mr scott for the scope of this appeal has narrowed considerably considerably since the opening brief was filed the government now admits that playing error occurred when mr taking or pleaded guilty without being advised that knowledge that he possessed the relevant legal status was an element of the offense and we acknowledge that after trujillo that plain error of facts mr taking are substantial rights only if there's a reasonable probability that he would have otherwise gone to trial so the question for this court today is whether but for the record if there are there is a reasonable probability that mr tener would not have pleaded guilty but what if insisted on trial and the answer to that question is yes the reasonable s conviction but that's not the relevant status for purposes of this offense so recently it's clear that a defendant who has a mistaken impression concerning the legal effect of some collateral matter that results in his misunderstanding the full significance of his conduct  doesn't have that mental state required for an i twenty two defense and so here the relevant status is that he had a prior conviction for a crime punishable by imprisonment for a term exceeding one you know now even though that may seem like a unless the restoration expressly provides that the defendant may not ship transport possess or receive firearms and so here there is reason to believe that mr to mistakenly believe that his civil rights had been restored and that he could  we had we had our own argument for what the substantial substantially effects prong of the plain error test required this court rejected that argument and simply responded to what the government argued in the opposition brief and just for some authority that this isn't a waiver i would point you to the case united states versus sander which addresses a similar circumstance where the defendant believes an argument has been preserved and so are only argues harmless or doesn't argue plain error in their opening brief and in that circumstance this court has held there is no waiver that defendants not required to anticipate alternative arguments on the standard of review and so just to return to the you know my explanation of defendant has had civil rights restored and here as judge kelly reference it's really it seems pretty clear that mr taken or thought his possession of the firearm was lawful that's what he maintained throughout the proceedings  and his conduct at the time of the offense also suggests that he called the police to his home where he was openly possessing the firearm he told the police that he had it on top of that his conviction was old and that procedural history is complicated and then under texas law the civil rights of he was most likely to exercise and to know about and that includes the right to vote and the right to possess a firearm at his home or in fact restored so this evidence that he believes that he could possess a firearm it actually does tend to  to judge question so it suits and he says i was in texas were twenty three years after your family conviction you were allowed to possess a weapon in your home for your protection now i understand your argument about restoration of civil rights words mean that's a specific legal term and for example it includes already excludes for example misdemeanor offenses that are punishable for up to two years it excludes anti trust offenses so it doesn't just mean what it says and so his admission that he knew he had a texas felony actually doesn't satisfy the mental state requirement and i'm going back to judge kelly's point again you know here the the mental state requirement he does have to show or if mr taken or sorry i'm just going to avoid the double negative by turning it around so if mr taking or did believe that he could lawfully possess the firearm that does tend to negate the mental state element under nine hundred and twenty two  one and that gives him a plausible defense to the charges and it should lead you to conclude that there's a reasonable probability he wouldn't have pleaded guilty if you knew the elements of the race so  problem with that i could understand the technical arguments but you think about when i told the men on the street about this case they'd say oh this is terrible this is this this is not fair restored that he was innocent of the offense and this isn't just a technical argument you believed in or if that was so if he believed it so the reason that the supreme court you know reversed decades a precedent and for hafe is  in criminal cases we we presume see enter right this isn't a technical argument this isn't i mean it is based on the language of the statute but it's also true derives from fundamental criminal law principles that it's important that people have the ability to know why the conduct is wrongful or not and so if mr taken or mistakenly believed that he could lawfully possess firearms and that a civil rights were restored then he was not in a position to know that his conduct was wrongful and that there is something wrong with h states now before recchi if if someone didn't know that they were illegally or unlawfully in the united states for example because this is the example used in the supreme court case because they were brought to the country as a child and simply didn't know that they were a citizen or that they were undocumented or as in the nd circuit case balti because they were confused about the terms of their parole you know under arrest hey if that person has a defense and it's not simply a technical defense it's because there was no way for them to know that it was unlawful for them to possess a firearm and this is especially important in one thousand and two g cases because it's woeful generally to possess a firearm especially as mr trigger did in this case in the