criminal justice act after burdens conviction and life sentence he learned for the first time that the government had allowed a key cooperating witness at his trial to have relations with that witness his girlfriend in government offices with the government's permission as an undisclosed benefit of his cooperation mr burton was persuaded to withdraw this very powerful hey b s petition in exchange for a new sentence that did not keep him incarcerated for the rest of his life however when he was rescinds he learned for the first time that his life imprisonment term would be replaced not only by a term of years but also by a life term of supervised release the life term was not part of his bar of his bargain it hadn't been disclosed to him by the government in the sentencing stipulation it hadn't been disclosed by the court until the moment that which sentence was pronounced that the possibility was was stated in the p s r possibility was state in the p s r although there is no indication in the record that mr burton as opposed to his counsel had knowledge and so similar to this court's analysis and shower man we should not impute counsel's knowledge to mr reviewed this with your client and the attorney said that he had but there was no specific reference to supervise release and so we're in a similar position albeit not in the in your review this with your client meaning the p s r is that right that's right have you reviewed the p s your client the counsel stated that counsel had reviewed it with his client but there's no record evidence that mr burton actually knew about the of supervised release and in that sense the case is similar to this court's decision and shower men from back in the ninety's when the court explained in the analogous context of a guilty plea that the court would exercise considerable caution before finding that no mission from the courts advice to a defendant was harmless and specifically said that we ordinarily do not consider an understatement of the maximum authorized penalty to be harmless we're dealing with a pla error test here but much of the language in sharm and seems to continue in this court's decisions even as recently as in two thousand and thirteen in a case called yang jia t n the court continued to talk about the standard of strict adherence and the examination of even slight procedural deficiencies and we think based on that mr burton should have the same opportunity that offended had and shower men to make a decision with this court's permission as to whether he would  that we're not in a strictly levon context here well we that it is a that is an obstacle for for argument but even whether we're in a strict ruhleben context or not even in wellington which the government sites there still has to be a knowing and voluntary entering into the agreement and so even if the court declines to extend all of the panoply of rule eleven to this context to not know of the sentencing consequences is a serious defect and in fact the district court for all intents and purposes did approach this with the same type of rigor in care that she might have approached the rule eleven proceeding except for this except for supervised release so mr burns in a position where he could be seventy years old and still subject to house searches that if his grandson has a marijuana joint in the kitchen drawer mr burton could be facing a violation proceeding of his old age that's what he's trying to avoid here and that's why we also have argued in the alternative that to impose a life sentence of supervised release above the guidelines range without any real explanation on the record is on the facts here procedurally and reasonable and that at a minimum we should go back to the district court not contending that he had no idea that supervised release could be imposed on this recent sorry well i we there's no record evidence that he knew that it was part of the bargain that he had reached with the government or that it was something that the  with anything that your honor has just stated the question really is whether it's appropriate in light of shower men to impute counsels understanding and awareness to the defendant without any record evidence perhaps if the district court had said did you review the p s r and are you aware of everything it says and he said yes this would be the if an appeal certainly had there been some reference let's say in the stipulation it might have been a different might have been a different appeal although we would point out that even in shower man there was reference to restitution in the in the plea agreement there and this court still found that there's no substitute for a judge looking a defendant in the eye and saying you face this potential penalty and concluding that if that isn't done there's an important defect and that valuable rights are being given up as now shit now shower him and what was more as a harmless error case wasn't that that's  with the pin side i think it for seventy one the court just to quote from the opinions is in finding plainer we know that this circuit has adopted the standard of strict adherence to rule eleven and therefore we examined critically even slight procedural deficiencies to ensure that the defense guilty plea was voluntary and telegin choice and that none of the defendants substantial rights has been compromised that's shower manlike language it doesn't cite shower men but it talks about the standard of strict adherence and the concern that even slight procedural deficiencies can give rise to problems in this context and mr burton had a very persuasive habeas petition the without reading the government's mind they were willing to back off of the life sentence that they had obtained after trial based on that petition he could have negotiated the deal with a cap on supervised release just as he did with a cap to go shoot something with a cap on the term of years we don't know but it was never put before him by the district informed