we better there that's better thank you ok i'll speak up to the appeal concerns the choice of remedy the district court granted in granting post conviction relief on an ineffective assistance of counsel claim m was charged with conspiracy to distribute five kilograms or more of cocaine he had two prior felony drug convictions and therefore he faced a mandatory life sentence on count one of the indictment that mr wiggins rejected a favorable plea offer because counsel gave him a roni s advice as to the range of punishment counselor told mr wiggins that one of his prior felony drug convictions didn't count because it was only a simple possession rather than distribution and so counsel told mr wiggins that the actual range of punishment would be twenty years to life the government made a plea offer in the case that had two options one was for a binding offer of fifteen years the second option was to plead to a reduced charge that would have a mandatory minimum of ten years so on that second option the range would have been ten to life or you can take a binding thirteen now the government's primary argument is that the district court said that it did not believe mr reagan's testimony that he would have accepted the binding fifteen year plea offer and the government kind of treat dispositive of the entire claim and i think that's wrong for a couple of reasons first of all i want to point you to another document in the record exhibit g it's in appellants a denim that is attached to the brief it is an e mail chain between the assistant united states attorney and mr wakens trial counsel and it's in the agenda and i believe it's the very last document i think there's two pages of e mail exchanges and in the portion not portion i'm referring to i believe is at the bottom of that second page plead government said no we can't go that low but we'll give you the fifteen year binding so even though the court may have found that mr wiggins was not credible as to which option he would have selected under the  offer there's counter evidence suggesting that he would have had a difficult time accepting an open play but the court the district court went on to find that because of the severity of the sentence the mandatory life was so much higher than councils in corrected by twenty to life that he agreed that mr wiggins would have pled guilty if you had had proper legal advi actually the court found not only that trial counsel was ineffective but that mr wiggins was prejudiced by that ineffectiveness now this the comment about the credibility was made in the context of determining prejudice the court then went on to do discuss in its order what the appropriate remedy should be this is the august eighteenth two thousand and sixteen order that's the first document in the a dent i'm i'm referring to the last paragraph of page  six to page seven and the court said in charming the appropriate remedy it was going to consider the fact that the movement had falsely told his attorney that he was not the person on some wiretap evidence regarding drug transactions the court noted that mr wiggins continued to deny his guilt at sentencing saying i was never in possession of anything and then we get to the critical part on page seven and this is where i think the district court abused its discretion in fashion in the remedy the court said further movements trial lasted three days with forty seven prospective jurors called twelve jurors plus one  alternate ten witnesses testifying this along with preparation time and resources resulted in significant costs to both the government and the court my contention that in selecting a remedy that the court abuses its discretion if it links the remedy selected with the fact that the defendant insisted on having us constitutional right to a jury trial and i believe that there are other three principles that should have guided the district courts discretion in deciding what the remedy should be first of all bord perjury versus hayes to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort of united states versus morrison a remedy for a sixth amendment violation should tailored to the injury suffered and should not unnecessarily infringe on competing interests but to tailor the remedy to the injuries suffered i think would involve the district court ordering the government to re extend the full plea offer not just one option and not choosing the option that punishes mr wiggins more harshly because he went to trial and used up the court's resources and then finally versus morrison which says it is the government that must bear the costs of ineffective assistance of counsel because the the district court granted relief on on this claim the costs are the same no matter what whether the binding fifty year offer israel standard or the tend to live off or is extended the costs of the in the expense of the trial remain the same so just logically it doesn't make sense to punish him for doing that  filed within sixty days of the aug eighteenth district court order or within sixty days of october eleventh two thousand and sixteen when mr wiggins entered his guilty  august eighteenth order does nothing more than tell the government to re extend the non binding plea offer it doesn't make a decision as to whether it's going to just simply correct the sentence that it's going to vacate the convictions and have a full reset and saying it says whatever relief that it's going to be that will be determined later that cannot be a final an appealable order it does not mean obviously can't be a final appealable order we it would just be an unworkable system to say that well we're going to have certain events that trigger the filing dates for a notice of appeal rather than the rather than having those triggered by the government mentions that the august eighteenth two thousand and sixteen or implicitly vacated his conviction and s again i think that's just an unworkable position to say if you have an order that implicitly does something well that might trigger the filing date for your notice of appeal how are litigants supposed to figure that out anybody could read anything they want into the order and and just recap because to as to what the correct due dates are the issue i believe is governed by the united states supreme court's decision in andrews versus united states in that case the defendant had filed a twenty two fifty five motion to vacate his sentence his claim was that the district court had not granted him allocution the district court granted the motion and ordered that the defendant be returned to the district for re sentencing so at that point basically all the court had ordered yes i should have granted you allocution and were going to transport you back at that point the government filed its notices notice of appeal court of appeal ruled that it did have jurisdiction and it reversed on the merits of a supreme court however bake hated the court of appeals judgment and re managed to the district court for the recent sing or says that the twenty t order saying what's transport the defendant back to the district was merely an interlocutory order it was not a final order in the court said it's obvious that there can be no