did not realize and did not advise mr winstead that he would be opening the door to the devastating savannah street evidence if he took you all to know how the argument that he was in effect the yes then and also with with real counsel the government doesn't really contest that there the record establishes a basically a breakdown in the adversarial process at sentencing and if there was multiple deficiencies not understand the guideline calculations misunderstand the court discretion to vary on policy grounds and basically have to create a new studio of loyalty and advocacy the government doesn't really contest these but essentially argues that there's no prejudice that somehow we can be sure that you know there was no need for a lawyer because judge bates he had this and he understood everything and he could sort of decide without a lawyer or any advocate whether mr winstead what the the sufficient but not greater than necessary sentence was and tries to argue that this court can determine defined controlled substance offense term by adding crimes that go beyond quote such a fan says and that whole thing is not just circular in a logical but openly expands it doesn't clarify it expands the attempted burglary is not burglary and likewise here attempt a distribution is not distribution and in james although that was an accurate haste the court actually took a side note talk about the commentary that we're talking about right here and makes clear in its decision that that this course make clear that based just on tax doesn't need to be a case that serve as exact facts or whatever on point and we also frankly the government's case is just really i think we've demonstrated i replied you don't really confront the argument we're talking about with you that the sentencing commentary is inconsistent with god what we're concerned about whether or not that's playing there or given five circuits the other way that we guard less if the court agrees with us that he needs  commentary on the guidelines are consistent and therefore that should have been raised should have been raised or i guess just giving recognizing that there's going to be a dinner we sensing in this is an issue going ahead and giving the guidance just as the court i guess sometimes doesn't hear there's going to be a new trial so we'll go ahead and address this evidentiary question so we don't have a second trial that gets messed up and same thing here this is going to be raised on resentencing any explanation of that sort of relies on a kind of a propensity kind of theory that like he doesn't get credit for not doing it not having a propensity to do this again because he's locked up in can't do it and i think the better argument is etc those sorts of things and while you're in jail you're familiar with the drug market is this dissipating faster than when you're on the street presumably and the government's argument doesn't make a lot of sense because something's either stale or it isn't i think under under their theory  which really is a propensity quick it's a very new the a lot of confusion very thin line and it's hard to kind of balance it in your mind i think here even in the quote i suppose you are right about that isn't there enough evidence anyway there's enough evidence that i guess that that's not really that the harmless analysis isn't sort of whether there's enough left but whether you know we can be sure the jury's verdict wasn't impacted by this evidence and sheffield on the factors that ma believe it was harmless art none of them are present here specifically they emphasize that he was just this sort of one line a kind of priest past the jury whereas here you know there was the sort of compelling dramatic evidence which about you know the specific the voice on the tape isn't he doesn't remember the conversation when he admits it's it's his prison id number he's the guy who's brain the driver is george it just seems no reason for the jury to believe him after so i don't you know i don't actually see why this isn't a typical harmless error because the evidence is powerful against him you have two officers testifying about the drugs in the cargo pocket i understand you have an argument about a small inconsistency about the moment at which they found it but i guess maybe it's ineffective assistance this isn't mentioned in the closing argument at all that garden we're not contesting but they also made his credibility they go to whether he's a liar and when he testifies that he didn't have the drugs on them wasn't his god the other guy's god he wasn't drunk all these things all of which turn out not to be that's true why should anybody believe him about anything and if they don't believe him about anything then he has no defense at all well he still has the same reasonable doubt arguments about the drugs but what i reasonable doubt argument you have to offer up assuming that you don't get that the but let me just say this i just want to say this one point that on the you know how compared to savannah street i just want to point out that this sort of turning the government's argument around and they made a big point of why do you need all three of these and they argue that each one is presented uni distributed and then defines the liver as attempted sounds like congress at least at least in a very close not exactly the same but very close saw an attempt does not actually make that argument nor do any of the i don't think any of the cases that they point to which don't actually even address this argument i think the way that they right there i mean i guess i would say we're looking at sort of a generic or common sense meaning of the word distribute and i think that they need to if that's what they think they need to say that just as congress set it in that you know to you're talking about they need to say it and have it be congressionally approved to me if that's what it's going to include it needs to be the guideline needs to