by the entire record that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding yes that this and this court has explained that that is a reasonable probability standard  and here we think that there is a reasonable probability that he might not have had entered into this agreement not that he wouldn't have wanted to get out from under the life sentence but that he would have negotiated for something other than what he ultimately received given the valuable rights that he gave up by abandoning this heaviest petition with these very salacious and damaging allegations about very serious allegations about the government's conduct is it your view just so i'm clear that  the guilty plea wasn't of voluntary and knowing then the plea agreement should drop away and so translating that from the ruhleben context to this very analogous context we don't think that the appeal waiver serves to b challenge to the knowing involuntary nature i think even in the straight plea agreement context and i don't know that i have a cite right at my fingertips but even the plea agreement context if the plea was bad the appellate waiver can save the plea now a question i know that i also would like you to help me with is if you look at eighteen u s c thirty five fifty three c two that requires sentencing courts as you know to state in open court including the specific reason for the imposition of a and it is not a guideline sentence you don't make that argument do you well there any reason it is not to make it that there's no reason not to make it i mean we frame it as a matter of procedural reasonableness that the court has the obligation in capsulated in thirty five fifty three c two not just to state the reason but to link the reason to the sentence and here  district gave a long explanation about the reasons for her sentence of imprisonment relying very heavily on understandably the serious nature of what my client was convicted of doing which we can't abandon  supervised release looks to more than just the seriousness of what you have done the sensing commission says the purpose is to facilitate the integration of offenders back into the community rather than to punish them and so here there was no consideration as to whether life supervised release i mean you know the statistics are all very clear that as people get older ordinarily they're exceptions of course but ordinarily the likelihood of crime goes down and we're going to have a situation in this country in ten or twenty years with all of these life supervised release of essentially pensioners being subjected to house searches and potential revocation proceedings it doesn't really make any sense from a policy perspective and that's why procedur it doesn't hold up there should have been some individual ised tension but we agree that the failure to pronounce a reason for this sentence would also be an independent basis we i think we see it as being a piece of the procedural reason this argument that you  it was appropriate to put in a supervised release term under the terms of the stipulation the judge was limited to the term that the defendant agreed to which was three hundred sixty five months i we wouldn't be here if the judge had sentenced him to two hundred and something years plus supervised release that met the cap and i think if you look at the statutes and you look at the language of this court i think it's at least ambiguous although i think it's pretty clear  that supervised release unlike other things like restitution for example is part of the sentence of in prison and if you go to excuse you have to take up three five and three  it says the court and this is the supervised release statute the court in imposing a term of in prison and prison meant may include as part of the sentence supervised release compare that with the restitution statute which is three six six three a and it describes the court's ability to give rest a penalty in addition to a term of imprisonment so at at the very least my client was entitled to assume that the sentence they were talking about was three hundred sixty five months in total loss a psych this  this court said this opinion concerns only a challenge to a condition of supervised release included as part of the sentence of ten years and one so as part of the imprisonment sentence the judge entitle to order supervised release and objection to the pre sentence reports statement that your client was subject to five years to life supervised release well i mean that's what the statute says but the guidelines that they they they mention in the p s r was five years and five years later as i said depending on the sentence that the the incarceration sentence the judge imposed could have fit within the stipulation of there was no objection to the pre sars statement in this regard no but i would remind the court that  there was no supervised release and the first in the first sentencing that supervised release was not mentioned and i think it's fair to say you know that everyone including the the prosecution they had their their focus was elsewhere so it's understandable why it didn't become a topic of discussion it was certainly something that the prosecution case could and does on occasion include in their a deal where the client is facing a trial where he is the presumed wrongdoer and the government comes in with clean hands that he not twenty to fifty five he didn't asking for redraw right but the stipulation he is not in the same position as a defendant who's facing a trial in this case it was the government's  wrongdoing that brought the parties and to court and i think that puts him in a very different position particularly in light of the appeal waiver because there's something fundamentally wrong with an appeal waiver allows the moment to her to pursue appeals continue to continue to get relief in court whereas the person who was wrong does precluded from good judicial access so i would urge the court not to expand one sided