christians and i represent the intel and adams player in this case the government of course has conceded that count one is no longer valid so we're really talking today about the remedy for that error mr springer argues that his guilty plea is not knowing and monetary and should be vacated and along with the entire plea agreement that's christianson could you explain to me why you were starting with a constitutional argument rather than starting with rule eleven there is a serious problem about whether there was an adequate factual basis for the plea but we don't start with the constitution when there is an applicable statute or rule so is there some reason why you've done  start with statutes and rules let me ask you one other question and this is my very question in that does your client really want the entire guilty plea to be vacated yes your honor he that's digging his own grave to lose the reduction for acceptance of responsibility charges will be reinstated all the concessions made as part of this plea go away that that doesn't sound like something that is in your client's interest does he understand what's going on here yes your honor he absolutely understands and but for his insistence this argument might be very different sticking point under rule eleven particularly is count two because the government's conceded of course there's not a factual basis for count one i don't have a factual basis count argument for count four so a rule of an argument is whether count two remains valid and it's stipulated conduct of course not a conviction but the underlying factual basis once count one is gone count two steers that as a plea agreement and that's  how i don't understand it how does it it's just stipulated conduct he didn't plead guilty to it the judge could find it by a preponderance of the evidence the judge could consider it sentencing just like he could consider what he did with respect to count one whether it's criminal or not under the three thousand five hundred and fifty three factors i would suspect the district judge in this case would consider your client's conduct that was alleged in count one and you know and i don't i just don't understand why count two matters at all and i also don't understand why count four does not stand alone it stands alone in the plea agreement it stands alone in the pre sentence report and here in page for of the plea agreement he admits that he had pictures of a preposition prepubescent minor and a minor who had not yet obtained twelve years of age that clearly is not victim a we know that and then he admits that he had videos and images of children some as young as toddlers being forced to engage in horrible acts i don't understand how count four doesn't stand alone and i don't understand what count two has to do with this case i think the government wants us to narrow howard i think that's what they want us to do but i don't know other than that how it matters here right your honor only answer count for st i cannot and do not challenge the factual basis for account for all of what you said is still valid it's still in the facts mr springer admitted it so yes count for could stand on our own on its own the question of whether this be agreement as a whole can still be a valid way to go to really factors in this wait doesn't he get the five year doesn't he get the additional i dug the additional five levels no matter what yes you got it but it still ends up lower based on the additional conduct and counts you and i believe the difference primarily is that trance while sent one of the videos transported the videos to another user in count you he did not do that not one so that's the  offense almost forty that's why it makes a difference but i didn't get it but here again count two he didn't plead guilty all he did was admit facts correct he just isn't it he just admitted facts right which the district court could use it sentencing with the facts that he admitted under count two he would he would admit the same facts under count one he would just say it's not illegal conduct he would admit the same facts under count two and say it's not illegal conduct i think right behavior in count two differs from from that which we saw on howard from that which we see in count one at least as i read the stipulation because he's touching the child i'll be it through clothing but there are cases that say that still you know an inappropriate touching so i really wondered if count two might be a more serious count and might not fall into the howard rule anyway i that but it is momentarily so it i believe that that does fall under howard and the question is whether the minor herself was engaging in sexual rates was a conduct not whether the defendant involved her in sexually explicit conduct which i think the government is trying to expand howard to that new factor or that that switch of factors about who was engaged in sexually explicit conduct so there is a problem with counts you mean here and that probably is where the crux of this issue for mr springer is is that he has admitted to it as stipulated conduct and under the guidelines it becomes a factor in that calculation if it's no longer a factor his guidelines may be lower and of course the district court judge can consider that just like you consider all the rest of the conduct in this case but it's not controlling the guidelines that's a much better place for mr springer arguing from the count that he admitted to and howard as the defense has conceded had no effect on the possession count and the government would argue that the defendant has said that burden under plainer review to show that howard had any effect on the stipulated offense  plea and stipulations and we regularly say in the government regularly urges you know it's just got a standard fall on its own legs you can't pick and choose you can't car things out this out or that out you just either have plea or you don't and so looking at that reasoning i understand that there doesn't seem to be any dispute about the count for it to be but why do we when the government wants it why do plea agreement when the defendant wants it why do we not well your honor i would say and i have done a lot of looking at a lot of research in this context there is not a lot of cases where one count is over to where people plead to multiple counts