good morning we have three cases that are scheduled for argument this morning that we hear all week and judge newson and i are delighted that judge sole issue in this case is whether or not mr carmichael is prejudiced by his attorneys undisputedly deficient performance and for at least two reasons the district court erred when it held that he was not and can i ask you a threshold question delicate and to the extent you can't answer for attorney client reasons that's fine i was curious about your decision not to file your own brief to ride the pro se brief that was filed i just haven't seen that before typically when we appoint lawyers i follow a new round of briefs and you didn't and i'm just curious about why well without getting into any attorney client confidence is what i'll say is we think that the it's a briefs very well to point out the legal errors in the district court's opinion holding mr carmichael particular likely the not burden of proof and turning to the st of those errors the failure to examine all of the prejudice from all of the attorneys here i want to focus on three points that are not disputed but which the district court did not his attorneys were woefully unprepared for trial now if you take all of these into account in addition to his attorney's failure to inform him of the government's favorable twenty year offer with a chance to get it down to ten prior to trial there is at the very he received ineffective assistance all we here to decide is whether or not the district court was wrong with regard to whether or not he established prejudice at the evidence you're hearing right whether he's that was prejudice yes ok and so i mean when we look at the evidence you're hearing one of the things that i'm looking for did he ever say that he would accept an offer from the government without a twenty year max guarantee i don't know that he ever said that the evidence you're hearing or if that happens establish number one and number two that he was in a position to provide substantial assistance to the government could you address those two things for except of course yes so st of all he did say on multiple occasions that he would never have gone to trial if he had known what his guidelines range was which i think very imply ablaze is saying that he would have accepted he as he puts it any reasonable offer that's a transcript twenty team and at one hundred and thirty dollars he says he would never have gone to trial if he had been properly advised of his guidelines right but even after trial when he knew what the guideline range was and the government put twenty years back on the table his lawyers advised him you're not going to get more than twenty years and he went to sentencing well actually your honor i think that that's one of the strongest pieces of evidence in the case for mr carmichael contrary to the government's brief at seven and twenty three he tried to accept that offer you know he went into that what what what record evidence is there of that because i didn't see that in the record i just record says it at  opinion and also his testimony and the government attorneys testimony what happened was he who went into this final meeting with the government attorney having already been advised that twenty years was probably a bad deal but the government attorney mentioned to him that actually it wasn't a bad deal he could be spending a lot more time than twenty years in prison if he didn't accept it and that was the st time that he ever had any indication of what his true guidelines exposure was then the magistrate judge that is the right image tell them that you  and ten years to life statutory minimum statutory maximum but the guidelines range is incredibly important for determining in fact the district itself although it later ignored this said on page twenty five dollars it's opinion but it's essential to a discussion of whether or not to police to know what your guidelines ranges and it was particularly important here given that his guidelines range was astronomical compared to the favorable offer that the government had given him but i'd just like to turn back to this discussion he then went to his attorneys who his appellate attorney and his senior attorney advised them don't take this deal and he went against their advice and hired another attorney michael offerman to try to accept that deal now it was too late at that point but this is strong contemporaneous evidence that the fairy st time that he had any sense of his guidelines range he tried to accept a not particularly great deal not nearly as good as the one he could once before once that happened gouri did he say that i will accept the plea w with a twenty year with a twenty year with a twenty year max well that yes that was what he was trying to except the government attorney at that point made it very clear that twenty years was the best that he could hope for in fact the plea offer that the government was making at that point was maybe he could get up to twenty years with cooperation and that was the offer that he rejected his attorney's advice and tried to do it didn't say that at the evidence you're hearing did he say which part that he would be willing to accept the government's offer a twenty year max a guarantee well i don't know if you put it in those words exactly but he explained that he tried to accept that offer and that offer which was very times the district court says things that are really more conclusions than factual findings like there was no evidence of such and such i would not accept those so for instance the district court says there was no evidence he could have provided substantial assistance i don't think that's true and i also don't one prior to trial want to mediately following conviction what