error that requires a noticing the error in this case unlike any other i've seen in all my research there is no evidence that carlos g mayor said served a year previously or therefore knew that he was a prior felon judge that the trial judge in fact got this confused throughout and asked about a prior federal case or prior other cases and in fact according to the undisputed record the prius or mr  did not serve a year in jail and in fact his only prior sentence was suspended so when mister justice alito in red haith says that jurors will rarely doubt that the defendant convicted of felony has forgotten that experience in fact this appellant did not have that experience this distinguishes this case from all the others where the government claims and rightfully so usually but on the record or on the record it could prove that the defendant was a prior felon and knew it but he was it was he was convicted of a felony that he was convicted of a prior felony but he did not serve the time he was this is a sentence was suspended so if the rule convicted felon has to know there has to be evidence or an admission that he knew he was a prior felon and while a defendant who serves a year or who has an extended record of felonies will there there is a good basis to conclude that the defendant knew he was a prior felon in this case there's nothing but the elements that the record have said were insufficient to sustain the a closer case than perhaps some of the others but doesn't that matter i mean isn't there some suggestion here where he's sentenced to multiple year sentences even if they're suspected that he would have noticed that he was a felon i doubt that i don't think there is any evidence to support that conclusion if they were all imposed at the same time and if he didn't serve the time and of the state said that wasn't important enough for him to serve the time in here is a young man with learning disabilities so there's no evidence that he necessarily knew what was going on there is no evidence sufficient to prove this elephant the government can say well he did it was a felon but that's all i can say and that's all of that you can't end didn't the government also say that in in the prior sentencing there was an obligation on the part of the state sentencing judge to inform him of what he was exposed to and that you would bear the burden of showing proof that he was not given those warnings given the presumptions of regularity and proceedings what do you say to that i said that if that suffices for proof then we're in a really sad business here because the speculation that the judge was supposed to say you are now a felon and you are subject to such and such penalty suffices to show that the defendant knew he was a prior felon then we're down to no evidence at all yet let me look at it but let's be clear here there's some overstatement in your argument that may hide some strength of your argument he doesn't need to know he was a felon he needs to know that he was convicted of a crime that was punishable by more than a year in jail  that that's all just talk the government would have to prove and in burke we notice that one in disha of evidence that he wouldn't have that knowledge is the presumption that in accepting a pl as the court we know the court did in his prior proceedings generally courts are required to tell someone what the maximum penalty is for the crime that they're pleading to and  what we had other stuff we noted that that was a strong indication and that it put some obligation on the defendant to come forward and showed that they'd been some aberration from the presumed normal practice so here you do still have that factor cutting against you we know he pleaded to a crime that was punishable by more than a year in jail in fact several of them so we suspect that the state court the porter to come a wealth judge told him what the sentence was i think what you that have to say is not withstanding that we have that common fact with per hour there are other differences from burkart that mean we should not give dispositive weight to that fact and that's what i was hoping to hear about not hearing that he needed to know he was a felon well your honor just stated that he suspected that you used the word suspect to describe the level of proof here and suspect only i said that we strongly suspect in her car that someone who's pleaded guilty to a crime punishable by several years was told by the judge as required that he was sentenced to a crime that is put into a crime as partial bashara leaders i think that's very speculative i think that once the defendant satisfies his burden here the in the burden of going forward i suggest to show that there was no prior felony sentence you're a criminal you do criminal defense work i assume i do have you ever been to an acceptance of plain hearing where the judge didn't tell the defendant what his say what the puerto rico state courts to the prior sun the prior felony here was a state felony and it would involve possession of a weapon not shooting the weapon so i can say what might have happened i can say what is usually supposed to happen but that is not necessarily what happened and i think it does not overcome the defendant showing here are showing that he did not serve any year in curse aeration and that nothing about that gave him the knowledge that he was a prior felon pleaded guilty and had gone to trial and be convicted he would not have had that three level production correct so he can you assure us that you have clearly and firmly advise your client that if he succeeds on this appeal he could end up getting a longer sentence if i told him that it's very hard to communicate with him where he is i do know that he has communicated with me that now that this judge has told him what's what for the st time because you never had the warnings before he's due lee chasen and would have been chastened by a guideline sentence of forty one to fifty one month instead of the very end sentence of seventy two months so i think that even if your honour's are not inclined to rule that the rape a fair is raises a very confused frankly about what the priors sentences were and what the prior convictions were and says that the defendant was punished and the defendant had abandoned school and in fact that was not true  the defendant was punished but he wasn't punished by being in jail for a year he wasn't there so while our while the district court here chastened the defendant said you know if you have a rd felony here it's going to be really bad that never happened before to this man so i can tell you for sure that i don't think there's any basis for a more been if he's convicted after trial his g s r would therefore be higher here and it in theory he could get a longer sentence than the sun is he got  theory bad is true and it's always true in this appellant criminal appeals is a right go back to my question are you telling us you can't assure us that he knows that i'm pretty sure he knows that he really sentence of