case this afternoon is united states of america versus tony sub a tear mr west  my name's journalist and i speak on behalf of the palette tony sabotage our at the threshold i would like to reserve five minutes for rebuttal time granted an unusual appeal in argument i think that the case is very very straightforward and i've attempted to put it forth in the brief that i file frankly mr sabotage our who was sentenced as a career offender  subsequently tonally attacked his conviction within eleven days in a new jersey court conviction that was used to put him into the career offender rants and after several months that operable here is manifest in justice and inlaid brief i cite the supreme court standard for a twenty two fifty five case of united states versus hill nine hundred sixty two case still good law this category of twenty to fifty five petition that the supreme court has recognized on three separate occasions in johnson custis and it's been something cogni e under twenty two fifty five would come under the standard of being a fundamental defect that inherently results in a miscarriage of justice right so so to enforce this plea agreement would be a miscarriage of justice i'm sorry your honor i have a slight hearing impairment to force this plea agreement would visit miscarriage of justice upon your client that's correct so he has to so use issues so the remedy you seek then is to unwind the agreement and have him proceed to trial no i don't think he has to proceed to trial and i don't think it would on windy agreement to send it back and i had the manifest injustice removed i think is guilty plea stands the question is  whether his sentence was proper and i don't think so you are you arguing that his plea was not knowing intelligent and voluntarily entered i believe his police was knowingly intelligently voluntarily entered stand but now in the twenty to fifty five you have an opportunity to present a different audience if you will and that evidence is contained in mr saboteurs affidavit now assuming we have to reach my position is alternately don't have to reach there was some adjustment this plea agreement came out with an appellate waiver and was presented to him by his counsel josh not joshua lockjaw schlocky going to the wedding meanest daughter in california if you deal the deal was ok ten years instead of twenty it was had twenty years right as that was the deal and there was a waiver in there which you say he didn't really know what he was doing but it was part of the deal and what you want now is to have the sentence reduced or reconsidered because one of the underlying state convictions was vacated but he knew at the time that he signed the plea deal that that was an issue out there and he didn't reserve that issue right now i don't think it was an issue i think when he got in front of the goods perhaps wait wait wait was an issue i thought they were already talking about filing so this wasn't like that's why i'm having a hard time seeing the manifest injustice when we knew it was an issue when you're negotiating these things part of the deal some time are to preserve some issues and they report and that was that you have but but they changed the charges so that the sentencing guidelines would calculate out to something in the ten well in the hundred fifteen reigns about that nobody all these variables all the only the district court will decide it all we're asking for is not to get out of the deal but they have the district court decided the right way based on the right facts instead of the way it was decided which was based on a merits has been mentioned but i want i want to read what i said at the end we very four concluded that saboteurs waiver of appeal was voluntarily knowingly appeal and this is very important what i said and sabbath care has not shown at that time he has not shown that a manifest injustice will result from enforcing the waiver we decline to consider the merits of the appeal and in my judgment to date the issue given what has been emerging from the car like way i see i agree totally i think that is the issue and it's whether that is a manifest injustice and the issue before was whether or not he had a right to direct appeal which is a new constitutional right but his right to twenty to fifty five is a constitutional right it's right in the constitution it's a different standard in so far as manifest injustice and three supreme court cases in apply through a district court in federal circuit court cases have said yes this is addressable one hundred twenty to fifty five which is the semen so this is manifest in justice so if there's a minute and justice year you don't get to be your facts mr west i'm going to ask you i'm not i'm asking and your in your experience and in the case law where an issue such as is presented here is made on and handsome an issue has there been any case that goes to the merits of entering the and your friends on the other side say well he's waived that because he got a good deal he has a good deal when he entered into that well you know plead guilty in a wa impose the sentence that the guidelines and the three five five three factors dictate he bargained for a judge's discretion and the judge exercise that discretion without all the facts the true facts that he needed and always asking for now is exercise that discretion again based on the facts as they exist now thank you mr west will have you back on rebuttal thank you your honor ms fa was also would you just pull that microphone close to you there so we make sure judge tell the circuit here you think that i would like to get to the heart of what i think the court has characterized as the issue in this case the government's position here as it is that the or knowingly and voluntarily waived his appellate rights his waiver of his appellate rights include included his waiver of his rights on collateral appeal and there were some pains taken at the time of the guilty plea to explain to the defendant into the waiver of the right of appeal so i think that's the mob the case that's now all the case of our opinion on appeal but the question is in that case we said he has not shown that a manifest and justice was made now how do you answer the question that i put to your friend  isn't that the real determination