question not so much for you but for your client this looks like a very favorable plea agreement does your client really want to rip now reject the plea agreement and go to trial and lose the plea agreements benefits your honor i understand your concern and yes i have spoken to mr fels at great length about that concern because it is also one of my concerns and he has assured me multiple times that this is a risk that he wants to take as a result of the error in the district court he understands he could take from one hundred dollars special assessment that he will pay for decades i think it's less than two hundred dollars assessment and the nature of the plea agreement pleading guilty to so many counts requiring consecutive sentences and appealing for i think that he is willing the government points out you know he pled guilty and was willing to plead guilty it's not necessarily that he wants to go to trial it's that he wants to preserve his rights to potentially contest the stacking of one hundred and twenty four season the future should allot change again that may be in the sky type of thing but it is mr f mr fills in is entitled to do and should have been given the opportunity by the district court it's christmas and do you believe that two hundred dollars of this special assessment going to been suspended you know i suppose if i have never heard of it your honor so i certainly have no basis for saying yes or no and i think that it would be an unusual provision to suspend part of a mandatory special disproportionate probably realized what was going on and i'm not sure anybody really realized what was going on the court would find us an unusual situation as well but the fact of the matter is the parties did agree to a c one c agreement that contain agreement does have benefits and it does have responsibilities on the side of the district court so the district court when it accepted the plea agreement was bound to apply the allow that but the fact of the matter is if your program in either but maybe there is sure right yeah i agree that there is nothing either way but the fact of the matter in this case is the district court did i don't know your honor there was no indication at any point that there was a previous to the agreement where the defendant would plead to nine counts he did originally attempt to enter a plea of guilty before the government a superseding indictment however that the original document only had seven counts so that wouldn't explain the air either the government may have some insight but certainly the record that we have now shows no basis for a nine hundred dollars special assessment nine pounds never seen to be on the table so the district court then when it realized that it could not excess or when it should have realized it could not accept this eleven c once the pl agreement should have followed the rule eleven c five provisions which mandate that it inform the defendant both parties that it cannot accept the agreement advise the defendant of such and then give the defendant an opportunity to withdraw however the court did not follow this and that that error and the series of errors is plain error and i believe from reading the government's brief the government concedes that it's plainer perhaps not conceding the the last two elements of the plane or come to an agreed upon sentence that binds the district court which is a rare situation in federal court it's not agreed to lightly and it is not agreed to without some consequences for the def addition it seriously affected the judicial process certainly when the parties agree under c one c this court cannot hold that those agreements don't have to be enforced if it's  the government thinks it's not a big deal it is up to the defendant in those cases whether he wants to continue with his guilty plea or not unless the court has further questions i will reserve the remainder of my time certainly th t i i have to say i haven't thought about that until today so i don't want to necessarily take a firm stance one way or the other on the substance under dominguez just so you wouldn't object yet that's great that's correct your honor the government isn't particularly tied to the two hundred dollars we as much as we don't want to encourage the court to do something that's not permitted by the statute the two hundred dollars is not our primary concern here i think it's fair to say can't do so and i think through the briefing and the argument today he he hardly has even tried to and on the particular error i think our argument it should be stress is pretty limited it's we really are requesting the court to resolve this appeal on the facts of this case one the change in the special assessment was legally required so this is a legal sentence  argument say it's not a two hundred dollars why he wants out of his guilty plea and then three that there is no indication below that mr bolton wanted anything other than plead guilty so really because of bats and gets a choice whether to withdraw the plea what you know seem to be saying is that a judge can deny him that choice if the judge thinks that it would be foolish for him to exercise it that's kind of like saying that the judge can deny him a right to represent himself it would if it would be foolish for him to do it if a statute or rule creates right doesn't that mean it's something the defendant can do even though it's foolish certainly  honor defendants can make who is decisions the time to do that under the rules was below and under supreme court precedent once it reaches appeal under domingo's benita as the standard is whether there's a reasonable probability he would have done the court couldn't have denied him that right there's no question about that but this it is now too late to do that and now the review under supreme court precedent is whether there's a reasonable probability that he would have taken that foolish action and i don't think anything in the record suggest and if there are no further questions and all of the government's going to read one quick question mr rights and i remember right high school was the arch rival of harrison high school in evansville indiana when i attended long ago  i don't know if you have until i went to evansville harrison your honor that we don't need to go to the living i mean i'm concerned about your waiver argument and in particular  it would seem to extend as well to a case in which let's suppose we have this deal eleven c one c plea the appeal waiver and so on in agreement on a ten year sentence and if the judge came back with a sentence of ten years in one month and somehow nobody raised an objection to it an appeal would be waived on that  basis no certainly not your honor i think the president that we cited in our three identify well i should start over part of the reason is because the question is whether it's knowing and voluntary and we agree with this court's precedents in other contexts of the sentences the prison term is beyond what a definitive to reach you i think i mean as mr colson points out a lot of these cases result in the government agreeing three man i don't think we'd be here if it was one month government were stopped from collecting the extra two hundred dollars i suppose that may solve again the two hundred dollars issue but it doesn't solve the president that this court would put out there that some agreements undersea wenzi are not worthy of the rule eleven protections and some are well it would be a discretionary decision and step four of the clean air or standard without blessing honor and i understand that i think that the plane air is specifically for these issues where there is more of an institutional problem and i don't see once the agreement being made and not followed by the district court i think that that made or in those situations that are not caught well when they perhaps should be but do have a remedy for the defendant and the defendant has rights in the situation so we're going to make along the way somebody knew that there was  to submit supplemental memoranda within fourteen days addressing the question whether any part of the special assessment can be suspended that strikes me as the same sort of question as whether part of  years one year suspended so you're going to serve only four that's seems to me pretty much the same question then we would appreciate briefs from the parties simultaneous within fourteen days on that question when those memos have been received the case will be taken under advisement and i thank you your honor the court will be in recess