our first case for argument this morning is double shane or against the united states mr herm explain either why those findings were clearly erroneous or why your client can prevail given the district court's findings and on that first issue judge for the clearly erroneous aspect we the  specifically said that he believed they could beat the conspiracy in contest the drug quantity there's an inherent contradictions and that led to the characterization the trial counsel's advice was excessively optimistic it was not excessively optimistic it was detached from reality in that reality would was was based in large part on the government's ability to prove just five kilograms of  d in in the direct appeal on this case citing ample evidence for for that case and for the existence of a conspiracy rather than simply a buyer seller so the  district courts conclusion is regarding the characterizations of the trial counsel's advice and also his overall legal strategy as being excessively optimistic was which was counsel the issue became whether or not the government can prove five kilograms of cocaine to trigger the twenty year mandatory minimum trial founds was throwing numbers out there and almost conceding that the government could prove five kilograms of cocaine  specifically acknowledging we know for sure that there are four kilograms that were seized and there are some other conversations regarding other kilograms that that is evidence that trial  trial counsel simply ignore the overwhelming nature of the evidence in this case in all of his advice all of his advice mr abuse in your whether to cooperate or not whether or not to accept the written plea agreement which are both tend refused to do so in part because your client consistently said that you would never cooperate with the prosecution now those are the findings of fact are taken all clearly erroneous to well the the findings of fact regarding mr lopez's testimony we we disagree with them i didn't ask whether you disagreed with them we would submit that they are clearly erroneous in specifically regarding hearing specifically that he believed that the evidence that he would be able to show despite pleading guilty to the conspiracy that his that the resulting sentence would have been seven and a half years which could only be a finding that there was less than five kilograms of cocaine that was involved in this conspiracy trial counsel also indicates that well maybe it's one hundred twenty one to one hundred fifty one months and this is again in borne out in the transcript the change hearing however if if the resulting guideline sentence was one hundred twenty one two hundred fifty one there was a simple possibility after the a fifty one findings so the district court erred  not framing petitioners decisions based on advice from counsel that he's receiving that he could achieve a sentence below ten years why would one then under those circumstances and based on that advice decide to cooperate in a case when the best one could potentially receive would be two hundred ten months prior to any kind of cooperation agreement that that's not a rational decision for one to make in any circumstances and especially a criminal defendant to make it may be a situation where he's entirely dependent on the advice of counsel the that the district court did not reach the prejudice good morning they please the court even those in your was not going to accept any agreement to call for his truthful cooperation this was his own decision it was not based on the advice of counsel it was not based on counsel's estimation  strengths or weaknesses of the government's case or any available or viable defenses it was his own decision this is a finding of fact made by the district court found in evidence here here and it is supported by the record and it is not clearly erroneous york this was an impossible figure so he was never going to accept that plea agreement that called for him to agree to that of amount of drug quantity that he was responsible for without him agreeing to a cooperation deal with the government and without him agreeing to the government's guidelines calculation the option that was chosen and advised by counsel was instead to under blankly to get whatever benefit there was from pleading guilty and at the same time leave open all arguments regarding potential guidelines calculations and there  a lot has been made of about what was said by counsel at the change of clearing the century all he was saying was that it was in the context of one of the penalties that the defendant was facing for the crime that he was pleading guilty  to the government stated well there's a mandatory minimum we think of twenty years based on the filing of the age of fifty one notice and a statutory maximum of life and a guideline range that we believe based on our kylie's calculation starts at two hundred ninety two months and all counsel was saying that the change of plea hearing was basically was that we concede none of that and all options are open including the validity of the age of the one notice and whether any mandatory minimum applies and any dru so the rejection of the plea was based on false and yours own of personal rejection of any cooperation deal with the government and his rejection of accepting of accountability for a guideline or for a drug quantity of over one hundred fifty kilograms of the decision and to withdraw the blind plea it is argued was triggered by the filing of the eight fifty one notice but the record doesn't support this the fact that an eight fifty one and has meant loomed over this case was clear to the listen your at least as early as april of two thousand and four a couple of months before he entered the guilty plea and a couple of months before the government presented its its formal offer of a plea agreement the only way to avoid that was to accept the plea agreement the government was offering and he was not going to do that and he defendants don't make decisions to plead guilty to withdraw pleas for to go to trial in a vacuum they rely on the advice of counsel and if this situation the advice was that he could prove less than five kilograms we submit that that was inefficient based on in this case that the case was taken under advisement