not be used against him at sentencing and that belief starts from his original change of plea where his attorney refuses to allow him to admit the priors because they are not an you have to persuade us not only that this was something that the judge was required to inform him but also that in fact he was misled by not  otherwise become harmless if for example his lawyer explained us all to him the fact that he didn't you're told by the judge doesn't make much of a difference in my point is looking at the record as a whole and i'm not sure i agree that i have to persuade you that if that plane error versus harmless error and whether or not there was a sufficient objection there clearly wasn't judge i object to this change of clea d you might get another bite on appeal and so we don't know what happened here putting that aside the tally of the circumstances of this case could have led us to predomina and the court eventually degrees with him that they should have been alleged and they are stricken from the indictments that he ultimately plead to now i think the biggest obstacle i have is the fact that the issued a written order that said these priors can be used against you we're going to strike them from the indictment the anomaly here is that it was a written order that followed the hearing had the judge said that at the hearing i'm making my decision and they're going to be used against you that he clearly would have been on notice but because it's a written order can we presume that me was informed of that what it was asserted i never served on his counsel so that's a bit ambiguous but then we get to the actual change of plea and the morning of the change of plea the government serves a new indictment from which those priors of been redacted and there's really no by the court that had to change a plea or at any time on the record to hand that need those choirs are going to be used against him and then the question turns to is well what we're does that and under a plan it would clean water but if it's the same crime it's not of different crime it's the same crime but the maximum changes it is the same crime being we're no longer going to be hung up on that distinction between elements to sentencing factors but we're going to look at are are these facts in some way causing his dramatic impact that was a drug case where it had to be presented to the jury improve  reasonable doubt and that's the distinction your honor in this case because if he was told what his maximum penalty would be right he was told it would be twenty years twenty years and that's the clue knows he's pleading to this offense there's been a big firefight in this case about whether you have to at that point and when you need to charge the priors and it's all horizontally criminal history but they're also used vertically and my point is because there's a dramatic impact and especially on the actual sentence you know telling someone what is maximum is in the modern guideline er relatively unimportant information what's important is there are mandatory minimum and what's important is what the guideline range is going to be i want to problem might be well how far does this go mr young does the judge have to do a preplan report in which prejudices and that's why they're not elements but it doesn't pertain to a judge a judge is going to be able to separate them out so for this cause just looking at the whole thing when the judge fin there's a strong suggest and i'm going to get the third point but more importantly even a lot plead guilty when he wanted to at the beginning and it's judged subsequently admitted that the quota wrongly prevented him from doing that he would have gotten three protect that does apply now at sentencing and a medical issue it would have been a much stronger point for the defense kind of use of discretion standard you know it's one that could have gone either way discretion standard i think it would have stood under the no we've you know it's certainly an open question that's the best i can say thank you with the factual sumption there five months earlier the defendant she tried to plead guilty and even assuming that the legal wrangling in the back and forth could excuse or make guilty plea as of november thirteenth of two thousand and one and two months a plea of guilty thereby permitting the government he did just that are you permitted the government the government turned him down in this case your honor the clock is respect because of what the defendant did after he had the opportunity to plead guilty guilty yet in the two months prior to trial or do anything to indicate that he is going that he's not going to plead guilty that he's going to plea to trial thereby causing both the court and the prosecution to waste its resources in preparing for trial which really protected does apply to cases pending on appeal which is this case here in land grass the court recognized a very longstanding present principle that the court should apply the law in effect at the time the rendering decision that would be the protect act here that the change in the law is merely a change in the standard of review it does not increase the punishment or change the punishment or change the crime but the defendant had that of the defendants on that before in fact it is merely a procedural  discretion or we believe that it isn't an over standard under the protect act under either standard however we believe that the district court decision must be overturned here extraordinary physical impairment fails i believe the defense also pages of articles concerning diabetes generally which could have nothing to do with this defense particular condition and in fact actually proves the opposite point because those articles are talking about the severe problems that could result from diabetes which the defendant did not have and therefore shows that he probably was not outside the heartland or was not in fact the only thing relevant to the defendant actual can mission was the expert reports of his own rights the minor technical violation was and i asked whether there had been prior discussions between the government and this council the distinction here between the minister made this is it's not a minor technical violation it's a substantial violation of the gig you know that these pirates are going to be used against them so it really did affect priors from the environment and said you've got to plead guilty to the limit of fans of thirteen twenty six and my last point is especially in a case this is important where there's no playground when there's clear grimace now they set forth base advance level  specific offense you know plus fifteen because of prior convictions it's all laid out so the defendant is hard pressed to say the plea agreement that it's time he wasn't aware of it but because there's no plea agreement in this case along with that whole procedure history once again that's the argument that is the government correct in guessing that defense is not interested in the so called settlements on the table yes your honor we tried and once it was rejected for reasons