that case the court said we can assume that he would have pleaded guilty anyways and we can assume that the evidence was overwhelming of concern but nonetheless there was no substitute for his fallen terry mission or a finding after trial that he intended to kill race issue is interesting and important so i want to ask you a quick question so how do you distinguish the challenge here from what i'll call a more one of the mill rule eleven challenge because you know we've had lots of these cases post race in the rule eleven context where you know we say look from the record it's clear this guy knew he was a felon and i don't really think you dispute that your guy knew he was a felon but you say well this is different because i'm making the constitutional challenge which i understand but what's to prevent every other post race petitioner going forward from just saying i don't know who said anything about real eleven i'm arguing a due process challenge well i don't know that anything would present a petition or  i'm clear i mean it sounds like for the most part you think that everybody who comes up post hey it's going to have the same you know i mean there may be marginal candidates who don't for some reason i can't quite figure out but everybody will have the same claim that your client does nobody will have to prove prejudice and everybody will sort of pass through the planer needles i think so for those who raise the due process point and i think that the vast majority would have this issue i think it's particularly clear on this record just based on the way that the parties discussed the elements very clearly so it's more than the mission of an element of the affirmatively misstating those elements to him that may be one distinction that th and in fact our own court in the read case although it's not a guilty plea it was a trial scenario but we also we did not apply structural era we applied applying the era test how what princip ground that we have if we determine that this kind of error at a trial is not structural error but it can be analyzed based on the traditional playing era test how does that kind of exception current only with things that absolutely can't be measured you don't have a lawyer trial so how can we determine what would have happened this seems to me very easily measurable in that we know full well with honest one hundred percent certainty what would have happened if your client had been held one of the elements is he has to know he had a felony conviction we know that he lose on a jury trial because sitting there his many other felony convictions is a conviction for a felon in possession of a gun so there can be no doubt no doubt that in my mind that he would have still pled guilty because otherwise let's play just three how it go at trial the government put up every felony conviction he had to show how many he had including this last one not something that i think your client would like it would be helpful i can't see any was he would not plead given his record and that's the kind of structural errors because the nature of the right goes to some interest that transcends what we would normally be considering when we're doing a harmlessness or harmfulness analysis and this is exactly that kind of interest one that the supreme court has recognized a couple of times as an interest that makes an error structural his interest in deciding for himself whether to admit or try charge conduct so it's it may be measurable but it's still surface other interest and i think that's a separate grounds for finding at this structure i want to touch on the acceptance of responsibility just to say that the facts there are undisputed underlying the court we're going to call it is implicit in every crime and you say provide for liability criminal liability that is broader than federal ending in abetting does that mean that no georgia crime can be an act of predicate i thin suggest one limiting factor and i realize it is another issue with pretty broad implications but in this case we have separate documents that indicate that party to a crime was actually of in the indictment it was possibly a grounds for why ability and not every case will be that in some cases it's would be entirely relying on the implicit nature but here there's some explicit indication that there might have been a party to a crime theory as a basis for his conviction and i think the majority of cases may not have that so you could leave that part of the issue for another day and decided on  not a men's way of that extends to the specific offense and that the georgia doesn't always require an affirmative act causes an exception to the affirmative act when circumstantial evidence proves intent but we know we have to have both of those rosemont so i gather your argument is not so much that there's anything wrong with the statute the georgia statute looks fine on it if you're saying that you found some appeals cases that you think maybe narrow that in a way or broaden that in a way and your good morning your honor jon ramer on behalf of the united states may have please the court for the three issues today i'll begin where we left off with the georgia burglary issue the only way for the defendant to prevail on his  a claim here is if he has shown a realistic probability that georgia is aiding and abetting liability as an outlier compared to most other states and the defendant here has not remotely made that showing for at least two reasons st in doing this alvarez the supreme court cited the very statute at issue here georgia's party to a crime statute sixteen yes to that twenty and both appendix a and appendix e as part of the baseline against which california is aiding and abetting was measured and i think that provide strong evidence that georgia was well within the mainstream when it comes to aiding and abetting liability and nd all the defendant has really done here is pointed to roseman which interprets federal aiding and abetting liability under eighteen u s c section two now explain why we think that argument fails on its own terms but i st want to point out that even if he were able to show that georgia was somehow out of step with federal aiding and abetting liability that is not the test that doing it alvarez articulated for analyzing generic offenses instead doing the southwards makes clear that when dealing with a generic offense the relevant baseline is liability in most other states but even assuming that rosemond were the relevant compared are here defendants three arguments fail for three separate reasons st georgia law requires the same types of affirmative acts that sufficed under both rosemont and the general common law is described in the fave nd both georgia both the georgia statute and georgia case  evidence did not support a finding that he had the relevant criminal intent for the purposes of aiding and abetting liability so shockley tells us nothing about what sort of affirmative act are required under georgia law so this is judge newsome you  don't i don't even if it wasn't present that you don't deny that shockley affirm the conviction which there was really no affirmative act right no your honor i don't necessarily agree with that i think in shock that you have an example of a defendant in the principle getting into the car with a victim who was then found killed behind the wheel minutes later so i think there's enough there to support a finding of