motion to reinstate the thirty month we offer mr look as our attention was sentenced to seventy seven months but originally within a few days of his ring meant he was offered a thirty month fastrack plea offer on the condition that he not bring any motions his first decision was to accept that offer but it with further confrontation consultations with public defenders she told him about the sincere motion to dismiss the indictment and told him that he had possible a possible chance of winning that motion and if he lost the motion you'd only was likely to be exposed to around seventy seven months yeah ultimately that's exactly what what happened in the case so the issue really turns upon the question of prejudice and the way i have framed the prejudice is the prejudice was the last opportunity ineffective assistance of counsel the lessons it ineffective assistance of counsel takes place he gets new counsel and he's given a second offer of forty eight months which is still substantially below what he gets at seventy seven as he turns that down as well argument to me wasn't good i had no answer for was why should i do an extra eighteen months because my first counsel gave me that advice and so i said i have no answer for that and and so essentially the prejudice is the last opportunity to take the thirty months within the is is it so bad as to constituted an effective assistance of counsel i gather that the charging practices were in the process of changing that right yes and i think it was in response to the new case but the new case out the law and it was it's i don't know whether it's correct but it's persuasive i mean i read the seventh circuit case and it made a good a good case for not grouping multiple entries in immigration cases which resulted in longer sentences for multiple entries and he was indicted on four on one for illegal entries so so so essentially her advice to him concerning his exposure was incorrect and then when he learned  thirty day offer within the first ten days of your appearance in court it's withdrawn and never come back and they refused to give it to give that offer back and at the hearing on the motion to compel reinstatement thirty months that was the testimony of the appellant he said if i had known that i was exposed to a possible hundred forty months than i would have taken the thirty months and and so i so i think that he his decision or his choice was skewed by the was you know anyone even even the united states attorney would complain if they were given erroneous legal advice at the time of trying to make an important decision could affect you know you years on their life it was it was a very important life decision at which he made that choice and he was given erroneous legal advice and i don't think the united states attorney would be very happy if you went to a lawyer the lawyer gave him incorrect advice and he and he made a decision and then later on he found out that the correct advice  was the risk or harm he was facing was much greater and upon learning that he immediately said well i would have taken a different path that by then with the passage of time that the door had been closed and then it was not we were never able to open up again and so the only way that we found opening years he made a mistake the defendant rejected the plea offer went to trial got fifteen years to life and when he found out the offer was eleven years he said wait a minute i had known that back then i would have taken it now there's clearly more prejudice and in the unions vs mula case than there isn't choice and the sensible choice would have been the thirty months and he would have taken that sensible choice if he had been given correct legal advice he was not given correct legal advice based on the seventh circuit case and there's no i don't think there's any other authority disputing the seventh case although there is a reluctance upon the probation department and here in the central district to follow the seventh circuit case and it may be that of ultimately the ninth circuit may not follow that case but but but that's the case the only case that we have and so  so we think that we met the truth is that you park the standard of strickland that was deficient performance because in the context of her advising her client on this important thing she gave him an incorrect testament concerning what he was facing if he went went forward with and prejudice was this last opportunity of thirty months and it would if you know was prejudice because we try she before she was released she tried to open the door and get the thirty months back and the government said no and then she she told the court she felt she should be relieved because she believe she had given incorrect advice and there may be an ineffective assistance issue that i was appointed and then i tried to open the door and it was it was slammed shut they just didn't simply would not read off for the thirty months again they did offer the forty eight i i thought that that was a reasonable settlement but it's not my case and his point was that he had an opportunity for thirty he was given correct legal advice and he should be entitled as remedy and so he pursued the motion with the district court and the motion i'll just verily the brief i think is three issues i think that there was a stink spirit violation at the at the deportation hearing when he was told that it wasn't he didn't qualify for discretionary release and but the motion was ultimately denied because they said that he did not exhaust as administrative remedies and then there was no like no prejudice because he wouldn't have gotten relief anyway on the issue of exhausting his remedies i think we come close to the case of palau galen because  the there wasn't they