good morning and welcome to the th circuit before we begin judge nelson and i would like to welcome judge sessions who's here helping us out today from the district court of vermont welcome and thank you for coming thank you very much a little housekeeping we've got one case a minute on the briefs united states versus cho or choice here joey the rest of the cases will be argued the st two cases will be argued in part remotely  yeah actually i have a clock but it's not counting down so well we'll try to help you thank you so as for mr fuentes galvez the court requested advocacy in this case after its independent review of the record revealed some disturbing inadequacies in the flea collar among other things and in particular the court noted the failure of this judge in a pattern of this judge in failing to inquire into competency related questions failing to inquire into whether the plea resulted from force threats or promises other than those of the plea agreement and in general that are required by the rule and as the court said essential in determining that the guilty plea is in fact voluntary so can i ask a question about that because i think your point is well taken i think clearly we have a magistrate judge who needs a little bit of counsel  on how to do these things properly the question is how how much does that in fact this overall the guilty plea it just strikes me that there was almost no question that these defendants were going to plead guilty and if they were you know we can we how much can we as a court delve into that and the circumstances around that were do we just say yeah you failed  rule eleven therefore we're going to send it back in and you've got to read these questions properly well judge nelson this is unlike the other cases that have been presented in the briefs it's quite benito's where the supreme court dealt with a rule eleven violation which was a single rule eleven violation involving a failure to advise the defendant that he would not be able to withdraw his guilty plea should the sentencing judge not follow the sentencing recommendation and in that case of course the court the supreme court said look what we're going to do is just look at whether or not there's a reasonable probability he would have played it anyway here we have a completely different set of circumstances we have not one rule eleven violation but multiple rule eleven violations and a complete dearth of any indication as to competency well we have some indications that there may not have been competency though there's nothing to indicate that he was competent that he understood his rights that it was voluntarily entered into and so under these circumstances i would point out that the domingo's benito's court was quite explicit in saying that they were not dealing with an allegation of a due process violation they were dealing solely with a rule eleven problem and here we have all of that together under very unique circumstances what does the fact that there's a due process violation alleged why does that make a difference your honor it would change the standard of review and it would heighten the level of the inquiry and the gravity of the violation you know voluntariness incompetency the th amendment th due process protections are at the core of what is required for a valid guilty plea for good reason and this course court has reiterated that post domingo's benito's that the purpose of rule eleven compliance is to ensure that the guilty plea no involuntary so the court would look at it but you've got you've got a plain error question here so a part of a plain error is whether or not the issue is whether or not the defendant would have pled guilty regardless of the violation does the fact that there's a due process allegation and in fact because there is an allegation under b two as opposed to be one is it necessary really that that  defendant addressed the fact that he would probably not have pled had he been notified of these rights we don't believe that showing is necessary but if the court were to disagree we believe we make that showing as well we do language of b two and how it differs from the language in b one and b two essentially it says that before accepting a plea of guilty the vocal cord must establish the fact that this is voluntarily and knowingly made that is the court's obligation and what i've always thought as a district court judge is that when you go into a change of plea your obligation is to make sure that it is proven that this person knows what the person is doing and also is voluntarily entering a plea and if in fact you cannot make that assessment based upon the record you cannot accept the guilty plea that makes it a little bit different than the case in which the one you have plain error and you have to show that  your your point is that it does not become significant to address the question as to whether the defendant would or would not have pled if it's a due process violation the judge has to make a determination on the record in open court that in fact it's voluntary and it's knowing is that that's your position yes that is that is my position absolutely and also that if the court or a court were to require the other showing we also could make that showing here that there's a there's a reasonable probability he would not have pleaded so yes we agree with you he shouldn't have to make that showing but even if he did need to make that showing he could make that showing here i mean if the facts of this i mean as you know i think you're all three very familiar with the failings of the plea colloquy and the rapidity in which the advisors that were given were given and the failure to establish that it was knowing and voluntary  involves a virtually the well it does but again these all happened before i guess the question is is there benefit in send his back slowly so that the magistrate judge gets the clue that i got to do this right  and i got three judges at least are watching me and making sure i do this isn't hard to do it isn't hard to do and so do we make sure that she just gets it right or is this been resolved in ongoing cases addition to his pattern here is the message it gives to other judges that who may have the appropriate practice of spending three hundred and three thousand five hundred and forty minutes ensuring understanding and then they look at their colleague who's doing it in five and says oh well why should i bother if the court is going to allow this abbreviated practice to stand i do see i have two minutes left i could stop now and say i don't want to you start now we'll hear from the government you'll have a chance to respond and i've a feeling we'll be covering much the same ground in the next case t the government the government has a different duty and you're say the government seen this inadequate plea colloquy why is it is so easy just because i don't think anything would have changed and so that's what's kind of frustrating about getting this case is we can send it back and make them do it properly but you know the government could have stepped up and just said hey your honor could you ask some of these additional questions well in your honors i don't have information as to why the government's attorney who was  on this case why they didn't interact and we obviously