viable appeals for motions to drop please based on ineffective assistance of counsel and police that are not knowing involuntary because in both of those cases this court went on to analyze after  quickly page nineteen of the reply brief should read last sentence should read quote failing to advice on quote rather than quote advising and then finally with respect to the  you strongest claim as i believe defense counsel is ineffective in failing to accurately and timely informed a door that the government was recommending a consecutive sentence of when when did she know that hurt me when when was that clear they were recommending consecutive rather than concurrent wasn't taken care of prior to the plea as far as i know it wasn't clear to the door at any point in time until the judge began rendering sentence i mean that's a claim and his own attorney after do i try to withdraw from the police in his own attorney in so many words told the district court judge you know i think he probably would have withdrawn had he known the government was recommending a consecutive sentence up to that point in time to do i didn't seem to realize that that was even possible but it's not remarkable given his extensive criminal history and the number of times he'd been through a court system that he would realize at least that he faced the possibility of consecutive sentences well depending again he maintained throughout the sentencing proceeding that he had been told early on that the sentence would run  making right now like i have the impression that we normally in cases where i see is claimed on direct appeal that we normally dismissed without prejudice to the issue of being raised in a b and a b as for c as to that claim yes so if that's if i'm right in that well i think i've joined some opinions that say that certainly i may have written some well why should we not do that here ron i believe here is one of those unusual cases where the record is sufficient there doesn't need to be any further development of the record to allow this court to come to the conclusion that including comments made by good boys own attorney during the sentencing proceeding that she had misread the government's  sentencing memorandum there was a can mention of concurrency on the st page i guess of the government's sentencing memorandum and on the rd or th page it was consecutive the record seems clear again from the transcript well that's a record that's an incomplete record there were st of all we'll get to the point about the sentencing memorandum which is totally after the fact and had nothing to do with the time of the but we don't have affidavit we have conversation with the court and that's not the kind of record we normally would decide a case on in terms of the chronology for example it's not clear what actually happened what he was advised of and the sentencing memorandum it's pretty clear that they're talking throughout and the government is talking throughout about consecutive there's one misprint there but i don't see how that affects when he took the police so that i'm having some trouble on this record to say we should look at ineffective assistance of coun or you might lose if the if we were to do that on an incomplete record that's true your honor however i i brought it on appeal direct appeal because i thought the record was clear enough to allow relief at this level  own attorney again in so many words in the transcript as in the is in the brief in so many words basically said i thought the government's memorandum said i concur and that's what i told my clients and the client goes on to say yeah that's what you told me and then she goes on to say i would simply note that perhaps he would have moved to withdraw from the police prior to the court's acceptance had he known that the government was recommending a consecutive sentence in this case the judge did not accept the plea until some time during the sentencing proceeding and so it's clear from good voice statements that his attorney does not push back at all it's clear that he would of moved withdraw before the sentencing proceeding even started i mean based upon this record so i but counsel let's let's just say let's say the facts are the plea is entered the government doesn't take a position one way or the other but the sentencing judge sends him to can to serve a consecutive prison sure but he says somewhere in there i was told it was going to be concurrent is that case any different than this i think it's a little bit different because him simply saying that i think invites a two thousand two hundred and fifty five motion because that would not be a sufficient record my mind but when  on this argument that she was ineffective by failing to let him know before the proceedings started because he clearly what has he had a he had an absolute right under eleven v one to back out and he lost an opportunity pas probably because of that but you know the the plea colloquy is pretty clear in the play waiver is quite clear at the time and he wasn't promised anything in there there's no guarantee of anything i'm having some trouble why that plea waiver isn't in effect well because it was followed by a misinformation about concurrency the plea agreement said nothing about consecutive concurrent the change of  it was never visited there either the sexy advocacy said nothing about it that's right well right i mean and i mean so that's why it's pretty hard to say well now after the fact given that he wasn't made any promises on that and the plea agreement says it is what it is and they take him through the colloquy i i don't know what do you think is your best case to be able to essentially invalidate that at this stage if you feel as if attorney had properly advised him of the government's position regarding sentencing that that would definitely have sparked a affirmative miss advice is ineffective assistance of counsel and in that case involved in immigration bad advice regarding the immigration consequences that's probably been overruled by the dia but nevertheless the  that the legal principle stands all right we'll hear from the government in no time indicated that there were any promises outside of the plea agreement they weren't written into it and he also acknowledge i'm sorry  that he said that there were no additional pleas and the plea was silent as to anything regarding concurrent or consecutive there is no indication in the record that we have before us regarding ineffective of counsel whether or not this defendant was incorrectly advised of anything and that is why this court should decline to apply the ineffective assistance of counsel exception to the way of appeal and consider this on direct appeal this court has indicated that issues of ineffective assistance of counsel are generally disfavored on direct appeal unless the record is sufficient and in this case the record is not sufficient we know that this defendant had two defense attorneys prior to pleading guilty and we have no idea what those defense attorneys advised him of regarding concurrent or consecutive sentences  we do know that defense counsel wrote a sentencing memorandum arguing for a concurrent sentence which clearly acknowledged the possibility of a consecutive sentence and appears to contradict the defendant's assertion that he had no idea that his sentences could run consecutively but again we don't know because we have no affidavits from defense counsel what we do know is that when the defendant said he only pleaded because he believed the sentences would run concurrent what his attorney said was and if an appeal is filed i'll address with the appellate lawyer as to whether or not that's accurate so even that statement by defense counsel suggests that suggests that she may not be agreeing with the defendant's assertion and based on all of this the defendant's plea was now an involuntary appellate waiver is valid and this court should decline to consider ineffective assistance of counsel on direct appeal and there's court to dismiss the appeal following there's no evidence in the record that i could find that could do i received or read his sentencing memorandum good boy and system he was told that his sentence would not could run concurrently with his state court sentence he said that on the record and good boys own attorney suggested that could do i had not seen his own sentencing memorandum when she said yes your honor this is from the transfer sentencing transcript thank you i just wanted to highlight a couple of comments that were made in my memorandum for this court's knowledge as well as for mr good boy obviously the most significant basis for our request for a downward of variance in this case mr good voice health and she goes on to talk about that now there's no reason for her to say as well as for mr goodall you if she had read that or if she had sent it to her and to him i'm sorry and this is a typical service on her motion does not show anything going to get away i think that that's pretty powerful evidence that he never saw it he never saw that nor did he see the sentence you to a consecutive sentence the defendant would feel just as aggrieved but would he have any mechanism for going forward i don't think it solves the problem that is connected to the st claim that i argued  which i think is the best by far the better claim of the two claims and that is that had he known before sentencing that what the government's recommendation would be he would have well either that or known that it could could run consecutive  he would have withdrawn it doesn't begin soon so what was he going to do go to trial on a case where he's going to lose for sure because he doesn't like the fact that the law allows a judge to give him a consecutive sentence if it doesn't make any