appeal labor is to this context they're already silly generous for a plea deals they don't exist elsewhere in the law elsewhere in the law judicial access is supposed to go both ways but in this one exception we allow them for plea deals but if we if we were to interpret the the guidelines calculation and subsequent subset of reasonableness of the prison term when that mean that they're waived yes your honor although our position is that there was a breach of the agreement so the the the appeal waiver would not apply because he got sentenced to a higher sentence than he agreed to and so the waiver would not apply in any in any case and that's on the theory that the two hundred sixty two to three sixty five months includes whatever term of supervised visits i supposed exactly i'm i'd like to us to switch unless you have more questions in this regard to talk about the what i view i like the troubling philosophical issue in this case which is you had two fellows who did very very terrible things many years ago they go into prison they do everything that society could ask of them their model prisoners they find meaning in life they every party the government the court the defense all can see that these guys were fantastic but the and that they're not the same people that they were when they were sentenced but the district judges position was that yeah but they're in prison who knows what they're going to do when they get out of prison and this if you take that to its conclusion what that says is that a defendant in prison can never prove that he's rehabilitated and on a number of levels it the benefit of the doubt is supposed to go to the defendant you're not supposed to assume that he can never be redeemed otherwise you just have to say rehabilitation doesn't exist and now for our where we all of you understand your concerns you're saying that because your client didn't have notice that can't actually describe what it is that the court does with relaxed play nurse standard but i assume that it's just you don't require as much proof of me in the role loving context you've got  benito's which seems quite on equivocal with respect and i'm preserved rule eleven objections right that the plane air standard applies first of all this is not question assuming we get past the appeal waiver and we're looking at the the player standard and what happened in the senate saying context it disturbs me particularly with regard to your client that a lot of the focus of the district court seem to be on the seriousness of his misconduct and and even if we don't believe that a district court has to separately address the term of imprisonment and supervised release it's my understanding that in the context of supervised release we don't focus on series right you don't focus on retribution we're focusing on deterrence and the safety of the public and if you could address whether you think that would be a player that occurred in your clients and saying yes because that is expect explicitly excluded from from the supervised release and it's taking it one step further because she didn't actually discuss it in terms of supervised release we are trying to extrapolate from her sentence in general and he would seem to me it's plain error when you're going that far above the guidelines to  explain in specifically weiss why such a long term of supervised release is required why a fellow in his eighty's and ninety's would need to be surveyed that way and as my colleague said it's important to remember supervised release is not a minor impediment particularly for guys that have been in jail for as long as these guys they're coming out with no money no and they're supposed to if necessary pay for mental health pay for drug treatment and if you take away the where you are so i just want to make a couple point points before i try to respond to some of the questions you have already been asked first of all i did handle the havey as i wasn't trial counsel and i can tell you that this settlement was motivated and driven by the defense they from the beginning requested the government consider some form of relief that allowed for a new sentencing and not a new trial and that drove everything and it's it's you can see on the docket sheet if you pull up all the status letters that they docketed and the telephone status conferences that were on the record that that was their goal their concern and they were trying to do everything they could to convince both the government and the district court to consider some remedy that were minutes sentence below life and fight frankly of three hundred sixty five months or less as far as the appeal waiver the government recognizes that this court prefers and frankly  enforces waivers limited to what they say and so if an appeal waivers are not specific it won't bar a challenge to something like supervised release our contention simply is that this waiver was broad it was explicitly broader than the waiver in old oleta may have a case i can't seem to pronounce aloud in may he and so the court does have the option of recognizing that if the court chooses to enforce the waiver in a more brief any alleged error in connection with the recent sentencing and then it goes on it doesn't just say that it goes on to say in connection with the conviction the request for a new trial the the p rule of and i want why not isn't this a highly analogous context i think it is an analogous context the reason is different there's two two primary reasons the first reason is that unlike a rule eleven plea where you can bust the person you say this is your chance to you know you have a decision to make before you and then when you get to sentencing you don't permit a personal a draw their play here what you had judge told you is you can't she canvass them on act in october of two thousand fourteen then she said i'm not going to accept one way or the other orders the p s r to be a man to be amended the p s r comes out with all of the