plea based upon an inaccurate view of the law specifically it denied mr alaska soto's motion to withdraw his plea because it incorrectly found that his two thousand and five washington second degree assault conviction was a crime of violence under eighteen united states code sixteen a the defense did not dispute that if it was a crime of violence that it would constitute an aggravated felony based upon the sentence that was imposed being at least one year the district court finding denying mr of alaska soto's motion to dismiss was rested entirely upon its finding about the washington second degree assault conviction and indeed it explicitly stated that establishing that the conviction was not a crime of violence and therefore an aggravated felony would would establish a fair and just reason that's right i think that was the district court's reasoning opposing counsel as you know our argues waiver  that we it's a much tougher argument right certainly well i think the issue is that the issue that's before the court is the basis for the district court's denial  motion to withdraw i'm not sure that it is tragic questions posed a hard question for you which is that your client did enter into an appeal waiver and whatever happened to the district court it's not clear to us that you haven't given up the right to complain about that here certainly are and i'm sorry i understood the question to be using a different argument that the government has free as we have argued there i don't think that any of the cases that the government cites establish that there is a mandatory rule for dismiss where there is an appeal waiver but that doesn't tell us that that's not normally what's done i mean there are exceptions certainly no mandatory rule but ordinarily and i think the quotation you gave us used the word ordinarily well why isn't this the ordinary case certainly  honor i don't think that any of the cases that the government presented or at least on the face of the opinions present the court with the circumstances presented with here where the appeal waiver itself specifically addresses the sort of remedies the government has available upon breach or look different in a debtor phase one remedy it doesn't say that's an exclusive remedy and it seems pretty clear that's not what the parties contemplated to be an exclusive remedy because when it came time to sentence judge observe there's an appeal here right and both of you agreed and so he didn't go on to give the kind of advisements that he ordinarily would give everybody in the room appeared to understand that there wasn't going to be an appeal well your honor i think is that is that not the case i  time your honor i think that at the time of sentencing all of the parties understood that that mr velasco soto would not be permitted to appeal the sentence that was imposed we are not asserting that judge last next comments during the hearing on the motion to withdraw in any way altered the appeal waiver with regard to the sentence that was the advisements given a time of sentencing aren't limited to appeal of the sentence we get all sorts of appeals about other things about the conviction such as the one you've brought here and usually the appeal waiver is taken to apply and if the judge says something at the time of sentencing to open the door by leaving the defendant fairly with the impression that he did have the right to appeal then the door is opened but if the judge doesn't say that doesn't leave the impression that that time i'm not sure you've given me a reason as to why the door should be open given your client struck a deal that said he wouldn't appeal i think the government has argued to this court that the comments that we argue the district court made that gave mr velasco sort of the right to appeal need to be made at the time of sentencing and i would respectfully submit to the court that  cases the government sites don't stand for the proposition that i'm sorry that the comments need to be made at the time that the issue was raised which in this case would be the time of the plea and i think a is raised by the court with regard to him at the sentencing and i just don't think that the cases from this court establish that there has to be a sort of specific temporal connection to the district court's unequivocal statement that a defendant has the ability to appeal on a specific issue are required the rule usually is that an appeal waiver is effective this court has ruled in cases like buchanan that if at the time of sentencing the defendant is left with the impression based on the comments of the judge that he does have the right to appeal then the appeal waiver is in effect set aside but you haven't pointed to anything that gives me a reason to think that the defendant didn't understand at the time he entered into the plea agreement or at the time of sentencing when the judgment becomes final that he understood he had energy into a waiver of appeal if he did if you understood he entered into a vote appeal when you strike a bargain you get some things you give up some things and one of the things he gave up was the right to appeal why shouldn't that be the rule applied here your honor i think what the court bringing up  pronouncement of sentence rules we have lots of cases in other contexts of the judge misspeaks in the oral pronouncement that's the one that counts the time when when judge last make appeared to contemplate the possibility of appeal wasn't the time the sentencing was an oral pronouncement of sentence was an entry of judgment so why should saying something at that time when he contemplated the possibility of an interlocutory appeal for example why should that be taken by us to give the defendant a different impression because i think that judge last night's comments were very explicit well there were four comments that he made and i think three alluded to that he contemplated that mr of alaska's sotto would have the ability to appeal the specific issue that's been raised here and no others and we haven't raised other issues and i think