in a rule about proof about presuming knowledge for example in the context in certain context of felony convictions i don't i think in terms of proof i agree with that  that it probably will be in the most cases a very easy element of proof but it's still an element of proof which under supreme court case law requires admission to a jury it's not something that the judge could say thought i instruct you that he was convicted of a felony though it does bear on the plane question i know but that's why our position is this is not governed by plane or if we go to dominate because we need  guilty otherwise you can't demonstrate plain error they the court there made very clear that there is a number of exceptions to the rule that it was a st to point that out it said that in talking about the reasons for its rules it says these reasons i complimented by the fact worth repeating that the violation obtained was of rule eleven not of due process somebody who's miss advised court said petitioner contends that the record reveals that neither he nor his counsel nor the court correctly understood the essential elements of the crime with which he was charged were this contention proved petitioner's plea would be constitutionally invalid and footnote ten you're drawing a distinction there but as far as the prejudice it seems to me that it's very very hard for me to see she prejudiced you see that he wouldn't have pled guilty to the same thing  exactly the same thing here where it was plain from the record and plain from lots of documents that were filed that he was informed of his his his status as a convicted felon so he was no question about the fact that he knew that he was he was a convicted prior felon i think most respectfully your honor i think the record is certainly open to interpretation whether he knew status the fact that you may find out two years later that you have it i think a matter of fact and in one of the cases that we cited it involved a different statute but it was united states versus an th circuit case united states versus at the pleased he now knows that that's a that's required but it was a knowledge has to be at the time of the year of the offense right and i don't understand how it's conceivabl y one who has served his served two years in prison and three years sentence is not aware that she was sentenced to two to prison for for more than a year  e that he was convicted of a felony this court would tell the judge directed of or a verdict for the government we can't just we could and that's what really them and it goes beneath a seven foot no ten there are situations where there may be overwhelming proof of guilt but there has to be a knowing intentional knowledge that i'm waving the right and over here the judge when he when he when he pled guilty this is a day for one thousand four hundred and fifteen you're guilty plea constitutes a waiver of you right and self incrimination i want to warn you not to plead guilty unless you are in fact guilty of the charges made against you in the indictment to which you pleading and they describe those charges and they left out this element so that's not a knowing waiver that plea is not knowing and intelligent ok well you're from the government status as well the the indictment here does include a knowledge requirement as to the essential elements of the crime but yes not cut but not the status separately  find that the defendant knew that he had a legal status in the united states with respect to immigration and that's what was challenge the the indictment there wasn't challenge so i agree with your honor that that the jury couldn't be instructed in that way but it is it is the truth question to our facts and plainer because there is no way that mr keefe did not know at the time he possessed the firearms that he had a felony conviction absolutely your honor he had been convicted by a guilty plea of a felony drug drug crime and he received a sentence of three years as you pointed out he had served more than two of that  by the time he was paroled but isn't this kind of fundamental i mean we're ready for much as we might be surprised by its import you suggest that this is an element of the crime that the government needs to prove and that you know this prosecution didn't happen in that context and i thank you for drawing our attention to the other case that is currently before another panel that was submitted just recently i guess  and i haven't looked at that closely but that's united states versus q one johnson is is what questions are getting presented there it's almost the exact same subject matter jurisdiction question that's presented here and you serve more than more than a year  case it might not be to actually brief the other cases well and there is evidence in the record that he knew and that you knew at the time that he was a qualifying felon and in fact even further in that case that he understood that because of that felony he couldn't possess firearms and that's not something the government has to prove but it is not ignored in our document i'm sorry it was it was not in the indictment no as you know no indictment was drafted very similarly to the indictment here and i would point out that the  rd degree attempted criminal sale for which he was sentenced to one year of incarceration that's right ok and that that was the felony predicate correct whether or not there a defect in the indictment here it's not a jurisdictional defect and that's the important distinction to make because then we get into play or conceivably there would be a waiver argument that the government's not pursuing that argument here given the and it charged an offense against the laws of the united states falling squarely within the jurisdiction of a federal district court going wrong with the indictment not for as far as conferring subject matter jurisdiction on a federal district court but not subject of nothing wrong at all in the future you can vote the same way i believe that we could the practice has changed to make it pollutes obliquely or what the government has to prove but i think under a high if it would be proper to charge this crime by saying that the defendant at a specific time in a specific place having had a prior felony conviction possessed a firearm knowingly in violation or in knowing violation of one t essential component here is to say that it was a knowing violation of nine hundred and twenty two dollars g and again the right height of court explained what the government has to prove to show that it was a knowing violation but certainly in the indictment here  charging a knowing violation of the law to come back for a minute just to johnson so the jurisdictional question is raised there the argument is made that the indictment was insufficient that's correct so that is getting that would be direct understanding the government have to prove that he knew at the time of his status then the challenge to the conviction fails briefly are also addressed the challenge to the sentencing here mr keith challenges the application of the sentencing and handsome and under two k two point one subsection b six b is argument is essentially for closed by this court's recent decision in ryan where it determined that the simultaneous sale of a subsection b six b b six a b the district court was entitled to impose the enhancement arguably could also relied on the nd clause based on the facts of the case but but he really only needed one to affirm kind of changed its formulation when it was saying this indictment says having been convicted in a court of a crime punishable by a term of imprisonment exceeding one year knowingly possessed in effect in commerce a firearm the knowingly is clearly modifying his possession of a firearm not the fact that he had been convicted of a crime w a two that would probably suit be sufficient because you are saying that the knowingly element applies to everything in the statute but certainly the way this indictment is written and i believe my recollection is that it was almost identical to that and we have look to the elements of the government in the record at the plea when they list what the elements are they make it very clear that the knowing element applies to his possession of a firearm not nothing to do with his his knowledge of the status or the situation that i know so and that's why it is not the same thing as i know but the reason why they thought it did the reason why they put knowingly in where they did in regard to possession of a  that i'm raising of as to whether playing there or should apply based on the constitutional due process and that was my recollection the other case to petition for you here and i didn't look at but in general but there's one for your own before this court don't get the same review oth that's all right thank thank you very much for your arguments will take the matter on submission