are a good afternoon everybody welcome back to our friday afternoon session with two cases left on the calendar this afternoon for hearing st up is the united states versus may here mr corps and i understand you and under local rule forty six a it's my pleasure to introduce this to student council who will be arguing for a thank you st i would like to say we greatly appreciate this opportunity for experience in legal or labor but again thank you very much for this opportunity thank you mr corps and we very much appreciate your school and the students taking on this case and helping the court with th with the matter look forward to hearing argument and we'll begin this afternoon with  this circuit has this court held that counsel rendered deficient performance when he missed advise the defendant about the elements of statutory burglary offense and the strength of the defendant's case and the defendant suffered prejudice from such advice just as this justice this court found that based on counsel's deficient advice which reflected his lack of knowledge of the pertinent law the court concluded that counsel's performance was constitutionally in adequate similarly here mayhew's coun he was misled by as to what the maximum sentence was or as to what his potential exposure was given his particular circumstances including any potential enhancements  maximum sentence that that's sort of the mis advice here was not effectively cured by church fox's fairly careful recitation as to what the maximum sentence was for each of the counts that mr may he was facing and in fairly good detail explain to him what the maximum sentence was for each count and then on top of that he made it very clear to mr mayhew that whatever advice or estimate his lawyer may have provided as to his potential exposure was just that an estimate and that he was ultimately the the sentencing authority and he would be the one who would impose sentence in this case now maybe the mr may he wasn't paying attention because he was distracted by some other things but the question is whether or not a reasonable observer in these circumstances would have thought that that cured any potential mis advice so what's your take on taking all of that taking all of the circumstances in that way that in this telling me that that's just an estimate there's nothing no guarantee of anything it would seem to me that that would put somebody on inquiry notice that there's a disconnect there or maybe out a pipe up and say something your honor he as well as the fact that he didn't even know what was going in for an arraignment hearing the able for trial he had expressed that extreme concern that council had not been had not given him the appropriate information and guidance ahead of opinion from two thousand and eleven counsel has had full ability and full right to to write and sign your own contradictory affidavit and they failed to do that and they feel to provide any contradictory evidence of any sort so counsel did not sign this affidavit they also did not provide anything to contradict the statements that make you have made did i just in terms of where that leaves us i understood your brief to be maybe arguing that we could find ineffective assistance on the record in front of us rather than sending it back for a hearing but there is nothing in the record that proves that the council actually said this the two to five year thing so wouldn't wouldn't the most we could possibly do be to send this back for a hearing to find out what actually happened no your honor and here the fact that there is no contradictory evidence from from the from asking you whether whether mr mayhew ever signed something under oath saying i was offered it i was i was given advice as to a guarantee where i see that my time is almost right answer your question yes please apologize for interrupting but we have such limited time it seems to me that whether or not it's jurisdictional isn't exactly enough to get you where you need to go even if we thought this rule were not jurisdictional do you want to get to the part where the statutes tax seems to limit it to cases where someone is seeking release from prison rather than just challenging the amount of money they have to pay because even if it's not jurisdictional it might still be a jurisdiction all that court ok counsel i think i'm not being clear about my question i will assume for the sake of argument there this is not jurisdictional the court doesn't lose jurisdiction because someone is not seeking release from prison my question is whether it's jurisdictional or not why is there a cause of action under two thousand two hundred and fifty five dollars if you're not seeking a release from prison and you're only challenging the amount of money you have to pay i'm assuming it's not jurisdictional but i want to know why you can go forward why is there a cause of action particular restitution sounds that were the subject of dismissed charges were also included with included within the range of sentencing for the youth and level and don't become counsel can i don't want to tell you how to argue your case but it looks like what we what we granted the certificate of appeal ability on was whether mayhew's particular claim that defense counsel rendered ineffective assistance in failing to object or restitution psalms is and i thought judge floyd was suggesting that your argument might be that yes his claim was cognize of zero because the failure to object to restitution sums actually affected his sentence yes your hon yes and because the failure to object to restitution not only affected his restitution order effected his base offense level because it increased by two points and so the inclusion of those trial cause he was guaranteed no more than five years in and i say that for a couple