morning they please the court of the government my name is kevin ross i represent dollars scrivener jr issued before the court this morning is whether the district court erred by concluding that there was not a reasonable probability that the outcome of proceedings would have been different had mr scribner received effective assistance of counsel is the nd time that we hear on this case in regards to oral argument the issue in regards to ineffective assist counsel in the st prong of strictly regarding deficient performances already been established and agreed to that to give some context to the court is based on the fact that counsel had advised mr scribner prior to going to trial that if he went to trial he would be looking at a guideline range of thirty seven to forty six months had he pled he would be looking at a guideline range of thirty to thirty seven months having that information mr scribner proceeded to trial his sentence if he was convicted at trial to two hundred and ten months to two hundred and forty months a drastic increase that we saw in this in mr scribner's decision of whether or not to go the court that that played a significant role he was only looking at it around a seven month difference in his case so why not go to trial when he went to trial the st time the trial counsel noted that he was a of going to trial and he only it requires speculation about what he would have done one of the one factor be in that analysis be how good of a defense you have and if some he thought he had a good defense and in fact because he was just there taking the place apart and in fact he was acquitted on one count which shows he did have a you know wasn't it one of the slam dunk cases for the government why shouldn't that factor into the analysis of whether he would have gone to trial or applied well your honor i think that it it does but when he is as he stated that they have entered when he is looking at the amount of time two hundred and ten months to two hundred and forty months versus whether he would have fled to count three would have gotten acceptance or responsibility then his guideline range is dramatically reduced down two hundred and fifteen one thousand two hundred and eighty eight months he was going on the premise that he was only looking at thirty seven dollars to forty six dollars and i see that the difference between a wee between a guilty conviction my plea in a guilty conviction a trial is much greater if he'd known the range but it can also cut the other way because the benefit of getting an acquittal is much much greater under what the way the guidelines actually were in this case right because he by pleading guilty he was going to sign off on close to what roughly ten years which is a lot to hearing that he would have never accepted going to trial facing that much time because based on his criminal history he knows that he would not have gotten any lenient treatment and so he weighed he was having to weigh the risks  when he weighed those risks he was the information that he had at the time to make that decision was only a seven month difference it's a it's a huge disparity but that comes to that's a deficient performance part agreement that he has to show that the district court would have also accepted his plea and his plea agreement and three that the sentence in his case would have been less than what he the person of an intriguing well i think it's interesting in because it it comes to the reasoning in the rationale of how you get how the district court came to its decisions on the st on the three prongs versus what the judge did and here's here's the difference don't we got it and aren't we controlled by what the district judge found in the district judge here yes and what i'm arguing for the fact is that the district court got it wrong because of the district court reasoning but permeated the reasoning of the district court was the fact that the district court found that mr scribner free trial had always asserted his innocence the trial c came in and gave information that was attorney client information but at this hearing it was brought out that mr skinner believed he was innocent and so therefore he went to trial and so that affected the district court's decision court then concluded that he would not have accepted the plea agreement because it didn't believe that mr scribner would have been able to come into court and plead guilty because he had what always asserted his innocence and then therefore you would not have a sentence that was less because he would never accept responsibility so that line of reasoning permeates through the district courts to say it will that the panel sent it back is i get your argument in terms of that but how much of it is turning on the quote credibility determination a district court made in terms of the fact this it you mentioned is for is what he would have done would have accepted on the stand it set or it says well i don't think except i mean how much of that is in a calculus that we have to consider you know for me in the arguments and i think in that regard is that did not prove he would not have accepted a guilty plea had he been properly advised of the sentencing exposure in that a club defendant must be entitled to maintain his innocence throughout trial under the th amendment isn't griffin a little different because that was all about in court claims of innocence and so that's why it even talks about the right against self incrimination everything because a week it's expected that if you're going to trial you're not going to also say i did i committed the crime here the district court ready was a relying so much on what he said in court there was it at trial or or another court hearings that it rely primarily