supervised release terms spelled out and then at the start of the march hearing the judge in two different times says to both petitioners do you want to go forward with this and explicitly gives them the chance to withdraw from the stipulation and so that really does take it out of that you don't that's not a rule appendix burton's appendix for sixty one you can see one ninety seven that they say that the stipulation is if accepted constitute binding agreements on a rule eleven yes they do say i can see that there were that this there's parts of rule level we explicitly invoked what i'm trying to point out your honor is that the the the goal here i think it's i think it's wellington that this court says it but what what what the court should be looking at i think is that was the stipulation entered into knowingly and voluntarily in other words it's we don't have defendants who or pleading guilty they were they never pled guilty they they maintained their innocence to this day they were found guilty by a trial by a jury and so they're not giving up constitutional rights at all there are things about the stipulation that are similar to a rule eleven but in the government's view where the similarity is simply that the court assume for just a minute again that we agree with you then at least with regard to how rule levon would apply here and was not plain in that context and we have counseled  and they had the stipulation they had the p s r the record may not affirmatively show us that they were focused on supervised release but it's not a plane or how about the next level and that goes to at the sentencing there did seem i mean at the recent thing there didn't seem to be an effect by the district court on the seriousness of the offense and the statute itself says that retributive interests are not at stake with regard supervised release and that could be an area that you could think of a speeding plane here that might require a recent saying in my my wrong about that no your honor i think in the government's view there's two things the court would have to agree with to a procedural basis the supervised release first the first proposition is that you can consider her comments in totality to support the supervised release form if if the court is in agreement on that then our argument the second part of that would be we have to look at all of her comments and i think it's what she's doing is not just justifying the life term a supervised release justifying a sentence at the top of the stipulated range and so those comments i think go to that we had a videotaped statement presented by marquis young who was in who was in a hospice essentially has been in medical care you know was enough from a hospital room so many years later so i think her statements about the seriousness of the offense go to that i think when it we look at justifying the term of life for supervised release i think it's her other samus that we can look at where she says explicitly i've i've heard all of this information about you i've seen some of the things you've done but still as i sit here today and as i review all the things you did back then i don't have confidence that this is the end i am concerned that you'll reaffirm and and those comments and i'm paraphrasing says to me support her concern about not just a long term supervised release but one with specific conditions the conditions that she that she orders do have to be supported certainly but also can you be used by the court to infer the concerns in other words a blanket term of supervised release with no special conditions verses this term this term she puts in the special condition of mental health and drug treatment she puts in the special condition of being subjected to reasonable  suspicion searches and she puts in the special condition about firearms i think you can infer from those conditions that when she talks about the seriousness of the offense what she's saying is she's worried that they're going to re offend i get the concern about hey we don't want somebody being on supervised release for the rest of their life as a practical matter that i mean i get requests to terminate long terms of supervised release all the time so the district court has the discretion after any number of years to simply say i'm going to turn that you're surprised at least based on how you've done what she what judge hall is doing is saying as i sit here today as i'm being asked i think the big context that's missing here is the ask of the district court and frankly the ask of the government was enormous here as they disappear pointed out had they been successful in their hevia says and cheap to new trial on the drug council loan which was largely supported by wiretap evidence they would still be looking at a guideline range from three hundred sixteen months to life and still be looking at all the relevant conduct and here though that the terms of and of incarceration are are within guidelines or below guidelines but the terms of supervised release are are you know way above the guidelines so in that in that context i mean i understand your rationale i'm out looking at a sentence some part is within or below and then that which is not explicitly discussed is above guidelines then it seems to me that there's at least some question whether  the the looking at the home rationale that you're talking about may raise some questions i agree with your honor were i disagree is the idea that this was somehow a guideline sentence what the reason the guidelines were lower is because the government dismissed the most serious acts and recognised in the dismissed there was no suggestion that the dismissal was because of a lack of evidence so the government dismisses the vie car count against mr burden and the act of racketeering which was the vi car against mr buchanan which otherwise would have required a mandatory life or a guideline life and judge hall twice had been asked to review mr buchanan sentence of life as