not over the objection of the members of the team the federal defender to british rock who was twelve years old and her repeatedly literally begged judge berman to relieve her explaining to judge berman that she had not spoken to mr bannister when some i asked to come in in place of misra and i was in the department of justice for eleven years with thirty years of experience under my belt and mr in the language of one case act as parent a tree i think i'm pronouncing that correctly what the judge does that the right to make it defense is stripped of the individual character on which the six and then that's the language but this judge parker can you put anything practical about how your client was prejudiced they arranged it like and he's described sort of constitutional or structural problems like specifically i don't really fight and practitioners fight in wheat week versus united states and i'm going to paraphrase that but it's part of the answer to your honor's question i'll come back and get the nd part in a nd with you the right to counsel not with the wisdom  hindsight but in the murkier context when relationships between parties are seen through a glass darkly one of the things we were plainly considering as i point out in my brief was whether or not to move  said it had not there's nothing in the record to develop it isn't that something that could properly d be raised only on a twenty to fifty five where the district court could say get affidavits from mr monastery saying this is what he wanted to do from the federal defender saying yes i tried to stop him and i was the one who studied him i mean how would how are we supposed to deal with that sort of a claim in this for well it's not for the judge to say i want to deal with this way i want you to have both lawyers and more i want them to be equally responsible what's the reason for that that is a structural error that goes to the right else so we don't have to go toward a twenty to fifty five to address an error that is committed on the record before the court i'm going to tell you there is judge sullivan can i interrupt there i mean what the supreme court has said and our court as well is that this is structural really only when the situation is such that there's a lack of counsel on actual or constructive denial of assistance of counsel all together that's not what happened here right here established if the right to counsel is interfered with or aired essentially had too many cooks in the kitchen when it is an individual choice the heart of the right to counsel is for the defendant to decide what lawyer he wants and how he wants to navigate his defense it is not for the court to impose what lawyer he should have or how or how the judge thinks the case should go that's why it's structural it is we can't cooks in the kitchen were doing it would it would it would only stop going on it would only strengthen the argument that has already made on the record before the court let's go back for a nd and talk about why berman found it this is a just imposing how it's supposed to go and we don't move to get into a fact presentation on the twenty to fifty five long after the fact that we stablish that with the bergen did here is structural error it's imposing on and then he have an opportunity to read it over at the m c c which is it and he said no this is what i was once a judge starts orchestrating things or interfering with the right to counsel or imposing on the t who should be what percentage of the representation there's no right to have so it's not subject to harmless error analysis once judge berman denied misra motion to be really and did not let me come into the case as his lawyer district court required the defendant to speak to the federal defenders after the question ruling in other words that he was mandated not only that they not be released in other words that they still had an appearance on the record but did they actually require that they meet with the defendant in certain times or places where that they draft certain pleadings did he ever mandate anything like that the prosecutors in their brief they say well mr bhansali you know echoing what you want to just ask me to decide which set of lawyers would do what and he could control his defense that's news to me and it's news to the record but that's not what happened  violation of the right to counsel it doesn't need to be more judges cannot we cannot we cannot assure a reliable fact finding which the right to counsel helps us sure helps us author it judges from on high are saying judge thinks about the case or the judge interference that's one of the way that the adversary system produces reliable fact finding in the context of the defendant's right to counsel of choice it does not it does not permit the kind of post that the government says we should engage in it just doesn't that individual nature of the right and so for better or worse whether it's smart strategy or not smart strategy if we're going to charge him if we're going to assume his a young man i have problems i was a teenager when i was seventeen going on eighteen or just turned eighteen when i was arrested and i thought all this time and i appreciate your honor's questioning but i haven't spoken to mr ross in some time i want fresh t judge opens a pandora's box by imposing about on the lawyers who are in the position of trying to figure out well what do we do next the judge wants us to do this we're trying to accommodate the burman not our client not our client and that's at the heart of the th amendment lawyers cannot be cannot be very specially in a case like this in any case but especially in a difficult case like this lawyers have to be spending all of their time and all of their attention and all of their defendant and the parties i think the minimum sentence that he shared serve before a treaty transfer is two years or five years or ten years and doing what he did by saying well i consent to a treaty transfer but i understand the government ethics before anything happens essentially leaves us out of luck and this young man who was a teenager in his bedroom in toronto on the internet with a documented history of fixating things the types of things that contributed to his conduct in this case i think the sentence of forty years for someone who committed these crimes seventeen going on eighteen where he's not going to get in the united states anything close to the care needs is in fact shocking and the government cannot fight any case any case with this next mitigating circumstances where anything close to this kind of a sentence has been  challenge which is where mr frist left off the defendant in this case plotted to