morning the first case of the three that we have is united states the rosario number ten twenty five ninety eight less was fine good morning in mid east to court my name is david fine i represent the appellant jesus judge and broken i reserve four minutes for that's not answered thank you the parties come before the court today with agreement on several points one of which is that the district judge made at least two errors in this case the first is that during the plea colloquy with mr rosario the district judge told him the wrong maximum sentence by a significant amount fifty government right and did you have a question when i would say that it is understood also that the it was said to him that there could be a supervisor really provision from five years to life and in fact it was three years is that correct that's correct and also the amount of the fine was was misstated the district office that two years instead it was in fact apartment two million in fact it was one million the other error that the district judge committed in this case and it's  important and i'll take a quick detour because the government makes much in its brief about this notion that it was already been a determination that it was a knowing voluntary waiver not by the district court right not by the district court enough by this court either direction with respect to the collateral right exactly exactly and in fact what happened even on the direct appeal was that there was a motion filed by the government to stay briefing and to enforce the waiver there was no response from mr rosario or counsel and then there was an order from this for exxon by john barrow that that dismissed the appeal because of the waiver so there was no opportunity to raise the very issue that really is fatal the plea colloquy so that issue simply has not been decided that's that's an error now do i understand that your client would have re honor i think the answer to that is that although you've extolled the virtues of the colloquy that judge gardner went through with my client the fact is that it did include a mistake and that's not in dispute so mr rosario had he been asked at the time is knowing involuntary would not have known that it was not knowing so he would have said sure it's knowing involuntary because he can't know what he doesn't know he was misinformed and his counsel didn't offer an objection to correct the record so mr rose area was left in that circumstance have the district judge told him that he faced a sentence of eighteen years he might have said sure this is knowing involuntary because he would have no way of knowing otherwise now let me sort of circle back if i might to to the real issue here i think we all agree i think that the constitutional requirement of a knowing and voluntary plea requires the state because he was told that he was subject to a maximum sentence of thirty years and the plea agreement put him in a range that was roughly half of that what we by the what were the issues that were brought up on the appeal for which we had the waiver of appeal your honor i honestly out off the top of my head i don't know but why was this issue not brought up on the appeal or is it going to be brought up because there was that was that the perception i believe that was the perception of mr rosario who was at that time on counsel that so the question then is what was really the risk that mr rosario was avoiding what was the deal and the deal instead was a range of approximately fifteen years as opposed to twenty and that's a significant difference the government says that this case is just like the dixon case the judge went to it's right now about seven or eight years ago but the truth is it's not it's materially distinguishable and those distinctions are one reason why it's actually helpful for mr rose ariel if the court examines dixon because dixon was a case where number one mr dixon would not say the plea i think that's right your honor and in addition to that the court then sort of looked to the background and said and there's no reason to think that he would have because this really was a good deal in fact if you read carefully what judge twenty's wrote the deal for m dixon was in essence that he was getting a very short term when what he was exposed to was actually something in the neighborhood of fifty or sixty years at the government tacked on certain things in fact judge twenty's in his opinion said most importantly or perhaps most importantly he avoided those other charges what was the act what the actual sentence here the actual sensor was ten years your honor it was for one hundred twenty months and so at the end of the day it's a very different circumstance so the point is even if you were to win and get go back on this he runs the risk that he could end up with more than ten years yes he does now and he's and he's aware of of that press but the issue is that he has certain things that he wants to bring before the court on hey b s and he wants the opportunity to do that and we've identified certain problems with what happened in the district court here and then i think the question is should there be a remedy and a further question if there should be around body what should it be and we would submit of course that there there does need to be a remedy this was plain error it affected  well your i guess the question is in what form you sent it back what we're asking and i was i was about to say that the remedy that we would request from the court is that it sent it back for an evidentiary hearing on that question of whether mr rosario in fact would or would not have taken the plea because he says that he would not have the government says that's incredible well the word incredible includes credible and that means a credibility determination that would be for the district court judge