that you cannot is as i said in many ways factually similar to this case because there are the court  looked at this issue in the context of a motion to withdraw a plea that was made four months after the plea and the court at the time that that motion to withdraw which was at the time of sentencing although one day before the sentencing alternately took place and made specific to statements to the defendant about his ability to appeal in the same way that the district court did hear and as i read the opinion  it was relevant to the court's decision in buchanan that a defendant may have relied upon the district court statement and making his ultimate decision about how to proceed in that case which is whether to withdraw the plea and proceed to sentencing or proceed to sentencing he would be able to appeal the the lone issue that he has appealed in this case and then during the discussion of whether mr velasco soto would ask the court to rule immediately or would wait for the supreme court's decision in math this case as with the comments that were made in buchanan provide both a specific statement to mr of alaska that he would be allowed to appeal to spin this single issue as well as his reliance on that  and if i think earlier in response to a question or two you mentioned that you thought the appeal here or the waiver here was as to this sentence but that he he waived his right to appeal the conviction yes yes and if i would have been to me misspeaking now said that i think we're clear on that thank you certainly certainly we don't dispute that he does right to appeal the sentence and that there were no comments from the district court giving him the morning your honor may please the court my name is michael moore going to represent the united states on this appeal parties agree that there was an appeal waiver in this case and i gather that the parties agreed that the appeal waiver on its face covers the issue that the defendant would like to raise i is an issue about the merits of the withdrawal of the motion to withdraw if the court were to get to that point because the government doesn't concede that the intervening change in law one provided only because it's not even intervening change in law because of the state statu anymore but we have the appeal waiver and the weather if the waiver wasn't affected there's still some issue with regard to with roll right we don't have the government has to concede at this juncture that it's alternative that it's ultimately argument that it made that hey  look it doesn't matter because under current law the statute still qualifies the government agrees that in light of this court's decisions in robinson and slade then that argument has fallen away just to be clear you're agreeing that the prior conviction for degree assault under washington law was not a predicate offense so if we see if this hadn't been waived there i think the district court essentially ruled incorrectly and it wasn't just because he was waiting for matheson into camp said what mathis said and and that's i appreciate those are different issues but getting just if we can take this one step at a time your answer to judge clifton's question is yes right no with respect not counsel there's not there's not an issue about this underlying but there is your honor because the relevant whether that's that you qualifies today correct there is no issue about ok and then the next point that you're trying to make is that the one that i was just getting at even at the time judge last night entered the sentence there was the camp you listen i was this could have been identified by defense counsel and raised and wasn't well that is true and that is one independent reason the district judge properly exercised discretion in denying the motion to drop the plea but there's another issue which is that in fact the prudent legal question with respect to the defense the defendant wish to raise was not whether or not this conviction qualifies today but whether it qualified as an aggravated felony under the law changed in two thousand and seven as i understand that just him and i appreciate that so thank you but but you just said something kind of quickly there about the district court properly exercising its discretion to deny this motion to withdraw in opposing counsels first argument really is that's not what the district court relied on what the district court relied upon is this you know trying to look at a crystal ball and trying to anticipate with math as i was going to do which you know by the way the whole of us were in that boat and it was a pretty uncertain time that's what i'm trying to get at are you asking us to affirm on a basis that the district court did not rely upon if the court were to reach the merits yes the government's primary position is the court need not reach the merits because there isn't in forcible appeal waiver and this court is empowered to do so even if the court essentially you're not grading the court's paper and you're grading whether or not the court got the right result on the marianas to rely on waiver on well that's an independent issue of the merits and yes we would like you to enforce the appeal whatever in this case the waiver in this case is unambiguous it plainly covers the issue the defendant was to raise it was part and parcel of the police agreement the defendant is not allege that there was any problem with the ent plea agreement the issue the defendant hits a pawn and wants to raise as well the case is still the district court and on some level i could have imagine argument being made to the district judge saying well don't let him withdraw the plea we've struck a deal already and nothing should really change that deal but the deal has expressed in terms of an appeal waiver and the district courts not appeal so he's he doesn't seem to be viewing the issue at all through the lens of appellate waiver indeed he makes reference to the possibility of appeal so it becomes entirely separate from the thought process of the district court now that doesn't mean we