final disposition of the twenty two fifty please the court my name is still copy a represent the government in this case i was not the attorney in the case below but i did do the motion to dismiss the appeal and to sit on the brief as the court is aware the government has a motion for dismissal of the appeal pending the court decided to take it with the case and actually i'd like to reverse the order here we'll talk about that first if it's ok with the court as we stand here today mr w incarcerated on the basis of a judgment that was entered on december twentieth two thousand and sixteen all right that judgment was based upon a plea of guilty and it involved a two hundred forty month sentence although a notice of appeal from that decision that was later dismissed at his request therefore that judgment the judgment on with under which mr wiggins is serving has not been challenged instead what we're doing here is looking backwards and saying we want to challenge the twenty to fifty five ruling that has already vacated that first sentence and conviction that that's gone that's that's done with furthermore this is not just about failure to timely filed a notice of appeal this is a situation where after the court grants the remedy the defendant without protest except the remedy the defendant voluntary voluntarily and knowingly pleads guilty with a plea agreement that contains a waiver of the right to  appeal does not a sikh to file a conditional or enter a conditional plea of guilty which i think would have been a possibility he could have said to judge better judge i think your remedy wasn't sufficiently  large enough that i should have had the benefit of both plea agreements all right i would like to plead conditionally if judge feder and the government allowed that they could have used that option what they've done here is they've tried to get the best of both worlds i know in my brief i say they want to second bite of the apple we're really talking about a third bite of the apple here let's let's change the facts just a little bit if the defendant on the day of trial had decided to take one of the two plea officer offers let's say he had he had decided to take the what we call the open plea ten years to life and he gets to sentencing and the judge says are out of my giving you ten years i'm giving you to forty the defendant at that point could not have said whoa whoa whoa wait a minute i think i want to take that fifteen year sentence instead obviously they couldn't do that but that's exactly what they're doing here they're waiting they waited until they accepted the remedy didn't appeal waited until they got the two hundred forty six month sentence and since it was not fifteen or less decided oh we want to do over we want the third by the apple and the answer there is no you it's that's too late you pleaded guilty without any reservation you have an appeal waiver that precludes you from appealing from either this conviction or sentence but you're trying to backdoor it by this untimely appeal of the twenty to fifty five the twenty to fifty five they one we opposed to twenty two fifty five our argument here was and i'll get into the merits respect and our argument here was the evidence was clear that because he had a child in school hit want to do more than ten years he was only going to plead if he could get a ten year fixed sentence and that was never an option now as miss cursed pointed out i think the judge because he realized there had been an error no one told the defendant apparently that he was facing a mandatory life a remedy but he clearly had evidence from which he could find the credibly that he would not have taken a fifteen year fixed sentence because he said i can't do more than ten now i think that same evidence would have justified judge better in finding he wouldn't have taken the ten to life open because it didn't get yaron t m ten years i mean the judge could have given him anything up to and including life so but nevertheless i think the judge  may have bent over backwards but the judge did say aright i will let you i will ask the government to reopen tell the government to reopen that second playoff for the ten to life all right defendant takes that the defendant doesn't say judge that's that's not a broad enough remedy instead they say fine and if you look at the police colloquy and i read it last night at no point do they say we want to conditionally plead or we think the judge is remedy was insufficient they pled guilty they had a plea agreement and so it's like there's no way at this stage that's still an open question now i would like to bring the court's attention to a case that i found last night in looking this where there was ineffective das there was ineffectiveness in terms of conveying a playoff defendant went to trial and was convicted and then said my lawyer was ineffective  we think the remedy is incorrect this court in the case is davis versus united states eight fifty eight five twenty nine decided may twenty sixth two thousand and seventeen this court reversed for findings as to whether or not the ineffectiveness was prejudicial but it was not a case as you can read where the court waited until he was reset in snow the court i mislike felt and no one even raised this issue that given the fact that the remedy ordered would have required the vacation of both the finding of guilt and the sentence and that's what distinguishes this case from injuries there's a case where all the court did was a finding of ineffectiveness and they didn't vacate the finding of guilt they merely vacated the sentence and the supreme court andrew said in that situation  defendant could get the same sentence the in effect in this finding would necessarily preclude a different sentence so in the interest of judicial economy it doesn't make sense to let them appeal immediately but that ruling andrews doesn't apply in a situation where the result of the court's ruling is the vacation of both the guilt finding and the sentence and that's why you know i brought with me the two judgments no i know even than or i think i'm a little bit confused because on his second judgment the one that was decided in two thousand sixteen he says amended judgment it's really not an amended judgment it's a brand new judgment was  years later it has to do with one one count not the two that were in the original judgment it's based on a plea of guilty not a jury finding and it's a completely new sentence but so you're talking about a completely different judgment i said the amend the amended judgment is a misnomer because it's a new judgment and that judgment hasn't been challenged that's the point we're trying to make it has not been challenged and he cannot avoid his of his current appeal waiver by trying to turn back the clock and argue that the twenty to fifty five remedy was incorrect when he accepted the remedy and reserv lee all right now i don't want to not talk about the annoying facts so the argument that they're making is that the judge picked the wrong remedy because he mentioned the he mentioned the difficulty or not the difficulties but the fact that there were a lot of witnesses and a three day trial and whatnot