case number one six dash six five three one philip thompson v united states of america or arguments not to exceed fifty minutes precise mr jonathan meltzer for the my name is jonathan meltzer and i represent philip thompson i would like to reserve four minutes of my time for may i want to begin by highlighting the issues on which the parties agree both parties agree that the government at least provisionally offered a fixed cleargreen under rule eleven c one c to mr thompson for which you would have received a fifteen year prison sentence both parties agree that mr thompson's trial counsel told him that if you turned down that plea agreement he would be facing sentencing exposure of sixteen to nineteen years in prison and both parties agree that mr thompson ultimately received a guidelines range sentence of forty years in prison twenty five more years than he would have received how do you accepted the original plea agreement on those facts there are no disagreements the parties divergent two critical issues first whether the fact that thompson's attorney underestimated his sentencing exposure by two decades constitutes deficient performance under strict and second whether a plea agreement existed on the morning of mr thompson schedule change of plea hearing such that counsels extraordinary error or harm thompson and constituted prejudice under strickland thompson can make both of the show likes isn't there also a question of whether the plea colloquy did or did not correct one or more of those here i believe though that question is the government has disputed that but i believe that question is determined both by the courts keep the supreme court's cases unlawful and fry as well as the coveted yet this case that the government sites in its brief so let me start with leffler and fry because in that case you had in laugh where you client that he could not be charged with attempted murder because he was shot below the way he had shot below the waist instead of above the way so it wasn't a sentencing guidelines issue but what the court made clear in that case was the fact that the fact that defense counsel has to be the fact that ultimately he had a fair procedure a criminal trial was not enough to undo the team of counsel's mis advice at the police station laughter said the same thing where counsel were defendant got bad advice on his prefers plea agreement he ultimately received the second plea agreement in frye and in that case he had a valid pete plea colloquy at that point in the second plea case but with the court made clear over a dissent by justice scalia that makes the exact argument that the government is making here the court said no any amount of good procedure on that second plea agreement can't solve the team to of the first plea agreement and so whatever advice mr thompson received here about his about what the consequences would be of the plea agreement  accepted that can't undo counsels miss advice in the first agreement from which he could not alternately get that fifteen year sentence that the government was promising because he received that bad advice that ultimately led him to plead guilty to you know colloquy solves this issue but it points to this very issue and it says if there had been a sort of first plea agreement here a plea colloquy for the second plea agreement couldn't solve the problems of this advice and first plea agreement so that's why we think the government citation to the hicks case doesn't apply here and why there is no amount of good procedure as the supreme court made clear in laughland friday that can solve defense counsel's mis advice on the first plea on the on the first initial the solving the inability to solve occurs because there's no retrieving that fifteen year deal is that will that your argument that's exactly right and let me explain what what this court has said is a defense counsel's obligation here and why the defense counsel's mis advice cannot be cured by this ultimate players because what this court said in smith is that in the system of justice in which the sentencing guidelines play such a crucial rol it is the defense counsel's obligation to explain the defendant's sentencing exposure under the guidelines and that explanation is necessary so that a defendant can properly consider the deal before him and that  f and it cites the this court cites to madonna case from this circuit and and the de case from the third circuit and what it says is if a defendant receives miss advice about that sentencing exposure he cannot make an informed and intelligent decision about the plea deal that was facing and so in this case that's precisely what happened and he could not make an informed and intelligent decision about that fifteen your plea agreement because the choice he thought he was making was between fifteen years on the one hand and sixteen thousand years with an option to appeal and lower that sixteen to nineteen year sentence alternately the choice he was making was between fifteen years and thirty four to forty three years and because that's the ultimate choice he was making he could not make an informed intelligent decision about that fifteen your plea agreement and so the reason why ultimately he you know his plea colloquy can't solve that is because the plea colloquy can't undo the fact that he couldn't make an informed and intelligent decision about that fifteen year plea agreement and that's exactly what this court has said repeatedly defense counsel's job is to do is to put his client in a position to make that informed into an intelligent decision and so the plea colloquy simply cannot cannot put him back in the position where he could make that informed and intelligent decision that's required by this court's case and smith and that's why the law firm fried cases make clear that you simply cannot have any subsequent good procedure to solve the sort of teeth of the of the problematic procedure that led him to not have a clear ability to evaluate the plea agreement in front and so is there a scenario under which courts can order the government to offer the fifteen years and him to accept it or has the option here that he resubmit in the actually say ten year plea agreement the defendant had turned down because of affirmative miss advice and it said the government should read and through that plea agreement and allow defendant to accept it or not accept it and if the government decided instead to try to enter some sort of different plea agreement that had a higher sentence the court the district court should interpret that as having a presumption of malicious prosecution that in fact that they were putting in a higher a higher sentence for a problematic reason you sort of a clear precedent