justice criminal justice today is for the most courteous system of please not a system of trial and the right to the effective assistance of counsel has followed suit laughter and fry both set forth standards that this wide ranging conspiracy none appealed everybody pled guilty this work is taking place in the district course without a lot of review from higher corps and so it's especially she see if she wants to go to trial what is the realistic result what she would likely you know she might be  product miller was criminal history category six correct that's right is that true of other defendants as well oh no i'm i'm sure there are distinctions between e factors i certainly she's prepared to take the risk of going to trial blow on the one kilogram plus charge the government has told us that if she went to trial the guideline range would be in the looks like  fourteen to seventeen eighteen year range right but she's prepared to take that risk she's prepared to take that risk i think that as with the other forty some defendants before trial w a competent lawyer she may be able to negotiate a better plea agreement but the major factor that participation in the conspiracy it is a hard battle to win a trial but the one kilogram of heroin is very hard to find evidence that she would have participated in a conspiracy knowing the objective of that conspiracy involves more than the kilogram affair of fifty four grams certainly but there out of all of the control bias in this case dragnet everybody that person talked to and on one of the recordings there is talk where i believe michael and says something to the effect of this person who is just arrested maybe should just sign a little death warrant or things like that that was never litigated in the district court who is unimportance in the twenty to fifty five proceedings and her attorney never offered any defense to it i can tell you what's not in the record which we've sort of indicated  in a footnote which is that she was high on heroin at the time she would certainly contest that there was any intention to inflict any sort of violence on anyone and you know that fact or the telephone call itself could be evidence that she was more involved in this conspiracy than just being somebody is trying to to get a fix but i don't think that shows beyond a reasonable doubt more than you know deep involvement in the conspiracy but no i'm miss brock miller denies actually intending or issuing any serious threat to kill somebody that that was never something that she intended to do from from our perspective mr henderson confessed to having wondered about your inclusion of a with a pedia entry about crawfordsville well i was population without mentioning it's the home of wabash college and the home of general lu wallace and i also have been her i've seen from the billboards too that my grammar county it's the best thing about it there's no zoning so there's no what there's that those are the billboards but no i was inspired by your example in a prior case about brown county state park so i thought it would be beneficial for the reader to know about crawford is it correct  i was looking at the plea colloquy were there seem to be some confusion and if i got this correct please tell me if i'm wrong the judge was trying to take the police of five defendants at the same  time and did not have this defendant's plea agreement in front of her before the hearing my understanding is that the plea agreement was delivered at the time of the hearing both to the judge and to my client  so you know that that's one of the things about the admission to this telephone call my client would not agree that she actually wanted to admit to that that fact it's in the pleader that this was a massive multi person conspiracy  that led to errors and you know one thing the sixth amendment stands for is that sometimes the government sometimes the court may make errors and one of the protections we have against the errors is that you have protection against that mistake this is appointed counsel this is appointed counsel right and not from your office not from my office of course not but you know there are really very basic steps that council failed to take here that led to looking at how to really draconian sentence that compelled my client plead guilty she didn't look at the statute that my client was charged with to see what a felony drug offenses she didn't identify the right statute of conviction for prior offense she didn't therefore necessarily look up whether that conviction was a felony drug offense and so there is no argument under law that was clear at the time this was not categorically a felony drug offense and shouldn't have had the may please the court brian writes for the government i'd like to start i think judge rosemary hit the nail on the head of seeking to ask what relief mrs brock miller is is asking for and i think just that question shows that she can't show a reasonable possibility of a better result as far as going to trial she would risk her guideline range would be one hundred sixty eight months to two hundred ten months as charged even if for the lesser included it be one twenty two one  hundred fifty months that's her guideline range so by hook or by crook there the one hundred twenty months that she pled to would be a good deal can you tell me something that bothered me the government argued that ten years is a think for steve although it's difficult to guess or speculate as to what sentence the district judge would have imposed however that is the this statutory range and i think any defendant in that scenario is going to be concerned about the high end one reason that every defendant pleads is risk mitigation risk avoidance so even if the life maybe wasn't the most likely something well above ten just a comparison there is sentences of four hundred twenty months three hundred twenty seven three hundred  sixty two and down the lines for many many defendants received more stringent sentences than this brock miller did so there would be a i mean she was that absolute least guilty in this whole think the indiana conviction let's talk about that for a minute clearly was not a categorical felony drug offense and we now know that she wasn't even guilty if that offends that means that the government's biggest bargaining chip those errors went to the very core of the plea agreement here so we have not disputed that mrs brock miller's attorney made a mistake and i don't think that can be said to have tainted or overridden her voluntariness of the plea just because her sentence as i started with is within the range of the guidelines or the statute regardless so and also i would point the court to this court's preceden i wish i would have cited those cases in my previous mr henderson points out that being said i think they get to the same ploy and a reasonable likelihood of a better result i still don't know i still think there's been no showing that it's  pretty good deal on that because her guideline range if you went to trial and she got and she was convicted the lesser included her guideline rate would be one twenty to one fifty so even then one twenty is that is the very low end of her guy clean can you tell us  brock miller's minimal culpability here we disagree with that i mean i don't think i think it's reasonable to say that a minimally culpable people don't call the head of a conspiracy conspiracy offering to execute a coconspirator and i know mispriced miller's saying is trying to get around that i mean i are allied that but but the fact the matter is we have a telephone call of her unilaterally volition calling a person in prison who's leading this conspiracy and offering to kill another coconspirator so the interpretation that they are the best interpretation is that that show she knows the extent of the conspiracy  the more innocent interpretation perhaps my feet that she knows the extent and hopes to join to a greater extent other than bat i don't think there is a beneficial interpretation to that whatsoever and i'd like to return a little bit j hamilton your point yes i we are somewhat this is years ago and the reason the record is somewhat lacking in some of this is because nobody went to trial i think that point actually helps us that this was forty defendants forty different lawyers and none of them saw fit to go to trial because they saw that they didn't have a very likelihood of success good likelihood of success and the police was the best way to do as miss proper miller did so this is somewhat i guess pointing at holes and start you want to leave i think the premise of that question is based on us agreeing with her lack of culpability and we vehemently do not agree that that's where she's at as to whether we would go to trial yes if the remedy here if this is reminded i suppose we would offer her the same ten year sentence and if that was rejected we would go to trial and she would face more stringent guidelines she would face the exact same story range so i  we we would that the lapland full of pride we're not prepared to offer a better place in the ten years which is the statutory minimum again of what we charge her with and to the lower end of even the lesser included the deal the beneficial deal that we gave her with that if there are no further questions i'm sure but it's not ready for lunch will rest on every thank you johnson eighteen months in county durham jeremy johnson forty eight months stacey cooper forty one months odder ekman twenty four months elite parole forty eight months to suggest that the government is not willing to offer a plea agreement in this case either reeks of vindictiveness or just is doesn't reflect the record in that case i would expect the department of justice to offer the same consideration to my client as it did to all of the other clients in this case everybody didn't plead guilty because they saw the strength of the evidence they pled guilty because they got plea agreements they got deals the criminal justice system is a system team and they have competent lawyers if if if miss brock miller had a competent lawyer she would probably not be in prison today she would have gotten an agreement to maybe five to forty years let the judge decide the sent she doesn't have a lengthy criminal record and she she she really doesn't she's got a criminal record that she's a criminal record six she isn't anymore because this conviction has been vacated but it's all consistent with low level crimes to feed an addiction it's things like burglary or possession of syringes those droplets to shoplift you know you can exactly yeah and so you know it's it may be a plea that falls on deaf ears and this court can't do anything about it but i