garzon if that onan were to me that mr fine are you generally need or you want  has told this or that he would not of taken the place the government says we don't believe that look at it was a terrific deal wonderful we could ask this court simply to say credit what mr azaria's sets and if you do that then the plea was not knowing involuntary you want to do it what we're asking instead is actually something more modest than that because we recognize that it's difficult to make a credibility determination on paper and that this court is loath to do so the evidentiary hearing judge garth would not be to address the question of what does he want to do going forward it would be to look back at august eight twenty five the date of the plea colloquy look at all the facts let him testify let him be mad finish your honor let him be before judge  gardner and explain himself and then have a credibility determination made about whether in fact he would have those or not to present it to the plea agreement when you know wh right because maybe of course says that you have to look into the case to make sure that it was knowing involuntary right we would ask that the court direct that there be an evidentiary hearing because of course the district judge doesn't have to do that in every case under  the district court in the first instance like a regular hearing with testimonial well i think you know the government your honor says in its brief you folks can decide this issue of knowing involuntary you do it all the time no need to send it back for that and to a certain degree we agree but only to a point because we think that this court can agree that there's a colorable issue here about whether mr reserve would have taken the plea and therefore this court could remand for fact finding on the issue of whether ultimately that determination but i think that the mechanism by which the determination should be made is an evidentiary hearing because this court now has before it enough information to conclude that there's a reason to make findings of fact and the morning on it may please the court robbers osram behalf of the government runners this is one strange appeal because i don't know that anyone other than the members of this panel that i'm gleaning from the questions have really thought out the relating to whether he the mr he would have accepted the or or pled knowing that it could be twenty as opposed to thirty years knowing that the supervised release provision was three years as this court has the discretion whether to recognize playing there and enjoying that i think you need to account for the circumstances but let me try to break it down one by one that the court is correct through its issuance as of a certificate of appeal ability that there may have been an error enforcement of the waiver would not cause a miscarriage of justice now our position is that the district court did it right as to the first part of the knowing involuntary which it turns out is all that's in the spirit and not as the miscarriage of justice but that's irrelevant given any claim being made that there was a misstatement with regard to what the sentence could be and had i known that it was twenty as opposed to thirty years i was really worried about that i wouldn't have i would have accepted reasons including confusion during the hearing and ineffective assistance and the one thing he didn't mention was any mistake with regard to the stash crime x and so what the district court is saying and we believe it's correct if you don't get two bites you don't get to say to the court of appeal which is you don't get to relive again issues because you think of new arguments that's all that's happening here your eyes will see that when you look at the brain did he what you're saying is he knew at the appeal level because it had  come back to that with that because of how a fifty one operates but the last point about this on what was before the court of appeals even when he filed his twenty to fifty five it was pro se one to three years later he didn't raise this is the reason to invalidate normally but it doesn't mean he throws all that in there and maybe tries to make those arguments in the context that well two reasons for that not to your honor one is the defense is not pressing that here that's what we push very hard in our brace and they're coming back and saying no that this court is expert at it it does it every day with regard to the enforcement of appellate waivers and looking at the issues when it comes to hey b s i don't consider myself an expert in anything well if you're not your honor then none of us are i q i could dig it pass on i think it's just as well i think you could definitely do that but i do have other arguments to present even before we get to that when i want to engage the case on the terms of francis presenting just say there's a dispute here over whether it's knowing involuntary my first argument is the district court was correct in relying on this court's judgment on the exact same issue my second argument is there isn't much of an error here with regard to what they want to present now that it was not knowing involuntary because he was misinformed a this is not an ordinary case where say the maximum was twenty and the district court told them it's fifty the judge got a little bit you know the district had very good reason to mention three and that is that that's what the maximum would have been if the government had filed an fifty one petition based on the prior drug convictions the mysteries are all hat and mr fine says well no that's not an issue here because the government didn't file a fifty one motion that's up to them whatever as of the time of the plea we had no reason to know one so simply by the government appearing at the plea hearing willing to take mystery's arias