good morning honors kathleen bliss on behalf of mr berger i'd like to reserve three minutes for rebuttal please a big law is no law at all just to score search recently stated what happens when the government cannot hail someone into court in the st place and and constitutionally permissible to see this so much as a vagueness issue as as a statutory construction issue and you raise an interesting argument that the phrase offense in the conspiracy how do you get to do that argument on an appeal from a guilty plea with a waiver of appeal well if it is a statutory construction argument then how are we construing the mental intent the parties agreed how to construe that they construed an offense at that this was actually raised in the proceedings below they agreed that the way to read it was that the school element would did not have to be the object of the conspiracy you raise an interesting argument that maybe that was wrong but on the record everyone agreed that that's how you should read the statute and the police and everything went dollars which is essentially a strict liability offense when you couple those together how are we going to interpret it that's the whole problem so no matter it is a convoluted and messy record are right now whether it's constitutionally permissible that's another issue that's not before this court and i'm not suggesting that we look at that i'm just suggesting that what what was  convicted of what elements were reached by the government what was satisfied was it satisfied that a knowing intent to agree cannot weigh a constitutional defect something that wouldn't allow the government to bring him into court in the st place so mr hunt's berger could have thrown his hands up agree to every thing  he did not dispute it that's where we are but if you look at the coupling of this two statutes that we really know what congress intended no and this court as the davis case makes very clear make essentially the argument that the phrase an offense should be read to include the separate offense of age sixty and therefore it had to be an element of the conspiracy charge that he knew that the home was within a one thousand feet of this day school that that's essentially your argument and that argument has some force texturally to it but that's just a missing element argument you're saying the party stipulated to the wrong elements when the remedy for that be she to withdraw the police i didn't plead to the right offense the elements weren't stated correctly it's rule eleven violet why is this a constitutional issue if it's just a mistake in how to read the statute i don't think it's i don't know how to read the statute your honor i don't think we know how to read the statute and that's where you go to davis in the direction of justice gorsuch about how to not allow a court to substitute its reading of the statute because that's where we are and you know certainly was it a knowing involuntary play that that's really not before the court it's a messy record maybe he has an ineffective a kiss assistance of counsel remedy but he has no remedy against the government if the statute is  and in violation of due process so i don't think it's a statutory interpretation because i don't that interpret it unless you read it together as far as the mens rea goes that's what we're what is the mens rea is it strict liability or is it knowingly we don't know you said in your brief that the object of the offense has to be the age sixty offense and therefore he had to agree that there would be possession with intent to distribute and he had to agree that it would be within the value told us what your theory is for the mens rea but it's not a big  well i do think it is a vagueness issue because you're not satisfied the object of the conspiracy distributing the drugs in schools and being the object still have to deal with the age sixty and what the men's ramp would be for that because that's another element that's contained within the object the agreement itself if if not and we addressed this in the brief then you're just back to a garden variety drug trafficking conspiracy and her eight hundred and forty six so if you just look at it in  then it's just a drug trafficking conspiracy and so then why would you have an additional element of  it's a great question it can't be the way it's charged and the way you're going to grouping even an enhanced mint has to be constitutionally sound and has to be proven beyond a reasonable doubt he could not admit that he knew that it was within a school zone he just could dispute it and that was part of the problem with this messy record and i think it exemplifies why with all of the confusion that it wasn't it saw right and it doubled it is what it well it doubled the max maximum statutory maximum and it doubled the supervisor at least violation but they didn't do that they didn't seek an enhancement under the guidelines which they could have done they didn't file it as a separate enhanced med no they charged it is count one a conspiracy the object of which was to violate the schools and so it wasn't like a special sentencing factor that was set out in a different way i think what we did in the end is it just you know gives the government it gives the government more leeway i guess but that's the whole point is that we don't want to give the government more leeway you and i and i understand what you're saying now but you had the nail on the head we've got to construe it against the government i think the law is very clear if there's an ambiguity which at least at the very minimum there is ambiguity we construed against