since representing criminal defendants of the city in my view is never an easy task the job becomes substantially more complicated when that defendant use foreign speaking does not speak english perhaps the case  even more complicated when that person speaks some english then the lawyer is never certain exactly what his client understands what his client doesn't understand and moreover oh lawyers are freed often or feel free to dispense with interpreters and the logistical nightmare of bringing in interpreter hiring an interpreter bring an interpreter to jail and clearly this was the case with regard to mr years mr sites are many of the conversations between he and his counsel mr as i towards arabic speaking many of those the conversations between his counsel were in english without the benefit of an interpreter his english was he had been extradited to the united states  arrived not speaking one word of english he had never been in the united states or to anyone's knowledge an english speaking country he was from whether don and it's hard to believe that in the several years he was here that he became fluent in  hing english to understand legal terms and the significance of those legal terms only i was curious about was there was a lot of focus on the language but not much discussion about his understanding of the legal system and how that would factor into how he understood representation noyon it's from the attorney have enough military with this legal system right now i think you heir to the head of the equation the fact that many people come from legal systems that are far different from ours and the expectations of how the system works and the integrity of the system perhaps even is a far far different they're no more right to the role of the lawyers statements about what i think will happen concluding that there was not a promise likewise in the reply brief that's the only thing i found that you're relying on an argument that the that it was  implausible that the district court evidentiary conclusions are implausible and have resulted in them a fest in justice and i wrong about that no i don't think you're wrong but i think that i think fence counsel promised was eighteen months was something in the eighty seven months range and the district court found that defense counsel did not make that promise and you argued that was clear air that in these situations is to distinguish between a promise to the slippery distinction between promise and prediction that you acknowledge you didn't make that argument and i did make it in the initial brief i think was made reply assistance because i think it's it's incumbent upon a lawyer in particular in a foreign speaking situation but never situation but i'm confining it to a non english speaker in this particular situation it's incumbent upon the lawyer in some fashion to make it crystal clear that whatever his predictions are they are just production guy so the lawyer in this case said that he did that now that's a different question than whether the other side understood but the ineffectiveness has to be what the lawyer  what would you know what what the lawyer provided the lawyers testimony was repeatedly it was explained and in the in the police colloquy there was a court certified interpreter who interpreted the words with the judge asks was there any promise of a sentence and he said there wasn't and there was a interpreted plea agreement which he signed which said there was no other promise all this fact right that's right next ok so there can be i'm having difficulty seeing this as an in effect that this aspect of a cause of your claim as being an ineffectiveness argument well i think you did i would i would hear the argument that it basically the lawyers responsibility and i'm confining this to foreign speakers not me not across the board a lawyer think the i think that it exists across the board to make it very clear when you're talking about tradition it's a very dangerous thing to be talking  clients always one prediction but it's very dangerous for the lawyer to get in there because of the inherent in this particular case if you let me back up for a second mr zine interpreted this country for i got all the facts i und of how much the lawyer did if the defendant says he doesn't understand the lawyer has been ineffective if the defense says he doesn't understand later after he's already accepted a plea in which he said he did understand lawyers the reality of of the entire equation which is that which is the the contest between attorney in this case there were multiple attorneys the court might recall the attorney employed some associates do you speak in english without the benefit of an interpreter and the essence of it was an incredibly upbeat optimistic kind of kind of presentation in which mysteries i took to waiting as course as you're familiar after waiting three three and a half years decided the last minute on the eve relativity of a trial the plead guilty so there must be again change or somewhere along a long way i'm submitting to the court that the game changer was the attorney's inability in this case which i what would you have done the stir coburn said that he repeatedly every time he saw the person told him there's no promise can't guarantee this up to the judge what else should he have done because of the measure what an effective counsel would have done what when all should have been not i would say and i would find this only to a foreign speaking client whose whose language is written language is not english that a documentary letter be written that makes it very clear in his language that that numbers you talked about are just predictions only and that there is no promise as to what quote all that's exactly what the plea agreement which was translated into arabic said exactly well the context of the situation in the court in the case of a foreign speaking foreign national and i think you could judge was on the on on spot on that was that their expectations about the criminal justice system they enter the equation with potentially quite know i don't know how many legal systems he's he's seen where i mean one thing it's easy to imagine that the problem here is that in plenty of places around this world when a lawyer says ok ok the judge and i have  n deciding whether there was ineffectiveness sort of from whose perspective do we ask whether there was a promise to the lawyer and i think the lawyer didn't think he was making a promise was to his best educated guess trying to communicate the education and judgment and experience that he had when knew better than to make a promise and i didn't do that so from his perspective there was no promise but and that seemed to be background his language or he didn't have the sophistication and so the ineffectiveness is your ineffectiveness argument but the lawyer needs to be more sensitive sort of the double whammy of language and culture  be not english speakers because i think the the potential confusion for the reasons that you talked about are the greatest in those kinds of cases i would demand something more than just the rule level with  well i don't think i don't think it goes that far i think you can never get never dragged around to doing it instead of some guy has expectations that are just unrealistic or not are not consistent with the with the reality of the situation but what you can do is create you create an objective measurement of what the lawyer said no lawyers aren't probably you know the myself included are not that interest to get into what we might have predicted what we might have discussed but but sometimes that kind of discussion especially you if you change the game becomes it becomes very vital to the question of whether there was a true and honest communication to the client can i want to get back to the question of whether there is ineffective assistance calls here in the first question is in that case of a foreign defendant that the lawyers prediction or statement itself be put in writing in the original languages have right this court has any court ever said that no as any bar association ever since i can not that i'm aware of you ever done that you have you personally ever done that as a lawyer yes and is that is your understanding that that is the standard of care in the community that  i don't know if i could call it a niche language both carrying a war over mandarin yet we pretty much gotten spanish speaking attorneys and things like that languages we see all the time but