on what he told his lawyer privately under the protection of now going back to to open the bill to look at those conversations and say at that point you know you were claiming you were innocent so so sorry what normally happens and how it doesn't  yourself talking to your lawyer but i was privileged that's correct but but we're in the position now that you're going back and you're looking into that conversation and you're using that conversation to say statements now in this pasha what should courts look to that's a very difficult question because it does rely upon speculation in this case i would i think it was a court can rely on because the district court concluded that mr scribner would not have accepted the plea correct and that he would not in that describe would not have accepted his plea had he come into the rearrange it because he was proclaiming his innocence throughout the pretrial process and through trial just kind of to throw in there you have the presumption of innocence that carries the defendant through trial but the district court doesn't afford mr scribner those protections and then when you come to lawful or in this particular case mr scribner testified at trial in testifying at trial he testified to what he did the jury found him guilty of aiding and abetting it went up on appeal of this court sound that based on mr scrivener's testimony that he was guilty and they affirmed the the the  d by the jury so with that you look at the fact that he did admit and he had acknowledged of what he did now in the record  his look at the disparity of what his senate would have bed to you look at what he did testify to because the discord said that he was not going to admit the elements of the office and i argued to the court that he did he did admit to those elements of the other and so when you look at all of this as a whole the reasoning is the district court going back pretrial and saying no because you told your lawyer that you were innocent you wouldn't accept it but at the at the at the isn't it it is a finding of fact however the reasoning that the court uses is a question of a matter of law and with it was done correctly and i would argue that it is not  was court jonathan brushoff united states the court's questions indicate that it clearly has a grasp of exactly the control and standards of review so i want to skip straight to mr scribner's argument that goes to step two instead which is the question is what the court of accepted the agreement that was offered and the judge says well i want to done that because he would have not really come clean i mean that scene in the heat is the same thing at sentencing i want to have given him a more lenient sentence because he want to have come clean but it seems to me that's all really asking the st question if the answer of the st question is different yes he would have come clean then when the answers to the other two questions come out the other way i agree with the court that the district courts reasoning dominoes from question one question to question three so the district courts because i find as a matter of fact that mr scribner was unwilling to admit h guilty intent then i would not have accepted this plea and also he was not entitled to an acceptance of responsibility reduction i would always everything seems to stand or fall on that st question not exactly so the district court if this arguments on that i do see that but it that's right because i mean the way i look at the nd the supreme court actually frames the nd question as would the judge have accepted the terms of the plea agreement which to me is more a question of would the judge of thought this was too lenient or he have thought it was fair or not not would he have been satisfied the person adequately excepted responsibility but would that deal have been favored of the judge is the way i read that and i agree with the court that's the way i read bottler as well although i don't think scribner relies heavily on griffin and the key distinction with griffin it is a pre hearing disposed of at the pleadings stage so mr griffin files a post conviction motion there the district court denies it without having been cherry hearing and says as a matter of law because you earlier claimed your innocence then you're not even entitle to a hearing and the six nd reverses and says no he was it is possible that he could have accepted an alford plea so that is not always as a matter of law it does positive and of course the defendant would maintain his innocence right up until the point he pleads guilty otherwise he could never plead guilty and the government doesn't dispute the logic of that case but in this case the district court held in a bit unsure hearing so that's the legal difference in the factual differences mr scribner maintained his innocence in the post conviction context so in and fifty five dollars in the reply to the government's brief he says whether i am guilty or innocent is not the point and then he comes in before the magistrate judge and says i never had the intent to aid and abet and at the at the district court hearing the hearing that matters as judge parks will point out the government cross examined him with his prior statements from the earlier hearing and put before the district court the idea that even at the time you would think that mr scribner would have come in and said i had the guilty intent he did not admit his guilty intent then so this is a question of fact for the district court to result all this isn't a question of whether the district court erred as a matter of law so our argument is that griffin is completely in ups on that point this conspiracy for about twenty four hours or not in the conspiracy but involved with this group