forty one to fifty one months he was given seventy two months all the factors were taken into account for the guidelines it's that it was a gun that he shot that he had a criminal history and there really was no real basis except the deterrence of puerto rico gun violence where sentencing this man to seventy two months so  shooting gun actually accounted for in the face offense level i understand that the nature of the firearm was accounted for but i'm not sure and what do you point to in the guidelines that suggest the shooting into the partner shot w accounted for well the brandished or fired is the guideline the guideline and handsome and so he did get extra points for that and yes he shot that's why he pled guilty he pled guilty because he did the crime and whether he shot five times or ten times it was bad and the judge went back to yes but he shouldn't have had the gun absolutely correct he should not have had the gun and he should not have gone and gone to the purple trap he should not have done all that but we have to ask what's the proper sentence for that and the sentencing guidelines say what the preggers with what the proper sentence for that is it's forty one to fifty one and he was not convicted of an offense previously that was susceptible of a punishment of over one instead he simply argues that he believes the government would not have been able to prove it however has not borne the burden of showing that and indeed any challenge re when she would grieve that in this case the petitioner has a stronger argument that the government wouldn't have been able to prove his knowledge of his prohibited status given that unlike the card he never served any sentence on and that the prior sentence that lends a multi year otherwise well we'll never know that we never said that in france by itself was sufficient for the government to prevail we listed that is one of many one of many factors be considered in establishing that the defendant had not shown a reasonable probability that it would have pled guilty he's got lots of differences he was seventeen years old at the time he's not a th grade education he got a suspended sentence never  today it's five years later certainly a better record than in burkhardt to argue that there's some reasonable probability that he didn't know that he committed a crime  thomas and th circuit in pain are all courts that have similarly looked at state court practices and held that when there is the state court practice of informing you defended the maximum possible sentence he can receive on pleading guilty that creates a strong inference a reasonable probability that he would have pled differently what if play innocent is your look at a whole range of factors one of them is the fact that in burkhardt there was overwhelming evidence that was well your honor again i believe and burkhardt this this court was rather clear that if you believe the record would not show the state court record would not which show that use not informed of his maximum penalty the burden was on him produce th element yes you're absolutely correct on that one factor if he wants to say normal practice wasn't followed then he may need to do something but i think where you're jumping off is finding that the  do that means that one factor is dispositive in showing to five years later he knew well i believe what is this positive here is again he has never argued for the four wrong pla and under some chato that is conclusive he has thereby waive planar review i would also point out that his argument for clean air reviews elated he did not raise it in his opening brief but only his reply brief precluding the he simply says that he now believes that the government would not have been able to prove his knowledge through circumstantial evidence and that he now wants to force the government to prove it out trial but he never goes back to when he pleaded procedural unreasonableness of the sentence he did not specify this particular assignment of error therefore it must be reviewed for plain error and again he does not argue plain error as to this claim in any event i think it is noteworthy that over a sixty one dollars page sentencing transfer it the sentencing court only once referred to community based factors and it was only after mister guzman complained about the sentence he had received and the court said he was sentencing him because this was his rd series conviction in six years and also that puerto rico had a number of similar cases involving young men with guns and i think this flowed into the court's fundamental worse has gone from at age sixteen merely possessing a handgun that age seventeen possessing two handguns and then eating in inventing new that you were driving a car and police officers and then now at age twenty two  carrying a handgun in public with an extended magazine and opening fire in public his attorney conceded at sentencing that mister guzman shot about twelve shots in broad daylight on a public street and fifteen seconds please of the key thing is at sentencing both parties the white on the videos the district court look at the videos and the key thing is what took this case out of the heartland of cases of mere gun possession is that he he received under section two k two point one b six was merely for possessing a firearm in connection with another offense but the fact that that offense was very violent very dangerous in creating a risk of death was not taking account of and finally i would like to point out that having both parties urged the district court to base its sentence on the video and having the district court spend a lot of time on the video something we simply believe that m succeed in his sentencing challenge when he's not provided that video on as part of the record on appeal for this court look at and he doesn't even address the court's reliance on the video and the fact that his progressive the wors yes two things both parties did not rely on that video below the defendant was forced to talk about the video because the prosecution brought up the video at sentencing multiple times so the defense never relied on the video he committed the crime and he should be punished for the crime but not for something that everybody else did as to defend it does not say that he would not have pled guilty well we're in a strange you procedural posture because this is not a two thousand two hundred and fifty five dollars nor motion to withdraw the plea this is an appeal so what we say is there is insufficient evidence here to substantiate the play and the error the record a fair should be noticed there was not sufficient evidence to sustain the notion that he used knew he was a prior fallon he very likely is innocent of this federal offense and there is no evidence sufficient to bring the sentence into a variance sentence instead of sentencing this man he was never treated and never punished in jail before he should have gotten the guideline sentence there's no basis for varian sentence thank you thank you very much thank