our final case for this morning is united states against  so that morning good morning till morning against me please the court don't lock it challenges his underlying and involuntary guilty plea or alternatively his two convictions for the same crime because of our limited time together i'd like to focus on three discrete questions today first why the government's charges and this rocket convictions are multiplicities as a matter of law which informs both of its challenges secondly how the record below establish and it seems to me the whole case turns on that because if we were to find that he entered the guilty plea with the correct level of you know knowingly voluntarily all the rest of that then the multipl city argument falls out because any no interest to argument is waived by a valid guilty plea so i think it will be useful for you to put this argument through that lens you know how we might come to the in this case because we're challenging the judgment which is the record and that to punish ment's convictions for the same crime under a forty one day but secondly why the i think the question being why this multiplicity challenge is clear that to a forty one  convictions in this instance are multiplicities and that's because the element of prosecution under age forty one a is the possession and that's clear under the law the circuit under the powell case and car and the cocaine had been upstairs in his bedroom that would have not presented a multiplicity problem that would have been understood as to separately indict a bull possessions in this case i understand it's all in this bag you know a car would be a constructive possession of possession a person would be an actual possession so you're referring to the griffin case which those are to destry his actions and can be to eat for the line a offenses when the possession is together as it was here it is multipl establishes that the issue i think that some people have is that for some reason we think of drugs differently under a unit of prosecution offense so if we think about some examples from some other contacts i think that might help illustrate the issue so if i for example broke into the walgreens down the street and stole bread cheese and ham i would be prosecuted and convicted of one fast i would be proud of course you're making i would be convicted of three that it would be one crime similarly that night the gun cases under just the one twenty four c charges make this clear multiple possessions or multiple guns in the same possession of each one in a separate can't the complexity some from the fact that what he was charged with collectively was not a crime he could not have been punished for too late for he could not have been fact that what he was indicted of doing was not actually a crime for which he could be convicted but now you're saying you should have when he pleaded guilty you should've said i can plead guilty to only one thing i'm not pleading guilty to both counts and then of course the other count would have come in is relevant conduct i presume he could have been sentenced on the whole bit yes he could have been a drug type and quantity or sentencing factors so those what i'm saying and doing the other drugs in the bag you know would have come in certainly as part of the same a common scheme course of conduct and cetera so he could have been sentenced based on all of the drugs he was carrying he just couldn't get separate convictions does this mean anything other than the special assessment it does there there were two separate special attachment fines and there were two separate convictions and prison sentences even though the prison sentences were to be run concurrently assured that it's done this would be the same this is the sentencing hearing in the transcript of the decision was on a razor's edge and the real issue here was the career offender and handsome men which increase mr lockett's time in prison by over a decade and it's clear from the sympathetic to mr mr lockett's long struggle with heroin addiction and the district court clearly focused on the intent to distribute heroin charge during sentencing as as a big part of the decision to sentence that's or like it as a career  and changing the conviction to only one count and sending it back down we can't be sure that in the court does and it may or may not so under if a drug type is a sentencing factor that would be something that would have to come out at the sentencing hearing which drugs mr lockett intended to distribute so he's clearly said he didn't intend to  separate out each individual charge that's correct and also the fact that the court district where i will point to a place in the record say sixty one through sixty three the fact that the judge  there are other circuits that you know have any of them abandoned those positions since the guidelines took effect no but many of them are bound by circuit precedent from these are cases before the guideline and and respectfully the cases are stale so a pretty  eyed change i beg your pardon stale abandoned by the circuits that fall when you're under a plane or standing right cracked and we've got other circuits that say this is perfectly ok how does that plane they understand you can make an argument from powell but again plane error is a pretty demanding standard and when you can point to other circuits flaws saying this is perfectly ok it's hard to  a forty one a one we know that the defendant doesn't have to be proven to have known exactly what the substance was for how much of it there was but if i'm reading the statute correctly if if the government were to try to indict underage forty one a one without identifying substance and a quantity then were kicked into you know since possession of a minor quite thirty of marijuana in a one year maximum sentence right goes through a forty one before and then into eight forty four which suggests to me that you know women pretty much has to include substance and quantity in the indictments and has to prove it or get it's get it in mission well i think this is a difference between the indictment and the facts and what ends up what d'you define it ends up pleading guilty to get what gets shown at trial which is what a pretty and it's progeny are concerned with but i don't think the indictment needs to specify the type of drug i think that would come out in that element of the fans or their actual predicate or the jury trial if there is why if the indictment doesn't specify the amount of the quantity then we're going to get in the lane a pretty challenging to go to a conviction right if the sentence is more than a year i believe that that would be putting a lot of weight on the indictment to specify that that's what a friend in a lane do it's a sixth amendment right to be indicted by a grand defendant respectfully i would be happy to submit supplemental briefing on the trend in this issue but the the