and the question is was it really relevant and i don't know if it is but the fact of the matter is the case centered on credibility findings as to what the defendant would have sentence furthermore he insisted throughout that he wasn't guilty mentioned the theo on the tapes and he was saying that's not me i'm not involved in that conspiracy whoever you have on that that tape is not me but he also said i had a young child i can't do more than ten years and a ten year fixed was never but like i said i think the judge here in this case that like without a pretty serious sentence i'm going to give the defendant the benefit of the doubt here we were can we get said that at the hearing the judge said based on all these other facts i don't believe you and i and there's evidence to support that well i guess that was the district but his other option was everything to lose and a higher percentage against well ok now i don't know i mean the evidence was that his attorney his attorney was trying to get him to take something his return he felt that this was clearly in his best interest to take one of these two pulleys and he though was insistent that he will first of all he wasn't guilty so he shouldn't played at all but secondly that he that he wasn't going to take anything that required him to serve more than ten credibility i mean there was there was testimony even by wiggins that he told his attorney that he wouldn't he wouldn't accept anything less than a ten year because he wanted to just daughter graduates right right and because he wasn't killed and because he wasn't guilty so that isn't point  argued i'm sorry judge go ahead isn't that exactly what happened in the show in davis case that i found that that the he would have accepted the plea that was offered to him and the court said that that never would have happened that on these facts and on this record that that was a clearly erroneous factual ruling yes and then told the judge doesn't get the chance to go back in say in hindsight that  reasonably sane man it's not the choice he would make today it's the choice that he would have made on the morning that the trial started or the morning that the offer expired and davis i had said that you know if you don't know what all the facts you would accepted this plea because it was not reasonable to turn it down in the courts there is no evidence in this record that would support such a finding it's clearly erroneous they said find out whether there's prejudice or not and move on from that right i mean  rightly the fact here well no because i think the facts here the facts here clearly support the fire i mean our argument is and i think we made in the brief is that the facts here support the idea or would have supported a finding that he would have taken any offer i mean what you have an appeal and so that's no longer an option for this court to consider right now as in we're not all right what judge the fanner found was a finding of fact is that he would have taken the ten t life and taken his chances that he get ten right but that's not the finding that they are challenging there they're challenging the finding that he would not have taken the fifth teen fixed and on that this is the problem i have as i look at it that troubles me and that is the lack of any discussion by the district court of his credibility finding so he says it's not credible that movement would have accepted a binding the order where there's a credibility discussion i'd like to see it because i don't find a credibility discussion either a recounting of historic facts right and i found enough testimony and then we have the credibility conclusion and seems to me that that there should be some kind of discussion about the factors that the court considered and why it reached this credibility finding well i think the factors are on or are in there in the order and they have to do with the fact that the defendant said he wasn't going to accept anything other than ten years i think it has to do with the fact that the evidence was that he insisted throughout that he was not guilty and that and that and the facts that his attorney attempted to get the best he could to get him to take the take the offer i think it again based upon all the facts there is no basis for finding that he would have taken either offer and so i think the judge has credibility findings are adequately supported the record and i see my time is up but as i said this would have been an interesting issue if the defendant had timely rains state and not waited to see what with respect to the united arab davis versus united states case mr copy did hand me a case this morning only it's united states versus garcia so i didn't have a chance to read davis this morning but i'll review it and provide a twenty eight a letter if  required i think the court is completely correct in saying it would have been like trying to pull an inside straight  but i don't know if it carries any weight well but you do have to consider his comments based on his risk assessment he's being told your possible ranges twenty to life fifteen is pretty close to twenty some people might gamble you now i'll go i'll go for acquittal if i get the twenty ok you know i'll kick myself that i didn't take the fifteen but that's a risk i'm willing to take you also have to consider in context his statements i can't do more than ted i want to see my daughter graduate well that route is done doesn't that statement reflect a restrained faced a mandatory life and is insisting upon ten years yeah i mean it's one of the considerations yeah that's that's not realistic but that's not his mindset he doesn't know that he can get mandatory life at that point they got all the way up to the day of trial without him knowing that fact i believe also that the court is correct in saying that there's a lack of discussion as to the credibility determination and it's  not clear the district court just simply said i don't believe that he would have taken the fifteen i think the government's argument is notable for what it omits as well to me the crux of this case is the comment about punishing pym for going to trial that's where the violation in this case comes in those comments even if that was only part of the reason for the remedy that the court selected  those comments are an abuse of discretion to sentence and the relief that he's going to choose to give mr wiggins cannot in any way be based on the fact that mr wiggins decided he want to go to trial unfortunately it does have costs but you can't allocate those costs against mr wygant one other thing i would point out to about what was mr wiggins mindset in his his credibility not only did council give him the wrong range of punishment but he said i believe the government will have a difficult time in proving its case that's a misstatement of the case i don't have the transcript citation from me for you but he said i believe the government will have a difficult time proving its case the district court categorized the evidence is overwhelming council just made serious serious errors in this case mr wiggins should get the benefit of the plea offer that was open to him on the day of trial he should have both