a guideline sentence and refused twice to reset sam under regular lotto and i think crosby so what i'm getting at is the sentence of three hundred sixty five months she and judge paul infers this i think it's at page seven zero seven of mr burns appendix when she's asked about the credit issue on mr burton she says this if if you're asking me to accept this binding range and to impose an incarceration term within it a part of the reason i didn't give him that credit which he's not really entitle to is because i view that those months as that would be too low of a sentence and so she's coming off of a life sentence and in the context of coming off of a life sentence she's made a decision that well if i'm going to come down from life on in prison then i'm going to essentially put a supervised release term in place that's longer than the guy like she didn't make that explicit i'm not contending she did all i'm trying to suggest is that the court would have to be able to say ok we year term of supervised release and although the the waiver read literally and cording more or less from the opinion would have barred the defendant's appeal of a supervised release term  that because the defendant was not sentenced soley to the time served the court could not say that the defendant waived his right to appeal the length of his term of supervised rel and so i'm trying to figure out how this cases distinguishable is here the defendants agreed not to challenge their sentences if they were sentenced to between two hundred sixty two and three and sixty five months imprisonment but they were not sentenced solely to the terms of imprisonment well you know i think the response to that would be and i'd now find cunningham is it would require the court so in both in cunningham in the case i can't seem to he thank you they both use the word sentence when in other words not to appeal his sentence was the language of the waiver and our contention is are waivers broader broad enough i guess that's a question for the court but our contention is it's certainly broader than what you had in conning him in the sense that the attempts by the parties and certainly if hindsight's twenty twenty we go back in time we  connection with the recent thing itself so it's it's broader is it broad enough i guess is the question that's open our contention is that it is but if it's not then then your review would not be to allow mr burton to pull out of the stipulation that would not be to allow mr buchanan to start challenging individual guideline findings in the p s r it would simply be to judge all sufficiently justifier sentence of life and of supervised release and so that if there were remained it would be on that issue alone thank you point although one could construct a rationale to have a different rule from the circuits rule the circuits rule is essentially that unless the waiver specifically mentions the supervised release incarceration restitution whatever the element is it doesn't expand to cover that that the breadth of the waiver here  doesn't save it from being in the same category as cunningham world out of meiji and that what was missing from the waiver here was a specific reference to supervised release the other point that  would make is that although on the subject of the application of rule eleven i think the government said these weren't constitutional rights but but really the heaviest petition did invoke constitutional rights  violation serious undisclosed giglio thirty five hundred type material about one of the government's key witnesses so if the if the question is going to be our constitutional rights implicated they are and you know we think this is  this case is a useful vehicle for the court to clarify that maybe rule eleven doesn't apply to a stipulated bench trial like in wellington but it should apply in this context or in the context of a post conviction sentencing stipulation or really any place where a defendant is doing rule eleven like things we're happy to answer other questions but otherwise we rest our papers i'd just like to quickly say that at the notion that a defense attorney would now like the three to retry a twenty one year old case where the key witness has been called a liar and not just on the parks but on substance by the court where one where you know when regardless of what they had with wiretap evidence i can't imagine any case where you could say you have course they're going to when i'm retrial even though it was over twenty years ago since the last trial and the judge said that it would take about three years to get this case initially to be retried so now we're talking close to twenty five years and i think you know legally as a side a realistic view there is no case that's a slam dunk twenty five years later  a couple of small points my client did concede that he was guilty he expressed the boards and he apologized to the court and he accepted responsibility judge livingston in terms of the part of the agreement that says it applies to any error sentencing it applies to any error at sentencing if the promises that were part of the stipulation are met and they weren't met here because he was given a sentence that was more than what he had bargained for  question one thing i just want to mention on the substance of recent in saying is the government says that because of the one book that the fact that the the the the the  by car counts would be had higher guidelines under the the more the more recent guidelines guidelines that that would preclude our argument i would point out that the guidelines reducing the drug the drug said and says are retroactive it doesn't matter which book you use the old book and the new book are both governed by those retroactive changes so the only so if and he used she used the proper guideline rules that were in that did not raise his sentence he would have ended up being a lower s thank you thank you thank you off your arguments the court will reserve decision