of reasons st of all the alleged error here and there's been no resolution and whether or not there was error here that's all left which is that the attorney improperly made this year and to that it was no more than five years in prison and if we assume that that's true if the court correct and  know can i ask you a question about the court correcting it so i know we have all these cases where we say the district court even where there has been this gross miss it by so the district court fixes it during a rule eleven  colloquy and before the defendant accepts the plea by informing the defendant of his actual sentencing exposure but there wasn't a rule eleven colloquy here because the defendant didn't plead guilty and so he wasn't advised of his sentencing exposure by the judge before he accepted a plea he was advised of his sentencing exposure after he already rejected the plea and so i don't really see how those cases address this problem he had already rejected the plea there is nothing in the record to suggest that after he was advised that his mage attorney was wrong the plea was put back on the table the government said now do you want to reconsider so i don't see how you can fix it it's sort of like a cat out of the bag problem how does it fix it if and he is alleging the prejudicial effect happened at the moment he turned down the government's plea and the government's own brief very forthrightly says that was the night before the arraignment that's when that went down and then the next day he's given information that maybe convinces him wow i might have screwed up last night but how does that help anything well your honor do you think the question here is this well or question what would he have done if you had been received good advice and he answers that question because you know ok so i think you should i take from your answer to my question that you are off this point that you are conceding that the fact that he was advised of his sentencing exposure after he had already turned down the plea sort of washes that element out and now we're down to that's but for question under laughter i guess i guess i don't separate those two points your honor and if you could just let me explain for a minute  think that i will i do agree that this doesn't present the exact same situation that the plea agreement situations presents but i think what it does present is the court gives him good advice and after this good advice he said it was i still want to go to trial and when you get the language right he says i have every intention of going to trial  trial he doesn't say well actually i want to take that plea now he doesn't say you know you're honored i need let let us have time to reconsider and take this plea he gives absolutely no indication that some guarantee had any effect on this and so the court records the advice he has a chance to say anything of something about it and the only thing he does say is i want to go to trial and so i think that c ely answers the question of did this under a law did this make a decision and difference in his decision to plead guilty to to pre filter not guilty and the answer is i had no idea that that was something i could take back after the fact so this and whether he can prove that or not at a hearing i don't know but it seems hard to me looking at this record to say it is conclusively clear on the record that he absolutely like it it made no difference and that's the standard right you saying your brief that the standard is if it is not conclusively presented on the record that there was an issue the defendant loses but that's wrong it's that if it's not conclusive on the guidelines restitution amounts different all if they are yes your honor well in the pre sentence report they calculate it restitution and and firmed the loss of rights based on the appeal that came before that was objected to in sentencing and it was appealed before this court this court affirmed so that the restitution has absolutely no impact on the  impact on costs it is a separate calculation and if you give me a nd i'm going to give that for the difference between the two legal standings so when we consider restitution the question in a case like this were  pivoting oh actually i'm sorry i apologize i reverse those to the person when i get it's actually a loss so it can either be a part of the same course of conduct or a common scheme a plan with restitution defraud that occurred after mayhew's mistral and so while he's on on pretrial release he commits commits a new fraud scheme there's two hundred and ninety eight thousand dollars that's part of  loss and restitution there is no doubt that that's included paul as loss absolutely no doubt because that's a group for purposes of the nd same guidelines it's part of the common scheme conviction it's outside of the time frame it's a different scope of conduct and that may be true that's not an that's not an issue the district court considered below but that that is an issue that only impacts restitution if that's a mistake it has absolutely no impact on the loss of which this court has already affirmed it only impacts restitution mr bragg and i thought that part of the defendant hans that we're just so messed up before trial we're the united global investment crisis so is there any question that i mean a timely objection to those portions of the restitution order would have been sustained so let me let me split hairs a little bit you're on the to counts that were dismissed at trial relating to make ross and fergus those respect to the united global investments which was that counts dismissed before trial that is not within the time period of the wire fraud scheme or mail fraud scheme or a conspiracy and so i would not i would not argue that it's an objection was made that two hundred