presented originally in our brief has become somewhat narrow i think throughout the course of the briefing with respect to first having to decide whether mr minister could  his conviction in the first place and i think that an answering that question it helps to take a look at the lineage of course we have the supreme court's decision and custis against united states we do your honor and the costs decision came on the heels of mitchell and this and this court and mitchell was decided in may third of ninety four and custis was decided twenty days later on may twenty third you also have nichols which was cited and also has a bearing on this case which was decided on june sixth but not for your purposes it really comes reason that you can that you can collaterally attack a conviction that sentencing would be for a six and then gideon violation i think should be expanded or at least read to to mean more than just simply having an attorney physically present with you when you plead guilty but that in court really didn't want to do that  custis it's and if you look at mitchell you know there's i think i hinted to what they may have been concerned about in custis mitchell talks about something that's plainly detectable from a facial examination and if there's no lawyer at all a getting in violation then that's very obvious from the record the court doesn't need to go delving into things joe doesn't need to worry about how effective anybody is and obviously we don't have a good ian problem here as i understand it because he got just a misdemeanor no incarceration but i think that's one of the reasons why the court restricted cusses the way it  d i agree with your honor's statement of the laws far as what customs holds and the nichols case kind of takes care of that issue with respect to a misdemeanor conviction but what we're asking the court to hold in this case is that the right to counsel as it is contemplated by custis includes a number of  components or conditions precedent that are part of that bundle of rights i guess you could say but here you agree that the fundamental question even if you get over  the plainly detective fundamental question is still the right to counsel it is and well right i think you raise an important question as to whether in the appropriate case an interpretation or interpreter would be necessary to waive consul isn't your hurdle here that there was no right to counsel period plainly detectable denial and ultimately your client did not require counsel or at least had no right to counsel given the sentence in a misdemeanor case is this really the case that we should be stretching to find a good in an issue where your honor first first of all i do believe that he did have the right to counsel jail to have the right counsel i think that that right does not extend to for instance class c misdemeanors class d missed meir's that do not carry the  potential for jail time but this was a class a misdemeanor and it was punishable by up to one year in jail so let me try different angle here i had thought you were arguing in part that justice fundamental to the right to counsel getting in right it's the right to have some basic understanding of what's happening to you in the courtroom and that if you don't speak the language that's being spoken in the court room you might not even have that but my problem with this particular case is under custis and under the idea that any problem that exists needs to be very apparent from the transcript i don't find it apparent from this transcript there is whoever they are this  identified speaker i think the district court may have gone too far in saying it's obvious that he did have an interpreter but it's not obvious that he did it and so i i think i'm not sure that your case raises the the basic comprehension issue that i thought you were trying to suggest well i think your honor the there's sort of two issues that are  that are involved in your question the first the first is that we are arguing that the right to counsel includes these other basic understanding that you have to the right counsel in the first place because if you don't know the right you really don't have that assume that's right ok the point being that the record doesn't make clear that he  interpreter or not it's just it's just it's unclear there's an exchange off the record that presumably is in spanish but it looks identified as a spanish speaking discussion was held off the records or somebody speaks spanish is in room we really don't know if it's the difference well we might and more importantly we don't know what is being said and that the idea is not to have somebody sitting next to you that just speak spanish it's also somebody that can translate and but again you're assuming that it's the defendant who needed the assistance that's correct and let me take a step further let's assume that we were to find it was underscore the decision by troy there that it was reasonable for the district judge to do as as she did express fully encouraged the defense to go to state court following comment about six from the guidelines section four a one point two five and attack this underlying state conviction callender are directly in the state court in other words to seek relief where someone would know what happened well in this case i think that the district court notes kind of how rare it is that there be a transcript of this cd i think that the district court was in a position to make a determination themselves without having to have a state court judge interpret the scene transcript first and what could be the same judge it could be and with respect to the question of whether record shows that there was any language difficulty by the interpreter if the in my brief i point to the very last exchange between the court and the unidentified speaker in the court says does  he have any questions and the unidentified speaker says all right thank you and that to me indicates that the unidentified speaker who is presumably translating these things between the court and defendant doesn't have the basic ground because if the court asked you does he have any questions the answer is either yes or no it's not all right thank you  limited to the getting in right as the government is saying and if if it's really the case even for a misdemeanor for which you can get three hundred sixty four days in a jail you can come in and listen to ship the british and have no idea