facts that would have been made in the record if we had known at the time that the government was going to make this challenge i think it's wait i think we can go back and recreate those facts in a term and exact nature of the proceedings because this occurr honor i think as it relates to the agreement that was rejected at the time that his understanding that it was a ten year maximum and that was on the negotiated plea i think that would have been at a future date that his sentencing range now has doubled to triple as a result that i would submit the bad advice of the client but i don't believe judge shadid gave him in management at the time of the dismissed criminal complaint because it wasn't reasonable standard practice you know whether they're deficient indiscriminateness representation by mr brown in that anytime you meet all the elements of a crime however you don't meet the actual commission completion of it in court crimes such as attempt should always be on the consideration i don't think that the defendant asked to necessarily rely upon if the state doesn't mention bring it that when you reject their plea and they indicate at the time to the defense attorneys will bring more serious charges if you don't accept this that really relied on his attorney going forward the difficulty that i have is you know concluding that it did it's just altogether unreasonable advice it may not have been a sound decision to go to trial but that it's just beyond the pale in light of the th circuits decision in steen you know because you do have at the time this decision was made as i understand the facts right you have the still images of previous overcover as a result of the secret service a search of the phone and so you know it may have been a bit of a high risk proposition but you do you did have one you know circuit court in a still image context you know holding that what sorry are as it relates to defend its actions and what we have to remember here is the backdrop leading up to this particular object in the plea offer and that was over this protected period of almost a year six months which involve that i don't think was ever a question because why did you know it wasn't a question because the intent to create the serious content and the fact it was used for sexual gratification in fact my client acknowledged that he masturbated going to dio's so there was no secret as to the intent aspect that my client testified at the hearing and point to for the motion hearing that mr brown show him no cases and the overwhelming case law that dealt with when intent is considered as part of the other factors that it can cause it can sway the court to take what would normally not be elicited this interpretation and say it is attempts crimes are certainly something that can be filed and you don't have to rely on the state to threaten them to two to two to know that's something you should advise your client to it was very little advice given regarding production it was simple possession of child pornography which at the time of the hearing he didn't do a simple sentencing guideline cross reference which he knew my client produced them he knew it because he was in the proffer and he created a video so when you come to the hearing there's a great surprise that suddenly he was advised two years under the guidelines now jump to ten because mr brown failed to do a simple search on the cross reference to production that we all agreed that he created by drilling a hole in the wall and video recording you fast forward even further this continued throughout the trial and not considering the overwhelming body of case law proceeded to go to trial which forfeited his ability to accept responsibility now in the grand scheme of things you you have i think the government would have offered if they were sent there for a plea which is one of the factors the court has to consider and to i think the judge would have accepted it which we have to prove a potential offer clearly where there's an effective counsel because the ten years was the maximum merits of the decision by judge chatted regarding the st issue we did front in our opening brief that this wasn't raised below and i find it interesting that counsel now argues district court and now want to appeal and we have nearly fifty years of precedent where the supreme court has never extended the right to counsel to pre formal judicial necessary that being a policeman ery arraignment on a criminal complaint and the supreme court said that you are mixing two distinct questions the critical stage or event with whether the proceedings had  despite this having crystallized to the point of a formal plea offer offer that does not deter this into formal judicial proceedings any more than for example we look at the context of that there are other things in which the stakes are high and if we look at pre indictment and abuse of the jews vs post indictment or views of the accused there are things that happen in both of those contexts that may make formal trial ultimately a nothing more than a formality and yet the right to counsel extends only to the post indictment interview versus pre indictment so i findings after the evidence you're a hearing well i only care as an advocate because i as an advocate i want to be able to afford as many good arguments as there are possible investigative stage or even during a pre formal proceeding and i think that's exactly why it is that that the beginning the commencement of this of the formal judiciary proceeding i the threat of production of offense being charged what occurred if he rejected the offer and when we look at it on page nineteen of the defendant even admit where the government came forward with the production charges not attempt and it was found to not be lascivious you have i think we cited a st circuit decision where it was spouting the city a sender of a bathroom scenario but the court in that case said it was close to it may not have been the wisest advice but we're not here on judging whether this is the wisest whether it's an error free advice or even average advice but whether he was afforded the counsel that is required by the constitution which is looking at whether he acted reasonably at the time and based on practices and the standards of a lot that time back to back in tw a defense lawyer saying i explained i have experience it's not my st rodeo i explained the situation described as an pot and then you have the defendant himself saying no i really i didn't really have a clue the situation i was in here and i really i really didn't appreciate this it seems to me in a situation where you have the nightly day like that you know going in the thing that the conduct of the hearing by the district court judge and then the finding that the district judge made after hearing the respective sides of that is quite important and in other words judge shadid taught him that you know mr miller here appreciated the situation he faced you know kind of quote unquote and is it that that seems to me to be saying here's the offer except if not we we plan to charge production if if if there's a nd part of that statement had not been conveyed i think we would be in a more difficult position oh that there was these possible production charges but i think the context makes it finding clear the context makes that clear and that's what the court was finding and yes we do believe that crap is important to our position as judge dro