today we have argument in the counterman matter and we'll just jump right into it i have a talk in front of me i'm sorry no red lights today but i'll try to give you some notice when you're getting close mr goldberg or good afternoon tell me how much time you'd like for rebuttal sir two minutes if that's alright two minutes wonderful thank you and we're off to bed please the court my name is peter goldberger and it's my privilege this afternoon to represent james countermand who was the defendant below mr counterman lived in northeast pennsylvania and he was a long time drug user who sometimes sold methamphetamine he pleaded guilty to a negotiated two count information one count was for possession with intent to distribute more than fifty grams of methamphetamine and the other was for money laundering which was purchasing local real estate properties with the proceeds of drug sales the sensing guidelines for this case came out three hundred and fifty two thousand one hundred and sixty eight months and the government filed a motion recommending a twenty percent downward departure this would have resulted assuming that there were no other adjustments  to a sentence of nine years or less that the court imposed a twelve year sentence under the mistaken belief that a fifteen year mandatory minimum applied on account of a prior drug conviction the existence of a mandatory notwithstanding the government's motion would bump up the guidelines and affect the starting point for any departure or variance of s daniels which which held that attempted drug distribution under pennsylvania law is an offense involving drug distribution and i don't need to tell you that i know judge co wrote that opinion the meaning of what it is for an offense to involve one of the listed kinds of contact under that statute has been that's involved in the case i think differently then this court did in a in a presidential decision that the prior decision of this court is abrogated so whether or not daniels would stand in an attempt case which would be a different art is somewhat different argument related similar argument but not the same as what i'm saying about conspiracy we do know that the conduct which is an element of the conspiracy of fans which is what schuller tells us we must focus on the conduct which is an element which is necessarily involved in a  conspiracy offense is the making of an agreement it's not distributing or manufacturing or possessing with intent so daniels could be distinguished in in that way but it conspiracies that's true that's not what the methodology the methodology depends on what and what conduct the element of the offense necessarily entails those are the words that the supreme court used and conduct none of after the important thing is not that it's a dead one day but that it's after the entry of the plea which is a drop dead deadline had so so let me say had council defense coun halls or objected at sentencing or both as he should have judge the you know the court would have been obligated to strike the notice and sentence as if there were no change in the sentencing range due to the prior i mean it would affect the guidelines but it wouldn't affect the statutory range and if the if the court had proceeded nonetheless to send says as if the notice were valid this court would have been obligated under half a dozen precedents to reverse the sentence so the question is how plainer applies in that situation and the effect in his substantial rights in two ways one of which was not involved in isaac and is the simpler and more direct way that is it there is a direct and logical connection between the imposition of a sentence that is three years longer than it probably would obviously prejudice in any way isaac in isaac to the sense that was imposed was concurrent with a mandatory life sentence on another count so you couldn't have had a more obvious case of a lack of prejudice in the length would have been different if the government had if the question is how would it have been different if the court had stricken the notice because it was late error was in failing to me at the moment i take it mr goldberg are that your position is while obviously happy to respond to question number two that we need not get to question number two and determine whether daniels is in fact abrogated by schuller because if in dealing with question number one our determination is there should never have been  different but the more fundamental issue is do i plead or do i go to trial and it's it seems to me that that's your your your strongest argument well with every defendant and we don't want instances where if i have a late filed a fifty one is applicable in some cases because it's purportedly clear in the and it's not applicable in other cases because it's arguably less clear and in those cases i thought that that the focus but that that is the i spend most of my time on the prejudiced point i'm discussing that yes i agree and what we have is not even roughly the equivalent of an eight hundred and fifty one dollars notice that happened to be in a different label document t no st of all there are two different factual bases in the statute under which the minimum could be bumped from ten dollars to twenty dollars under that statute one is a prior qualifying prior conviction which proper notice is given the other is if distribution of the drugs resulted in injury to a user of the drugs and so you could as well say this was a hint that the government was planning to bring a superseding charger or try to iteration was not of that in as the one in the prior to and right i did part of your argument is if you don't know which the conviction which conviction is going to be  the source of the age fifty one hey you can't make the decision about whether to plead or not so for instance right if overman who only believes that a felony i'm sorry  that i got a misdemeanor felony you defending could look at that and say oh i think they're just wrong it is that kind of sort of nothing to worry about right as opposed to iteration because they cited two convictions it was only because the probation officer called them out in the present report and said look the nd one that you listed this case from oklahoma is for simple possession of drugs and possession of paraphernalia neither of which is even arguably a qualifying offense the government report proposed to rely as i understand it on either of two prior convictions one of which was not a clickable to anybody who could read the statu right i mean what if the government hears to the position that it's taking now with respect to the kids conspiracy conviction we may have to litigate that point on remand so i can see a panel wanting to give same sentence only that it would be yes and several things yeah it would be an apparent violation of north carolina versus pierce it would be  that is it would appear to be vindictive to impose the same sentence when the enhancement no longer applied though there would be a lack of a timely notice that would prevent it from