issue here is that it would still be one count so if there were a type of drought two types of drugs in one county or at the quantity of drugs in one county that would take care of some of these issues but the problem here is that there were two counts two convictions and those are multiplies that a second conviction is a punishment that has consequences and it's not a threat ok i'll give you a min away under subsection c we technically would not have to allege that because there is no minimum mandatory that kick in but that doesn't necessarily mean that you have two separate crimes and  drew an analogy to nine twenty four and actually a lot of the gun offenses the government for a lot of purposes would want to show which kinds of guns was you know sentence can be affected if a shotgun is more than a certain turd less actually it's a sawed off shotgun than a certain number of inches and there are there are factors that affect sentencing and the gun strachan says well and yet if you are charged with maintaining a cache of guns the government doesn't have separate counts for each gun right so by analogy why isn't this something that is you know count one possession with intent to distribute you know so much cocaine and so much heroin and so much marijuana and then you've got it alleged in the indictment you would prove it you'd have however it happen to go guilty plea or a jury trial you'd get the findings that you printer and or a lane so so i think in terms of our issue it's really were you allowed to segregate these out into two separate crimes and as the district court as  this report commit plain error when he doesn't follow the requirements rule of leavened to make sure he's going through the colloquy for each charge b z for a drug charge and gun charge you would know that the district judge was describing  crimes this is a little more difficult but that that i think is our question yes your honour's the the reason i charge the counts individually is because not all of the substances seized were tested what can i prove beyond a reasonable doubt and i wanted to put the defendant on specific notice as to what he was charged with sure now whether one of those counts was dismissed or at sentencing that's and that's another issue but because the prescription pills weren't tested and crack cocaine wasn't tested i want him specifically to be known as charge with the cocaine and with the heroin and oh yes you see why that gives you separate counts we think of all those cases about you know if you rob a store and you break through and you rob the next store over something that's two events here but if you take a lot of things from one store it's one of then well the same need for clarity i terms of what you're going to get that that where you are talking about different schedules different types of drugs i think it does make a difference in terms of sentencing that those cases are all pre everything but when i get that they are they're old woman would suppose different sides somebody who's helping with the truckload of marijuana coming up from from the southern border helping with it turns out that there's also the suitcase with ten shields of cocaine in there that he doesn't know anything about you can charge those to gather under the defendant's theory here the trial defendant is going to be so maybe willing to say look i know about the marijuana i had no idea about any of this cocaine i was helping with that can't hold me responsible for that and i would think that as a prosecutor you'd be at least want to allow a jury the option of a split verdict in that point on that on that score frank i agree and certainly at the separate countless separate verdict as to the to paul exactly so in my line of thinking when i was preparing this for charging i thought these things through but my i was more concerned not concerned about a plea plea is wonderful i'm concerned about can i prove this beyond a reasonable doubt at trial so therefore because of that i thought it would be cleanest and best just charge him separately if we disagree with you we will be in conflict i take it with the crux of the entire argument is really was the play knowing involuntary i couldn't agree more and if you look at this plea colloquy in this plea transcript there could not have been a district judge more thorough and complete this district judge as slow as patient is methodical is calm and i know you can't see all those things when you read the transcript but when you do read it he reads the indictment separately to him yes a few times he does kind of combine things together  obvious until it gets to the court of appeals and we sit around for a week and study the transcript and write yeah i don't think there's error here that the district judge was thorough the defendant was aware of the charges the defendant was where of the consequences the defend it was advised by counsel if you look at the entire record from the arraignment in february where that magistrate was also extremely thorough advising of the charges advising of the penalties that he read the indictment he received a copy of the indictment from the time of the change of plea throughout the entire course of the change of the plea the district judge made it clear that it was up to him whether you proceed from here but if it's you know arcane or  usual or something you know that nobody quite got but this is not this was something fairly simple he knew he possessed and distributed heroin and cocaine pled that those he understood that he stated he understood the stipulation of fact he stated he understood the elements penalties page so there was no confusion here it's simply that when he he was not happy with his sentence and even the just or judge at the change of plea stated that if you're not happy with your sentence do you understand that you cannot withdraw your plea and after all of this time that the district judge took great care and caution to make sure that this individual understood the charges the elements the penalties and problem here during the police call it is that there was no basis for the second conviction the second crime so when the judge asked mr lockett to plead guilty to a second client crime there were no elements that could satisfy that those cases like th bradley decision in that there wasn't a way to convict mr lockett of the second crime and that's why this was not knowing involuntary in addition for the point about quantity of drugs or a truckload of marijuana and a case of cocaine these are sentencing factors so while you know there are there are fact any guilty plea elements of an offense or during a jury trial what the jury considers or not they're sent in the factors for the judge to a which is what this court has decided in a line of work in cases and others and so respectfully mr lockett asked this court to hold that his clique was not knowing involuntary for the reasons