it's far different when when we're talking about turner's we have no idea what the interpreters hands him some piece of paper with written in secret because that's an attorney client communication as compared to the public document of the plea agreement and be in court with the judge statement as anybody promise you anything translated into arabic and the answer know why isn't that the right way and that is the way that the system normally works and why isn't that the way to guarantee this problem as as best as possible well the reason i think is if the client thinks either for language problems or for cultural reasons that to that he's going to be guaranteed a certain a certain sense or a certain deal if you will then to stand up in court and talk about that might well be in his mind undermining that deal and that's what i think and that's exactly what i try to testify plea because that applies in every case in every case a defendant could feel that his client has told him his lawyer has told him don't worry i know the judge it's all corrupt and then when you go into  totally different situation when you're talking about the non english speaking client i think that that's a wholly other if you will she ever really semites on fancy questions that question oh i do you know when your clients due to be released not not that consequences of conviction would do would have an effect on his ability to enter reenter the country but you know i had this was an argument not about innocence but it was about the l lawyer said that he has no case he has an awful case and the government has no reason than not to to take him to trial does he deserve a client understand that well be warmer as he fully understand that i believe so and he's instructed to go forward i'm so over the claim of the judge the district court judge that what he really wanted to do was to go home as soon as possible that's what followed right and that's what his previous lawyer said he wants to go home to lead them out as soon as he can that's false that must be false because the way to get home as soon as possible is to lose this case not to win if there were ineffective assistance on the first one prong the second question is whether there's precious and to get to the president's question the standard question is would he give up his plea agreement and go to trial is that really what he wants right and he has to show that that's really what he wants and our normal test of whether that's really what he wants is what's his son or lying motivation am among other things what's the chances that he's going to go to jail for a longer period right now we know he's going to be released in february right and he was pretty risky there is a risk it wouldn't terms of the will never be able to react to this country with the conviction he may have collateral consequences and in terms of payment in terms of other things they're probably he got it yes yes but it wasn't that he was trying to avoid conviction it was that he believed he wasn't making an argument about innocence right if there's no misunderstanding about his decision about his position at the sentencing where he said he was guilty right no misunderstanding about that what he said was what he said and did there's no claim now that he really meant innocent when he used the word guilty or that somebody persuaded him to say he we don't come on well you know and i'm not quoting him five year old child or saying we factor and we need to sometimes factor in a lawyer has to factor in how the message is going to be received and maybe it seems to me to be a lot of the action in this case should consider who we just talking to so if for example in eternity we're speaking to his client only in english and is this client didn't understand it and he said this isn't a problem is but this is my prediction and he knew that that was not going to be understood or he said it in a way that was not going to be understood that would be a factor in determining whether there is performance was deficient but we still did but looking at whether there is performance was ok i told yes absolutely get them to look at that but i guess i did sounded to me mouth and not what was going into the client's ear was a mistake made in that regard or are not and i think that actually that issue was actually focused on in the hearing that the attorneys testified not forget how alien and scary the legal system is to people who aren't lawyers are not familiar with it let alone from a quorum for inland what do they have to show that he got he really got it when he was told usually articulate we had extensive conversation going into it he was very intelligent but wasn't shy about sharing his views often in english with clear that he understood what i was saying and what he was saying he understood the guidelines mr circumstances something something more suitable i'm wondering whether this is another ineffectiveness question at this point or just a straight voluntariness question that is one the overarching question about manifest injustice has to be that somebody not knowing not understanding not voluntarily entered into a police very much one way you show that is by showing in effect of systems the problem for the defendant here is the strickland test is an objective test expressly that's what the supreme court said not the subject of time so the question really is what was said to under the circumstances is what was said enough but there is still an overarching question about volunteering of some about knowledge and normally we ask that question in the light of the rule eleven colloquy but if we take if we take the hypothetical  expand it from more judge williams was saying let's see everybody agreed that he was one hundred percent certain he was getting eighty seven months or whatever it was and that was it nothing else and and then he went in and pled with that understanding would would that that would make it a no annoying pleat wouldn't if the facts supported that but what we have of course in both but that's not the claim but to answer your question what we have is a rule eleven understanding the context the framing and the main monson intonations they come with statements isn't that a problem i'm not sure there's anything else you could have done in this case you have a plea agreement that spells out exactly how everything that's on the record he didn't get it and of course that hearing testimony in addition doesn't there's not going there so there's all these questions about whether the lawyers miss cage how their message would be received by him and then there's also the separate question of these lawyers just completely missing the fact that the pre sentencing report p s r was going to actually have argued for recommending a much higher guidelines range by because it was going to factor in the drugs used by the other defendants and relations i guess they completely missed that to never factor that again and it seems to me pretty clear that is what had the upward pole on the just record heading to the top like i had lines range here and it was that ineffective not to at least foresee that and deal with that  two responses to that your honor first of all i didn't read the record in the same way to say that the p s r is guidelines which the court did not then use was the reason for the of court call these were very serious crimes in process cornel have discretion but not knowing going in there is going to be a lot more about warning him that unlike these other defendants there was going to be a lot more action here that could push the court to the discussed at the at the first scheduled and seeing hearing and defense counsel that is a very serious and we brief it for them there was briefing on it and then there was discussion of it and the court ultimately and all of that we said i'm going to use the guidelines range that the parties agreed to the second fact is that this was not just was according to the court a novel issue in the novel issue was this the question wasn't just relevant conduct the court is what they said in calculating this defendant's guidelines range of the court said this is a novel issue i've never seen this before so it's hard to see that that could be deficient  deficient performance when even according to the court this is something that hasn't come up but then of course the court said i'm not going there i think what the fair sentence is what the party is something we did the range of the parties agreed to and that's what i'm