a dream in this case and say you know this court orders the district court to have the government resubmit this fifteen year offer that was offered to mr to mr thompson and have mr thompson have the opportunity to be put back in the position that he was in again with the ability to make that intelligent and informed decision that this court's cases require and so we think that is the proper remedy here and that the madonna case makes if you just look at the very case that you know the sort of i have not seen this court said the remedial portion of the madonna case but again i guess i would say even putting aside madonna what the supreme court says in laughter is that it's up to this court to essentially  or up the courts generally to sort of issue a remedy that will put the phantom back in a sort of fair position where he would have been had he not been had the sixth amendment sort of six process and so you know the laffer case says it's up to courts to come up with a remedy that is tailored to that particular violation and so we think here the remedy is just for a particularly clear case because it's a plea in which there was a fifteen year sentence case we know where he would have been had he gotten the good advice which is we know how do you know he was choosing between fifteen years and thirty five or forty years he would have known and let me be clear thirty five or forty years with the ability what he wanted was to be able to dispute the acceptance of responsibility deduction that's a two point deduction that's what he wanted to dispute so how do you know me was looking at thirty five or forty years that two point deduction gets him down to roughly thirty to thirty five years so you have been facing fifteen years a best case scenario of thirty years so there's no doubt that he would have accepted that plea deal had he truly understood the sort of the sentencing exposure he was facing and the deal that the sort of the options under the deal and that's precisely what this court is going to get i turned back to the smith case at page five fifty three smith makes clear that a defendant needs to understand his sentencing exposure so so that he can make an informed and intelligent decision about the choice in front of him and we submit that if mr thompson had been put in that position by counsel he would have been able to make that intelligent and to form informed decisions and waiting for you to take a breath but you never take a prep well i can see i have less than a minute left so i'm trying to do my best to get to get through judge we keep from question a very clever technique i well i'm sorry i'm sorry to say you started out by saying that the parties agree there was a provisional plea offer which means the parties haven't reached agreement on whether there was an actual plea offer when we fashioned this really if we otherwise agree with you on the other matters don't we need to know whether there were actually was or was not actual offer on the table which i assume is then go you to say yes that's why there needs to be an evidentiary hearing we think that the only evidence in the record the clear evidence is from my client that there was a plea agreement but if the court disagrees and thinks there is disagreement of an issue of fact yes well interestingly enough and i suppose we'll hear from ms on this i don't see that the government ever says there wasn't it just says you didn't prove there was a i answer so i think there is it's i think it's i'm clear on that question the government in its briefing below certainly never said in fact if you look at one fifty four to one fifty five of the twenty thirteen docket record the government presupposes the existence of a plea agreement and says mr thompson wouldn't have accepted the plea agreement and you got good advice about the plea agreement so in the record the government never says there was no deal and the government went and got mr lewis your burden to prove there was well it's it's our burden to show a reasonable probability that the that that the court would have been presented with the plea deal which includes the fact that a deal existed but yeah ok his forty year sentence and instead sentence him to fifteen years based on his assertion unsupported by anything else in the record that he rejected a valid plea offer this presupposes that there was a valid plea offer the i don't have a good answer for why that wasn't clearly set out in the affidavits of mr thompson's attorney but the record does make sort of clear that there was no plea offer there's nothing else in the record that suggests there was a plea offer where you have mr thompson's statements that there was a valid plea offer and the question is whether that reasonably places on the face of the record that it existed and then the question becomes whether the government comes back and puts anything that contradicts that your argument cites only to the dispute between mr thompson and his own counsel and you provide nothing why in that situation is it not reasonably appropriate on this record to assume that there was a valid plea agreement and because you failed to put anything in the record that said otherwise there's an imprints against your position the district court found mr thompson's affidavit to be incredible and the district court court found it to be incredible based on the face of the affidavit and based on what else was in the record and there's nothing else in the record that would have supported the idea that there was a valid plea agreement but you apparently you agree there was a provisional plea agreement we did not agree that there was even a provisional pl negotiations in which the defendant's attorney requested a fifteen year sentence because the flip side of this and we're just into speculation is the government was steadfast in his position that he shot at the officer and that he's going to get a thirty five to forty year son so it is curious why anybody would believe there actually was a fifteen year plea deal on the table given the guilt is absolutely established here as i understand it it's only a question of arguing over the enhancements under the guidelines do i do understand that correctly that is exactly correct that's why but if it would be a lot more helpful to us if you just tell us whether there was or wasn't a plea agreement from the government standpoint and like judge grants i don't think you really do we do not in the record no and we're looking at the record as we have before us for this appeal but so in the circumstance where this is the record that you have before us on this appeal the question that we would address is whether thompson's allegations in the record are contradicted by the record