court my name is david shannon i'm an assistant federal public defender from tucson i represent the response one of those a jurisdictional argument one is an argument regarding the application of plain error under some recent supreme court cases third is the substance of the case the facts the case are very simple i can tell them in a couple of sentences they're not even that unfortunately that unusual a stabbing on the white not an apache reservation the defendant drunk doesn't know whether she did it or not pled guilty anyway but in a rather unusual turning first of the government's argument that this court has no jurisdiction i really believe that argument is foreclosed and report the o'connell i believe that the issue here is whether the plea itself was valid because what we're talking about his rule eleven violation this is rule eleven case not a later withdrawal of the plea after acceptance case there's been some jurisprudence that in those later cases the waiver does apply as to whether the defendant can withdraw after the plea is men accepted but here we're not talking about a denial of the right to withdraw we're talking about a rule eleven violation and i i really don't want to spend too much time on that issue because i believe that his foreclosed the more interesting legal argument i think at least to me is the argument regarding the planar standard and how it would apply in this case vonn came forth and said that we don't do automatic reversal for rule eleven cases rule eleven violations but i think unless i'm mistaken i think that's always been the jurisprudence of this court that we have always used play in error analysis so i don't think vonn really changes anything about the way this court has handle such cases the second case is doing is beneath this and that case dealt more specifically with how you show plain the defendant would have entered the plea had the warning been given and then look at the factual situation to make that determination i don't think that's what the court should do in this case and i look at the court's prior jurisprudence which deals with how do you look for  plain error in a and what is specifically this kind of case which is a case where there's been improper judicial process patient in the plea process this court has i can't remember when it started but urge you to talk to your father and let me talk to the father who was in the courtroom and said and father you should talk to her and counsel her about admitting what she did and then he went on to express how that would be better for her if she admitted what she did which i think he had the context in which that is that if she continues to plead guilty forthright you know when she gets up to sentencing i don't believe that was the context your honor and i think if this court will turn to or would at some point look in the excerpt at pages sixty three through sixty five it's pretty clear what the magistrate is talking about the she asks whether she has time to change her mind then and i'm looking on page sixty four at land fourteen the court says ok so if you're thinking about that and i think it's very clear from the last before that he's talking about changing your mind if you're thinking about changing your mind you ought to talk to your dad at length about that and so at that point it's clear the magistrate is talking about whether to change your mind or not and then he turns the father and says you know you need to counsel her to admit what she did now that it's not a model of clarity if it's capable susceptible of two different interpretations one being that the magistrate was his judge kennedy suggested his question simply lies in your own the best course determination i don't think that you're bound to use a standard that says well if it can go one of two ways we have to go the way of saying that it's against the defendant even if we feel like it is not i think this is strictly de novo at this point the reason i say that is that under this court's cases when you're determining whether a rule eleven error occurred you take a dyno standard because it's a matter of law i later in the process when you're looking at the harm but business does don't owe a review mean that we assume the worst no it does not it means you decide which you think is the more reasonable construction i mean i i readily admit that if this court looks at this language and says well we think the best construction is that he was warning her about  what about how to comport herself in front of the district judge if the plea was withdrawn then i'm stuck with that but if this court thinks the better construction is know he was warning her about withdrawing then i think i'm entitled to that and i think that is the best construction because of the context in which this was said there would be no reason at this point for the magistrate to say well assuming you withdraw your plea let me talk  have your father talk to you about how you should then comport yourself you know i sumi you leave your plea in place let me tell you how to talk to the district that interpretation your honor would not fit with the statement where the judge says mr brown through other you ought to talk to your dad at length about this let me read the whole thing ok so if you're thinking about that ms brown father you ought to talk to your dad at length about this and then he says and then which might mean a change of subject i was really tacky on counsel your daughter about admitting what she did rather than trying to minimize him because i don't know how things but if i were to get a defendant who went before me and kate well you're not really guilty and she hasn't said that ok but if she's minimizing what you did charge campbell may say fine then let's go to trial and then you're not going to get those consequences of being found guilty at trial and therefore saying you know you may not want to run the risk of being found guilty at trial after denial and i think that's a better interpretation i have only a few seconds left but like for your argument thank you really from the government at this time had presented a written plea agreement to the court had signed and read the plea agreement and had indicated no less than eight times that she intended to plead guilty and accept the terms of everything that was in the plea agreement for there she told the magistrate judge that the plea agreement was consistent with the settlement conference that she was entering the plea because she realize that she could receive a lower sentence than if she was to proceed to trial and lose and that she was pleading guilty because she was guilty there was no coercion on the part of the magistrate judge to get her to enter that guilty plea furthermore the defendants will was not reborn by the magistrate judge and a very good example in the record of that is the fact that the settlement conference by this magistrate judge who was requested by name by the defendant was conducted in january of zero five but at that point there was no agreement there was no settlement and it was not until three months later in march of zero five that defendant brown further entered her plea so therefore she had a three month period after the settlement conference in which we may assume she considered whether or not she should enter her plea and she did enter the plea and told the magistrate judge when she was again before this saying that judge that she was not entering that plea because of anything he had said it was not words of the magistrate judge that made her decide to enter her plea if you saying anything prior to the exchange we discussed with  that she might be thinking about running the only thing she said your honor was so i still have time to change my mind if i want to is that what you were saying to the magistrate judge that is the only indication in the record your honor that she was even considering it now article three judges have a lot of power but they are not many opportunities to do so she filed no objections to the findings or recommendation of the magistrate she filed no objections or neither a motion to withdraw her parents that she respected her parents opinion and look to them because she had specifically requested their presence during the settlement conference the magistrate was not trying to talk the defendant into maintaining her guilty plea he was saying as he had said several times during the colloquy if you're going to plead guilty then tell the truth show remorse if you have it so that you can get all of the benefits that you have negotiated for and father and and comes out with your father in making this decision the magistrate did not try to encourage her either way to plead guilty or to withdraw in fact he told her several times tell the truth i don't want you to plead guilty if in fact you are not guilty but if you are going to plead guilty then don't try to minimize what you've done i think we understand your argument thank you very much for coming in today with what what's the purpose of the settlement  district court to see if in fact the two sides can reach an agreement and that is exactly what is done here a proposed clear greenman is presented they go over all of the terms with the magistrate judge and coun well your honor except that it is clear we made known to the defendant that the magistrate judge is not the judge who makes the sentencing decision and so fair for our considerations for three things one judge can be and in response to some a conference question i believe there was a case out of this court a few years ago regarding some of the conferences in san diego that approved a similar program to what they have in arizona a second there was question regarding were there any other indications that she might want to withdraw the plea i listed some of those in my brief the primary one is that she didn't know whether she did it and that she told the court forthrightly i you know i'm only doing this out of here and finally the government's argument regarding that she never attempted to withdraw afterwards is sort of a catch twenty two if she had attempted to withdraw after this talk then we would have said well he didn't another saying she didn't attempt to withdraw after his remarks so that means she wasn't coerced this is not i think a tenable argument thank you jane thank both counsel for their arguments the case just argued will be submitted for