thank your honor as a result of ineffective assistance of counsel appellant ronald smith smith lost the opportunity to plead guilty back in two thousand and eleven at the start of a very complex  case the record below showed that mr smith's then counsel failed to properly and timely convey the government's initial offer in this case and not only did he fail to convey the offer but after the offer had expired he advised mr smith that it was not a good offer that he could receive a better offer if the case went closer to trial and that even the guidelines good question rauner and i will focus on on two sides of it the prejudice under frye is mr smith showed prejudice under frye because the test requires him to show that if he would have been given the chance to plead guilty he would have done so and i think the best fact is that immediately upon the government re extending the offer mr smith did accept it immediately and that's why so he did get the benefit of the original than later and i think the court is it on the exact point i think the issue here is is to two issues number one is he in the district court failed to even think that it needed to perform this type  of ink where you that your honor is describing meaning the court did not attempt to separate in terms of imposing these enhanced mintz as to the information that it had received in the ensuing three years of litigation the court the district court basically stepped back and said  you know what i don't i'm not going to get involved in plea negotiations the court repeatedly went to that was the court's justification for saying i can't do anything about this when in fact the court could have very well done with that  long trials that went to the sophistication of the scheme and to mr smith's role in the scheme as a recruiter a participant supposedly leader and so throughout both of these trials vast amounts of evidence came in the sophistication in hands from him and it's clear from the court's comments at sentencing that the court was relying upon what it had seen throughout multiple defendants taking their cases to trial and that's where the government obviously put on a mountain of evidence about the sophistication and leadership and mr smith's role in particular so there were least three defendants and again the problem is that this report didn't attempt to distinguish one or the other fashion a remedy didn't say anything it just said there's nothing i can do about it we think that's the main error here because the court looks at the sentencing on its face there's no way to know that the court kind of did this separation that would have that mr smith was entitled to frankly for him to receive a full remedy for the actions of just how he attacked is there any way for us to know that the district court would have had to same qualitative information in a p s r had this happened we mention website in our briefing and the fact is he did not receive a leadership in hands when he did not receive a sophistication and handsome and he was part of the same scheme if the court looks at their but how were they similarly situated everybody has a different role in the scheme typically if to the factual basis show that both of these men both mr smith and mr watts were leaders they were in charge the of hiring these runners this scheme involved some people that would go and cash checks fraudulently among other things the pleadings for both men showed that both of them were runners in terms of supervising these folks they both had people working for them now there's a dispute the government will say well smith  basically they were responsible in a supervisory capacity and moreover they were also involved in same sophistication it was the exact same scheme it wasn't their wives that was running one record on the side of mr smith another it was the exact same s smith the court found that mr smith was running a sophisticated scheme and it didn't do the same for watson and so i think that's the more direct evidence of what it would have looked like initially at the start of the case aside from some other issues that we mention in our briefing meaning the record actually suggests that part of the reason that the government sought these enhanced minutes and argued for them against mr smith was because they were upset that he was basically getting the plea agreement three years later  which clearly is not something that should have factored into the consideration because it wasn't mr smith's fault that his case accounts let me ask you this i think the date we keep talking about is may twenty fifth twenty eleven when the police was first offered and obviously not conveyed seems to me that the delta of time we want to talk about is not one that plea offer was initially conveyed but when we would speculate when the sentencing would occur correct that's right really that's the relevant date that would be the relevant how do we know with all these other things going on a lot of times as a court judges will say look i'm going to hold off sentencing in this case because i want to see how this trial comes out because i want all the facts before me how do we know it would have been any different in light of that we the court is correct we there's really no way to know when mr smith's sentencing would have been we know that several is unequivocal requests for software presentation it's better to grant a brief continuance of sentencing thereby including his ability to meaningfully represent himself the course denial of his motion to withdraw and ineffective assistance of counsel by his trial counsel and government misconduct i'm sure those issues will be aired more fully and subsequent or separate proceedings but those issues could and should have challenging that's has to me too is that it's action and he made that request no less than four times that afternoon unequivocal requests to represent himself this was not for the purpose of delay he was prepared to immediately step in and take over those witness examinations and as this is a court subsequently found after the weekend recess his request was voluntarily voluntary intelligent and he was competent and the request ultimately was granted but the requests should have been what was the prejudice and harm though i think that the first witness that was on had maybe another question or two after that and then ultimately didn't the court exclude the evidence from is it miss baku i was pronouncing it wrong tying him to the conspiracy so when that was excluded and were we're talking about i want to say like a question or two what was the harm or prejudice i think the primary prejudice was forcing mr cox to proceed with a coun backdated and so on but because you those witnesses were both excuse over the weekend before mr cox could step in he lost his opportunity to to personally examine them and in the case of this book who to challenge question by question invocation of her fifth amendment rights and to elicit further testimony regarding the circumstances of the photo lineup and her purported identification of  testimony that he wanted to again attacking the reliability of the evidence on the witness identification and at this point the sentencing had already been put over for several years and he had just been granted his rights to represent  applied the wrong legal standard the standard was whether he had written mr cox had raised a fair and just reason to withdraw