it please the court my name is ivan's and i am here today representing the petitioner appellant brian bram as an initial matter i want to apologize to the court for my failure to comply with a nightstick a rule twenty eat i have filed a rule twenty eight j a letter this morning with the court specifically requesting that the speaker certifying that question as it was briefed and also including the issue appropriately raised by the government in their response that that issue is not as i apparently had believed it was included in the final petition that was considered by the district court and that therefore raises the issue of the propriety of the district court doubt requirement of a predicate which has to date not being considered by the supreme court is a watershed rule and therefore is a portable on a national initiative petition on collateral review but i  obviously something that this court cannot do other than to say i'm starting this ivans but i'd like you to address that to the extent of certifying it and ruling on it which will allow me to take it to the supreme court  plea this is a very difficult argument to make but it was certified and i am here to make it and i think that my best argument is as follows there are two separate pieces under strickland the first piece deficient performance and this is not mere in accurate prediction case this is not a question of just did he get it right was it three sixty to life and you know maybe that's pretty close and maybe it's reasonably probable that that was correct but that's not really what mr graham is complaining of he's plenty about the entire process by which he decided not to enter a plea and that is that the for the defense counsel's failure to have a meaningful conversation with him the court has before it the letter which was written to mr brown which does not discuss the impact on him of a dismissal of one of the two eight fifty one charges that is a critical critical important question and i think actually concomitant with the fact that it is the defendant's decision as we know from top practice whether or not to enter a guilty plea is the defend his decision that puts the burden on me as his lawyer to do a very very good job of explaining to him what he's giving up by making the decision to proceed to trial and my practice years go back to before mandatory minimums and minimums really changed the scope of counsel's responsibility in that regard and used to be zero to twenty with zero to twenty and the important thing to tell a client was this judge is fairly lenient this judge you know will be interested that you have a family that you need to support this judge is going to give you a suspended sentence he's going to mass you out and put you on probation and he's going to suspend it all long for this trial yes that was ok but the problem is that it's still the client choice and when i was representing clients and i would give him the same advice you would and then the client would look at me and say i want to go to trial even if i thought that was the dumbest response that my client could you know all i could do would be tell him that's the dumbest answer you can give me an here's why you shouldn't make that and mr ross didn't do that and rather that is the problem that i see in this case that there's a reason that it's worth discussing today is that mr ross did not do that he wrote a letter he had a brief conversation he said this isn't really even a plea offer it is a plea offer if mr brown had received a thirty year sentence instead of the mandatory life he would have gone home before his sixtieth birthday which you know i'm not sixty yet so that's that sounds good but at sixty one that's going to sound really good so i think that mr that there was a big difference to him that as mr brehm i think that that in the record that no one i don't think i better check that i don't think anyone has challenged mr brown statement that he didn't understand that it would be twenty to life versus mandatory life what mr ross said was it changes he only was looking at the guidelines and he said it would change a mandatory life to three sixty to life and he did not discuss in his letter or apparently in the conversation that this means he's dropping the government is offering to drop one of the two priors which now gives the court a lot more leeway to make a decision under the guidelines and there's no discussion about possible departures there was no discussion about maybe how would we challenge this role in the offense which i think is sort of the weak link in the government's it whether his representation was once we answer that question with well no because i need the second half of strickland because i need a reasonable probability that the outcome would have been different and i think that the fact that the outcome configuration that i think is at least possible which is taken down to a level thirty six which is where we have to get to be below three sixty to life and that is the more conservative estimate i'm drug quantity under thirty kilograms and not applying role in the offense and the government's position that is that it's clear from the plea agreement that he would have had a to point to hansen under three b one point one for one the offense every read that plea agreement several times i don't think it's that clear on that as between the four of them based on those facts he leader manager organizer supervisor so i think it's least probable or possible that the court would not have imposed that in a police situation and i think it's important that you plead guilty in a case and you end up with a life sentence you know i think the courts are somewhat inclined to look very reasonably at the factors to try to accomplish that being less than life to encourage people to enter guilty pleas so if it would be legally permissible to make that finding i think the court might have been inclined to make it because otherwise there is no incentive to plead on these types of cases one of the things that strikes me about this case and it makes it a hard argument thing for you to make is that this defendant was feces such a long term of imprisonment that one way to look at this would be to conclude that ok they dropped the agree to drop one prior and maybe only get a minimum of twenty years as opposed to thirty but it's still twenty year and you know i could see where i defend it might think why don't i roll the dice because i'm going away no matter what if i take you there which is why it's counsels job to do a very good explication of what this means and i certainly with my clients go through ok so your child's going to be held and and you're not going to be there ok but when they get married you could be there if you take this plea agreement with you from my point which is that as you get in to have a longer sentence yes it's harder for a client to think that a five or ten year differences really all please a core bryan hershman on the half united states the primary issue raised in this case is whether defense counsel rendered ineffective assistance where he accurately advice defendant of the plea offer the potential consequences of the plea offer the advantages and disadvantages of the plea offer defendant weighed those and made his own independent decision that he wanted to roll the dice and proceed to trial and under those circumstances is the united states magistrate judge in the district court correct in finding that it's not in effect of assistance of counsel to allow your client to make such decisions even if in hindsight it turns out that you end up with life in prison man instead of three hundred sixty months to life and the answer has to be that that