inherently unreliable or conclusions rather than statements of fact and in considering the allegations two armed bank robberies a high speed chase and shooting at officers a fifteen year plea deal is not credible in that situation also the district judge found that it was incredible in light of the record there was nothing in the record that would show that thompson rejected a valid plea deal the transcripts don't mention or rejected plattville a plea deal there are no e mails missed thompson never raised this issue at sentencing he didn't contest this is since of his counsel and he didn't try to withdraw the plea and more importantly the district court already had rejected doesn't he allege that he called his attorney and made an effort to contact his attorney to withdraw the play and that his attorney would not call him back he does make that allegation that happened later at the sentencing when the judge was going through the p s r and setting forth what the correct your honor so he didn't complain about this on either either time he was before the court either time and moreover the district judge already knew that there was a question of mr thompson's credibility the district court had already determined that thompson had made a material false statement that was proven false with the intent that the court would rely on that statement was that he hadn't shot at the police the government put on more proof and determined that he had shot at the police and the court found that statement to be so materially wrong and some material a false that the court denied acceptance of responsibility credit but you're still here so problem i think you're opposing counsel has put a finger on what the issue is question everybody agrees that the that the advice on how many years would be likely in this situation was decades off so if you have vet said ing then you've rejected that play when you go before the court he's going before the court on an open plea not the play that he has rejected and don't leffler and f very clear that the court's colloquy seeking to determine whether there is an informed political whether the it is an informed and intelligent decision now i just say very clearly that that is not the place that can solve an error that has already occurred and from which the prejudice has already arisen looking at frye and the court you know the court says big the guilty plea that was entered after the trial court fulfilled its obligation to ensure the voluntariness cannot supersede error by the defense counsel and and point of the plea is to put on the record the defendant's understanding of the plea and it's consequence to establish that on the record mr thompson's plea hearing was at nine thirty in the morning he suggests that he rejected a fifteen year plea deal earlier that morning while he was waiting for court he knew these things it was on the record that he was aware he was aware that the guideline range was merely advisory he was away or was he also aware he was aware that his counsel had said to him it's fifteen years no appeal it's six think a nineteen years you get to make an appeal and he and his affidavit says i thought for a year or two it would be worth it because i would be able to make an appeal that my to veil me of the less than fifteen years and isn't that isn't that very type of problem that life more and far far i addressed that you cannot clean up an already resolved error merely through the colloquy with the court leffler and fry and the other cases cited by mr thompson like my gun out like smith and mike morris there these are cases where there's an affirmative representation based on the mandatory guidelines that this is what you're going to get in my ghana it was an affirmative representation of a maximum possible sentence of ten years when the defendant really faced a minimum of twenty years in smith the attorney didn't consider the guidelines at all in this case we're looking at even assuming that there was a valid plea agreement which the district court decided that there wasn't and the standard of review of that credibility decision is clear error the district court said there never was a plea agreement and even if the defense attorney had miss calculated the guideline range and he did  pointed out that the testimony at the sentencing hearing was more graphic and detailed than what he had seen in the discovery and mr thompson's attorney shouldn't be held to a standard that would require him to disbelieve his client or held to a standard that would require him to predict that he with his client would lie to the district court and even though just didn't mr mcafee have an understanding already f prosecutor that there was a question about about the shots he did know the urine and knowing by how could it not be gross misadventure not to advise his client of that potential he did it by says client of the prison telling him that it would be sixteen to nineteen years his attorney clearly miscalculated but he miscalculated in ways that were based on thompson's lies and the ultimate sentence was based not just on this one miscalculation of whether or not the shooting of the officer would apply but also the acceptance of responsibility credit that mr thompson lost in this room activities failure to correctly calculate  criminal history correct correct but there's a case makes the robinson in which the court said that there's no constitutional deficiency when the attorney underestimates the sentence in part because of the defendant's mischaracterization here the defendant lied to the court he lied to the police and he lied to his counsel and so when his counsel relies on that misinformation when the counsel believes his client over discovery even the district judge agreed that it's amazing what additional testimony can do to a record that appeared to be completely his counsel saw a record and he son mr thompson and mr thompson wide and he miscalculated based on that lie thompson laws he says it only has to be in part in part yes and this was partially because of a lie there were other miscalculations but in part the miscalculation was due to thompson's lie and it was due to thompson himself losing his credit because he lied to the court again and hence your response to the distinction between a colloquy that is discussing a that is an issue a play for example that was accepted versus a plea that is lost before you ever reach the court and the opportunity for a colloquy related to a different place the colloquy covers several things that the court wants the defendant to know in this case the quality clearly established that as of that morning thompson knew that the guideline range that his counsel gave him was just an estimate he knew that