his plea he has the burden to put forward that reason but that standard is applied liberally and he need not have shown actual prejudice or even that he wouldn't have fled but for the erroneous advice of his counsel here the court business or court did not cite or address that standard and instead focus on counsel statements industry and there's a support that he assumes that all loss evidence left and put is part of the discovery cut off and that he had calculated maximum loss that was far lower than the government case i think there are two salient points that got brought up during during the opening argument that i want to dress here first is that the entire argument for mr smith presupposes that he is entitled to have separate information considered that he is entitled to have the district court disregard all of the information that was learned or possibly learned because we don't actually have sufficient record development on that issue after the point that the plea was offered and that's simply not the remedy that laugh or contemplate and cancel real quick it's not with the police officers when the first sentencing would have occurred yes and to that point i joined an o and that is correct and there we do have indications in the record of what the court banks and mr smith did some of that but mr smith also recruited cracked bank insiders which the government considered to make him more culpable than mr watts act in addition mr mr smith exercised more control i can confirm if that's wrong also to look at the court the but again here the so the idea that he would even have been sentenced at a time that would allow the information to differ materially is not really supported by the record and is highly speculative but even the idea that he even is entitled to be sentenced on the information that was in place at the time that the offer would earth at the time that he the offer was made is expressly disavowed and la the supreme court expressly declined to adopt a rule that would quote percent or that would require district courts two percent that is to say disregard any information concerning the crime that was discovered after the plea was made and given that express disavowal of that constitutional rule is a requirement and the repeat of the supreme court's repeated insistence in laughter that the remedy is up to the district courts discretion it cannot be that the district court was required to exclude from consideration whatever information arose after the plea offer was made do you think it's appropriate that we consider this issue here or do you think it's more appropriate that it be considered as attorneys who fifty five  frankly are on this record this court can affirm i think i do believe that the government's position is that there is sufficient information for the court to affirm if the court is concerned about what information there is for example the dearth of information regarding what discovery was available at the time the plea offer was made are also disputes about what advice mr little rendered and then dispute about whether the advice that mr little rendered in fact would have would constitute deficient performance under the highly deferential standard of strickland and given disputes if the court is concerned and believes that for the record development is necessary in order to decide whether mr little rendered deficient performance at all and if so whether mr smith was prejudiced via than a twenty to fifty five would be the appropriate vehicle for to do that the offense conduct to which he does not dispute and he also is effectively asking to bind the government and the court to a particular offense level which is not the nature of the plea agreement that was originally offered and given that after instruct the courts not to grant a show that there were that he was prejudiced and that those were harmful errors now there was no prejudice and those are the errors if there were any were absolutely harmless and i'll the calculations are set forth in the government's answering brief as to what the last amounts were even arguably fall out even if you give the benefit of every doubt to mr mr cox here even if you exclude all losses up to two thousand and eight his the defendant only intended loss amount would drop by only six hundred fifteen thousand dollars and seven hundred or six hundred fifteen thousand dollars approximately which is well under the two million dollars drop in losses that would be necessary in order to bring mr cox's own responses which he's personally responsible down from nine million to below the seven million dollars threshold to have any impact on his guidelines range but more fundamentally the the information that mr cox wishes was before the court in fact was before the court couey had already testified regarding her writing that's it g e r two sixty three she'd already testified that the writing on the identification card was not hers and she did not recognize it and sure it was are already cross examined regarding identification not only at the sentencing hearing but also at a motion earlier motion to suppress hearing in july of two thousand and eleven and the cross examination at the sentencing hearing as a g e r two eighteen to two thirty he was cross examined about that at length and the district court in fact then went through a colloquy with counsel and could to confirm it in the district court's understanding of the significance of the point that mr cox and his counsel were trying to make regarding the back identification and because that information was before the court already the court had the right if in fact that it needed in order to evaluate the situation and as judge dorsey pointed out the court did discount the back losses entirely in addition to that with regarding with regards to the speed of a memorandum the court said that it was unwilling to consider this being a memorandum for the frame job inference that mr cox was hoping to propose a port with the memorandum and given that the district court was unwilling entirely to consider it based on the proffer that was made by mr cox and his counsel it can't possibly have been harmful for that information to have been excluded from the sentencing proceeding as to the merits on the fret a claim  government's position is that required that the request was untimely and it was certainly within the district court's discretion to delay consideration of mr cox's fret indication until after the brief weekend rest recess particularly given that the request was made in a context that made it seem to the court that it was an impulsive request and it did seem like an impulsive response to to the trial courts to the fire to excuse me to the fact that the cross examination of agent shark didn't go as well as mr cox had hoped again given that the response seemed impulsive the district court was well within its discretion when it said in light of this untimely response and in light of this this highly emotional and impulsive response and particularly in light of the other experiences that i've had with you in these in camera proceedings where you have expressed dissatisfaction with your attorney but said that you wish to keep him on as your representative i am not going to consider this request right now and given that the nature of their process the time was untimely emotional and equivocal the court was entitled at that point to balance mr brown to