first case for argument this morning is united states versus or and three and mentioned in the government's twenty eight j letter it appears that that case strengthens mr george take it claim that the court should have permitted him to withdraw his guilty plea to take advantage of the the standard of review here into the question of the discipline in refusing to grant the motion for a new trial and given given the fact that this was a strong motion we believe it would a fair and just reason to withdraw a guilty plea but he didn't seem to take into account that there was the intervening decision that really changed the law of the circuit so that the motion really couldn't have been brought in good faith before talking about it we weren't sure why the items were granted amazing that there are no there are not that many cases directly on point and i think the reason is because most probably many courts would believe that it is a fair and just reason to let someone take advantage of an that's along the lines that we would evaluate whether there was any basis as to in effect that we have to fish analogy of the entry of the place i mean it was like he was merging the standard analysis and he didn't what we have here is a a claim that as we point out in our brief fairly could have been raised earlier in fact the defendants in the reply brief point about the united circuit case  court's language in choosing the word invalidate might have been an article but i think if you put the two sentences of the court's ruling together what the court is clearly saying is that the defendant has not presented a fair and just reason of weather that the plea was valid or invalid in terms of knowingly involuntarily entered and i think that's that is part of the standard certainly that unless the defendant makes a showing that somehow the plea was on intelligence or involuntary that counsels against a finding of a fair and just reason to withdraw the plea in this case the please call me was extremely thorough let's put it this way you don't you don't need to invalidate the plea in order to find a fair and just reason to withdraw and that's no fair and just reason and so in a way he's he's mixing and matching and maybe he didn't mean to but that's right and that it was an invalid therefore it doesn't fall under the fair and just and your argument a plausible one maybe that's really what the judge is thinking i think the difficulty we're having is going to be doesn't it make sense to just send it back and if you're right in terms of your equities back where you are fancier wins the day then you have an opportunity like why would that make the most sense in light of this kind of a record is the court considering sending it back for to allow the district court to clarify its ruling with respect to the denial of the withdrawal motion ok what do you think are the are the range of our options not necessarily you would agree with all of them but what's our options well the most limited remained certainly would be to have the court clarify the basis for denying the motion to withdraw the plea and i think  court instead of using the word invalidate in its oral rulings simply said that even assuming it briefly constitutional violation that by itself is insufficient to warrant withdrawal of a plea or to permit a defendant to withdraw his pl think the court the panel here would be much clearer as to what the court's intent was and we would then be able to address specifically the issue of whether that ruling was an abuse of the court's discretion and we could move on perhaps to whether or not the defendant had raised  valid challenge to the underlying deportation so that the natural allow the courts and clarified its findings with respect to the reason for denying the rule thirty two motion we present this court with an ample record i believe to post context should be applied pre contact but to argue against the great argument is again arguing with the lid of the of the police i understand the court's point but again just for the government's position that to the extent the brady if any constitutional challenge that the defendant thought of post qually pre sentencing could present a fair and just reason to permit withdrawal of the plea and certainly there would be some case out there that said so have whether that be a suppression motion whether it be earth a challenge to a statement whether it be a challenge to an underlying importation that the defendant does not automatically get to withdraw that me simply because he has thought up in later challenge that cats like  lots of lots of defenders will be able to come up and concoct some kind of a femoral due process violation that occurred that they will that they will process on appeal and therefore would like to withdraw their their their guilty plea but if there's if there's something that's meritorious there are a district judge would be i think would be wise to say that you think there's good reasons for for wanting to fix this at this time and why wouldn't the district judge one of the ones that want to take a look at the at the s plea is valid and therefore there's no equities although the district court's ruling was certainly a brief and terse one from the bench and in its written order i would say that it's not fair that the court didn't look at the merits in this case at the same syria issue and perhaps that would be something that the court would get relief i would get only time the government approved the age of the victim which they could do so it was useless to wait around and have to happen because the judge told me i wouldn't get relief anyway i believe there are the court is reading from an unsigned declaration prepared by defense and of course  unsigned because in fact in fact it became almost academic once the judge said i'm not going to allow you to withdraw your plea because by the way it's invalid i mean it's not in talents valid sorry  there was no you couldn't get no reason to get to that other issue well i mean the government's arguing he doesn't even have a good or maybe that that's an argument the only evidence in the record of the reason why the defendant at the immigration hearing declines to avail himself of the opportunity for discretionary relief was the statement that he knows he has a criminal history he's seen people with less criminal history that he has apply and get denied he just wants to some type of particle rather than using the correct description of it in terms of waiving and the court held and if wire chalo on banks that the terminology is not important of course that is a very big difference between saying ok i can give you some relief and it's within the discretion of the attorney general and that has a lot of the aspects of a pardon here what was going on clearly from this release it appears from the record was it he thought that in order for him to be qualified to be entitled to relief or to be considered for relief he would have to contest the age of the victim and that's a very different type of thing from saying whether or not you might qualify for two twelve's the relief well  forms of relief and i tell you one and you say on that the other two forms i only tell you about one and you say no i can't i can't fight that i can't fight that we are to conclude from that that if you had been told the other form of relief you would come to the same conclusion that's a fair reading it may be a very fine point your honor but i believe that the immigration judge didn't put the burden on the defendant to prove that he had molested a child but simply said if the government later comes forward this turns to be an aggravated felony then you'd be eligible but again the reason that the defendant gave which is the only evidence that we have of what was in his mind at the time had nothing to do with the age of the victim or the aggravated felony it dealt with his criminal one thing i'd like you to address is mr sanders said if we found the wrong standard then the appropriate thing to do a beetle go back and as we often do when the district judge imposes standard to go back and do it under the right standard then we'll all know what the answer is under the right standard what is your position on that your honor i think it's telling that there is very you know very few