you may proceed thank your army or police the court my name is thomas we will represent mr revels today autonomy to decide that the objective of the defense is to assert innocence belong to the defendant mccoy decision earlier this year by the united states supreme court in order to make the key decisions in a case the decision whether to go to trial or accept a plea agreement the decision to whether to testify the decision whether to adopt a particular trial strategy stricklin requires that defense counsel fully advise his client of the risks inherent in the available choices in this case mr revels made three choices after consultation with defense counsel number one he had decided to reject a plea offer of fifteen years number two he decided to waive jury and proceed by way of a bench trial and number three he acquiesced in his attorney's recommendation that the adopt a lesser included strategy at trial but that third decision the decision to adopt the lesser included strategy was based upon incomplete information mr revels did not know that at the time of trial he qualified as a career offender and was facing a sentence of at least fifteen years as a career offender he did not know that he was a career offender because his attorney did not tell him his attorney did not tell him because his attorney himself did not realize it until after trial it makes no strategic sense to reject a plea offer of fifteen years risk a mandatory minimum of forty years in order to adopt a strategy that places you in a position where you're still facing fifteen years in prison mr revel's testified that had he realized that he was a career offender still facing fifteen years he would not have acquiesced in his attorney's recommendation and would not have allowed him to adopt that strategy would not a recommendation to go to trial no he still would have gone to trial the question was whether to adopt an all or nothing strategy or to adopt a strategy that encompassed in the possibility of a lesser included and his attorney felt that a lesser of their two steps and i want to make sure one was he did he rejected the plea which meant they were going to go to trial correct and then when they were on their way to trial and maybe even during the record is clear that mr rebels was very involved in his defense fully engaged he's a very smart man i think the record reflects that has been my experience as well and the attorney wanted to argue for the lesser included and ultimately mr rubbles agreed to that trial strategy but it was based upon his belief that if the strategy was successful he would receive significantly less than the fifteen year plea offer that had been offered to him having less than the mandatory minimum having ten years and what's the basis for his claim the basis for his claim is that i think i think you need to analyze this in terms of what was going on at the time of trial at the time of trial the sykes case had just recently come out of the united states supreme court the ink was still wet at the time of  trial defense counsel testified he was aware that the sykes case had come out he'd gotten and an email notification to the c c j a center that these decision to come out but he did not realize the impact that the psychs decision would have on mr revels case the psychs decision is pretty clear that mr rebels qualified as a career fender it would have been impossible to to first see in two thousand and eleven two thousand and twelve that psychs would be overruled within five years by the johnson case had sykes not been overruled by the johnson case mr revels would still be facing the original sixteen years so from the perspective of the decisions that were being made at the time of trial mr revels was making a decision to reject a fifteen year offer when he at the time he quality he did qualify as a career offender this court affirmed the fact that he he appealed his original sentence it was only the change in law in two thousand and sixteen for the johnson decision that that changed that asking for now in terms of relief we're asking for a new trial so you don't want to fifteen years fully understand the question in terms of well i think your argument and as you know he's here on this trial we have the lesser included in fans and that's not appropriate right i believe that but i think that legally it was appropriate i think it was a lesser included and i think everyone except that the question is whether it's a matter of trial strategy it should have been urged on the court there's also a sub issue of whether the court could have adopted the lesser included sue a spontaneous and both sides have addressed that in their briefing neither side could find anything in a federal case that says that i did cite a series of state cases there's a there's quite a few state cases and they divide about fifty fifty on that question so there's a rhetorical question sam because i'm sure you've talked him through on this one but if you get a new trial and if the state goes back i guess my belief is that the judge found him not guilty of counts two and three double jeopardy bars retrial on that and don't really want to retrial you want to go back and double jeopardy well i think he could be retried on the lesser could win the battle and lose the war mr revels is a very persistent man you want to see your remaining i will remain my reserve thank you good morning your honors in may please the court i'm michael dionne and i represent the united states as counsels argument just made clear there is only one issue being argued to this court and that is mr revels claim that trial counsel was ineffective because when trial counsel was discussing this strategy of suggesting to the court that it might convict him of this lesser included offense of aiding and abetting that at that point trial counsel did not tell mr revels that he might qualify as a career offender now setting aside whether that was ever by counsel in the first place the  here is that strickland requires a showing of prejudice stemming from that era and there are two independent reasons why rebel's cannot possibly show prejudice the first is that it is undisputed that the sentence he is serving today is not based on that career offender guideline he was initially sentenced as a career offender that sentence was overturned on recent unsing after johnson invalidated the residual clause of the armed career criminal statute the court at re sentencing did not apply the career fender guideline he got a sentence of one hundred twenty months and  sentence that it was based on the alleged error is gone it was vacated and when it went away so did any possible claim of prejudice now i just heard counsel argue that you should analyze prejudice at the time of the trial and at the moment of counsel's alleged error that is not the law the supreme court held in lockhart v frett well five zero six us three sixty four that a court in analyzing prejudice should consider subsequent developments after the time of the alleged error and that makes perfect sense because prejudice is looking at the ultimate outcome was the ultimate outcome affected by counsel's ever he was not a career offender in the end and so there was no hostile prejudice from the failure to tell him that for some brief period he would have been a career fender well there was possible offense even if counsel had not suggested that as a possibility defense counsel said that there is no cases answering this one way or the other it's true that there are no cases that hold that a federal court has the power in a bench trial sue a sponsor to consider a lesser included but there are several cases saying that in jury trials federal courts have the power to sue a spontaneous instruct them on a lesser included the party autonomy rule that counsel mention from some state decisions is not the law in the federal system the canon case that we cited specifically said that charging the jury is the judge's province the parties are free to make suggestions but the judge has the ultimate decision the crow case from this circuit held that the judge correctly instructed the sponsor on a lesser included now if the judge can instruct the jury so is spontaneous on a lesser included there is no reason why the judge wouldn't be able to consider it in a bench trial where if anything the court should have greater latitude than in a jury trial and the court's finding was very clear in this case the court said and this is at page twenty two of the excerpts of records in a discussion of whether the court would have convicted him of the lesser included even if it was not raised by counsel the court said that it would after considering all of the evidence have considered ravel convicted revels of aiding and abetting so whatever counsel might have told mr revels about the career offender guideline would not have made any difference the court was going to convict him as an eight or a better in the end no matter what do we have any they decide the case on the on the other on the aiding abetting ground we do not your honor all of the case law that we have is dealing with the judge's power to reason why that power would suddenly go away when it becomes a bench trial your honour's unless the court has any other questions that's all i have thank you know thank you very much think your are i did want to address the court order where judge settle in two thousand sixteen said he would have considered the lesser included i would suggest a closer look at the trial record specifically and you'll find in the excerpts of record of pages one seventy six and one seventy seven which is a portion of the original trial i would suggest the judge said it was monday morning quarterbacking about what he would have done in two thousand and twelve when he made his order  judge settle expressed confusion he also specifically turned to counsel for the government and said do you agree that this is a lesser included that i can consider and the government agreed that it was  i would suggest that judge said it was not giving any thought to a lesser included until it was first raised by defense counsel what do you how do you respond to the argument that we look at is where he and the reason i say that is because the baucus case which came out after mr revels was sentenced found that johnson is not retroactive as applied to mr rebel situation the government originally appealed  the fact and procedurally the only way that can change is if the court were to grant the relief that i'm thinking right now and my guess is if you get a new trial what you're hoping is that the state will say after another couple years i'm going to let it go he's currently has his release date i believe is in december of two thousand and twenty so he's looking a little over two years he would prefer to be with his family thank you thank you thank both counsel for the argument this morning united states versus revels has submitted