considered an intelligent waiver of his right to appeal because the immigration judge told him that he doesn't qualify for discretionary relief because of the the appeals board already ruled against him  basically telling him that the issue had already been settled although he has a right to appeal he's going to lose it because there's this recent case that has terminated you're right and so i think on the exhaustion of administrative remedies we are argument is there wasn't a considered intelligent waiver and then the last issue is the issue of prejudice and the the standard of prejudice is whether there's a reasonable possibility that he might repeat might get relief and i think the district court was really deciding that if they were the every use of all my time if i have to the grand jury we have an interest the government has an interest in this program and providing this opportunity to these defendants so i think that's important to the same program and then i think i do not believe san diego has a slightly different program i don't know the exact distinctions that's only from the hearsay discussions with people i don't know exactly ours is thirty months based on certain criminal history categories scores previous convictions things along those lines and what we're centrally saying is here's the deal you can take it we'll follow information's we won't have to go to the grand jury will have to go through of the writing process is that we then have to go through and it's a fast track to supposed to be rigidity here it is take or leave it while that we get well we have an interest in iran again and bringing these cases i think the government has an interest in bringing these cases and i think it's a legitimate interest this case particularly shows why i mean have a defendant has been deported eight times and twenty five criminal history points i think that the district judge counted one thousand adult criminal convictions we want to bring these people to justice the way we believe case he would not be subject to the same guidelines that he was struck with thirteen twenty six i also do think that and i'm not sure of the provision right but i think five h one point three of the guidelines actually allows for departure based on an early disposition program so i think there is something within the guidelines to focus on is with the ineffective assistance which i do not believe there was any here and i think the cases we cite show it i actually well first of all the hundred forty months we're talking about i think it's important that we distinguish defense counsel told defendant based on his criminal history he'd be looking at a range of either seventy to eighty seven of those criminals or category five or seventy seven and ninety six was criminal as history category six that's what it turned out to be the grouping and the in three the one point two of the guidelines we're talking about does not mandate these are group or not group that's actually says these kind of cases or group these kind of not group we're talking about here the guidelines section two at one point t get the three points acceptance responsibility that we're talking about here what we're always talking about here was the defendant pleads guilty and gets three points off for acceptance which is what happened in this case even pleading to the four counts that makes that one hundred ten months so what we're really talking about is he was advised seventy seven in ninety six and at the low end he was looking at one hundred ten months and we gave him a low end recommendation so the fourteen months spread like knowledge certainly he could have gotten one hundred forty months under the guideline of course this was post booker i don't believe that that inaccurate sentencing estimate which ultimately turned out to be accurate falls below an objective standard reasonable that's there's a strong presumption that the counsel's conduct was reasonable but she could not have this one could not have predicted what we were doing certainly she could have she didn't but she could have well i imagine she could have had you read that as you read that case it is possible she didn't and i don't think her failure to do most important factor in rejecting the most the most concerning rejecting the fastrack offer the most important factor he said the motion to dismiss but that's government's eggs of the record sixty seven then i asked him isn't it true that you rejected it because you wanted to run your st cyr motion he answered yes what he wanted to do was he wanted to not serve any time which would happen had he won the motion to dismiss so that's one thing i would like to emphasize he did reject a forty eight month offer in this case which we offered and that the question is posed why should he do an additional eighteen months because at the point that he was offered that he had forced the government to go through the process of going and bring in it bring in a engin e and this is an interest that we have and i think is sort of important in kicking out of the police at the post indictment arraignment he puts us in a situation where now all of a sudden the clock is ticking there's no plea in front of the court and we need to indict him very quickly that's  also offered to him after that was the third offer i offered the witness will start it was i said i looked at this and i said look he's you know under the guidelines he could be looking at twenty a level twenty which would be a higher sentence so i sent t tremendous amount of resources actually went into this case before that forty eight month offer was offered to him so that's why he should do the additional eighteen months and frankly in this particular case with this defendant twenty five promo history points