there was no way to predict what the district judge would do and he knew that there was no way to tell what the guideline range would actually be until he had the p s r that has nothing to do with whether or not there was a plea what the terms of the plea were it's about his knowledge that the estimates were not necessarily true but this knowledge campaign after he had already rejected it based on  box this knowledge came within minutes of the rejection we don't know when exactly the knowledge came but we know that he averred to that knowledge at nine thirty am and he said he rejected the plea that morning so it could have only been at nine am this is a matter of minutes in which it's unlikely that his counsel would have then counseled him about all of the guideline range and everything especially considering by the time he made this open  didn't know the guy had been range and he didn't know what there would be so mr thompson's attorney told him these things that least by that morning and mr thompson knew at that morning and  that he didn't know that it wasn't set in stone especially considering that the guidelines are not mandatory if that's not clear or for the district court to determine that no no plea was on the table you know disregarding the affidavit we don't even have i mean i don't think we have a strickland claim here do we that's correct first strickland you have to show that there would be a difference in the process and if there was no plea agreement that he could ever have agreed to then there was no deficiency there was no other thing that could have happened in the plea process based on the plea that never happened and the district judge determined on a credibility determined that determination that was not clear error that mr thompson's affidavit should not be believed there was a credibility determination based on the judge's knowledge that thompson would lie to the court a material way with the intent that the court would rely on it i see i'm running out of time and i would like refresh my recollection if you would the if there was an affidavit here from thompson's attorney right yes does he say in the affidavit that there was a binding that was offered her does he know he does not he says that up to the day before that change of plea hearing there was no binding plea agreement thompson's attorney never says that a plea agreement all we have us thomps saying there was a conclusion refashion and that's refuted by is on board is not fully refuted by his lawyer because his lawyers affidavit stops as of the day before as of the day of the plea agreement as the day of the it was in her law like correct because we're we're at the after the fact did you render effective assistance so when he's put in that affidavit he knew that his client would say ed you gave me a valid plea offer on the morning of this hearing and yet his affidavit did not deny that is that correct that's correct the affidavit did not deny it but it also never established that there was a valid plea offer there's nothing own affidavit which also was written four years after the point which also was written in support of a twenty two fifty five motion that otherwise would absolutely have failed he wrote this affidavit as the only evidence that would support  brief points in rebuttal first of all response to judge cook's question what this court has made clear is when you have a criminal defendant who puts forth a factual narrative and you have the government that simply says that factual narrative is false as the government did for the first time on appeal here what this court said and pola and this court said inhofe is an evidentiary hearing is required to sort out those factual differences and paul is particularly on point because there you had a criminal defendant who put in a affidavit defense counsel who put in an affidavit the district court looked at both and said i believe defense counsel and what this court said is because it wasn't inherently incredible what the defendant said in his narrative the court was asking you to do is on the basis of nothing in the record determine that the district court made the correct find committed correct factual finding here and one that i'll point out there was no credibility finding and but if the affidavit was of the lawyers speaks to anything up to the day of sentencing or said to me the day of the plea then what you're focusing on is that somehow there was a plea the or there was a plea offer made by the government the morning of the hearing and that he got the incorrect advice any rejected at all in this matter of minutes before the plea colloquy not quite your honor because if you look at both affidavits what they make clear is that this fifteen year provisional government was made counsel to see if you could get both if you look at it wasn't finalized as of the day before he says that as the plea hearing was looming he doesn't make any the day before comes the day of comes from my client who says for the first time he was presented with a final plea agreement on the day of mr man no evidence of that whatsoever except his statement that he was and what this court has said repeatedly and pull out in a huff in valentine is where you have a defendant who makes a factual narrative and you have the government simply saying that's not true the district court is you look in the decision in the twenty to fifty five order that's being appealed here the district court does not say that defendant is not credible he simply says the weight of the evidence points to the existence of no plea agreement so there was no credibility finding counsel is referring to at the sentencing hearing when the court ultimately determined that my client wasn't credible on the issue of shooting the got but that's a totally different issue on the gun than the gun yeah and so i also would just like to take a quick moment to talk about sort of all responsibility for  the for defense or asserted responsibility for defense counsel's errors if you look at the sort of nine point difference between what the p s r found which included an acceptance of responsibility to duction and what the seventeenth one thousand the top sentence that my client was told by his counsel there are nine points there seven points come from the fact that my client fired his gun in the commission of a felony that was never disputed by my client not wants also two points for obstruction of justice for to speak up  mcafee never that he fired his gun in the in mr mackey's affidavit makes clear that he understood that client fired my client fired his gun there's a two point enhanced meant for obstructing justice for leaving the police on a chase also never in dispute and so we get from sort