for about twenty four hours and so he had a very viable defense to these charges his counsel testified at the post conviction evidentiary hearing that sometimes she has clients come to her and say i want to go to trial no matter what and she says if you want to try the case we'll try the case but that was not the case of mr scribner mr scribner had what she called a trial case and exactly as judge costa pointed out mr scribner after trial was found not guilty on the conspiracy count which would have increased his exposure and he was also the district judge gave him a lesser included instruction on simple possession without the intent to assure so this you have to speculate it's a tough position for a trial judge to be in to decide what would have happened in this counterfactual universe it seems to me there's arguments both sides can make about whether he would have accepted the plea or not  which in that sense of pride helps you given the standard of review but if there's good arguments on both sides when all he needs to show is a reasonable probability which is let we know that's less than preponderance of supreme court has said so i mean so if there's good arguments on both sides why isn't there at least a reasonable probability not not a more likely than not but at least a decent likelihood that he would've taken the deal if you'd known the guidelines it's a difficult position district courts are charged with ther they're having to prognosticate and cast as a matter of fact but once they hold a hearing and determine as a matter of fact that i don't think it's for courts of review to come back and say well as a matter of fact there was some reason that you could have accepted so as a matter of war therefore you get to the reasonable probability standard the district court heard the witnesses live and decided as a matter of fact that there was no evidence in the record other than mr scribner's late to the game  protestation and in the final evidentiary hearing that he would have accepted this plea but excuse me that he thought he was guilty at the time and the district court was free to reject that after hearing the witnesses live and district courts are charged with making those difficult calls and the standard of review for those calls is clear  just briefly on your honor's one of the things that came out of the just your court evidentiary hearing was the issue of aiding and abetting in what was told and whether or not mr skinner understood what it inhibiting was  i think it was clear that prior to trial he did not understand what the full effect of aiding and abetting was and there was an issue in regards to trial counsel's testimony where she says that the issue with mr scribner and where we came  taking the case to trial was that the distribution was finished and so that he was not aiding and abetting in the distribution because it was finished at the time here i've been there would be no and there was to be no distribution within maryland that was f counsel counseling mr scribner on what aiding and abetting is and when does it stop and you're not guilty here of aiding and abetting because it is stopped and so mr scribner maintains again  conclude otherwise this court concluded otherwise and the trial counsel admits that the evidence you're hearing that going through what mr scribner testified at trial that he had done that that means the elements of aiding and abetting and so he did and except what he did in essence was wrong but he got again iran is advice of counsel and that didn't come out as a pleading as an issue in the two thousand and fifty five the only reason and it wouldn't have because he wouldn't have known but as you got into it what what the trial counsel was counseling her analysis with mr scribner was also rona's at the same time and that's something that the district court lives on you know held onto in the government had held onto has he said that he would that he didn't have the intent to distribute he didn't have the intent to distribute but truck coun in regards to aiding and abetting you know a seven months difference and hugo's the difference had trial counsel told him he was facing two hundred and twelve thousand two hundred and forty months of convicted and based on this the jury could have found him based on the inference of intent as an element of the oftens then you're going to get convicted you can get a lot of time he didn't have that information to factor into his decision to make a knowing to you it's this record side is two hundred and twenty two and last paragraph she did the issue she said came down to take in the case to trial was that the distribution was finished and so he was not aiding and abetting in the distribution but what he testified as to what he was doing is aiding and abetting that office and that's what the jury found that's what the district court found based on mr scribner's own testimony so the argument to the court is when you look at the factors that are involved the making in mr disk mr scribner making his decision of whether or not to go to trial the district court i believe erred in the coming to its conclusions because of the weight that it put on the fact of his of his innocence pretrial and he's a he's afforded that opportunity to do that and with that as judge cost a point out would is there a reasonable is case the district court erred in its findings based on its own reasoning and what it used as a matter of law to make its determined final determination of the question you know we say generally you  appoint to a case necessarily but i can argue from cases and i would r k case and i just go back to growth i mean i think the logic in the reasoning of gryphon that you can't hold that against a defend that should