carry out a mass casualty terrorist attack in new york city for isis but the defendant radicalized joined isis's global online network the defendant recruited other isis operatives to join the plot he developed attack plans targeting a subway system and times square he acquired bomb making materials and he ultimately traveled from canada the new york city area intending to execute the attack the f b i managed to infiltrate and to work what was a live terrorist bought it posed a real and significant threat to new york city in the spring of and sixteen and then after his arrest the defendant scrawled terrifying statements and images on his cell walls reaffirming is allegiance to isis and its desire to carry out an attack the defendant was a radicalized terrorist who posed an extreme risk to society and judge berman recognized that the sentencing guidelines called for life imprisonment in this case and a life sentence would have been consistent with terrorism cases in this circuit and across the country involving defendants like this one who plotted to commit a serious attack that was ultimately forwarded or unsuccessful judge berman carefully considered all of the r factors aggravating and mitigating over multiple lengthy sentencing proceedings and the forty year sentence that he imposed which was substantially below guidelines was well within the range of reasonable sentences i'll turn now to the counsel issue that's been raised on appeal and we said that it's important to start with this the defendant did get to choose his lawyers as some of the panel questions have alluded to judge berman allowed new counsel to enter the case there simply was no denial of the defendant's qualified right to counsel of his choice and far from suffering any prejudice he received excellent representation from multiple briefing there is no support in the record that that comment resulted in any prejudice or impacted strategy the defendant controlled his representation the analogy has been made about multiple cooks in the kitchen the defendant could decide which cook would cook his food and importantly the record there is nothing in the record suggesting that judge berman ever tried to dictate which set of lawyers would do what and in fact both sets of lawyers participated in the briefing and the oral advocacy that took place at sentencing again there was just no prejudice that resulted from judge berman's decision now with respect to that decision the decision that's really at issue which was not a denial of counsel of choice but a but again i owe a decision not to relieve the federal defenders and to keep them on the case that the decision was supported by a multitude of factors the federal defender had represented the defendant from the inception of the case which had a long and complex history and the substitution request team on the said that he did not want that lawyers that his parents were pushing on him and that he was happy with federal defenders and even that new counsel did enter the case he wanted federal defender to remain as co coun and on top of all of that new counsel had a potential conflict if they were retained and paid by the defendant's parents whose views had diverge dramatically from the defendant on what was in the best interest over the course of  so against that backdrop it was eminently crude for a judge berman to keep federal defenders on the case with new counsel to ensure the integrity and fairness of the proceedings there certainly was no abuse of discretion which is the applicable standard now a couple of other points but i'd like to address that mr press has focused on today st the suggestion that judge berman somehow was acting to in ensuring that the defendant had affected added abstracting also to the firm and took steps throughout the case that were utterly inconsistent with some surreptitious desire to hamstring new coun insulating the guilty plea is without support in the record as far as mitigating considerations in connection with sentencing judge berman consider those at length over the course of multiple sentencing proceedings and it's worth noting that he expressed we identified the mitigating considerations the defendant's youth and mental health issues and addiction issues as the reason why he was burying downward substantially from the applicable guidelines range last two points i'd like to make one is on sentencing and one of on the fence of issue with respect to two points that mr hersh has made today the st is that mr frist continuously referred to structural error and the cases cited in our briefing and ilads over is that there was no deprivation of counsel of choice and that even in cases where that is the issue being analyzed the trial court has broad discretion to balance wh make for the court of the panel is that mr hersh made the assertion that we can't point to any case where a comparable sentence was imposed we cited in our sentencing submission below  and at the end of the day judge berman made the very reasonable conclusion that this was a unique case at this stage to get the two of the appendix there was no perfect analog but what he did do is analyze all of the factors was a sick teenager who had a history of addiction and impairments and treatments d that are perhaps on parallel even as to what we as practitioners in the nd circuit the extraordinary that a lawyer was ineffective in pursuing a particular strategy and we may be forced to make that application will make it strong we believe we'll have a strong argument that we needn't get there and let me end with that i care mr turner's point about all the reasons why the spikey speculate that judge berman did what he did but the reasons that he gave were plainly not it the parents paying for their son's legal well to the extent that is apparent was whether or not the plea would be challenge for some reasons that are apparent on the record others that we have to record at the time to do that with that not to say in retrospect after many years in jail on a a young man facing forty years essentially the rest of his life and i want to end with this point iran and it's not surprising to me that mr turner did not discuss my argument about the treaty because the united states is not going to consent to this treaty transfer and  both well argued we have one other matter on the counter today but it's not for argument so it's on submission we reserve on that as well so that concludes the morning's arguments one thank everybody for being on time and working with the i'm always impressed with how well this has been going in light of the circumstances so today's no exception so thanks very much have a good day in the court is a