balance the interests to mr cox against the burden that it would impose on the corps and the parties and in particular their witnesses who were there on agent schork who had already been directed cross examined and redirected by that point the only thing remaining was his recross examination he had flown in from washington d c for the to herself she had been waiting for multiple days she had a new baby she was there and as defense counsel pointed out it was a particular burden on her for her to continue to come to court day after day and given that the withdrawal of the guilty pleas just because the district court didn't specifically articulate that the standard that it was applying was a fair and just reason does not mean that this court presupposes that they just report misapprehended the law that it was supposed to apply and in fact this court's precedent says exactly the opposite it says that we do not presuppose that it is our district court misapprehended the law that it was supposed to apply and given that mr cox's claim was my guilty plea was not knowing and intelligent because i misapprehended th sentence that i was facing it was reasonable for the district court to look to whether his whether his plea was entered knowingly and momentarily and this court's precedent does indicate that when a district when the nature of a defendant's request to withdraw his guilty plea is premised on an allegation that it is not knowing involuntary or unintelligent than a court can consider the nature of the colloquy and evaluating whether the request to withdraw please should be granted and also fundamentally given the nature of the claim which is my counsel mis advised me and i mis understood what the sentence i was facing was this court's precedent is clear in stating that only in extreme circumstances in rare circumstances will advice regarding the nature of the sentence that you are facing be sufficient basis upon which to withdraw your guilty plea and this is not a situation in which the defense counsel grossly mischaracterized th sentence that the defense was or that the defendant was facing in fact the only dispute that there is is about loss that's a two to level disappearance that's the dispute that's at issue mr cox knew full well the amount of the loss that the government was seeking to hold him to account for because the government repeatedly stated that it was that i believe the losses were in excess of ten million dollars in july of two thousand and eleven that also was reflected in the plea offer that mr cox rejected and so mr cox were clearly on notice and to the extent that there was any dispute it was a marginal disputed best certainly far below the disputes and the advice that this court has affirmed as not providing a basis upon which to withdraw the guilty plea i would point the court's attention to briggs in which  the defendant expected a sentence of two hundred and the guidelines ranges ultimately three sixty to life and that was insufficient to provide a base and that defendant's misapprehension was insufficient to provide a basis upon which to withdraw his guilty plea maine which is not at your fourteen that it would have declined to entertain the motion in the post judgment motions in any event at that point mr cox was seeking simply to relate again or to litigate issues that are presently before this court on appeal the nature of the rule sixty be motions that he filed were that that relating to the prosecutor's error with respect to whether any fifteen year plea offer had ever been made and a memorandum which i would point out that the substance of the memorandum was before the district court before the time sentencing anyways i will also know that as the government notes in its answering brief the rules of civil procedure are not available avenue for relief in criminal cases i know that that federal rule of criminal procedure thirty seven has effectively mirrors rule sixty and in that sense this court's application of its precedent in scott and god is particularly appropriate here even though those cases relate to rule sixty three motions federal rule of criminal procedure thirty seven in the advisory committee notes specifically indicates that the purpose of federal rule of criminal procedure thirty seven is to import a rule sixty the remedy into the criminal cont in any event yes the government's position would be that it's harmless because whether this these issues are presently before this court and to the extent that mr cox would like to bring any claims regarding newly discovered evidence that would be an available remedy and collateral dissatisfaction annoyance or even anger that are within the bounds of what imperfect men and women even after having been confirmed as federal judges is not a sufficient basis upon which a just a district judge must recuse themselves for consideration of a case and given the record as a whole taking comments that the court made out of context that clearly the court here did have a lot of patience with with mr cox and erred in mr cox's fever repeatedly in connection with the sentencing a few a few statements taken out of context that are mere expressions of annoyance are not sufficient to warrant reassignment to a different judge particularly when the district court repeatedly indicated that it was airing in mr cox's favor and in handing down  sentence and unless the panel has any further questions i will sit down and rest on the brief summary i thank you  the twenty two fifty five it would seem unfair that the government acts of a low specifically to provide preempt a twenty to fifty five issue which is their admission for the district court and now they argue we should go back and have a twenty to fifty five proceeding that would be unfair to miss this mr smith on several levels among which he would be then subject to a certificate of appeal ability on a sentencing when he should be entitled to appeal his  sentencing and the district court's findings in full if he so desires upon recent and seeing which he would not be able to do if we go back for a certificate of appeal ability and fall into the twenty to fifty five and in any event in the in any event because the record is not fully developed is because the government basically said there's no need to develop anything we're we're we're good in or really extend the offer in terms of this issue that mr smith is seeking a windfall mr smith is only seeking with the law and and entitles him to have which is to be put in the position he was at the time of the sixth amendment violation and in this case it only meant for the district court to undertake some sort of analysis as to the information that would have been available to it at the time of the violation not three years later litigation i'm going to take these facts into account and i think the court can see from the sentencing the court just simply did not apply that legal standard the court did the court didn't recognize that it pressured to make the identification and that the agent had promised to clear our special record and that she no longer identified mr cox as she had the investigator memo on this day that or her testimony she could presented evidence as to other witnesses who were making similar allegations calling the entirety of the government's eyewitness identifications of last calculations into question we understand the government's position as to that triviality of the