here can you give me cases of support the government's theory now that you could go in to the mr west in that respect i was unable to find cases i i would like to with the court's permission address the issue of why the government believes that there was no manifest injustice in this case and this is actually somewhat responsive to a question the judge was johnny had  of guilty we would present a superseding indictment to the grand jury which could result in a offense that carried a maximum term of imprisonment of life imprisonment obviously though both of those statutory caps were gone with the deal that he struck with the government the statutory maximum the most he could have received under the deal that was struck with the government was ten years he could've gone about that in addition the right so if we if we are whining to this transaction because it's unfair to him then he's exposed we start over and he's exposed to a superseding indictment that puts him in jeopardy of a guidelines range up to life imprisonment that is accurate your honor the government's position is that pursuant to the written terms of the written plea agreement if  there is a decision contrary to the government's position in this case then the original plea agreement is off the table and we're back to the government may file a motion asking the court to say that we're back to the original  indictment as it stood with the possibility of seeking a superseding indictment and another i think important possibility here and that is that if the government had filed a information charging prior convictions the defendant with the indictment with a statutory cap of life would have faced a mandatory mandatory term of life imprisonment that was what he was you know basically looking at even under they understood and i understand your argument issue before us is in the kit is the question of manifest injustice that's a so issue and all hope that cases as we look to the underlying facts when on that no i agree totally with the court that the issue here is whether or not there is manifest injustice i think the benefit that the defendant i see only the issue that's the only issue before i agree i don't know what the consequence will be that's not before us but i would would would assert to the court that the benefit that the defendant received as a result of entering into this bargain is important in a determination as to whether or not there was manifest in justice and i would argue to the court you haven't given me one k saying that i don't have a case that says that there is a case that decided a specific issue as far as the government is aware i what do the cases say about let's assume the conviction is the conviction has been vacated does the guidelines say anything about whether the conduct of the vacated conviction should be considered the guidelines court which guideline in what does it say it is for a one point two comment note six and the corresponding statute is eighteen u s c thirty thirty five fifty nine i'm unable to remember the constitutional reason  y cannot be considered if it's been vacated because of an error of law or because of subsequently discovered evidence exonerating the defendant and in a fit if i may say way into another factor that i think is crucial in the court's determination as to whether or not a manifest injustice occurred in this case and that is the reason for which the underlying state conviction was vacated there was no determination in the vacation of that underlying state conviction that the defendant was actually  had not committed the crime with which he was charged the underlying state conviction was vacated because there was an affidavit filed by the new jersey attorney general in two thousand and two significantly before mr saboteur in this case filed his twenty two fifty five petition in which the new jersey state attorney general said that there was a class of cases a class of cases for a ten year period in which there was a colorable claim that individuals had been stopped for improper reasons for racial profiling there was no determination that mr saboteur who was actually the passenger in the car that the car in which he was a passenger had been stopped for purposes of racial profiling profiling that determination was not made he was simply in that class of individuals and there was certainly no determination that he was not guilty of the crime for which he was convicted in new jersey so i believe that the reason  understand your position that's the same thing you're doing is in your brief but notwithstanding your reference your recent reference the so that the co he he he paid his money he took his chances he entered into a knowing and voluntary waiver he gave up certain rights the government gave us rights because he wasn't aware of some of the circumstances it might have existed at a later date does not mean that that waiver was not knowing involuntary and does not mean that there was a manifest injustice here are you suggesting at the time he entered the agreement he was not aware that he was going to get his look jersey conviction vacated i'm not suggesting that your honor i don't i don't know that we ha there is some evidence to suggest that he knew that the new jersey state conviction could be vacated i don't know that we have that determination sufficiently in the record here and i don't think that that is the deciding factor for the court's consideration  well let me get back to to judge al the search for probing about miscarriage of justice because i think we're all in agreement that that's the seminal issue here but i'm confused as to how we should ask the question do we ask whether the waiver constitutes a miscarriage of justice or do we ask whether the underlying harm the mr  suffer by having been incorrectly well it was correct at the time but subsequently deemed incorrectly calculated to be a career funder which would you question do we ask you and that's a difficult question i think the the waiver has already determined not been determined as judge of the service and not the waiver itself does not constitute a manifest injustice or a miscarriage of justice because it was knowing  that was a different right though i mean our court made no finding with respect to the waiver of this