home it's not just lawful it's constitutionally protected and so for those reasons requiring the government to prove that the defendant knew of their legal status it's not just a technical requirement this isn't a loophole that mr tener is trying to go through texas law number two that he knew that he was a felon number three he did that is all of the civil rights hadn't been restored and i realize you would not stipulate to that and for that he guilty in this case so st of all it's not it's not a preponderance standard it's just a probability is sufficient to undermine confidence that he would have made the same decision and then also it the question is not whether he would have won a trial it's whether he would have decided to go to trial and so here based on this record i think your confidence should be undermined that if mr taken or was told the government has to prove that you knew your civil rights were not restored you knew you could not possess a firearm i think that my confidence is undermined that he would have pleaded guilty we know that he strongly believes his possession is lawful he is somebody you know the record shows he talked about this a lot with his attorney he describes himself who takes his constitutional rights very seriously and all of those things should give us pause and make us wonder maybe this guy would have made a different decision and one last point i really want to make is when it comes to this reasonable probability standard the supreme court has said that you couldn't meet it even if there's no chance that you would want to trial you look at the entire occurred on a case by case basis and say what this defendant had made a different decision and i think pause between before they start the next sentence thank you comes already hear from you may please the court i'm carl sock representing the united states i'm going to be begin by briefly addressing the waiver issue issue i do think there is a waiver issue not only on the civil rights restored argument but on the question generally of whether there was a reasonable probability that this defendant would have gone to trial instead of pleading guilty in the defendant's opening brief essentially went all in on this legal standard argument which is that it didn't matter what he would have done and there was never any suggestion in his opening brief at all that he would have gone to trial that he wouldn't pleaded guilty but he believed he had defenses none of that showed up at all because the entire argument was that it didn't matter what he would have done interests you know this court rejected those exact arguments and said yes it does matter the question is reasonable probability and so i  is strong or where the defendant at mit it knowledge that status we can assume that the defendant would have pleaded guilty anyway and i want to be clear about what ricky says is the requisite knowledge the knowledge is not that his possession of the a reasonable expectation i mean he could have thought that the two years was for the probation revocation not for his original crime so how do you respond to that yes so if he had never served any time in prison on this offense and it only got in the probation then i think he would have a stronger argument because that was actually one of the very situations that received an acknowledged i'm serious she did ultimately serve now the question of whether she understood as a legal matter that that time served was for his underlying conviction or for some other one act that was a probation violation i don't think it matters here because regardless he knew that  whatever he had done was punishable by more than a year in prison because she actually served that time i also think and several courts have acknowledged this that where that if and it pleaded guilty to this prior offense we can assume that he was told d of the maximum penalty for that crime in accordance with texas law but the other point i want to make is that we don't have to assume anything here about his knowledge because the defendant here effectively admitted that he knew he was a felon i'm his whole argument at sentencing was that he thought he was a lo that's the gun because texas law permits a felon to possess a gun at his home five years after a conviction and there are two relevant premises to that argument st of all he knew he had a felony conviction because otherwise that statute would apply and nd of all and this is where it really gets to the heart of the defendant's argument she knew that his conviction imposed at least some restrictions on his possession of the gun specifically that he can possess it outside of his home and so therefore she understood  that all of his civil rights had not been restored and so that leads him to my point on their argument which is st on the civil rights restored argument let's set aside the waiver issue because i do think the issue is waived and i've already  defense it's essentially an argument that well i thought it was lawful under state law and therefore i can't be convicted under nine hundred and twenty two dollars g so i don't think that it's necessarily a foregone conclusion that the knowledge element of life that said it was not addressing how the knowledge element applied to other nine hundred and twenty two shey offenses but let's assume all of that let's give the defendant the benefit of doubt assuming that the knowledge element does apply to that question as a legal matter the legal definition of having one civil rights restored means that all of one's civil rights must be restored including and unrestricted right to possess right do we have does he have to believe that all of his rights do have been restored including the right to possess firearms or if he he just thought that his rights to possess far restore and thirty dollars