using the higher starting point and and and i would say and we would expect at a recent thing to invoke post sentence rehabilitation because i'm under pepper so there'd be reasons for a shorter sentence but it's it may have occurred between the st sentencing and the recent thing and i would expect we would do that because we're talking about someone with a life history of drug abuse has finally you know gotten old enough and healthy enough to change his ways and let the census on market and you know that's not before this panel of course then we certainly would make that argument that this is not reasonably long sentence and the same sentence to be imposed again would be whether the conduct which is necessary for attempt which is in criminal law lingo a substantial step toward the distribution it is the conduct of distribution and it wouldn't i would be if i had that case i'd be arguing that it's not as there are all sorts of conduct that can be a substantial step that falls short of the distribution itself travelling travelling to the place where the distribution is to occur and so forth  that making the arrangement on the phone and the other conduct which probably would get you convicted of attempted distribution but it wouldn't be the conduct which is an element necessarily entailed in the offenses described  in the statute according to the supreme court structure but that's again you wouldn't reach that in this case it might or might not turn out there was a different result in an attempt cases from conspiracy cases and the any event you wouldn't you wouldn't  decision of whether to plead guilty or take your chances at trial because the risks of what could happen a trial or don't outweigh the benefits of pleading guilty  twenty percent departure after the departure it's under ten years and there's no question the judge intended to grant that departure and i can't imagine the government rescinding it to them and so i would say no to the question of within the any it would be a lawful sentence in the strict sense but it wouldn't be at that doesn't get you pat the government passed the plan or a problem so what is your vacate the judgment remains very sentencing without any statutory enhancement that very dump smells reagan was sure when you're talking about you look at what the conduct is not what the particular elements crime are and so what are our government sure does not abrogate related to th well because statute in the case but there was a focus on involved and i understand that you say it dovetails nicely but i think that let me ask you this question slightly off what we've been focusing on would you agree with the proposition that if we did vacate for research and saying we don't have to address the daniels slash  i understand your argument is is for an exception and you're asking for an exception because in your who the main agreement mr goldberg says clues you say information  plea agreement is sufficiently clear in telling a reader that the government was going to seek an enhancement a month or six months the government would just say hey the guy knew all along it doesn't matter i take it that would be your position right now th one day and the temporal proximity that presents this is not really relevant it's the fact that he should have known that there was going to be an enha congress chose the past that it requires what it is that i think we can we can put that aside for the moment but it does obviously require two pieces of information  i know that you've spent much of your argument in your in your brief on one of those pieces of information and that is the enhancement but we haven't spent any time or you spend relatively less time i should say on that charge now here the charge changed right from from one instance to the other now if it were the the original charge had the defendant known that before he pled that could lead to one determination if it was the one that showed in the rd iteration of the a fifty one that may have led to another determination doesn't that fact or that possibility say that yes as the as congressman said it should be before the plea and in this particular instance whether you read the plea agreement in a particular grade sheds light as you suggest is not relevant oh i think i think  what you're talking about a secondary consideration which is if i plead what do i say well then in the st instance you need the information and i think the thing that's troubling each of us in a different way is if you are not guarantee and understanding by we're talking about across the board you're asking us to essentially make an exception to a fifty other thing it is what convictions will the government will lie on i think when you look at both you can't come up with oh what's the what's the rule for the exception you want us to say there is an exception to a timely filing what's the rule that we are to why for that exception that is correct  would be you couldn't you wouldn't be having this discussion at all and i don't think i heard the government say anything different but only in the plane or a context i believe those cases as my friend mr hinckley said were cases where the court was able to find fully equivalent to actual notice now where would that notice be given technically you would expect a notice to occur in the rule eleven colloquy that is the court would advise the defendant as t room requires what the mandatory minimum was that applied to the case and if it was different from what it would ordinarily be there'd be some colloquy and discussion of why and on what basis and prudent judge would be and if the defendant seemed surprised if the defendant an opportunity to wish to change his or her mind about cleaning but if as i mention in the brief here the rule colloquy is as wrong and inadequate here as the fifty one dollars notice the judge never advised about the mandatory minimum the prosecutors failed to correct him and ensure that the colloquy was compliant and so we just don't have we don't have a notice that's worth discussing as being equivalent in this case nd one point on on shoe are in the government's point that they opened with about it's an agreement a conspiracy isn't not just an agreement it's an agreement to do something and of course that's correct but that's one of the intent elements of the conspiracy case it's an agreement in with the intent to accomplish the commission of a certain crime the supreme court when it talks about mens rea element of conspiracy talks about the object of the conspiracy as one of the two intent elements the intent to agree and the intent to accomplish the object but the supreme court decision in shool are rejected at the government's b hast read the defense argument that an offense wouldn't come  statutory rule if it didn't have the right sort of mens rea element and said no in this statute we're not concerned with the mental elements only with the conduct that's the core of the hol as it relates to the question presented issue or conduct and conspiracy is not con you can't you can't sneak