the drafter and and certainly i think it's it's a problem and ambiguity within the charge itself and how a forty six is being used with  may please the court out of flake for the united states but the government's position is that this this argument was waived by the the binding plea agreement and particularly the specific language in the plea agreement saying that the defendant agreed to waive the right to appeal several things and any other aspect of the conviction the government's position is this this argument comes within that language but we think there are exceptions to th the court explained what what an illegal sentence was and that's a sentence that is that is that the punishment is greater than that which is authorized by the statute it's a very specific meaning that that is given to any legal sentence it does it certainly does not mean that conviction that has anything wrong with it generally because then that then the appellate way would have no no force at all assume for a moment that you were to prevail on her making this argument constitutional days or so if i mean i guess if she was if he was convicted under a statute that this constitutionally vague that i guess the remedy would be to vacate that conviction and has to strike the statute what was authorized by the statute because the stop the statute doesn't authorize to i mean i follow the logic of that i'm not aware of any case that actually addresses it in those terms i think it's the word illegal sentences is much more specifically which is you know the mandatory meant the mandatory max was ten and you got fifteen years then you can appeal that and i think that's how the term illegal is used ok i just wanted to know that plea agreement on sixty six the defendant specifically admitted that his the the defendant specifically agreed that his admissions satisfied every element of the statute and then a couple of pages later he specifically agreed to waive his right to appeal in any aspect of his conviction and i think that i think that concludes the i mean i think that the court could conclude the inquiry there and to say that this is waived would be open to him to file a motion to withdraw the plea on the grounds that in fact the agreed upon construction was wrong and that there was an extra element and therefore the whole plea should be avoided and everything should be undone young the plea agreement doesn't bar him from arguing that doesn't bar him from appealing and arguing that the pl briefing and again just now that they're they're not arguing that they're not seeking to win on that you have the footnote that kind of suggests that i mean this was a very measured in terms of no one got the statutory provisions right even with the corrections made on the fly the supervised release was still wrong you know are there grounds to set aside the plea here but you know that there may well be that if it's if it's briefed and argued then and you know if we get a brief laying out their arguments then we will respond to it as is appropriate but at this point where they're specifically saying that they're not they're not pressing that argument i don't i don't think that i can make a concession on that point that right now absent understanding what their argument would be there's a make a difference that the probation office looked up everything and got it all correct before the sentencing and and it's still one forward at that point it could be your honor and that and again i just i don't feel comfortable at this point making a concession on something that's not that hasn't been raised and that we haven't heard that we haven't tracked down and that i haven't gotten permission from my superiors to to make a concession about at this point because it's just as i understand it and i think we agree it's just not a live issue at this point but if the plea were set aside then this in the whole case should be at large again one that is at issue here but i think it is dispositive i think the defendant's argument rests on they put a lot of weight onto the phrase in the commission of which was the object of the of the attempt or conspiracy their whole argument turns on that that language somehow heightens the mens rea of required for a conspiracy conviction of  the sixty versus a straight conviction of a sixty which everybody agrees they they don't have to know the distance of the school but i think i think that they're just putting too much weight on to that phrase and for one thing the in the feel like case what happened there was there was a conspiracy to assault a federal officer everybody agreed that the crime of assaulting a federal officer didn't require them to know that they that the person was a federal officer and so the question was does the conspiracy have to have as its object assaulting somebody that you know is a federal officer and the court said no it's the same mens rea and the  that this is what they did that it's not like it's not like that the felon in possession laws where it separates entirely innocent conduct from guilty conduct you have planned an assault and you your chosen victim happens to be a federal officer but you don't escape liability for it just because you didn't know that was the reasoning that feel a case and i think the same logic applies here they just that it's not like there was innocent conduct they they had a conspiracy to deal drugs it was on them to make sure that they weren't within a one thousand yards of as a one thousand feet of a school but under block burger and a print either eight hundred and forty one dollars offense is a different offense from the