it certainly happens where people plead and they may get changed and sent back but there's not a lot of cases where someone's pled to more than one count one can't get turned out and the other count had that's only no bearing on the count that's been overturned and the government's not really the case here of course means one course of conduct different episodes if you will but you know it's not like you know you somehow try to combine you know a bank robbery and there's child pornography offense not that you necessarily could have but if these things that the senses are imposed as a whole we talk about you know a packaged judge will weigh one part against another absolutely your honor and this is not assented sic package this case in this context is coming under the whole alford and brady line of cases where the supreme court has said and and circuit court of applied the th circuit in morgan the rd circuit in the keeper that when you have one count that is independent of the others factually and legally that gets overturned by intervening legal decision and that decision has no impact on the remaining counts the question because whether the defendant guilt guilty plea to those remaining counts remains a voluntary and intelligent choice among alternative courses of action open to and it's not enough under these cases that when he pled guilty he may have thought the penalty was greater or when he thought pled guilty he may have thought the government's yes legal conduct legal conduct cannot form the basis of a guideline calculation is is that right would you agree with that find in other words it with respect to count two if the district court were to call it he stipulated to the conduct he did not plead guilty to a an offense yet could the district court use the stipulated conduct under count two to determine the base offense low and not and yes ed government has never had any interest in the defendant being convicted of a crime or or stipulated offense that he did not commit and so and you agree with me that if this case were remitted to reset and sing and count for the district court could consider the conduct to which he pled guilty to and count one in determining the sentencing indeterminate death but that yes that exists whether we throw out the plea agreement or not right i mean let's say we throw out the plea agreement in the case is resolved five years from now the district court could still go back and say six years ago when you were before me you made the following statements and you admitted to this conduct and that's going to form a basis or at least a part of the basis for my five hundred and three thousand five hundred and fifty three calculation and it would determine what is chooses not to do so here you sure that's what the government wants to do yet in this case yes you know in all cases there are costs to the court to to the process to the to to victims to witnesses to everything and that's our thought in this in this case that and more importantly that we believe in the legal principle that the issue here your honor which is that when and this goes to judge would question why does case is different your honor this isn't a case like bradley where the cases where the facts are intertwined where at the time of the guilty plea there's utter confusion as to what the indictment charged what the defended were pleading to and everybody's confused this is a case where everyone agreed on the facts everyone agreed on the law and an intervening decision of this court upset that apple cart as to one count but as to the as to the out what we agreed to at the guilty plea both of as to the facts and for the law the government would urge under howard remains precisely the same there has been no change and when that independent factor is there when there's an intervening independent act of a judicial decision that alford a brady or controlling here and those are the factors you look at and that's what makes it different your honor that's when you ask judge  would is its government choice you know this or that this case has a legal principle that at the bottom and the other thing i would add here is when it goes to our footnote i believe you said it was footnote ten judge i don't have it  and that the point there is that the only parties whose interest is frustrated by the knocking out of count one is the government the defendant has gotten a benefit it was always in the defendant's interest to plead to fewer to i disagree your honor i thought you meant by do you think i do you think the final offense level is going to be i actually calculated that a bit and giving up all if you give everything to the defended so if you were to give him that now without counting count one there's not multiple instances and things like that he could with the stipulated offense without acceptance he'd be looking at a two hundred and sixty two month the minimum the counts aren't related to that way and that's the case here i see my time is up so unless the court has any other questions the government would respectfully request that you vacate count once conviction reject the defendant's a if the defendant has stipulated to conduct and the stipulated conduct is more serious than the non civilian to conduct the convicted conduct the stipulated conduct controls in the guidelines so that becomes an issue it's not grouped but he still gets a multiple count adjustment because count two counts as a separate count should this chris nelson should the district court here determine whether the facts alleged in count two are sufficient to state a crime in other words if we re manned and count four for re sensing and for determination by the district court that the facts in count two are sufficient or insufficient to determine whether or not they are a crime why should i do decision in the st instance because of the timing of course it doesn't before the chords and it's within this court's discussion to send it back and have a hearing on this issue about whether it was knowing involuntary i'm unsure whether they're in any additional know that would be relevant to that decision i don't either that i don't either that's the reason for my question right and i have course was on trial counsel so i know exactly what the court knows that's in the record and in the briefs i will and of course that howard