our fourth case for this morning is spiller against united states good morning your honor ceremony please the court in this case mr spillers trial counsel advised him to plead guilty to three quality offenses in k instead of taking the government's plea offer under which he plead guilty conduct which he was he was supposed to admit to the facts underlying the other two correct under yes he would have admitted with under the agreement and he would have admitted to the facts but not to the can he would not receive the conviction and similarly when he plead pleaded guilty to three felony offenses he again admitted to all of the fa so so if i can summarize the differences me counsel asks a what's the point of this you know proposed plea agreement which seem to me a reasonable enough question to ask the government that in your view the differences are number one there are two additional for mole and i'll call it felony convictions i suppose if he has missteps in the future they would be part of his criminal history number two he's got the two extra special assessments so two hundred dollars gets paid you mentioned number three i think the possibility of his participating in the drug program in the prisons  and i'm not sure whether there's anything else but maybe you can tell me there's a we know in sentencing that the fact that mr spiller was convicted of a gun crime did play very heavily on the court mind and the court referred to it as the worst mr spiller would not have been convicted of that crime but you're right your honor that the major prejudice that was suffered here was two additional felony convictions the fall case which is cited by the government addresses the fact that extra convictions even if the sentence is the same in length extra convictions are prejudicial and they come with collateral consequences so i think at this point we can take the government at its word that these two convictions and the special assessments in and of themselves were prejudicial so at that point we turn to the question about performance of coun whether counsel's performance was deficient when she made this recommendation and i'm not asking the court to determine that it was on this record what i'm asking for is much more modest it's simply an evidentiary hearing under which counsel strategic reasons or perhaps lack thereof could be explored at the district court level in this case your honor the district court denied this petition without holding an evidentiary hearing and we believe  and that we certainly can see it but there is the fact of two extra conviction convictions there's the ball case if counsel in his in a position where she's weighing between two pleas which are otherwise exactly the same and will be made to the same consequences then it does seem deficient to recommend to your client to take the one that will lead to three felony convictions including a gun conviction rather than the one so let me ask you whether you are pressing the argument that the district judge looking at the playoff or made a mistake of law under fried by thinking that it needed to have fixed expiration date we do believe that this was air is flush out in the brief the government doesn't appear to take issue with our argument and says it doesn't matter for purposes of the analysis if this court wishes to address that issue we believe it's spelled  very fully in the martin decision which i believe was seventh circuit precedent the in this case the plea offer it was essentially it wasn't signed but it was essentially sealed and delivered it was given this is not a case where as in frye i believe there was some speculation as to whether there was truly an offer on the table right or still an offer i mean the reason i raise it is because i'm just trying to tease out the extent to which the district judge was motivated by thinking that it really wasn't a plea offer situation anyway was just this plea declaration that mr spiller winds up filing that would be one scenario the other scenario yes it's a plea offer and i'm just go compare what the terms are in the two i do believe it's not entirely clear when you look at the district court's decision or how much the district court felt well i don't have to consider very carefully whether there was prejudice or deficient performance because there's a threshold barrier here mr spiller doesn't doesn't meet i do think that that is concerned when you look at the decision  court doesn't seem to if the court ended up speculating about counsel's motivations for recommending a blind plea rather than recommending the government's plea offer and we submit that that speculation is improper in this case and perhaps it's true that the district court felt maybe a little more latitude to speculate because of the concern about whether the plea offer was there to them and the first place or a proper plea offer if this court has been very clear that it is that district court should not give deference to strategic decisions when there's nothing in the record to suggest how or whether that strategic decision was made but that's what the district court i believe did here in this case we don't know why counsel recommended a blind plea all we know is what mr spiller has stated which is that he would get a better sentence by pleading blind to three felonies rather than taking the government's plea offer for the one we do know that the district court speculated full perhaps counsel wanted to reserve the right to contest that spiller was not a career finder and if that was indeed consuls thought that might be a fair strategy however as we know from this court's precedent counsel would have to do a reasonable investigation of the facts and the law and make a reasonable determination that she would actually be able to make that argument at sentencing and here in this case we don't know whether she did that investigation all we know is when it came to sentencing she didn't actually advance that argument she didn't make any argument that she wouldn't have been able to make had mr stiller taken the government's first so in that respect it certainly seems like that would have been a tough one to make actually given mr spillers background your honor it's not clear in this record whether she could have or could have not made that argument all we know at this point is that she did not and so the court reliance on reserving a right that wasn't actually exercised that that's not enough to suggest that mr spiller should not be given an evidentiary hearing that that to plead it will ration and the plea offer or otherwise exactly the