an affirmative act and i think that ranks a case that the defendant relies upon does a good job of articulat in certain factual circumstances assistance for purposes of aiding and abetting liability can be rendered through presence in rows in the court said that section to prescribe any assistance rendered by presence and then  situations where the defendant had a prior relationship with the principal was in the immediate proximity to the crime but did nothing to stop it and that would be sufficient i don't think ranks as anything outside of that let alone does ranks extend significantly beyond the liability in most other states which is what for sockets and when you say alvarez require and rd as i've already answered about shockley the defender has pointed to no ga case where a defendant has actually been honor so cash is a necessary and probable consequences case cass's is not about the requisite mens rea for aiding and abetting a crime and i think to recognize that distinction it's helpful to recall that the necessary and probable consequences doctrine only comes into play when you have two crimes a target crime and then a subsequent crime and for the target crime standard aiding abetting principles apply so defendant must have the requisite mens rea and that was effectively uncontested in cash if the defendant actually admitted he intended to commit the target crime because that was his whole defense when the natural probable consequences doctrine comes in is when there's a subsequent crime and we're going to ask whether the something in crime is the foreseeable consequence of the target crime and we know from joining us alvarez that there's a natural problem consequences doctrine is sufficient under the categorical approach and under that case and i think you can especially see this when you compare cash to the california case mon tez which the supreme court approved enjoying yourself or as the cases are very similar in the sense that the defendant had the requisite mens rea for the target crime the defendant argued that he could not be held liable for the subsequent crime because he didn't know the principal had a gun and in both cases the court said that because the target crime was an assault a certain type of assault and because the subsequent crime was reasonably foreseeable even with the use of a gun it does not matter that you did not subjectively know that the principal had a gun and i think the cases are identical and i think combining all of that with the fact that the supreme court relied on georgia law cites the party to a crime statute and three georgia cases in appendix  is strong evidence that georgia is well within the mainstream when it comes to aiding and abetting liability catches your eye gets this changes just change your argument a little bit you didn't address it in your brief but now you i guess you're addressing this party to a crime argument in ways that you did was we don't need to address this party to a crime argument and now that's what i understood and now you may recognize that you did that we do i think we in your honor our brief i think we made a few arguments one was yes a large part of the brief was that you didn't need to address party to a crime we did also argue that even if party to a crime was relevant it wasn't broader and we we compared it to rosemont which is what the defendant was comparing it to so we did make the argument that george is aiding abetting liability with not special in some way and then for talk is does make the our st argument potentially more difficult but we think we easily prevail under forty sockets and that's why we're pushing that  we don't think that that we don't think he's shown up the liability expense significantly beyond which is what's required and that's there a further questions on the burglary issue i'm going to turn to the race issue and there was an error ballsy does not necessarily go to prejudice and so we disagree with the defendant that the error here is structural or subject to automatic reversal i would note that even if the court were to label the error structural which error is not structural the supreme court has never deemed an error like this one to be structural it does not fit within any of the three rationales accorded use the defendant relies extensively on the idea of the autonomy interest but the autonomy cases yes how many structural error cases were protecting the interest of the defendant having the final say having the off or down vote on a particular question and indeed the court said the right issue in the autonomy example of that is gary got there gary found that the air affected the autonomy interests by extending the autonomy cases to making an informed decision but the problem is that that's not the interest that's protected by the autonomy case and i think an example of that is macaskill where the defendants needed to have the right to choose to self represent now if most defendants were making an informed decision they wouldn't choose to self represent because  chances of success would be much greater when represented therefore that's not the interest protected by the autonomy cases and therefore the error here which goes to protecting the defendant from erroneous conviction does not make it a structural error under the auto cases and we also think the area the error is easily measurable as this court has done in reading and on published cases applying read to guilty pleas and also in cases applying comma and measuring whether the error affected the defendant's decision to plead guilty and finally we don't think that the error here is fundamentally unfair because as neither makes clear for a structural  error must be unfair in every single context the error is made whereas here we do not think it would be unfair to hold the defendant to a guilty plea where he cannot make any shallowing that the error had any effect standard rule eleven case and your sort of unconstitutionally unknowing and involuntary cases in the former you have to show prejudice in the letter you don't and then i thought  proceed that for doing is beneath it specifically footnote ten which is what the defendant principally relies upon footnote ten is discussing boies and we think that the proposition in that foot now is that there can be circumstances defendant's knowledge with respect to the rights he was waiving there's no record upon which the court can conduct a pioneer review and we think there can be circumstances in plea proceedings where the error is so extreme that the court would not conduct plain view but that's not this case where the defendant cannot show or has even suggested that he could show a reasonable probability that the air had any effect on his decision to plead guilty and because it's a case by case analysis when it comes to this type of error we think extraordinary case of course it would be to interpret what the word extraordinary means but when it comes to deciding whether the facts here constituted the extraordinary case to warrant the acceptance of responsibility despite the obstruction enhancement let's your honor to have any other questions i see that i'm about to run out of time we would ask the court to best case on the affirmative act issue but do you dispute the government's contention that shockley was not a case in which the affirmative act issue was presented that it was presented as an intent case i'm not sure if i agree with