to beat the prosecutors or the court house but if there was no if if the court found it absolutely positively true that much as i say to never would have pled guilty at all in there would be no reason for us to  at the same time at the present you know you don't first of all you can't just waltz into court and enter a plea of guilty without some notice right that is that's not what happened in the kit well i mean how do you get and the how do you get the judge the defendant in or out of custody and the prosecutor and the defense attorney out to show up there's notice that there's going to be some entry right or if you're in a proceeding you're there  yes your honor there's yes your honor and in this particular case there were several arraignment dates in the civil court dates before the person pled guilty ones or before before you know that's not the point but the point is on the day you show up to plead be some proceeding a notice so now you know you're there and the question then becomes if you know if you look at it as a criminal logy in time if there's going to be an entry of a guilty plea the pr has an opportunity presumably before the date of the hearing which has to be in person to to file the a fifty one correct that's one option it's one of three and the other option is to show up for the guilty plea the defendant makes his guilty plea the judge hasn't done anything yet in terms of whether it's being accepted but the prosecutor says oh stop  one i'm going to file these pieces of paper now so that's that also is an option or is it your view that that would not be permitted that is your honor it's our position that that because of the because of what you i don't know even if mr so say go ahead now edge of this maybe he did in some cases there's a heads up in discussions or whatever but i don't know if he had knowledge so i'm adjourning this hearing to give him notice to give him sufficient time file something in that time but in addition to that there is a real question of what the prosecutor who have done that in this situation in this situation the prosecutor said in the hearing said several things in the court found that they did not know the court found that the answer was that they did not know as to what would happen if the if mr sausalito kind of walked into court and pled guilty and then looked at the prosecutor to say what do you want to do well i'm your should have told him that if he comes in and immediately says he was used to enter a plea of guilty that he might have that he would have been able to do that the government would not have filed the  government would not have filed the fifty one his lawyer knew that the government would not file an eight fifty one there would not be an opportunity and that he could just gotcha prevent this from happening is that where we are government would have been permitted to file but that actually the government would not have based on the testimony my position is that the government should not be otherwise the council wouldn't have any idea he wouldn't be and if ineffective assistance of counsel not to have him plead right there that is what my argument is and that is because the best because if you won is a strict statute that leads to increased sentences and something to asians a life sentence so the government should be held to a higher standard your argument has to be that the government could not as a matter of law have filed and if you're wrong on that then what happens he loses that that that could be ok thank you by the court really covers the legal issues in this case and the different permutations that could have occurred in terms of the entry of a plea and the filing of fifty one i think importan findings by the court be established because there are arguments by defense counsel that is not what the court record shows as as as an example the court held that defendant had not met its burden of showing that there would have been a plea without a special information specifying less than two convictions that's following that subtle supplement supplement excerpts of record to sixty and to sixty one in addition oh the court made a series of five s in terms of the issue of whether the prosecutor would have filed an eight fifty one i think important to know that this was ongoing for months the reason why the prosecutor held out and not filing the  special information is because he did it he withheld the filing for the benefit of the defendant because they were trying to encourage the defendant to cooperate with the government and thus get a lower sentence so this was an ongoing discussion between both defense counsel that represented defendant they'd had ongoing discussion of his to park addictions it was a known fact it was discussed between and the position of the trial counsel was very clear we want cooperation they wanted to know who the supplier of the defendant was for those narcotics that were seize that was their primary talking about government tr filed the information at all well you know i would i would point the court to all the supplement except of record pages one eighty two one eighty one because what was set forth in the opening brief of the defendant is very misleading because it was only started a portion of her testimony in the answering we cite for testimony given by ms some ashima and the last portion of her testimony  the court wanted to know at that point in time i'm trying to get what your view was this summer she misses i would have filed the special information the court you would have filed it the witness yes that was at the time that she represented that she represented the government during the trial at that time her testimony about whether or not she was the she was t g that those her hindsight but when the court got down to it and held her to what she was thinking at the time this summer she was very clear yes i would file the special permission and let's be clear about th this is not the opening brief of thirty pieces especially information is two pages at the most it all it does is set forth to the conviction and say twenty one you see fifty one you can generate the document in five minutes if we had a hearing where the defendant some hall surprised the government and the court that he wanted to enter a plea it's a simple phone call let's be practical about how these things happen he can't just plead guilty in the abstract you got to show up in court and you have rule him colloquy and all that so the question would be if he shows up and then his counsel says and now he wants to enter mr gordon the rule of it is very important because it has to be annoying call the queen between the court and the and the defendant now in the case or actually put your kid down they were allowed to follow the special information after the hearing and the reason why they really were able to do that is because the defendant had part notice of the part of the actions and the prior conviction was also spelled out in his plea agreement and so looking hypothetically so how do you analyze that under the strickland prongs well your honor that's on the stricken prong the government's position has been the government's position from the beginning when we have this twenty two fifty five hearing is the defendant cannot present us his whole case is based on speculation this whole case is based on what could have happened what may have happened but if we look at the findings that the judge made in this case it really was a factual improbability because of the findings of the court may the court first of all dispel defendant's primary allegation the twenty to fifty five and held that the defendant was aware that he had a right to plead with no peer agreement and with no cooperation the court held and found that the defendant was not willing to do more than twenty years of confinement the court following that just based on his guidelines to take into account the amount of the drugs and giving him credit for acceptance of responsibility in the calculation of the sensing guidelines this defendant's guidelines would have been two hundred ninety two to three hundred sixty five months so we have this permutations by the defendant who were rushed in there this could have been this some of the would not have done this we don't even get to that question because the defendant made it very clear and the court made explicit findings that the defendant would not have even done that because he would have subjected himself to two him from the possibility of the section a fifty one information's what is your response to that well from my perspective the defendant is also of that opinion because he's the defendant's counsel believes a defendant was not made aware of his right to plead with no plea agreement which the court happened under the under the under the original charge he was subject to how much to what kind what kind of imprisonment just based on the drugs alone yeah this sentencing guidelines and this was a finding he was subject to two hundred ninety two to three hundred three hundred sixty five months of confinement ok and when was the fifty one filed there are the fifty one was filed i believe on july tenth which was three so if there's nothing further the government believes this narrow issue on the certificate of appeal ability is decided in favor of the government based on the case law that the government  distinguishable because they involved a plea agreement and they involve situations where the plea agreement had information in it about the person's priors and about persons increase and so i found those to be distinguish the district court found that even if his counsel told him that you could plead now he even assuming he could have pled and gotten a sentence of two ninety two to three sixty five and even if his he did his counsel told him he plead now