was the one part of trial and what was the terms of the offer made it was twenty years with a chance to get it down to ten with substantial assistance your position is that's all one offer with a sliding scale depending on super cooperation yeah i mean it really has to be because otherwise it's not clear where the ten years would be coming from a task has to come from somewhere and the idea was it comes from twenty years with the opportunity to get it down to ten and so the part because he did forfeit the carmichael center before he even had a forfeiture hearing just to protect some other property and so on and he testified repeatedly he would forfeit it and that really isn't an issue at this point but getting back to substantial assistance the question again is whether there is a substantial possibility he would have accepted this plea deal now it does make it more likely that he would have accepted the plea deal that he had his opportunity to get it down to ten years ok so now i say at the evidence you're hearing that he will provide substantial assistance to the government because the impression that i is that the government is more concerned about the substantial assistance than it is about the forty year  quite rationed in this case so he said repeatedly again and again and again that he would have accepted the government plea offer the government plea offer everybody knew at the evidentiary hearing involved substantial assistance so he was imply a delay saying that and it wasn't an argument the government didn't argue this below this was not the government's argument below they argued about in effect of performance and about the carmichael center they were asked the specific question would you have provided substantial assistance but  numerous occasions he said he would have accepted the deal and we know that the deal involves substantial assistance you said the trial court said that carmichael center wasn't a problem but in a footnote at the end footnote fourteen where it and that he provide high value substantial assistance that's a finding that he would have accepted the ten year deal at least for those two reasons right so i think that the district court had to be referring to the substantial assistance part not the carmichael center let except for reference in the combo center right well for a couple of reasons one is he repeatedly again and again and again stated he would have given up the carmichael center so i think when did he say that after eventually and he also gave up the carmichael center before he had his right to a forfeiture hearing to determine whether he had to or not and so i think it's clear from the district court's opinion it's not really relying on that as you go through all of its findings of fact but i also like to point out in the brief time i have remaining that although i don't think it's particularly nearly as relevant as the government does his evidence that he could have provided substantial assistance there at least four major pieces of evidence one is he was indicted for a massive conspiracy and in fact the government sought in obtained a leader organizer offense level increase and he was held to have been the leader of dozens of people so that's that's one thing another thing is louis franklin the chief of the criminal division at the time said he thought carmichael had information rd the government offered him plea agreements both before and after conviction and an attempt to obtain his substantial assistance which says in all likelihood that he can provide some to the government and there also forth some testimony on this the government attorney faygo testified that he thought that the government would have liked to know where hundreds of sounds of marijuana were coming into alabama every month and mr carmichael i'm self testified about the possibility of being  a government witness so there is substantial evidence of this but i just want to bring it back to the point that the question is is there at least a possibility i substantial possibility but not more likely than not that he is not separate is a reasonable probability is what the court reasonable probability yes he would accept that the government's offer but for the fish a performance by a skeptic biased lawyer so i guess at least what i'm trying to get at is  he willing to provide substantial assistance and he's willing to accept a plea offer without a twenty year max a guarantee because the government can't guarantee twenty year max anyway all we're government can do is make a recommendation to the district judge what the district judge can reject so you can get a guarantee i see my time is expired but i'll try to answer the question briefly again if you look at all of the attorney errors he had no chance to see how disparate his sentence w likely guidelines was from this favorable offer if he had known that that's very strong evidence he would have accepted the plea he knew his attorneys were not with were not ready for trial he tried to get his attorneys to negotiate a plea deal and his attorneys never told him about it i think when you put all of that together that provides at least a strong possibility that he would have pleaded guilty aren't you reserve some time for rebuttal mr put training and we'll hear from the government m may please the court jonathan ross and half the united states leon carmichael was not prejudiced there are two main reasons st the fact that mr carmichael maintained his innocence throughout these proceedings mr carmichael was adamant before trial that he was not guilty his attorney mr james testified to give an inch or hearing when she acknowledged that she likely did not convey the offers that she didn't do it because i think she said it wasn't going to matter he was