stuti to find a sufficient factual basis and rule of this claim comes before the court on plane air review and at the outset the government argues that the plea itself precludes any finding it here i'd like to begin this afternoon by responding to those threshold arguments first the government argues that a guilty plea necessarily waives all non jurisdictional defenses this is true if the defendant fails to raise or preserve a potential defense and  the question is whether the agreed upon factual basis was sufficient to support his plea second the government cites a second circuit opinion which held that the district court had no duty under rule eleven to anticipate or detect and then rule out such as the first assessment of the case united states v smith is distinguished all on the facts first the defendant smith did not refer to the facts underlying his potential justification defense until after his more difficult because the lawyer then comes back and asked to argue but as we've directed but but your brief is is to sink and it am i correct in saying the argument principally instead of distinguishing the second circuit smith case is your argument primarily based on the the forty year old panther decision is that your best authority for the proposition your urging yes your honor it is it's the best of the already or the but pander was a trial refusal to give a trial instruction on a defense so that's a pretty distinguishable situation then defendant pleading guilty and later saying well wait a minute what i pled to actually has embedded in a defense that means there's no sparely in direct i can see it's reversible error to refuse to give a defense instruction that's quite different than saying the defendant can undo their plea but virtue of the facts that not does not have a sufficient actual they'll to constitute a crime so the elements aren't met or crime has includes defenses to it but i don't when your honor because i think either way gets you to the same result in the trailer decision you have opposite problem there's too much information on the record that information goes directly to the type of defense recognized in research i also know that these facts are not subject to dispute there is an agreed upon factual basis which describes an attempted robbery during which the defendant pressing the got away from practicality problems a significant number one do you agree that if you prevail the government can supersede and charge with everything it had at the beginning ishaan including the guns at the residence and drug paraphernalia and all that yes that's correct ok and those are then how do we not know when the police curd it was a highly strategic intelligent decision to avoid those consequences not try to assert a duress defense justification that you have to admit a jury might accept strangely if you're saying you were compelled in your encounter with a drug trafficker right the jury may not want to get return except that so it could be very strategic to not want to asserted it's true your honor and i had these two responses the first would be that again we're dealing with the guilty pleas of the onus is on the district court he has not moved to withdraw his guilty plea has he no your honor he has no why not you know i can't speak to that i mean worse for him in the long absolutely absolutely but you know why does that mean his best this whole situation is best looked at in the context of ineffectiveness so he can file a c b s and say my liver was ineffective to not perceive a duress and that goes back to those the strategic concerns you mentioned earlier if he follows behaviors petition and explains that his attorney never discussed with him that potential defense you're absolutely right he'd have a pretty good claim that he could to withdraw his plea and come back down to the status quo ante again that may not be a good decision a long term because the return the government to the status quo ante as well and they may decide to charge with additional crimes we're going back to the strategic concerns there's nothing in the record here to get to establish that that's what happened and that distinguishes this case and this is what concerns me he has not moved to withdraw is guilty plea no your honor and that's concerning to me because the we have all these other reasons why he might have this judge has a point why he might decide to plead guilty so this charge you that's correct your honor and again i think we just have to look at the wording of will love and places the onus on the district court he was advised specific rule of protection would not have affected his decision plead guilty and in the opinion justice souter explains that there it by start with whether or not the district court would allow the defendant withdraw his plea if you did not accept the government's recommendation and justice souter explained that in light of the evidence against the defendant which included controlled body to an informant and a confession one had nothing to do with the other but here the ca either on the record explain that he was aware of the defense but was choosing to waive it because he wanted to plead guilty for a variety of strategic reasons or he could have said you know what judge that's not something my attorney and i have discussed i'd like to more time to consider it or i'd like to withdra and proceed to trial neither of those happened here and does it concern you that there is no reported appellate case that has invalidated a guilty plea because the factual basis contains an affirmative defense no your hon or this court has reversed two factual bases for failing to supply a sufficient actual basis on plain error review neither dealt with an affirmative defense but again i don't think the difference between knocking out a single element and proving an affirmative defense is necessarily but in the colloquy under boy can you the court's going to say this is the crime you're charged with these are the elements and that's pattern it's easy to establish there's no difficulty the rule you're jing is a much more complex one every district judge would have to say here's the crime here the elements and now there are a lot of defenses out there and we're going to go through each one well i disagree on and i think it's another reason that united states v smith is indeed or is distinguishable i don't think the necessarily has eight into it a potential defense the district court has a duty to address that depends on the record for the reasons we discussed earlier to either discern whether or not the defendant is knowingly waiving the defense because he's discussed it with his attorney or whether definit was  unpublished but in both those cases one is called vendor one is called again goes alaska's you have defendants who have been convicted for assaulting another inmate in a federal prison and what happened is at the sensing hearing for both the fifth it's during their elocution they refer to potential self defense justification and in both cases on the record they explained you know i had this defense i considered going to trial this depends where you decided not to because again who knows whether or not i went and that's not what we have here we don't have anything on the record to suggest that mr t was even aware he had this defense and much like this court has a duty to review and enters brief and no issues for attorneys who file one of those there's no nothing in the record that says that everyone was aware that his running from a drug deal gone bad and throwing the gun as he threw it could have created this you had to grab that gun and run there there's nothing in the record says that the everyone is quite aware that that was an opportunity legally for there's nothing in the record it was just that you want it i just know that i think there is one important factual