i'm sorry you're breaking up a tiny bit on the feed but i think i am able to respond i believe that yes as you were saying statements made under oath in open court carry presumption validity however it is a very r presumption in this case mr james did explain the reasoning on why he changed course later on and it wasn't just because he had a affirmative defense of entrapment or alternatively he said he didn't the government would not be able to prove the element of intent because he didn't know it was in the bags was also due to his relationship with his initial point in journey which is corroborated in the fact that the appointed attorney admit it is most a motion to withdraw that there was at irreconcilable differences and the court allowed him to withdraw and so further and mr james's prose emotion he explained all his ongoing issues with the attorney that point and attorney kathy didn't mention that once he didn't say they discussed it he didn't say that they ruled it out because it was a plausible or that it wouldn't be it would be proved by mr james and so in light of that given that on top of that mr james contentions  consistent throughout the record that he did not want to do it the confidential informant pressured him into it it wasn't until a third individual that he did not know there was a friend of the confidential informant gave them the bag to take to the cia that his involvement if you're not he's not urging factual innocence is he i mean he approved of the statements saying that there were several phone calls and conversations with a confidential source he arrived at the hotel where the source was staying under the room carrying a bag that contained the twelve kilograms of cocaine he negotiated to sell each kilo for thirteen thousand five hundred dollars  of but that's why we give that's that's why we have this rebuttable presumption so the second you make the factual innocence argument or you are in fact here saying yeah all that stuff he said happened didn't happen that's all why i would say was false yes which is consistent with his other ok so now how can how can it be legally accurate to say on the one hand i'm factually innocent and on the other hand and trap i thought entrapment and factual innocence were mutually exclusive ideas that entrapment in fact was a statement that yes i did this crime but i was pulled into it sure but at the same time this illustrates  issue with the district court denying the request for an evidentiary hearing there's just this isn't it hearing this is a matter of logic how can as a logical matter how can you take both positions how can you take the position that he's factually innocent and take the position that he didn't commit the crime but it should be excused because the government did something bad those are two how do you get to both positions at the same time mr right so let's start with you're saying they're rich mutually exclusive which  the law says they're out correct so let's assume for the moment that the entrapment is true so how can we make the other clean true well if you contract if he knew what he was supposed to be doing he was asked to do with and finally  end but he did not open the bags he did not know for certain what was in the bags that would be consistent with the entrapment defense and that he was pressured into it and even though he it was constructively informed of what was in the bags just maybe you've got a legal argument that i haven't apprehended but if these or as i think the law says they are mutually exclusive defenses you can't be advancing both the ones who have to either acknowledge hey he's factually guilty entrapment defense so if you had to pick one that's the horsey right absolutely but the problem is if you want to withdraw your guilty plea you have to assert your factual innocence not your legal innocence so you fail on the the first pro guiding principles to determine whether it's a fair and just reason if a defendant such as james who never made contact with the judicial system before he is not a professional criminal who's been through the motions time and time again this is first time he s pressured by his attorney who they're clearly not communicating not getting along he feels it was under duress right he said yes he turned around right right but his his less than stellar ability to weave together legal principles into it here and fully fledged defense is and is relates to is inability to communicate well with now let's assume for the sake of discussion we were to accept your argument that legal and legal innocence or at least a variety of legal innocence independent of factual innocence can properly be the basis of a withdrawal of a guilty plea even those cases that stand for that proposition all seem to say that you have to have advanced enough information to make the argument plausible that is that there's something beyond self serving statements to indicate that this is plausible what can you point to that shows that this entrapment defense other than his self serving or that you could help what you happens all the time that doesn't mean that there's an entrapment i mean when you get more specific in this case it seems to be uncontested that he shows up with fifteen kil nobody else is going to the hotel with him he's going to the hotel with the fifteen kilograms of cocaine i believe that ok you know that's not the action of a neophyte somebody who you know in stumble on that he's got some sophistication because it's also unrebutted that he's negotiating with the people about the price for these things in light of those facts which are not reasonably contested and be admitted by then how could we say there's a plausible argument that he was dragged into this kick and scream and he was entrapped well for an outsider for the comment in their first time this is again a fact pattern you're describing is inconsistent with someone with his clean untouched criminal history know when you say the fact pattern i'm posing these these are the facts and the fact that he never got caught before perhaps doesn't mean he's an innocent it just means he must be really good i mean that's one plausible assumption you can make from these facts he doesn't he doesn't come across as an innocent because since don't have access to fifteen kilograms of cocaine today sure i see what you're saying and i believe that that your comparison to these other cases also why is the fact that those cases they did hold evidentiary hearings mr james wasn't allowed to present all the potential evidence your so your hypothetical is one of many and he could have many that would support his claim as well and the problem is that the district court didn't delve into that in these other