this is before the knowledge elements so knowledge is not an issue but it defines what it means for one civil rights to be restored within the she misunderstood what that term meant she would have to show that she had knowledge of the facts that satisfy the legal definition and there is no question here that she knew that she did not satisfy that legal definition because he knew that she did not have all of his civil rights restored in particular she knew that he did not have the right t outside of his home she also has given no indication that he believed other civil rights have been restored which include the right serve on a jury the right to hold public office and so my point is i'm not sure that knowledge would require or would apply to that simple rights restored because i think it gets to the ultimate legal issue but even if it did she had knowledge as a factual matter of the facts necessary to satisf undisputed legal definition now the final point that i want to turn to is the heart of the rd prong which is the question is not whether she might have had some theoretical defense but it's whether she would have whether there is a reasonable probability that he would have gone to trial rather than pleading guilty and sheer she wouldn't have for three reasons st of all for pleading guilty he did get a three offense level reduction for acceptance of responsibility which reduced his guideline range by twenty five percent second if you had gone to trial not only would he not have gotten that reduction but all of the facts underlying that prior conviction would have been admissible for the government to have to prove his knowledge of his felony conviction that would have included that this prior offense was an aggravated assault where he chipped his wife in the stomach during an issue of domestic violence it would have included that when he was placed on probation ships conduct for monitoring potentially with a gun that evidence would have come in the rd point as she realistically would have had nothing to gain by going to trial the facts of his offense were undisputed he told the deputies he had a gun one of them took the gun from his pocket so there was no question that he knowingly possessed the gun and a jury could easily have inferred his knowledge from all the things we've talked about today most importantly the fact that he and seventy two that the jury even kind of inferred his felon status from the mere existence of that felony conviction and so there is no reasonable probability that in the face of all of that evidence that i've spoken about today can you can easily present the document and you can easily acknowledge that there is a prior felony conviction and the maybe he reaches facts about mr parker in the stomach and all of that would unfairly prejudicial because so certainly what would not be enough is presenting evidence of a conviction that certainly used to work but for knowledge of status became an element but now the mere fact that he had a conviction is not enough so the government would have to show that she knew that this conviction he had was punishable by more than a year and i believe that a very small and courts have said this that one of the ways the government can do this is by showing how egregious the facts were because if that offending is convicted for example some minor assault for sloppy and somebody in a bar they may not realize that that is a felony conviction convicted of aggravated assault for kicking their wife in the stomach and then running away from probation with a gun that is stronger evidence knowledge the final point that i just like to make is that i think this case really should be resolved like the trujillo case interest you know and that's the case we submitted a supplemental authority in the main case from this circuit on this point and in that case the court found there was no reasonable probability that if n it would have foregone a guilty plea where the defendant had been sentenced to prison for more than a year and actually served more than a year in pri and in fact interest you know the court simply said that he had served four years on six offenses so it wasn't even necessarily clear that any one of those was for more than a year here we know that his conviction itself was for more than a year in this case we have all the same elements interest you know plus we have the implicit admission that he made at sentencing that he knew he was a felon but thought that texas is overwhelming and uncontroverted and i think that other than the civil civil rights restored argument which i think i hopefully have explained away there is no question that he had the requisite knowledge and so this would not satisfy the th prong even if he could get past the rd problem and so unless the court has any further questions the possession at the home was lawful was not a statement that he knew possession outside the home was unlawful and one of his themes at sentencing was really that possession at the home is one of the most protected sort of least harmful forms of  session so he was really just emphasizing the mitigating nature of his offense he wasn't speaking to his knowledge at the time of the possession and then rd just about whether he would have gone to trial the possibility that he would have been acquitted  was worth risking an additional nine to twenty one months in prison that that's what the three of the guidelines levels represented and it's even further minimized when you take into account that he had a very downward variance and departure arguments and and then also again under lead to the extent you think that his defense if the it's plausible but even if it's weak that doesn't mean he can't meet the rd prong and for those reasons i would ask you to vacate his guilty plea think you your honor thank you