decision because the consequences are suffered by the defendant has to be the defense to make and i'd like to start off by talking about the the fact that mr ross didn't explain to the defendants what the potential consequences were and then he accurately explained it and i think the start with that it's important to look at the letter that mr r did address with mr graham in person and then mr ross his own testimony that he went through that letter he went through the guidelines and he explained the facts in the letter spacing what's going to happen under this plea offer as you're going to go from a mandatory life which is what actually occurs when you have to priors and with the dismissal of the prior instead you're going to have three hundred sixteen months to life and under any scenario as i laid out in my brief that was correct three hundred  months to life is what mr brown was facing and that is a lot of time under the guidelines and mr brown his himself admitted that he was not willing to accept such a plea offer he said that on several occasions and to this  if it were going to be twenty years i would have accepted that but he's never once ever said that he would accept the plea offer that was on the table three hundred sixteen months to life and i can see you even if mr brown could survive the first quantum of strickland  find it was ineffective assistance because he didn't force him to accept the plea offer he didn't want to accept which i do not believe is the law but even if that were the case because mr graham under the president's promise never said he would accept three hundred sixty months to life and that was the is well there was also an interview of attorney ross which is the government's e r ninety six which was submitted as part of the record and adopted as part of the findings where mr ross would interview in advance of the hearing intimate is part of the government's opposition to that twenty to fifty five motion in there mr ross explains that he took the guidelines with him to meet with mr bram  says i looked at the letter it left open departure issues i didn't want that and so i rejected the plea offer and if you look at mr ross's letter what he says is the effect of the plea bargain is to reduce  it reduced it from a life without really sentence mandatory life to a three hundred sixteen months to life sentence which did now whether or not mr ross in the letter explained the whole nature of section eight fifty one and how  mandatory minimum one prior versus two priors had some effect is not relevant or dispositive on the issue because he explained the effect of the dropping of the one prior in other words if you have to acquire you will have a life without release sense period end of story mandatory life if they agree to dismiss the prior you're going to have a mandatory minimum of twenty years the guidelines are going to call for three hundred sixty months to life so that what you're likely sentence for me so if the argument the letter doesn't contain all the information that the attorneys shared with this client that you have to consider that in conjunction with the testimony of the attorney of you as to what they talked about when he went to the m d c and explain his often i think the letter on its face is sufficient in any event because whether or not he explained the reasons why it's changes from a mandatory life to a three sixty months to life  explains the relevant issue which is that it does do it for legal reasons why it may or may not happen are are are relevant to the ultimate decision of whether or not you're affected the question was the one is a little fraud or tha think this puts defense counsel in perhaps the most uncomfortable professional position that you want to find yourself in and that is after the case has been resolved you now become a witness against your client based upon advice that is at the heart of confidential attorney client communications i would not expect and i certainly when i wrote these letters never put into my letters everything that i told my client and i mean that's one reason why we want to interview or take testimony from the lawyers but it still puts a lawyer a very awkward position but that's what we do magistrate that you're i assume considered everything both the letter and the testimony of the lawyers what the client understood at the time  the most significant aspects of the government's plea offer any advantages and disadvantages but i do agree with the court that you have to look at the entire context when looking at whether or not the attorney was effective or ineffective and in doing that is a ma judge did you look at all of the evidence before you which would include the attorneys testimony about what occurred the letter or any interviews or other information that had been provided with respect to what the attorney did and certainly when you look at the entire package it becomes clear that mr ross was and did provide effective assistance in explaining the advantages and disadvantages of the potential police offer and if the end of the day i think the court is correct in saying that suspicion has to be made by the possibility of being released but then the possibility of getting three hundred sixteen months would entail the possibility release and i think it's accurate to put on the other end the life sentence because under the guidelines under level thirty seven are above it the federal sentence and there is no parole in this in the federal system anymore so a three hundred sixty months sentence means he gets one fifty four days of good time credit per year for each year that he's right so it's not like he facing if he chose to accept the plea offer and by the pentagon admission that's one of the reasons why he says i'll take my shot at acquittal and then in hindsight when it looks better to have taken the plea offer although again parole consideration but i think they have to set a date and i think they pick a thirty year but not if i mean i don't know but if that were the case wouldn't it be then there would be no difference between three sixty and why for  out the answer that question that that's always been my understanding is that it would be treated as thirty year and it would be about twenty five to three quarters years before he was released which is a lot sooner than never and the effect of the clear agreement was not to change mandatory life to three sixty to life they're mixing apples and oranges one is as the court discussed in the argument before me mandatory minimums and statutory provisions and one is guideline provisions and so the answer is what the plea offer did was change mandatory life to twenty to life and then there's a further sentence this is however under the sentencing guidelines here's what might happen and it's not by any means certain that it was going to be three sixty to life i just don't accept that based on what the government's plea off said and so it may have been three sixty under the guidelines but the statute would not have required a sentence above twenty years and that gives a lot of room to have that discussion about what's appropriate what you have to do to get to where i want to be is find t hat mr ross was ineffective because he did not explain that to mr graham he did not explain the difference between statutory mandatory life and statutory twenty to life and what he could or couldn't do with the guidelines to get  that was below mandatory life and then you need to find that it matters that there's a reasonable probability that the result would have been different and i think that under globe are saying that any amount of time under strickland now matters that that's satisfied in this case