plea based on this agreement that was a statement which everyone was aware of including the district judge the nearly fifty one notice was going to be filed that conversation here between experience counsel in the go sharing the play but this was the reason for that the plea that the government was for going the eight fifty one notice which clearly apply here and that happens in many many cases it's a common basis of negotiation dealing with and making an informed decision about whether to plead guilty truth of the matter is if mr brazoria rocks out that door and does not enter the play then the parties are going to trial and the government is going to file the a fifty one this in the maximum is thirty years this is not dixon this is not the ordinary case of a simple mistake with regard to the maxim of two there it's an error in that once he enters the play he could be told well now it's twenty but in terms of are you is he consequence of course yes now then of course there are more levels to it than that just the statement that well i would have gone to trial if it was twenty years but not thirty that by itself is really incredible we do have a statement here that if that's what he really wants and he gets the second a heck of a risk well we do have that statement but here's what's so fascinating about this which is that if he decides that he doesn't want to play that then the maximum really is going to be three years the government is going ten you had this fantastic deal you got a six year sentence they didn't bring more charges against this case in that light is exactly the same he got an incredible deal he not only got down to a twelve year guideline but then the court because he had put himself on the mercy a further variance below that and gave him ten years and so well and of course the government refrained from filing the a fifty one and so what does this court accomplish in terms of the fairness and integrity of the judicial system by of course and you know we're trying here not to get an additional pound of flesh out of the defendant the what what as i was saying there are two things that would help mr azhar and neither is it possible or reference to any one is i get rid of the case his own defense counsel said correctly there were no defenses in this case he sold drugs three times the undercover officers they went in his house and they found the additional stash of cocaine this is a case that can be tried at any time they're only as well as the apollo waiver i can tell this court as you know that i personally review and sign off on dozens of appellate waiver motions every year and look at the college place and occasionally decide that we cannot proceed because of an inadequate har first is back to this question of whether the order that judge amber assigned in the direct appeal somehow could be a good act in the collateral review context gardner and the answer is it's simply can before the government filed the motion to enforce the waiver the government filed the motion to enforce the way for the next things on the docket cheaper to have right here the next things are simply an order from the clerk's office referring it to the motions panel and then the next thing is the motions and all signing off on the waiver there is no indication that this court actually made any kind of a determination i'm a question of whether it was a knowing and voluntary plea because it simply didn't have the information in front of it so that argument simply respectfully i don't think is correct that there was a full appendix before the court in the direct appeal this was  what information was missing after reading judge gardner's colloquy both in the plea negotiations the plea and the  sentencing what was missing that's what i want to know because i can't quite figure out where mister go we your honor i understand i understand the ultimate question that you raised let me make two responses to the question that you pose the first is that and again respectfully your honor i think that your question presupposes something that's not so which was that the court this court on the record had before any of those transcripts there's no evidence that it did the and wily no your honor that's that's not them because if i could explain your honor the simple answer is you're presuming full briefing in a full appendix this was a motion to summary motion to enforce a waiver of direct  which you know as you know those sorts of motions are brought before the court all the time what the court had before it where the motion papers filed by the government which did not identify the problem it did not have the full appendix before it that would have included those transcripts so there is made their determination on like sure we don't make them in that we don't make decisions and your honor i understand that and please rest assured that the last thing i would do in this lifetime is to shortchange the circuit the problem here is that there is simply no indication that the court had that information in front of courts act on what is presented to them they review what's presented to them they give consideration to it but if somebody doesn't tell that to you and you don't have the opportunity to know it a well in this case that would be the government will become a file a motion for summary from its yes or and oftentimes what you have is is a staff attorneys memorandum if you do not have a staff attorneys memorandum then you usually have a memorandum of a clerk in your in your court but here the point is at that time i don't believe that we knew that there was a claim made that the sentencing colloquy and the plea entailed a possibility of a twenty as opposed to a thirty year maximum and so judge brack that's the reason that i made the statement i made because if the court doesn't know that the issue