same with the exception of the two hundred dollars and two extra counts of conviction became with the proposed ple things that differ that strikes me as again given mr spillers background a trivial difference now i've seen situations not this plea agreement but i've seen situations where the  includes a broad based waiver of both appellate and twenty to fifty five rights and in those instances even if the government agrees in the plea agreement to a plea on one count in that it's going to drop the other counts some defendants prefer a blind plea because they're preserving the right to take an appeal there preserving the right to bring the twenty to fifty five that page seventeen of this agreement in paragraph nineteen   very much like this play jack aeration xcept that it's three felony convictions it's not just the extra two hundred dollars which by the way we often say is enough  a prejudice consisting of extra special assessments extra counts a conviction and that's what this is right but that there was the difference between the political ration and plea agreement that was on offer was enough to justify the decision to choose that plea to corporation as a tactical strategic choice how do we know other than pure speculation that this was the tactical decision the lawyer made when in the end having as your under your theory reserve the right to challenge career offender no such challenges for a while looking at it at the time of the plea is different from looking at in hindsight after the sentence at the time of the plea no p s r it come out of probation as that way to know whether or not he was in fact a career offender the details of his criminal convictions may not have been known to everybody and keep in mind that but how much speculation is permitted why didn't the district judge just take you know a brief time and ask the lawyer this that's why you have twenty to fifty five found the only thing that might possibly justify turning away from this plea agreement which by the way and paragraph sixteen as you probably remember is the government will move to dismiss the remaining counts  all people like gilbert spiller he was going to plead guilty where there was going to be a declaration or a plea agreement that the government was not going to be offering him much by way of concession so so it doesn't make that little teeny concession that this plea agreement offers like we're going to wipe out the gun charge well still relevant conduct i get that but it's not a gun conviction those matter it could have consequences that's right but in advance of sentencing when the p s r is not come out counsel could reasonably you know objective sense choose to reserve the right to test career offender even though there was  two hundred dollars this filler was probably never going to pay and the two additional counts of conviction that was where the you know that the drastic increase in spiller sentence came from as far as it was really the engine that residential drug abuse treatment program or do we have evidence that he actually had a drug abuse problem so i don't think that it was established the and th is the regulation makes it very clear that a conviction a gun firm conviction will disqualify somebody but is a conviction necessary or with the p s r information about the gun can be enough to success excessiveness or you know complete it and you'd have to have the problem get into it and successfully complete it in order to get the benefit that he was talking about although it was a cocaine base conviction right distribution yes and we can say that it was plain error for the district court to win that on its own come up with this is it as a basis of i mean we're putting this on the attorney now is the attorney giving him proper advice when the question on the table is should this plea agreement which was properly transmitted which is reproduced here in the appendix is this the better deal for for him than if the attorney you know  said i for i that you would not have gilbert spiller would not have done better under the political radar please grima as opposed to the police decoration and he base that on the attorney's performance overall in the case in the future his performance at sentencing keeping and knowing having in mind but done better the judge the judge seems to think that it really doesn't make any difference to have two extra convictions and i'm not sure why that's true sentence wise number of months i can see why the judge is just focusing on how long as i am i going to send this person away for i think i'm happy to buy that idea because there was no difference in the the range in the end your honor i believe this case truly illustrates the need to have an avid and share hearing in cases like this in this case we have a lot of speculation you have the district court speculating about what happened the government saying the attorney could have thought that one thing was better than the other this court has been very clear and also the heebie standard is very clear that unless the petition conclusively shows that spiller is not entitled to relief the court is to set up for hearing where these  e mail itself evidence that the council did the research raised the question of the difference between the agreement and the plea and got a response she certainly it is evidence that counsel did something when she received the plea agreement to evaluate it it is not evidence that she did what the district court said she did which is intend to reserve the right to challenge the career offender there's no indication that she well but it's not her receiving those response a missile defense counsel wouldn't she have analyzed that and having raised the question gotten a direct answer from the government why wouldn't presume  she having received that didn't make a reasoned judgment you would hope that she analyzed that there's simply nothing in the record suggesting that she did or did not and that's why we need an evid she raised the question she got the answer we are suggest we are to speculate that she didn't do the git digest that the end and come up with the solution that was appropriate in this circumstance the e mail does not say that she that she was considering whether that she could contest their career offender designation or not it simply says is there something that i missing by evaluating this plea because that be the other option thank you honors thank you very much and thank you as well for taking my point that the court appreciates this very much for your client ourselves thanks as well to the government will