justice system depends upon the government's strict compliance with its plea agreements and has also held that the route of the six the men the guarantee is that it a criminal defendant has the absolute right to change his retained counsel for any was convicted and sentenced for a crime for which there simply is no record evidence i'd actually like you to turn to that last argument the question as to whether as to whether commercial bribery  satisfies the inquiry here there it is it's very straightforward california commercial bribery statute requires a quid pro quo there is none of that anywhere in st of all if we go back to the plea agreement itself the california statute i did counsel agree to this i did not represent mr roopak at the time the league reman was flushed out i expect or i believe there was probably some horse trading going back and forth i really don't know but at the end of the day i mean i'll give you my characterization counsel now i'd like to because i'd be interested in your impressions of your clients accused of a very very serious crime and there's a lot of good evidence to suggest that he was engaging in fraud he was looking at at ten years under the fraud statute that put him down to a statute had a maximum of five he got twenty four months he was unhappy with that he wanted eighteen months of home confinement so twenty four months in jail that's a very very good deal for your client and if he wins today the congratulations is that he can be recharged for a ten year fraud sentence and that also has very serious immigration consequences for him so i'm just wondering why he wants to win here today on this  that that's a good question st of all i would say i don't know exactly what the guidelines look like if mr reback is permitted to withdraw his plea and is indicted again for fraud i don't know that he's looking at ten years but i know that's the maximum but i believe that's the maximum under the statute i think it's probably greater than that frankly but i don't disagree with your point this is for his immigration goes he does want to keep his status in the united states and he thought the getting getting the lower sentence would would aid him in that there was some discussion about that before the district court i believe so and i'm not an immigration attorney but i think that with the sense that he has now he wouldn't have been deported automatically that's my understanding now that that wasn't the understanding of counsel at the at the time was that there was that it was there was some question but if you get a greater sentence under under a wire fraud statute or something then he probably has no chance at all well i think the issue was under that perhaps under the charge he pled guilty to that he pleaded guilty to rather had his sentence been lower he would been eligible for relief but it wasn't so but in any event the simple fact of the matter is he pleaded guilty to an offense that there's no evidence to support there has to be i mean it's a it's a there has to be a quid pro quo had he accepted something of value in exchange for doing favors that his employer didn't know about that would be bribery but if we go back to the police agreement which does not actually set out the elements of california bribery and simply says bribery and then buttresses that with two pages of alleged fraud that is simply not there's simply no evidence to support bribery here himself well i think that's basically the government's argument as to how he could come within the purview of the california commercial bribery statute but that's a good point it is again i day there was no quid pro quo so with that i think that that the fact that he's convicted of something he simply didn't do is it dictates the remedy here i know there's been some question as to accept the plea agreement i think it's both there simply isn't any evidence of bribery anywhere in this record none there's evidence of fraud but i can see why someone might plead to something to get a lesser sentence but  have a criminal defendant who's not schooled in the law doesn't necessarily know whether what he's done constitutes the offense that's been charge of the offense that he's pleading guilty to that's why it's not something that can be waived and the district court  and your and your client responded yes yes yes i and i plead guilty and i agree with you the commercial bottom line of commercial pirate bribery just doesn't seem to fit the description of the of what he did that's true and i would add to that your honor that although the magistrate judge did go or did ask mr reback if you wanted to plead guilty and they were they took some breaks to talk about it she never set out what bribery is she never addressed the actual elements of commercial bribery and i think somebody i think somebody actually did did did report of the california statute they didn't read the definition part right and that that's that's that's out right they threw out the label bribery and then they backed that up with fraud but i see that i'm down to three minutes so no evidence supporting the offense of conviction mr repipe is not the employer under the statute but the employee because the statute specifically includes in age and within the definition of employee and in the factual basis that in paragraph eleven and twelve he admitted that so he's not defrauding his company my donor cycle is a different company owned by a different person and they've had entered into a business relationship where he said i'm going to get the clients i'll get the money from the clients and i will give you the money that you need for the egg donation and what he did it so any employee which includes agent so that's mr repack he solicited something of value so he solicited from these clients their money from a person other than his or her her employer both those clients are not my donor cycle correctly and without the knowledge or consent of the employer he's making promises to these clients that my donor psyco doesn't even know exist at the time he's making the promises give me your money i'm going to put it in an escrow account say twenty thousand dollars of that is going to go to my donor cycle for the egg and i'm going to make the rest of that have to in return for using we're agreeing to use his or her position for the benefit of that other person for the benefit of those plants me mr r who has this relationship with my donor cycle i'm going to get to that donor egg and i'm going to give them the portion of your money needed to get that and then i'm going to transfer it to mexico where it's going to then resell in the circassian plantation so all of the appeal is that the facts don't conform with these elements this idea that in addition to these elements there is required a quid pro quo that's an argument that was race for the st time in the reply right so we're on one plane are absolutely and so to i agree this is unusual but i'm plain error there is no case law that says that this that this commercial bribery statute requires a quid pro quo and so i think this court could readily find that maybe there's no way that would be done in the definition of three acting as an agent so he admitted i'm acting as an agent because i'm going out and telling them i'm going to get you the egg from my donor cycle he's not telling my donor cycle about all these promises that he's making the clients to induce them to part with their money and then he's not passing the funds on directly to my donor cycle that's all laid out in the factual basis i make and i would submit that under plain error there is not plainly erroneous for mr reback to have agreed to this and as judged by b started this argument by noting the maximum the guidelines that we sort of estimated at the beginning of the case that i went back and looked at the prosecutor's notes and he estimated a fifty seven dollars to family one month i because remember now we're including the entire law from we're not limiting it to this one client and right one  wanted to plead to something that was not fraud and that if he received a sentence of one year or less would not make him automatically an aggravated felony that was the sticking point all along and so this was negotiated between his attorney and the prosecutor he went to court he pled guilty to it and it wasn't until he was facing sort of this sentence that was higher than he had hoped and realized that he probably wasn't going to get a year probation that he decided he wanted a new lawyer and wanted out  here there's you know nobody has any other clue that they're that they're that you would ordinary think of as being embezzlement would that fit under the statute because you're because you're defrauding your employer under and the st definition if you're taking something of value from somebody without telling your employer what you're doing facts that your other has laid out plainly would be plainly erroneous under the case law that we've been provided and that we've been able to find to apply this attack to a car salesman who says you give me ten thousand dollars i get your good deal on a car in the pockets of money and that we have that substantial rights prong and trying for a clean their review this was a deal negotiated to mr repacks benefit so to say that it affects a substantial rights that to plead guilty to something that he negotiated and agreed to prosecutor says i decided the cases with respect to the quid pro quo and happy to twenty eight jason but the statute the statute quite plainly says in return for using or green to use his or her position for the benefit of that other person because he didn't do it and he's maintaining his innocence and he was right but it's pretty clear it's very very likely that he did do something else works well the government to make sure that your client is absolutely unformed here he is in very very deep trouble if we don't do this and he got a very very good without any analysis and all the while the government is preaching his plea agreement over and over again which ultimately resulted in a sentence that was thirty three percent longer than the one the government agreed to recommend under the plea agreement so mr roopak has been prejudiced this has