what anybody's accusing you of what what's being said and legitimately be taken off to to the jailed strikes me that there's a profound due process issue there what we're talking about two different rights to counsel there's a common not talking about the right to counsel at all i just told you i'm talking about your approach to process and i'm talking about the question whether cost is must be literally limited to the getting in right or whether custis is saying instead if there is a fundamental flaw in the proceeding that is apparent on the face of the referee such as there's no lawyer in the a felony case where you would certainly have the right to a lawyer or such as you know somebody whose only language is mongolian and there they are standing in a court room with a bunch of people speaking english them that wouldn't in my view come close to comporting with due process this defendant certainly had a constitutional right through the due process clause to have interpretation the constitution however does not afford him the right to a court appointed interpreter so when you look at the record state court to me is that never do we even see this on identified speaker communicating to the court that he's pleading guilty that he aware of what it is there's this back and forth and everybody's interrupting everyone and there's a spanish speaking discussion off the record the court says they're dismissing the insurance and the headlamp  he's pleading to and that would be something that would be appropriate for a direct appeal through the state system those remedies were available to him who would have been able to file a motion to make a appeal that order but years later when we are sitting at a federal sentencing hearing the purpose of which is not to open the door to factual encouraged to the underlying convictions upon which the court to live what cu means seems to me of course the right to counsel is a structural right it's but so is the right to have some understanding of why you're there and what you've submitted yourself  to it seems to me the government's position is no matter how flawed the prior conviction is custer's shuts off the right to to challenge the appropriateness of that commission for criminal that that transcript supposedly has pled guilty to attempted murder and and the transcript doesn't even make clear that the defendant has entered a plea of guilty in fact there is no piers there let's make it even more stark that the the person doesn't understand english just by virtue of some of the comments he makes on the record doesn't make any sense at that point that there isn't some and as has been already suggested by the chief that there is at that point a fundamental due process right that ought to allow it i just took sentence a judge sentencing to look at that and be at least skeptical if not deny whatever points are assigned under the guidelines well the defendant certainly has the constitutional right to the due process clause in order to interpretation however you know i think what you're saying even in that stark situation is custis prevent person was saying usually when there's an interpreter the transcript will reflect the interpreter communicating what the defendant is saying to the court so in other words the two exchange yes it is not the most college and this is well it's four years later i don't know under if one year shuts it off this is considerably longer than one year after the state proceedings wealth if i may as a former state prosecutor oftentimes in the cases of these judges if if a prosecutor or parties re best themselves with regard in the case a state a state court judge can simply reopen it even outside the bounds of the statutory motion to vacate is there a statute or a case that makes it clear that there's a much discussion it would be an l and i state statute i don't have that sure i want to briefly touch on one of the questions posed earlier about why custis narrowed its ruling to the right to counsel i believe it's clear that there are other constitutional violations which your oath united opening up cases from long ago with records that would be hard to obtain sure no i understand that and what i was questioning was whether the presence or absence of any kind of interpreter never mind if it's a court appointed interpreter it's your sister it's anybody else isn't closer to getting in line where you can just look at the record you see yes there was an interpreter no there wasn't an interpreter no complex factual inquiries detectable from the record correct however we do not believe that the case law allows expansion to that ok thank you very much and i agreed to give you one more minute mr newman standing which would only last for the duration of a sentence which is two years so that expired prior to the sense of hearing in this case and that would be under which it which stated only post conviction hearing act which would be to practice federal tax mechanism for challenging the voluntariness of a guilty plea this is there are you sure you meant that the interpreter was needed so he would be aware of the right to counsel yes well i'm a little concerned about footnote two in your brief on the question whether he waived this the sentence is the friend and there's not here there's not argue here that his conviction was invalid due to being denied the right to counsel  you can't go in and just say you know just because of a warm body it's not standing next to the person that that's an invalid conviction so what we're asking the court to do is to interpret that six member right to counsel to something more than just the literal requirement of having a lawyer there and what we're asking for is to interpret the sixth amendment right to counsel to include at base knowing that you have that right right you do not argue that his conviction was invalid due to being denied the right to counsel i mean it isn't that it core what you actually want that what w are saying is that the the right to a counsel should extend beyond just having a mere lawyer there so included in that right would be the right to have somebody tell you in your own language that you have that right ok thanks for stepping further thank you very much all right thank you very much mr neiman you were appointed to leave and the court thanks you very much for your service your client and to the court and thanks as well to the government will take the case hundred iseman