and ninety eight thousand dollars should not have been ok so that's true then so what are we to do about that kim the current posture of this case so so i think if you if we look at the case law when you look at twenty five hey b s is limited to  he's asking for here is a relief from the restitution order he's saying it affects his sentence and so that would be cognized of all right well yes your honor and i apologize i thought i was addressing the already by saying that restitution has nothing to bombs there's some cake and can i say one of mine in my concerns or is that the district court in and he had a lot of claims in front of him and so in addressing this one he made this point with which i the rest was there ineffective assistance as to the failure to object to the restitution order did that affect the sentence wouldn't it make sense for us to send this back at a minimum and let the district court take a look at that rather than trying to work that all rd i could be misremembering but i believe the defendant did say that restitution and loss were related together in his in his hey b s petition i think he did make that argument and the co rejected that when they said this is just about restitution it doesn't have any impact on this and i would also point to the court twenty three dollars cases that say even if there's multiple issues petition when when is he or she supposed to do it i do not have a conclusive answer to that question your honor but i will say a couple of things the st thing i will say that relate to them st and that's how they are limited and so not everything can be done at the rd thing i'll say is that some courts have looked corum nobis as a potential there's an over two million dollars restitution if the defendant made every payment required by the district court in over the course of his twenty six years imprisonment and its three years of supervise release philip played less than twenty five thousand dollars this is not a case where that got two hundred and ninety eight thousand dollars is likely to happen in the end on on him or the amount that situation a remedy to this case i doubt that this case is is is that what defendant cites the th circuit in a footnote says we're not going to apply that earlier case to restitution and we realize that a number of cases have gone the other way on this what an evidentiary hearing would provide us that we don't have already with respect to the assumptions that are being made here right the question is first of all that the different that the lawyer provided deficient advice and assuming that to be true for purposes of this appeal and we've got what happened on the record at the hearing and i've maybe this is a question better presented to your colleagues on the other side is what else mayhew present other than to say obviously that he would have taken the plea but for this deficient advice that we just need to measure that against what the record evidence shows happened at that so i think the courts will conclusively about the statement the sworn statements that the defendants make this is a sworn statement and in that sworn statement he pleads not guilty and says that  wants to go to trial but one other thing that all points to you and this is not a part it's a part of the record it's not part of the joint appendix and but entry one of the is  docket entry that discusses base use many complaints with his or other attorneys that appeared before this and how and if you look at it many of those complaints are very similar to the complaints against to that he wants to go to trial and i recognize all of that appropriate i don't know the denture issue but i don't think the defendant has shown here that  and can i ask you about their point is your point that he was caught off guard and so we shouldn't hold that against him that he might not have been paying as rapt attention as he might otherwise had he been given notice that this was an arraignment you know you're on your  ok i ask you about that so is that really correct i mean i suppose we say often and i think correctly so that we don't normally consider ineffective assistance of counsel claims on direct appeal because it needs you know development  records and and the like and that makes a lot of sense but if a claim is so and it were claim is so obvious there is so obviously deficient performance with respect to acquitted conduct that restitution could never be a part of that that that amount should never be a claim i don't want to interrupt anything but i just want to make sure that you would have a chance to respond to what i take to be the government's sort of main argument on this claim which is even if the restitution order was higher than it should have been because of ineffective assistance that would not have affected the loss amount at all so there is no effect on the sentence did you want to respond to that your honor the government in their brief on page twenty nine actually says that in this case the last amount and the restitution amount are essentially in this particular case those two are the same and that that was how the court was using them in presenting them and we believe that there is ambiguity and how the sentencing guidelines construed the last from just miss charges and their inclusion in that for the purpose of base offense level sentencing appointed and and obviously we could not do the work that we do without talented lawyers and in this case student council being willing and able to present their cases before this court and done so ably and i also wan ably representing the government in this case we would typically come down from the bench and personally greet each of you obviously we're not able to do that here today but please know that you have our thanks and gratitude for a job well done so