don't have that same government attorney here in front of us today you do not you're going to try to decide to stay home in arizona so aside from is this is this a continuing problem along the border i was visiting judge him in mexico and the pressure in taking changes of plea and moving the cases along is enormous and i wonder if this transcript is symptomatic of a broader problem in arizona perhaps in mexico or sending a go where you have so many changes of plea district we do have a large criminal docket and we need to do a lot of change of police on a daily basis beyond that i can't make any other representations well you may well be aware of this this is been an ongoing problem in various sort of manifestations or iterations i remember not too many years ago the practice along the border in the federal courts was to do a mass change of plea with many of the defendants standing there being questioned  question i don't know how many cases are in the pipeline but again i can assert that we do have a very large criminal docket and we do have a number change the play that occur on a daily basis in our courthouse going to ask you about your interpretation of b two as opposed to be one the two basically puts the responsibility on the the trial judge the district court judge or magistrate judge to actually make a determination on the record in open court after addressing a defendant as to voluntariness as well as knowing waiver of constitutional rights and that is a requirement of the judge so that if the record does not establish voluntariness or knowing police then that's it the judge can't take the plea and as a result whether the defendant would have pl anyway becomes irrelevant do you do you agree with that interpretation of the two and or the application of the due process clause to these changes of plea i would agree with the latter your honor that it's a combination of the due process clause as well as b to be to speaks to the voluntariness of the plea agreement and i would point out that in this case and the man should judge personally addressed the defendant and asked him if he was pleading guilty voluntarily and on the record the defendant asserted that he did additionally the magistrate asked if the motivation for pleading guilty was that he was guilty and again on the record when you say the due process clause and the two are sort of combined what you're suggesting is that unless the record establishes voluntariness and knowing entry of a plea it becomes irrelevant as to whether the defendant would have continued to plead guilty because a judge cannot accept the plea do you agree with that your honor if i may clarify when i mention the can the combination  two i was pointing out that in this case the arguments overlap and therefore in this case it appears that they do remember that the requirements of ruhleben are actually more stringent in the requirements for due process and there's case law to say as much and that for the the statement that the defendant made voluntarily pleading guilty because he is guilty how about the knowing parg knowing part is established when you ask a defendant how far of they've gone through school are they using drugs what influence they have had coercion or promises of any kind all of those go to a knowing waiver and in this particular case there's absolutely no evidence really of who this defendant was what he was subjected to what he was suffering from at the time of the change of plea it cetera so how could you how could you argue that this is a knowing waiver of rule eleven rights when in fact who knows what influence he was under at the time he entered his plea but your honor i would point out that there actually is evidence in this case in the record that we know that the that it was a knowing change a plea or actually by the time that the district court asked would you like to withdraw your change of plea and proceed instead to trial that that was a knowing decision consider st that under oath the defendant affirmed through his his oath and representations in court that that is the case additionally you have to consider the defendant's demeanor when he was in court and during all the opportunities he had to engage with both a magistrate judge and the district court judge that's sort of part of my question which is how much can we take that into account i mean it seems to me that the demeanor it's hard to defer to the demeanor because if it's not on the record as i think judge sessions was suggesting then i mean i  t we just deferred say well he saw mutely we're going to assume that the magistrate judge or the district court judge thought that doc that he was educated i mean why it's got to be on the record how can we review it and for if it's not on the record  precisely your honor the burden is on the defendant to show that there was some evidence in the record to support a reasonable probability that things would have been different and there is actually a rare duty is that true for a rule eleven violation in the same way that's true for  due process violations the position of the government that the plane or standard applies to both those analyses yes well but even if it's the same standard of plane error i just wonder if the evidence that could support plane air would be different depending on whether it's due process violation or a violation i believe that is the case here ok i see that my time is concluding if the panel has no further questions for me i would i would ask to affirm because the defendant has not met his burden in this case ok thank you and i think we may have an opportunity for a conversation in the next case yes you know thank you you've got about two minutes on this one thank you i do have some responses regarding the two saying in fact that it was ninety percent of the equation and more than doubling the prior sentence that the defendant had received we would ask that upon remain and should be reminded that a new district court judge be assigned to this the judge who did this as he wasn't the assigned judge he filled in on very short notice but he did discuss at length his in trenchant in feeling that there needed to be this from any other cases he may handle well he his avowal that he was entrenched really was due to the facts of this case and i would note also that mr  previously he then sentenced by judge jorgensen who was the assigned judge to this case as well so she would be more familiar with the case judge burton who did sense in this case is a senior judge and stepped in at the last minute to your standard no judged sessions i agree completely it's well established they don't have to do a checklist of every aspect of the guidelines but in this case that the record indicates that he didn't look at any of the other factors including the one mit n argument raised by defense counsel that mr fuentes had served an additional seven months beyond his prior sentence the judge didn't address that did not address any other factors in fact the only thing we heard from mr fuentes in this case other than the yeses at the change of clear hearing were at the sentencing hearing when he said to the judge i'm not well i'm in i'm in failing health the judge did not inquire into that there was no follow up on that so i think in this circumstance it would not