right we made if we made a holding regarding the waiver of the appellate right only right that is correct and the standard for whether or not it's knowing involuntary of course is the same or i for both waivers and as i suggested earlier there is there is information that record that supports the defendant knew what he was law of the case is that he voluntarily and knowingly entered in the pew and to the waiver now the question is knowing that that was the situation this court has said  he has not shown that a manifest injustice will result doesn't that mean to say that if he does show that there was a manifest justice if you could he would be successful in giving relief yes i believe it does but i do not believe that there is a manifest and what does it mean other than that well if the court is asking for circumstances under which a manifest injustice might occur i would suggest that perhaps a manifest injustice could be found if the defendant was found to be actually innocent of the underlying crime that has occurred here or if there was outrageous police or government misconduct as it was that resulted in the underlying crime i don't think that that's been shown here if the underlying crime was in a class of conduct that was eventually decriminalized that might be another circumstance but none of that that justice that he be setting as a career criminal when we know that that's based on two convictions one of which is no longer exists and that you cannot have and have spent with just one previous conviction how do you get around that i think under these circumstances when he received a substantial benefit in return for the bargain that was struck by recall deal because you're giving me a deal because if i got to go to trial and found guilty and get a larger sense doesn't that happen and everything it does just i would agree it probably does to some extent but as the court knows there was not  waiver in the first plea agreement that was submitted to it which he rejected and which was so significantly more favorable to the government the appellate waiver appeared in the second plea agreement which was a after the charge bargain yes exactly ah well actually there was a there was a minor charge bargain in the first one but after the significant charge bargain that was represented in the second one yes that's when the appellate labor appeared and that's because the government had given up a lot at that point the things that i described earlier in terms of mandatories and maximum sentences and guidelines sentencing ranges which would have been one hundred eighty eight to two hundred thirty five apart from the mandatory and statutory max do you agree with that we agree or do you agree mr would you begin mr west from for my sake in in answering the same question i posed to ms fawcett do we enquire whether in forcing a valid waiver would result in a miscarriage of justice or do we inquire whether treating mr savage tear as a career offender when he has been deemed not to be is a miscarriage of justice it's a little bit of both but i would say that it would be treating him as a career  waiver unless we want to so it's one of those areas where you're not controlled by law you're controlled by discretion in other words what is the right thing to do here and i do believe that  for that reason the great weight is that the injustice here is mr saboteur receiving a sentence that he was not entitled to because the essence of his bargain was i will get what the district judge gives me on this charge bargain and charge parkening plea bargaining is the grease that makes the wheels of justice turn without it everything comes to a standstill every ten result here  no deal everything is back on the table no i don't think mr sabotage or would want that to say that all the pyre that the united states hez with the justice department to impose the most stringent possible asking for nothing more than what he originally bargained for it wasn't a term of years it was the discretion of the district court in sentencing and that is what he wants to have discretion guided by the fact as to whether or not he is a career offender how do we know he's doing this with eyes wide open this is the same person who claims he he did not know what he was doing when he just wrote lee responded yes to every question that the judge asked of him in open court to every question except the one us to think that maybe mr savage tear thought that it would be prudent to reduce his statutory maximum exposure and venn seek to get his new jersey conviction vacated rather than getting his new jersey conviction vacated prior to going in pleading guilty in this case we don't know that would be all speculation right it would be speculation but you know i knew it was know could on these facts but that's not the issue promise with the case be different and here if mr savage terror were reduced to a criminal history category of five instead of six it's a rather modest reduction in the guidelines range would this case be different for purposes of evaluating whether it is a miscarriage of justice if the career offender distinction resulted in for example a fifteen year mandatory minimum sentence statutory sentence under the armed career criminal act it's kind he succeeds here and goes to a level five he would be entitled to immediate release otherwise he'd be serving another year and his wife is that there's nothing to stop the district range would be reduced by approximately one correct i gree and in considering a sentence of this magnitude that one year difference in the guidelines calculation is a miscarriage yes it's important to mr saboteur there's one thing i would like to drive home and i know my time is up but there is throughout the government's brief this inference that this was really a serious thing that mr saboteur had his new jersey conviction vacated quite frankly it would come under the category the fourteenth amendment is a constitutional defect nothing in the guidelines would indicate that a constitutional defect of that ilk could be overlooked i mean we're talking about racial profiling this court has had one case brought as a civil case on the racial profiling exactly the same murder it appears to be and i would cite that it's  argued will take it under advise