define it that way not congress is not approving attempts in this situation it's not like the word distribute like everyone would automatically think it know it's clear it's like it's a question was on the residual cause and one other thing i haven't had a pardon for some sort of forty four hour you were right yes yes but i do want to point out that as to what the commission is thinking i think we know what the commission was thinking because originally as i point out in the brief when this guidelines put in place and originally nine hundred eighty seven it did have a sort of a residual cause it was a list of enumerated statutes which is why when price sound that these offenses with a residual clause with the current definition there's no longer a basis so we know what the basis was and then they took it away by taking away the answer where fences clause so now is just hanging out there it hasn't a freestanding authority it can only be interpreted something and the way they are rewarded they could've simply could have easily done it a different way and put it past congress but they didn't it would be easy to do so now i would point to the you know contrast this statute with in alexander when the court dealt with the aca definition where they weren't involving didn't say prohibits distribution as prohibits offenses involving distribution manufacture the court relied heavily on the word involving to say that includes because th t attempts and what not and i also would point to the eight felony drug offense definition that triggers the eight fifty one notice in that in that definition of the court that the is quote an offense that prohibits or restricts conduct relating to narcotics so those sorts of language yes can include attempt and i think the court ruled in relying so heavily on the word involving the inference is that without that was yeah all that did is correct the authority problem the authority to like to do to basically it's funny actually because it's the authority to broaden you  know the guideline court saying they can't can't do this and nobody has the court to not address the stinson argues proof before stenson but i don't think all that's happening there is this court and i had one other court had recognized  important to remember of course that the court was presented with four pieces of other crimes evidence three or three convictions with the underlying facts and savannah street which appellant doesn't even challenge on appeal was properly admitted the court admitted all four pieces of these evidence and it was only two months later when the government said you know your honor i we don't think we're going to use the savannah street evidence in the government's case and she appellant never came back and said oh by the way let's redo the it helps us it might hurt the prejudice argument potentially but it helps certainly helps us on the merits are going particularly the way the government put it in here we put in the facts with transcripts there was you watch with explain to me second complaint about sheffield is that sheffield never says why conviction grows stale in the first place in fact judge bates said when it comes to knowledge still this really isn't that big of a problem i think judge base was thinking and i think many judg a lot of people would say it's like riding a bike you don't just forget how to ride a bike i mean and so sheffield was a case in which the government just put in the underlying facts and the there was there was no with a different drug how does that give you a knowledge of the drug that we're talking about i think if a person is out on the street for ten years has not been arrested or convicted of a crime there's no other crimes behavior it certainly suggests perhaps it doesn't suggest you forgot how to do it drug what if she just says he may well have lost the program actually committed a crime but that's so puzzling because that's not supposed to be something we consider that would be one way of looking at it sure i don't understand what the court is saying but it is another way to view that would be the appellant has in effect turned his back on a life of crime and so has forgotten and chosen to forget a lot of what he used to know part of the time between the original offense and current right yes jury i understand it to be a question for the judge is a gatekeeper trying to decide the relevance and he's looking at the relevance of this whether it's appropriate to go to the jury of course this is a fact that he's not going to tell the jury but nonetheless sadr has no way of measuring because the jury doesn't know whether it's because he was in jail or wasn't in jail doesn't know whether his intent has dissipated whether his it's not something that the jury would be in a position to assess i guess that's true your honor certainly the judge is making a decision for the jury about whether it's fair for them to assess it whether this is evidence is probative that's the judge's role as the gatekeeper to to screen saying it doesn't i just want to hear what the rationale was certainly that the two thousand and two offense was an actual distribution it was a by bus case and by the palin actually distributed sold marijuana to an officer so it is a particular probative of the distribution the nine hundred ninety eight offense was twenty three ziploc bags of crack cocaine it was the same drug and it was actual possession and such to the extent he intended to possess it then which he admitted that he did  extensive conversation of exactly this issue that's that is exactly our point that you're less likely to forget how what crack is in jail then you would be leading a life is not a citizen on the streets  suppose we were going to conclude let's just suppose we were but that's likely maybe even more than likely that attempt is not included within the guy think its heart no i wouldn't think so your honor because yes the existence of these five opinions in different