the district court found that miss several years had established official performance the st standard of strickland so and the government doesn't ask this court to revisit that finding so the only question presented to this court is whether that deficient performance affected the south korean now the to be able to show that the government would have offered a more favorable plea agreement so i'll address that point st now that again the district doesn't give any reason to simply states its conclusion but we think there are three circumstances that establish that is different and loss is a lot of work and so why other than just kind of surmise what in the record suggests that the prosecution will be willing to go through that level of sentencing as opposed to role which is much to deal with well i think that i don't know that i have a diff to answers one is that again the government's work is done by the factual basis of the please remit the government has met its burden by a step by the factual basis that said that on the same kind of theory about pop up i assume rodriguez they said that those kind of plea agreements and are by themselves and not to establish a reasonable likelihood that the government would have offered a more favorable plea agreement so between the fact that this was a relatively minor modification that they agreed to other modifications that she was a cooperate or in that i think play some role here and the fact that the same u s attorney's office has kept open the loss amount or agree to a very broad was there information that he'd already received that would have answered some of these questions seems to me this is a new question though they haven't been addressed yeah and the one thing to note here is that a different district court took over after the nd sentencing  o'connell passed away and so that for that reason the judge who had handled the st plea the st sentencing the twenty to fifty five the plea negotiation and the sentencing in the st case was not available to handle this two thousand and fifty five and so i don't think we can say well she new stand it is if if on the record you haven't stated a claim then you don't need to have a hearing is it permissible for us to find that the district court reviewed the affidavit that was submitted and took all that into account including the pop up case and just said well none of this satisfy is it a reasonable view that there be a claim to department to change the sentence here and therefore the claims here were not so palpably incredible or patently frivolous that the court could say i don't need to hear well that's the nd part of the standard and i think no one would dispute that i don't even see the government disputing that but they seem to be saying there wasn't a claim here  and that's my question is what discretion does the dischord judge have absent a hearing to determine that there's no claim here pop up that is not the most clear case on how these things apply now maybe that  read the explanation of benefits knew what the different pollens on that form and knew that there was a fixed fee structure knew that the forms advised although that's not what she said the further that's not what she said at the trial she said she didn't know what was going on and so there there and again the government is in a bind here too because they were the ones at sentencing saying she was right in the middle of all the billing processes beyond that though i think there's it would be concerning for this court to rely or or for the district court to have relied on deficient counsel statement at sentencing that wasn't in fact believed by the district court right if the concept of judicial stop require somebody to believe what you say is also from deficient counsel who we assume had they been making the proper arguments would not have made the same assertions at sentencing look like to reserve a little time if there's other pressing questions will give you two minutes  overcome hurdles st she needs to establish by a reasonable probability that the government would have agreed to leave open the last month for argument sentencing and nd she needs to establish what by reasonable probability that the sentencing court would have found that she would have successfully rebutted the intended los  why isn't that enough to raise a doubt it's not it's not it's not farfetched that they did that they could have gotten this opposite here and that case this court found that a defendant may demonstrate a reasonable probability of negotiating a better plea by identifying pieces indicating a willingness by the government to prove that defendants charged with the same or substantially s i mean under your view of the standard i guess i'm having trouble seeing realistically how a defendant could ever satisfy it i mean unless the usa is the common eating enough to submit a declaration saying yes i would have given them a better deal  there's the question what would she have had to shown or are we defendants in this situation just out of luck i think there should be certain facts that you put a prosecutor on the stand and ask what they would have done she provides no support for that no i understand but i mean that's sort of where you're headed with i mean the government's position seems to be look there's nothing that you can present extra that you know outside of the government's own mindset and i think that's a dangerous road to go down because now you're going to get defendants who are trying to put prosecutors on the stand and that's that's a that's a really i don't like that president either but that's kind of oh you're leaving us with well counsel let me ask you this if there are cases where there might be an initial plea offer which is the best plea offer the extended and that's turned down and over time the police officers plea offers get harsher and harsher and harsher and harsher i assume in a case like that if there was version one of the offer of defense counsel could point to version one as they see looking version one they did leave it open where the by twenty three or four now it's no longer open that is something they could point to in terms of that would not require someone to get on the witness stand where there are other stages in  and the fact that they left that opened is conclusory conclusive really and speculative that they would have also left open it i mean there are some cases where the government is never going to want to get into rehashing loss at sentencing they just take it or leave it there are those kinds of cases although this one doesn't seem to be as contested on the los i mean you really had two issues either the amount billed or the amount that was going to come that that ultimately came in it to have that right the one seven is actually what was separately i think for that and since it would require do what we can affirm for any reason stated in the record and the government can appeal an issue they can only peel judgement so i don't they just continue on the government appealing a finding by the court the court found that there was no in fact if this is a council as a matter of l to address that as well and i think also moving to whether she could actually show she could rebut the intended last under top of the three documents she submits in support the you argued before that she was key the government argued before that she was key to this whole thing and gave her a four level enhanced meant because of her you know great involvement in all of this and now you're arguing she didn't know what she was doing and you would get a discount on that that seems a little inconsistent well the organizer a leader and hands that is going to a different two different point that's showing her role relative regarding her relative responsibility and there's evidence showing that she was paying marketers and that she was in the middle of the medicare billing process so she would fill out the super bills which is a checklist of forms adjusting indicating about various services were provided she would complete other falsif documents files my documentation she would obtain beneficiary signatures and then write future think it's next to their name suggesting that certain services were rendered when they were not in fact and she would put the documentation together and forward that documentation to the billing company that actually high and it doesn't seem at all implausible if you would have understood that i mean well i think there's you know if we look at exhibit a i for example which is that explanation affidavit and says i only intended to do to collect one million seven hundred thousand and i understood that because i understand all of the medicare you've given some reasons for why she may not weigh that may not accurate but as i read it the district court has to accept absent holding an evidentiary hearing the district court has to accept her statement in her affidavit is correct is there a way that he can accept her affidavit that she knew is so low that i think that alone satisfies the question yes there are questions about timing yes she didn't make notes contemporaneous with her with her billing practice yes there's some question about this are we are we going through a futile effort here we sent it back down to the district court holds an evidentiary hearing and say your client is even successful in getting the two point i guess that would put it to a twenty one  sentence that was imposed was still within that that range so does that enter into our analysis at all on whether there was prejudice or do we say no you've got to just do this right from the get service of that time today so hold on i understood that the that she was to have this from forty five months that she got what did she she had forty six months she got forty six dollars a well that was that was the low end of the twenty three dollars but if she goes that all these questions about well what should she have put on to show that she could have gotten a plea agreement of course she doesn't have contemporaneous e mails showing that her counsel asked for a lower last month it was turned down there's a six circuit case on this that says that when we're talking about what would have happened in this alternate universe where counsel knew the things he was supposed to know there's never going to be much objective evidence of that and so what we have to do is base it on what we have and here we have these alternate plea agreements which rodriguez biggest say are one way of  don't think that that would be revisited in evidence or hearing if one were ordered the nd point on that is that they haven't contested any fact related to the defense counsel's declaration there's no question the fact that would remain for an evidentiary hearing and i'm not over