dead set for trial this case was going to trial and if i had yes yes yes but the government offered him a plea deal after he was convicted yes right yes and that the big offer after conviction was simply to resolve sentencing and  forfeiture and that so the fact that he pled not guilty and with the trial going that undercut your argument that he was not provided ineffective assistance because he went to trial when you offered him a you offered him a plea deal after he was convicted you don't have to do that you are the government often that deals simply in an effort to obtain his cooperation however that's what the government really wants in this case is his cooperation it the time at the post trial period the government was still hopeful to tames to carmichael's cooperation but looking at what is with it there's a reason probability before trial that had mr carmichael received the offer it's not likely or there's no reasonable possibility that he would have taken off or what about after a trial he says there's a reasonable probability that but for the fish and performance on the part of my lawyers after my conviction i would've i would've i would have taken the plea deal that was offered by the government in fact i went out district court expressly found that the advice of miss james to mr carmichael after trial to reject the twenty year offer was not unreasonable and the only issue is whether there was deficient performance arising out of the performance after trial and the government offered him a plea agreement the district court found that that was not deficient that that so the government offered mr carmichael plea agreement expressly to his face so there was no issue of failure to convey the offer because both negotiations after trial occurred in mr carmichael's presence and i'll turn just a moment to does what is the government's conceding deficient performance right the government concedes deficient performance as to t three pretrial issues the failure to convey the offers the government the government didn't concede deficient performance with regard to the post trial offers no you're right and i do not the district court did not find efficient performance as the post office the there was no issue of conveying because mr carmichael is they are one big one discussion occurred in this building and they in the well i'm i'm confused the government offered a plea after he was convicted yes and so his allegation is that i would have accepted a plea if my lawyers had post trial if my lawyers had provided affective assistance we're not here on that issue  is the government understands issue as i believe the district court found the issue is whether mr carmichael would accept a plea had his attorneys properly advised him of the negotiations after trial the only issue so there's no there's that was not unreasonable but does the government concede that with regard to the host trial offer that the government says he rejected that there was deficient performance no not understood from the birds but you're right and i apologize that the brief was not clear i don't believe that there was any finding by the district court that there was deficient performance arising after trial was there deficient performance after trial no dou not impose a twenty year sentence anyway and jenkins gave him the same advice right yes yes and mr jenkins been hired for the appeal so the post trial period is really just instructive as to would have happened pretrial had mr carmichael received the offers this issue of the guidelines for ange the the fact that the district court failed to consider the fact that mr carmichael was not advised as guidelines range a few points to that and admittedly the district court did not turn back to the guidelines issue in its prejudice analysis i think you can assume from its opinion that the guidelines range was sort of the district court applied prejudice considering had mr carmichael been advised of the guidelines range and received these offers would have chronologically as i recall is i understand the record yes our james tells him not to take the twenty year plea because based on his age she does not believe the district judge will sentence him to more than twenty years jenkins gives him the same advice he's concerned he reaches out to chart off chart off says there may be some issue here because jenkins is going to get a big fee if this goes all the way through sentencing charge off puts him in touch with opperman from and goes to the government to seek a plea and at that point there's no plea offer on the table from the government and that chronology is important because this argument that had he known about the guidelines range would have taken a deal pretty trial he didn't take the deal after trial when he did know that he was facing three hundred and sixty to life this there was no post trial offer from the government yes there was a post trial offer mr fayed has said if you're willing to come in and work if you're willing to make calls provide information then you there's a possibility that you can get your sentence down to twenty years he said that to mr carmichael at the elmore county jail it was just him and mr carmichael and mr according to mr fagan during the evidentiary hearing mr carmichael's response sitting at the table was i'll take my chances on appeal well his st response was if you can guarantee me twenty years work yes but if you can't get me twenty if you can't give me a guarantee i'm not going to work exactly so many words and that's important because that was the same offer pretrial free trial the government said you know come in cooperate and you can get twenty and if you super cooperate you can get ten and mr carmichael post trial is adamant that he wanted a guarantee