in prince i'd like to correct you know that's what he was going to a drug  deal the factual basis is silent as to who the other individual was the p s r does explain that he was meeting with the narcotics content but it doesn't explain that he was going to do a deal at that time it's actually relatively consistent basis that describes a meeting during which a robbery occurs unclear whether or not there are any drugs involved but the government seeks to seek to use this point to negate that third prong is just a case justification defense and  correcting his story he explained that it was a narcotic contact so the other person was presumably another drug dealer sounding mr t is probably a drug dealer but i don't think just by being a drug dealer in the abstract you you wave your ability to fight back if you're attacked in other circumstances perhaps when you're not doing drugs now this or that and again that's and that's another issue of recklessly put yourself into a situation you don't get the benefit of the justification of it that's traded on and so one drug dealer going to meet another drug dealer and we can use that if you're trying to vacate your sworn plea we look at the entire record it was the p s r his buster a statement so he says i did go to meet another drug dealer and one might say then that's reckless enough that guns could get drunk or else suppose it could be your own i don't think it is a matter of law and again if the court were to adopt that rule that would mean that anyone who is a drug dealer any time forfeits the right to protect themselves at hours right so you're on through let's go with the element of the four that you got to quickly quickly surrender i don't think there's any about quick so there is something about you did you would just as soon as you have to predicament then you got to do  you have to cease the criminal activity but in this case the collective you the possession of a handgun and we know that he only could have possessed the handgun between the conflict in the car and the trash can where the handgun was found and again we're getting to the merits of the case by i don't think the merits are what is what's important here i think what's important is the discourse failure reconcile this apparent distance on the record with the defendant's intent to plead guilty and a sport that point i just i point the court to another  except that a plea is missing an essential of the offense second the resident as reported by the record undermines or t s address claim because multiple elements necessary are simply missing from the record and third any error fails to meet the forepart test required to revoke the discourse judgment first the defendant waived an appeal in this case he specifically he is not claiming that there is an element missing in the factual resume each of the cases cited by the defense  trial is the ability to develop a record and that is what we have in this case we see whether there was a duress defense is an affirmative defense this court held is waived by the decision to plea make it just hypothetically really harder than let's say the factual basis said and his will was over born because the government forced him to have the gun guy pleads guilty untouchable on the other  previously one of the elements is that the defendant must have ceased to possess the gun as soon as whatever the necessity required him to possess it whether he and there is simply missing here and  is missing because he did not select to go to trial and he did not put on evidence because an affirmative defense is one of the things that is waived by an appeal in specific this court in the strongest case the says that affirmative defense is dress claim because multiple elements are simply missing i discussed this previously but for example paragraph twenty of the pre sentence report on page one thirty seven contains a statement from the defendant's roommate that she that she saw him possessed the gun any evidence as to dress as to this possession is not on the record and therefore that element is not met i thought she could have seen running away from the car and put it in the trash can i mean it can be seen can they distinguish smith actually or if we were to rule with them would it create a conflict with the second circuit you member the smith yes i yes i do your honor i believe that smith is directly on so as we discussed previously there's also the statement in the pre sentence report that ortiz was wading into a drug trafficking contact and so that is the third element that is absent in the record and therefore the defendant should not be s situation perhaps even worse as this as the court discussed previously with the time he was apprehended there were additional guns and large quantity methamphetamine recovered and so any substantial right that he had would be  proceedings were conducted in public and there was no deprivation of any substantial rights in addition if the defendant can meet the three part test then this court has the discretion to to reverse the judgment if it impacts the fairness integrity or public public reputation of judicial proceedings in this case the defendant pled guilty in open court the judge specifically asked if he willingly and knowingly entered into the proposed plea he answered in the affirmative  his bargain for benefit included an agreement that the government would not pursue additional charges mr t said under oath that he knowingly pled guilty this was his bargain that he struck with the government and where this court to reverse record under oath said he wanted to please he knew what he was doing and so this court should affirm the district court's judgment you're superbly prepared so you probably also know something i don't know the answer to not only would he face all charges the government could use his guilty plea open court sworn statements of his party opponent admissions those wouldn't be in excluded under the rules of evidence right which allowed for conditional pleas on pretrial matters so again what seppi stands for is a guilty plea in which you've not raised or preserve a pretrial issue precludes the defendant from  also no one other point about the substantial rights issue that we've been repeating to discussing the fact that mr t s may be putting himself in a worse position going forward and that's been true in other cases as well this court over part of this court reversed a factual basis for insufficient facts in a case called denson where the defendant was found a well if it was initially found multiple guns was charged with that and then was later charged with another gun that he admitted to his brother stealing from his possession then of the guilty plea hearing he was trying it found that the court failed to reconcile his denial of guilt with his intent to plead guilty to a gun he was telling the court he did not have now on remain and mr denson was in the same position he face additional charges involving series of guns were found previously had been dismissed as part of this week but that did not that did not defeat his claim because as far as i can tell when we go to ruhleben we're doing often specific analysis was the factual basis provided sufficient to chart to what seems to be where different posture because the l every element was established and even on the facts in his guilty plea is there still a fact question are several fact wish and as to whether this affirmative defense actually is an affirmative defense so i don't see how we can say as a matter of law this is not sufficient specific it raises questions that he has yet to say i want to withdraw plea that's true your honor but again we can only deal with the record that we have exactly and we don't have a factual determination as to exactly what happened did he knowingly self put himself in danger with drug dealers that