conviction although that's not a categorical difference it is a qualitative difference in many ways as the court was able to do in burkhardt relying on the vast intuition in experience that anybody practising in criminal court has there are procedures there are statutes that require a defending to be in the room that required for a card to be told about his punishments those same structures are going to exist  aware that he was not legally at the states so you're legally if he states that is correct i think if i understand what you're saying you're distinguishing burckhardt by saying here the evidence of his guilt or satisfaction of the missing uninformed element is not overwhelming present burkhart it was it simply put yes and as you can along well in that case your honor there is there's more than just the pronouncements that would normally occur mr burkhart was actually armed career criminal claiming that he was unaware it was balanced that that is radically different  that he had more of a shot at winning had he not on this count but walk us then through what you say the sort of risk benefit analysis is that he would have engaged in and how it would be different what armed with the knowledge that he might have had a defense that he didn't realize he had what would he have thought he could gain by defending against that but that was a categorical bar that is to say if he didn't have the gun conviction he were to be judged not the prosecution essentially would have had the opportunity to disarm whether the other the th and  defendant in secondly there are several collateral impacts that any person faces for a gun conviction that they don't face even for counsel on the leadership on that issue the evidence seems to be overwhelming that he wasn't  suggest to you it was almost entirely derived from julian jakes material that the government has historically been limited in its willingness to present their incense and we're someone's already admitted to culpability the reluctance to present those types of witnesses which would have been necessary if we litigated this yes you may have provided him an out and i'm not saying all the bricks on the wall exist because this one brick exists but it is a combination of factors for example arrow well aware of is there something that the gun conviction will prevent me from doing in the future so the gun played an active role in the calculus not in what the final sentence will be but what all the collateral impacts would be of his convictions as well as his expectations for the program availability release i want to point out this is the core of the st act the st step back so he was not categorically excluded by statute from many of the programs that were going to fail because i'm still trying to figure out if you are if it's your position that he was it legal status which is something that immigrants you might imagine somebody without the benefit of council could conflate for lawful status but even at the time of his arrest that was not the current state of immigration law but your argument you don't care he could be  illegal is possible the question is did he know it is not correct and and unlink again what i keep turning to birth are it seems that the court might agree that he does have material differences from he ended up getting a twenty two year sentence he is guidelines as the government's pointed out would have been exactly the same whether he actually had a conviction related to the firearm or whether the firearm was this particular case your honor because the defendant had no open avenues to improve the situation the fact that he had this conviction for the fire  issue with how far how far would you take this pragmatic sort of calculation in other words let me change the case suppose that the evidence here was overwhelming that he did not know that his he had an unlawful status yes suppose you know whether from an immigration lawyer confirming for him it's not unlawful wrongly but so it was absolutely clear he was innocent if this had been decided beforehand would we then say he plead he being factually innocent pleaded guilty because he didn't have anything to gain by if the guy knows that he's actually innocent we d would hope that he would plead guilty just to get some benefit sentence but on the th probably a seems to be the whether the court chooses to recognize this  you said it said the guidelines calculation and that guideline range of it was three one hundred and twenty four thousand three hundred and twenty four months of one hundred and five that played in consideration because an accurate consideration of the guideline range was important and a firearm the possession of the firearm was included in the guideline range but that would have been the case whether or not he had actually been itself make the defendant in the eligible for the programs that he says he's categorically eligible for now in prison i honestly don't know your honor because that has been raised in his brief mean i don't know the answer to that question i would say that that claim but i honestly don't know the answer to that question if it did would it be something that we would consider thought about or it been a consideration or if there was some evidence in the record book that he had been concerned about that then presumably it would have  use of the fire under the circumstances were such that he may not have known his possession of the firearm was wrongful here by contrast mr trump was a drug dealer he certainly must have known that whether or not they so strongly disagreed with the panel decision and they didn't want any delays in the supreme court's consideration of the case to result a conflict between the circuits so called the bold arising of the facts of relief the truth is relief was somebody who enrolled in school to get in a student visa but essentially never attended and instead checked in and out of hotels with cash daily firing firearms and it was alleged by the f b i at the time that he kept the firearms in the hotel each time insisting on an th floor in an airport that is to say that there were other fact that didn't make him completely innocent person who was otherwise unaware that he was up to something which mr one hundred suggest is no good in this case it is a drug dealing case in that case it might have been something more nefarious both cases implied that neither person had a pure mind the nd point i would make is that mr one hundred points out that mr patrolling would then record appendix at page one hundred and two you can hear judge would walk talking about the significance of guns he specifically states that the sentencing commission prompted by congress and i suspect the general public feels quite agitated about the presence of standard for sentencing he might have even gotten that two point enhanced meant to score i submit to you that that is different than the presence of a conviction for a firearm so that would be was the difference if this case it this case the difference would be that the the court was then armed with there seems to be to speculate at the gun was used in furtherance of the drug crimes and therefore aggravate argument in this case