and the government doesn't guarantee anything to anyone without st hearing what the person has to accordance with the plea offer which would be a twenty year sentence the district court could reimposed the same forty year sentence or the district court could reimpose or could impose a sentence somewhere in between and so that so that mr carmichael and the government could reach a deal right yes ok addition and then the government would get what it wants which would be super cooperation that's what the government really wants in this case that well your honor at this point twelve years have passed since the sentencing hearing and fourteen since the trial and so it is unlikely at this point that mr carmichael would be in a position to offer any cooperation moreover when the district it should the district court get the case back and  sentence it would not be bound to the information before it at the time of the original sentencing hearing but could consider any information that's arisen post how do you respond mr patrol he's point there at the end of his argument that there are sort of you can sort of weave together a story through the four buckets that he mentioned right there at the end about substantial cooperation yes to those points those are all indicators that mr carmichael mr carmichael would have someone to talk to someone who might have information but it happens routinely that defendants look like they're in a position to cooperate they look like they might know something and for various reasons turn out to to not be able to provide substantial assistance you can't that's why the government doesn't guarantee deals before they hear from the from the defendants because you never know whether you know bad memory perhaps there is a lot of publicity in this case and so some of these super cooperation involve the likelihood that maybe he could make calls work as an undercover informant and it's possible that because this case was so public mr carmichael would not have been able to do that it's possible that he was shielded from the people in texas from whom he was by marijuana and he wouldn't  actually have known that much about them not every leader organizer is somebody who can provide assistance particularly assistance of the type the government was looking for it's possible that at the time the da was targeting one organization in texas and  carmichael was dealing with a wholly separate one it's to speculate just to say that just because he was indicted as the leader of a conspiracy and could cooperate just generally following up on that what do you understand our task would be under frye when there's not a formal offer well how do we go about assessing that how do we if we conclude there is pride just how would we construct a remedy what are some of the matters let's say pre trial that we look at and your honor that is a challenge in this case because fry was limited to a formal offer and it's easier to apply the fried but the district court said fry left room in the joints floor informal offers pretrial and i think this court's challenge w in de to say what would the informal discussions have turned into and then what would have happened you'd strap laid out to a formal offer and then what would mr carmichael have done with that formal offer well i am and also relevant is what the agreement sent to defense counsel but if the offer comes before the agreement but a formal offer could be lawyers across the table if he agrees to plead guilty will recommend twenty years right the government can't thing go back at the agreement or a c plea agreement and if it was for a c plea agreement then the district court would have had the option of rejecting the plea agreement and the district court and its in its order in this case said well there's no evidence how do we how do we st it's hard enough to divine what informal pleas would have led to between the parties how do we divine what an informal plea process would of how would of influence the court and you think you could say you could cut it off and say it's too speculative entirely it's too speculative a challenging task to say what this would have led to in terms of a formal offer and therefore you can't show prejudice and that would be a per se rule that you know when there let me get your looking at the sentencing transcript in the sentence saying the outcome of sentencing the district court had a range of three hundred and sixty to life it imposed a sentence of four hundred and eighty months so ten years above the bottom of the range and gave reasons after a two day sentencing hearing gave reasons that because breadth of the conspiracy mr carmichael's actions there's also testimony about mr carmichael violence that came out of the sentencing hearing i think there's some indication the record in this is contrary to the opinion of this court in this case previously but there is some indication the record that the district court would have got along with a twenty year offer and certainly would have gone on with this got along with the sentence as low as ten as to the carmichael center and i see my time's expired if i may answer the question as to the carmichael center that was a significant point before they haven't you're hearing that mr carmichael is adamant that he did not he did not want to give up the carmichael center at the evidence you're hearing mr carmichael testified to the contrary and miss  testified to the contrary the government the district court did not find the carmichael center to be an impediment to a plea agreement and the government does not push that argument on appeal what about the footnote fourteen is that just a loose language the district court t because the supreme court said that as long as the shows and these are words for