disregard the appeal waiver but it raises a wrinkle with at least i haven't experienced before because the issue comes up after the plea agreement is entered into and it would be great if you could acknowledge that in response counsel well in many cases the issue this court's decision initial in which we've cited is on all fours which is the issue where the defendant enters into a plea agreement then subsequent to his pleas the defendant decides he wants to withdraw his plea the district court denies that motion to withdraw and this court you know it forces the appeal waiver of course when the defendant entered his plea and the appeal waiver he couldn't foresee that one he was going to change his mind and decide he wanted to withdraw as plea to the discourse was going to deny that and then three that he was going to appeal that decision he couldn't foresee that when he entered the plea but that doesn't matter that's what the whole point of appeal waivers of convictions are and this  held that numerous times that it doesn't matter if you can for see a claim that may or may not have merit down the road if you at the time of your plea choose to with choose to with your right to appeal that's exactly what you're waiving that's the whole point of the appeal waiver and this court routinely in forces appear waivers when the issue is the defendant's the denial of a motion to withdraw a plea which by definition is not an issue that existed at the time of the appeal waiver so the only question seems to me is whether or not judge allows nix i mean and just to answer another of judge quick questions questions is that when the district judge is denying the motion to withdraw that's not that's par the appeal waiver would have nothing to do with that motion if the district judge believed that the motion should be withdrawn well the his plea should be withdrawn including the appeal waiver the appeal waiver doesn't somehow justified notice and so i understand that except in this case the judge very much talked about the uncertainty of the legal question and the possibility of allowing appeals so it's like and he's staring at past ninth circuit case law and trying to figure out how do i reconcile the old decisions with what appears to be the direction the supreme court is headed maybe i should toss it up stairs now and so forth and so the possibility of getting some form of guidance from this court is plainly on the table and nobody says to him well that's out of the question your honor because there's an appellate waiver here that is that is true your honor and it would have definitely been better practice had the government said something at that time i would point out that as the court has recognized when the defendant ultimately was sentenced everyone acknowledged the appeal waiver and the judge certainly was like well there's no appeal i'm not going to have any rights so the defendant could have been under no illusions at the time judgment was entered that he had any right to an appeal and this court's precedents are pretty clear that the enforceability of the appellate waiver is measured from the voluntariness of the time it's entered a statement that the district judge makes four months later doesn't like retroactively invalidate the voluntariness intelligence of the waiver that was entered that waiver was entered knowingly and voluntarily and that fact coupled with the fact that at sentencing the district court made crystal clear that there was no there are no apparent rights there is simply no reason for this court not to enforce the appeal waiver and dismiss this appeal unless the court has any mean i agree that it took about nine minutes to get there but i think the government's got a very strong argument on that point well and i don't i we don't just and it is the conviction and so it's right that this waiver specifically speaks to convince it not sentence as in you know other plea agreements and since the prior we're talking about really that breaks in the the whether this prior qualifies as a predicate offense counsel so it seems to me to be very difficult for you what's your best response certainly honor our response would be that in for stability and contact would mean enforceability of the language of the agreement itself which if any ambiguity is to be interpreted in mr of alaska's soto's where's the ambiguity in conviction he's waving his right to appeal the conviction certainly honor it's what we are arguing is so much that piece as the the remedies that are provided for in the plea agreement and that's what you briefed in it seems to me going back to judge of john's point that you're what you're what you're suggesting is that that is a limitation of remedy and i think that in the context of the entirety of the plea agreement it is i think that if we were looking soley at paragraph fourteen of the plea agreement which deals with and i'm at the supplemental excerpts of record eight zero means the appeal waiver would never be effective don't because all it does is this is the government a chance to do over from square one not get a chance to wipe off the appeal that's hard for me to read the agreement is as expressing the intent that that was an exclusive remedy well i think advisories because the appeal waiver doesn't count for anything except that it lets the government reinstitute other charges but at the time of sentencing nobody said no tell him he's got a right to appeal because he does and i certainly as a rented and it's have would have allowed this issue to be preserved and defendants did not take him up on that offer that's correct or honor that was with the belief and understanding given judge last night's explicit comments during the hearing on the motion to withdraw that part of this issue was something that the court contemplated mr of alaska so to being able to appeal and he explicitly did he did not ultimately elect to sit in custody for the additional significant period of time that it would  decision by the court the next case on counter for argument is united states versus been for