circuits would put the council on notice that it was an issue i think that's the court's point but the fact that every circuit has ruled against him suggests that this is not meritorious issue and certainly judge bates wouldn't having a reason to think that this was a meritorious issue there isn't any reason to think it's because it's not just a question of perhaps being broader than the guideline it's a question of being plainly inconsistent with the guideline and it's not plainly consistent with the guideline eleven circuit this court said in two thousand and three in a norman williams case face a very analogous situation as to whether attempted burglary was within the guidelines definition for a violent crime of violence and this wasn't relying on the residual clause of the fourth clause and this court said on the face of it attempted burglary thus falls within the definition of crime of violence burglary is such a crime in application no one tells us attempts to commit a crime of violence are also such crimes that we do with james wh in the eleventh circuit that the eleventh circuit in line looked at the definition one truth like when one considers the effectiveness of counsel that not and at the same time be particularly zealous and ask him the question whether or not legal are watching more and legal argument ten years almost ten years that's an enormous consequence well it's a long shot argument that could that would potentially i don't want is a long shot argument i suppose i think it's a winning or is that me i would conclude that said counsel has an obligation to raise every possible legal argument even ones that might possibly meal be meritorious even though most every circuit to consider it has rejected that argument that's what you really get a high bar one readers they're not as good a guide to the rule of law that's what they tell us your honor i do occasionally read the dissents i certainly read judge sent tells concurrence in sheffield in which he said there were four judges they considered this matter and two of them thought this was a completely you really arguing that there is not an ineffective assistance claim here all that deserves to be sent back and then i'm sorry i didn't understand just the room to be asking me that question i thought he was asking me about the merits of the dish and i thought you weren't able to answer appellate clarified with respect to the plea proffer the advice of counsel with respect to whether or not he should plead to the indictment he's now saying that he should have pled to the indictment and i think that he has under laughter made out enough so that under shot that that would be referred we do think that although we didn't challenge vigorously some of the deficiency arguments under rashad because we don't think we can conclusively show that a counsel is not deficient that there are strong prejudice arguments and we're relying principally on the prejudice arguments for most of the ineffectiveness claims i would the possible exception to that would be of course the advice about whether appellant should have testified i think it's unfair to counsel to say that he on this record that he gave bad advice what we know is that counsel that appellant wanted to make certain claims that can only be made arguments that could only  if you testified he testified he just testified really badly by telling an awful lot of lies he should've sprinkled the truth in more with his lies and had a better chance but asking the court obviously asking the jury to think that it was a coincidence that he your unaided in the woods near two guns and the police planted the drugs in his pocket that was just not going to fly with any jury and his testimony concerning home and accordingly what by the time that appellant got to a closing argument he made the best of it he chose the most the best arguments and he chose not to squander his credibility with some of the ridiculous ones and so but i understand that and on some of these cases under the shah that if it does have a good chance for  second nobody knows how her not having i don't even try the second thing i want to say is i think as far as your your question of how much time if he's not a career offender i think at one point in the breeze we may have said it was like two eleven two was like when fifty one plus sixty was like two eleven to something and i i realize i believe that is actually high because if he is not if it is two things are not controlled substance offenses that takes off i believe either four or six offense levels from the gun yes if neither one of them qualified i think that i i thought there was too far in the weeds to recalculate this last night so i didn't apologize or didn't do it but i think that it's approximately maybe like one hundred ten months plus sixty that's my memory something in that range so that's you know a good two hundred two hundred ninety to two hundred months difference if there's no further question ially no real advice given that should have been given on the decision to testify and specifically i'm just looking i disagree with the government that  that only say when he says he's doing this based on my advice that this is the only way to make certain arguments i think that that's actually bad advice because it's incorrect because the things he needed to be made and also his failure to advise the defendant he was completely misunderstood the sentencing exposure so when he's advised the defendant rather take the stand the defendant needs to understand what's at stake and what the state of play is right now like ok i'm not going to get convicted on the guns and i know how what you do but don't worry that's only a ten year sentence we have a good reasonable doubt claim on the guns we're going to drugs which you get up there and tell ridiculous story you're going to lose that and that's twenty years so it's one thing to roll the dice when you think you have have no claim and