cases they did in kind of ask one more question i know you're past your time with my colleagues one told me there was an appellate waiver here and if i understand the argument that to to ask whether there are some valid basis for the withdrawal and therefore in essence you've got to look at the merits of i understood your argument correctly yes ok so doesn't that mean that oh an appellate waiver will always be meaningless if somebody wants to withdraw the guilty plea because you will necessarily get pulled into the merits well i think that just because an additional constitutional waiver additional waiver of a right is bound up with your guilty plea which implies a panoply of waiver of constitutional rights doesn't automatically prevent especially for the sentence motion to withdraw which would be freely granted in lieu construed for the appellant i don't think that on its own means that there is no turning back i think that the fact that sure i'm a stranger stan might my question is if we were in a circumstance a of the sort we are here where somebody says i want to withdraw my guilty plea later where he would have been able to preserve his right to appeal any decisions on the district court's motion but the waiver is limited to the right to appeal any sentence the manner in which a sentence was your honor and so so how can you contend that he did waive his right to appeal he waived his right to appeal the motion to dismiss or am sorry the motion to withdraw his guilty plea that had to do with his conviction correct it's cracked i just can't find within the the terms of the waiver anything that applies here what what specifically forecloses him it's not conditional he didn't wave or he didn't reserve his right to appeal the decision of the district court to withdraw his guilty plea but he didn't wave that either did it where does it where would language in this waiver include the ability to appeal the refusal to allow him to withdraw his guilty plea he didn't preserve that maybe i'm not understanding it here in order to have a waiver you have to have absolutely waived something correct that is correct and i'm looking at the language of his waiver and i can't find within it determined or the right to petition under twenty eight twenty two fifty five i don't see any waiver that would in compas what we have before us the manner in which the sentences impose your honor the manner in which the sentences imposed because it was the appeal of a denial of a motion to withdraw a guilty plea constitutes a challenge to the conviction not the sentence in that case is if you can cite to me some thing that says it has to do with the sentence rather than conviction but i  can't find that in the case law on that point wilson or wilson decision says that it would be a miscarriage of justice to enforce a guilty plea pursuant to a plea agreement if the defendant should have been permitted to order to understand whether this plea should have been permitted to be withdrawn we got a look at the merits right if you're if you're talking about the issues raised by th based on and compare it to what's on the record yes yeah we have to engage the argument the argument that hey i'm legally innocent here's here's what i understand their argument to be and  levy can correct me if i'm wrong but i understand the fundamental of their piece of their argument to be look the judge here said that you have to claim factual innocence  and that legal innocence on its own can never be a basis for a withdrawal of a guilty plea they take issue with that they have some cases that they say take issue with that in order to understand whether he should have been withdrawn permitted to withdraw his guilty plea we need to know whether that's a legally correct argument because if it's legally correct then the judge applied a wrong principle then you court in force the appellate waiver because the defendant knowingly and voluntarily and intelligently entered that plea agreement and we are also arguing that the district court didn't abuses discretion when it merits so i take it that you're in agreement that we have to engage the merits but your argument if i've understood it correctly is hey the judge didn't just say legal innocence is insufficient the judge  haven't put anything forth in this case that would permit me to say you could make that case that is accurate or ok and because the defendant didn't do that the motion to withdraw the guilty pl denied and the defendant seems to want to have his cake and eat it too he wants to say i am too naive to a committed the crime but i was entrapped to commit a crime that i was too naive part of and that is can't reconcile that you either committed the crime and had the entrapment defense but let's let's talk for a minute about about legal innocence as a basis for withdrawing a plea i can understand  some of our case law that would indicate that if as saying not that there's no variety of legal innocence that could stand as a basis for withdrawal but that there are some kinds of arguments that are made and posed as legal innocence which are insufficient so for example there's a big difference between saying i didn't do it which is a factual assertion of innocence and you can't prove i did it which is what some defendants in least in our case law pose as legal innocence whereas that kind of legal innocence is really saying you've got to prove you can't prove i did it and the courts have said that's not good enough isn't that kind of quote legal innocence and we've put those words in quotes in our case law isn't that different from an assertion of legal innocence which is a pure legal theory like entrapment which says yeah i did it but the law says i'm not punishable for those are two different kinds of things that may go under the same banner prove i did it or not i'm happy to say yeah i did it but i'm not punishable i'm legally innocent for an entrapment is the classic example of that yeah i did it but says i'm not responsible for it how those are those are fundamentally different sorts of things aren't they yes they are ok and since on that point why would our law say why would it be right for us to say that that second kind of legal innocence the yeah i can't claim factual innocence i did it but the lord says i'm not punishable for why would we say that's not the basis doesn't make it any less a matter of legal innocence if a jury exception the person is exonerated right right it's a legal innocence it's not precisely that's going to move but it's not factual they still participated in the crime and there is more than just saying mr x committed the crime but because of the circumstances you can find him not guilty so why isn't that enough for