age sixty offense true and that's correct then when it says that the punishment should be the same as you know the offense that is the object of the conspiracy as in that if there's a difference between the offenses doesn't that change the object and therefore the proof that goes with again your honor i think that that language and eight and eight hundred and forty six that the object of the conspiracy i mean they had in this particular case they had a conspiracy and the conspiracy was to deal drugs or to ship drugs from a post office and it happened to be within a one thousand feet of a school yard and there's not any question that they have looked at it wrong but i my understanding was that they took the drugs to a post office that was in within a one thousand feet of the las vegas day school that's my recollection and i polished as i have it turned around but i think that's what it was  but again the the the point of it is that they had a conspiracy to violate that statute they didn't need to know that they were it was within a one thousand feet of a school when they had the agreement and it happened to be within a one thousand feet of the school they they had the agreement to violate the statute and so i don't i don't think there's a basis for for adding and the the additional mens rea re or more such persons do act to effect the object of the conspiracy and in that that the court didn't specifically address that argument but it's not like that language in three  added and knowing it an element to the knowledge that the person was assaulting a federal officer and i'm so i don't think that the language and it's sixty that they're relying on imports that additional intent requirement object of the conspiracy and so there has to be knowledge by the defendant as to the object of the conspiracy there is no overt act requirement and most recently last year this court decided the espinosa valdez case and i think that tells you what the elements are for a drug conspiracy and there has to be an agreement to accomplish an illegal objective and the intent to violate an underlying offense so here the underlying offense of course is the drug statute the drug trafficking statute eight hundred and forty one dollars however you have you object is eight hundred and sixty correct your honor and so that's why it's not just the sentencing in hansen it is that conspiracy that the government alleged and if we just hoopoe eight dollars and say it's just because those guys happen to be dealing drugs within a one thousand feet of a school zone or arcade or park or whatever it is then we lose sight of what mr hunt's burger actually agreed to the object of the conspiracy that being dealing drugs in the schools and it's entirely different from eight hundred and forty one coupled with eight hundred and sixty because those are the substantive offenses here we have a conspiracy so we're in a different world we're one step removed from the actual drug trafficking itself we're focusing on the agreement to do something and that something happens to be drug trafficking in school zone and they can't sever it off otherwise and you're just stuck with a garden variety drug trafficking conspiracy so we've got two different statutes at play  trafficking conspiracy that require certain things and now a drug crack trafficking conspiracy within a one thousand feet of the schools on two separate k charges and we're cementing to you that because of the different mens rea are required with pleas involuntary no your honor not at this time no i that's a that's a really intriguing question to me personally because as i said before i didn't care class had not come out yet and had not been published once a class was published because i always found eight hundred and sixteen to be offensive and that there was a problem with it and i think everyone knew there was a problem with it that's when we saw a variance because i'm raising the rule the arguable ruhle en violation history here in the taking of this plea are you seeking to have the plea set aside or you challenging the voluntariness are you agreeing that it was reaffirmed because everything got cleaned up before sentencing when the plea was finally taken i don't think everything got cleaned up before sentencing at this point in retrospect i think he pled guilty to an illegal sentence that being that i understand but the other issues about the wrong statutory maximum and cetera which you did mention in your brief are you're not claiming that i know you're on or before this court that we should do anything with that that's right your honor i think his remedy would be ineffective assistance of coun by my allowing him to plead to a statute that i believe is and constitutionally veg that's his remedy but it doesn't answer the remedy that he has with the united states to be able to hayling in the court in the st place and that is while i've been at all that the defendant himself as a lawyer to his voluntariness or or not raising some of these issues that's a really good question and your honor i don't think it's relevant because i don't think  perhaps on a voluntary miss issue may be that he wasn't a practicing lawyer at the time and i just don't think that it's something that came into play could it have been because the variance was denied and i'm sure you're thinking well if he got the variance would you even be here probably nine but i think that the judge definitely considered the seventy month sentence and again we're not here on the money laundering that's not an issue here he's still convicted of that that we are challenging the constitutionality