court uses very reasonable probability but for his counsel's errors he would plead guilty he establishes prejudice who are just here on prejudice so when i look at the fact that his lawyer says that he requested that is lawyers pursue a plea before trial and then after he was convicted he hired a plea expert mr  an to pursue a plea and assistant u s attorney steven vega and james both testified at the evidence you're hearing that he was amenable to a plea and this is one of know that was mr fagan spoke in mr carmichael after trial this court's the focus in this case is what mr carmichael would have done had he received the plea offers before trial and to that there are two significant points that make clear that under no circumstances would mr carmichael taken a plea the st he maintained his innocence he could not have gotten through a plea colloquy even if he had tried to plead guilty he could not have admitted under oath that he conspired to distribute more than three thousand kilograms of marijuana and nd that mr carmichael refused to sit down and talk to the government he refused to sit down and talk to government after trial and if you if you refuse to talk after trial then there can be no reasonable probability that mr carmichael would have appear on or just at the very outset can you clarify the confusion about whether or not there is a claim here and in fact for post trial going on so this was my st point there was ineffective assistance post trial the failure to advise him of his guidelines went past the trial he had to the plea issue yeah well what i mean is because he was failed to because his lawyers did not advise him of his guidelines necessarily he was failed with respect to the plea negotiations post trial as the district court how many tons of  i don't think it does he had you know as i said the ten year to life is a very broad range it's not clear under the statutory circumstances what you're going to get if he had known prior to trial that h guidelines range under the indictment would have been life not even what he ended up getting which is almost guaranteed thirty to life guidelines range but would have been life that changes everything about his potential sitting down with the government it changes everything that he's going to do if he after being convicted and knowing it was a guideline range wanted to guarantee before he would do anything toward committing to a plea or working on a working for a plea why wouldn't we from this record understand that he had the same view before trial that he wanted a guarantee not a plea deal that had loose room in the joints so i don't think that there was ever a point and the district court certainly did not find that there was a point where he demanded a guarantee after he had been advised of his guidelines range and in fact he knew that the offer from the government attorney he wanted to guarantee what he said down one on one with bigot that's what the district court found that he knew about the guideline range that you know he did not he did not know going into that going into that meeting he did not the st inkling he got of his sensing exposure was towards the end of that meeting with feta which is why it's such strong evidence that he then goes and rejects his own attorney's advice with even just the government attorneys word for the fact that his sentencing exposure is in fact very high but i want to quickly reach two other points the government made st of all the government says that innocence is somehow relevant here the district court didn't think it was relevant this court when it  said well yeah he had maintained his innocence but also pursued tried to get his attorneys to pursue plea negotiations maintaining one's innocence is the right of a criminal defendant it doesn't mean you're not going to plead and in fact susan james the only one who testified that he had maintained his innocence also said at the transcript at sixty seven dollars that he would have been amenable doing plea agreement she wasn't you know she thought it was going to take slightly fewer years but he would have been amenable so i don't think that that's very strong evidence at all and then the government admits that all the reasons i just laid out are you what remedy are you seeking at the end of the day well the remedy we think would be appropriate is for the as for the court to reverse remand to the district court to enter a new sentence and we think what should that i mean so we pick a number out of the hat how do we do that so if this court were to do it itself i would argue of course that given what i think is very strong evidence of his ability to provide substantial assistance that await remand with directions to institute a new sense of ten years but barring that the court the remedy from what remedy are you seeking let's pin you down on that least well so that again the remedy would be i think would be a reset and saying and i do think that the court in at the supreme court in laughter and fry said that courts have of the government to offer a plea deal you just have that opportunity that maybe they'd offer and maybe they would like one common remedy i had stretched struggles that common because this doesn't come up very often because attorneys aren't usually this deficient but one remedy that courts have used in the past is to order the government to give the plea offer that it had given pretrial but the court doesn't have to do that but the supreme court last one fry also made clear that it can directly  juggling the various factors to figure out what a fair sentence would be so he could still get forty years i don't think so the way that the court put it in laughland fry was that he could be given something you know at or below or somewhere in between