instance someone who was  juvenile and you didn't know they were juvenile but all of a sudden you raise the fact that they were juvenile and they couldn't be convicted of the crime isn't that enough it's enough to raise the claim but it's not enough to say that that person is actually actually innocent of the crime why not they've still committed the crime but there are many they should have been found guilty correct they shouldn't have been the good guilty plea was improper correct because they can't be guilty of the crime right if legal matter as a legal matter but and that's why isn't that enough that's what we're talking about here is a legal matter why why isn't that enough to be a full exoneration and therefore the basis of the withdrawal of a guilty plea because   to what the point is we're trying to wrestle here and i may i may be doing an inadequate job of putting this to you so i apologize i understand their argument to be the judge below made a fundamentally erroneous statement which is legal innocence  can ever be the basis of a withdrawal of a guilty plea i understand their argument to be that's just not so there are kinds of legal innocence which can be the basis of the withdrawal but guilty plea i'm trying to get you to engage that argument and in that argument i don't understand why you have any difference at all why it makes a world of difference whether it's an affirmative defense or not the question is whether you can be legally innocent even  committed you could be said to have done all the things that would constitute a crime but for another thing which the law says makes you quote innocent unquote like entrapment or like status as a juvenile and in the cases that have found in detail which aren't present in this case ok that's a good thing that's a good way that's a next step so what i hear you saying if i got your aid is you're not disagreeing with the argument that i'm trying to get you to engage with you're accepting that back that could be the case but here you're saying it doesn't matter because he doesn't have the facts exactly there are circumstances where the court has found that in the jacobson case they believe it was twenty six months where the confidential source w because james only inserts that he was trapped by a confidential source or an informant and didn't provide the court with any details on how he was entrapped let alone to point any evidence of the alleged entrapment here's t two other cases but in the final paragraph on joint appendix page number ten even the court said even if james assertion of legal innocence were sufficient bold allegations of innocence are insufficient there was a period of six minutes where the recording system had gone down and in that time if defendant was not comfortable or not confident in his represented counsel th do a dress your question was about whether the district court said that legal innocence could never be a fair and just reason on its own in the absence of a claim of factual innocence yet that is exactly what they said and although it is pointed out that they spent a year and a half a paragraph or page one paragraph saying well even of legal innocence was enough we don't see it here because they didn't dive into the question they were viewing it through the lens of it's already precluded and we're not going to delve into the issue you know i'm so sick and we james has not provided the court with any details on how he was entrapped let alone pointed to any evidence of the alleged entrapment a correct statement at that stage of the first meetings there was not much more mr james could have done on his own other than save the confidential for an repeatedly asked me to do what i told him no i told him no he continued to ask me i felt pressured and when someone walked into the room asked me who i didn't know i felt like i had no choice and i was forced into it well the state of the law says you ought to have something more than just your claims if you can withdraw a guilty plea and that's not  that's not an me you can see that's not fair but that is those laws in the cases that you rely on for the principle that legal innocence can be enough are pretty specific in saying you've got to show up with more than just your insistence that you were entrapped you've got to have something to show it beyond yourself sort statements sure but at that point the district court did not afford mr james a chance to do so of those cases have any case at all that says upon a defendant's self serving statements the court must have an evidentiary hearing well i have case law that says short of conclusive evidence in the record that they're incredible that they have evidence the hearing is required what's your taste that says when somebody comes forward and says i trust me i was going to produce that there needs to be  substantiating evidence in the record which to the degree that was available to present there was that he has no criminal history and that adds credibility that he's not predisposed that he he was visiting family he wasn't in town for civic we  do this deal and at that point we've been asked to be something that was done by the government to and trap him what what do we have here that would amount to anything similar to what was in the  well without allowing further testimony and explanation from the appellant the fact that the confidential informant repeatedly engaged him for this and it wasn't just hey i had this opportunity ok done it was multiple contacts it took time he consistently explained that he didn't want to do it and it wasn't until three or four multiple repeated attempts to get his involvement and he finally complied so whether or not that's conclusive either way i believe is very unclear which is why the district court should have obliged to delve further and the fact that he wasn't given the opportunity is story once you said i was entrapped never change it in his motion to withdraw his guilty plea surely he didn't need a hearing in order to recount all of the and trap facts and he obviously didn't do that well without substantiating it's comes from him sure has allegations i want to withdraw my guilty plea because here how i was entrapped chapter and verse this is what happened in this tape this is what happened on that day he called me i refuse to take his calls i didn't want to hear it he met me here i mean that's in the motion withdraw the guilty plea that's where all that has to be set forth don't need a hearing on that i believe that on its own there is a question of weather he could have provided more i think take in all his statements is true it's a viable defense and the fact that he wasn't able to get more substantiation is illustrated of of the dish