please the court action come behalf of richard woolsey criminal defendants are entitled to know if any plea offers that their counsel is offered and the prejudice when counsel fails to communicate those offers and the defendant receives more jail time that is exactly what happened here the government presented mr woolsey as attorney edward wish no with multiple plea offers plural including for twenty seven to thirty three months imprisonment the government's argument otherwise is new on appeal multiple times below really mean multiple offers we mean one offer with x because i get lost in the multiple offers to be honest and so i thought your i know you're living with language that's kind of being cooked up i thought you didn't nice job explaining  i think in your reply brief that it's really want to offer so why don't we can we can you talk to me about that just for a minute if i could step back one second i think there could have been multiple offers and to explain what happened  there so i think that there could have been the three thousand three hundred and forty one month offer and also the twenty seven to thirty three month offer and i think we could have been consistent with the twenty seven to thirty three months offer existing to the same time as a thirty three to forty one or things that are apparent on the record materials we have from that october th meeting for example it could have been that the government offered the twenty seven to thirty three month offer with the acceptance that mr woolsey could have kind of agreed to assist in the prosecution of his coconspirator run bingo that's not actually in the record before you here but i think it could in part explain why there would have been these two separate offers that's but that's not traditionally how it's done right traditionally what happens is the usa says i'm offering you a plea and this is the relevant conduct i can prove from the indictment which we know from the transcript that's the language from the indictment we can figure out that number we can sit down and figure out that number and then acceptance you can figure out and the only thing you can figure out the five k but five k s are completely within the discretion of the government and promised by them and you can never communicate that to your client it can never be deficient not communicate that because it's a hope in a dream so explain to me how you're getting to what you're getting too so you mean to the now doing to the one offer with the multiple please scenarios with the how do you get to twenty seven to thirty three i'm just not clear how you get there i guess that the defense attorney might hope that they might have agreed to fight it out it said and saying there might be all kinds of things but i'm not sure what your theory is of how you get to the twenty seven to thirty three other th standing offer and i think our best support here would just be that mr woolsey argued multiple times below that there were multiple offers the mr which no fail to convey and the government has never disputed that multiple offers were made it's not clear from the record why the government would have structured it the way that it did and i think that always calls for an evidentiary hearing to understand why that may have been the case it could be because of things that are on the single notes that we have from the meeting and from mr wish newsletter describing that meeting but turning to the one offer with multiple scenarios how the twenty seven to thirty three months came about there seems to be tethered to just the last amount that may have been proven conference the district court was clear that he did not want to say reynolds sits say what the range was in the offer and she agreed i will not say what the range is instead she just represented what the senate see in range which maybe could then stopped she said so miss mr wish now and i talked about that last week i thought it was thirty three out of forty one months he thinks it so she's so what they're saying because if you look at what's before that she's saying look we're to limit if he please we're going to limit it to the four corners of the indictment happens all the time in america and i think that sentencing range which indicates to me the plea agreement didn't include a sentencing range that was going to be left to sentencing for the government to prove their conduct but they will grieve the limited to the indictment she calculated it came to thirty three to forty one months he calculated it independently came to twenty seven to thirty three months everyone agrees that plea offer the defendant knew about why isn't that the most rational reading of that transcript so i don't think that mr woolsey knew about the plea offer that the that a particular plea offer had to promise a thirty three to forty one in a twenty seven to thirty but it doesn't have two prongs in other words this is this happens every day in america the government says i'm going to let you plea you're going to plea and we will not prove anything beyond the indictment to prove the relevant conduct and i think that's thirty three to forty communicated that that was the terms of the offer i think there's only evidence that mr wish to communicate to mr woolsey that the government had offered a thirty three to forty one month offer full stop not what you ok so now that brings me to my next question which is again this happens all the time and our defense attorneys always supposed to communicate is it deficient for them not to communicate their hopes and dreams of what they hope to achieve for their client or do they have to communicate that as i read the law all they have to communicate is the offer made by the united states and if that were true that was not what was what happened here the offer made by the united states would have been to go to admit guilt and then to go to a sentencing hearing and hear the two possibilities twenty seven to thirty three months if the losses within a certain range or thirty three dollars or forty one and i think mr wish know had an obligation not just to say hey if you admit guilt there be a sentencing hearing and we can figure out what the loss will be there to actually explain here are the two scenarios and they're tethered to the amount of loss in that way mr woolsey could make a more informed decision whether to plead or not he didn't realize that it was tethered to the amount of loss or not there's no record of and support that a tree happened i could've made a real difference here he could decide to allocate his resources differently  he may have decided to plead even to thirty three to four you want to know that he turned that down on the kind of lack of information that he had but he would have done something otherwise how do you know more and that few months made all the difference in the world  it your honor i understand where you're coming from there i guess what i would say is is this i haven't seen any decisions from the supreme court this court another court the kind of nit picks the gap between you know an offer that was turned down an offer that was never disclosed and there's lots of the judge come preside over the original plea sentencing and over the twenty to fifty five he did your honor what should what should we make of that i mean he seems like a better position judge than we are yet he decided not to go so i think that that was still legal air and there's a couple reasons for that st he didn't say anything about the twenty seven to thirty three months off but you have called a separate offer or at least a scenario within one off or so he just plainly didn't address a central argument that mr woolsey made in his habeas petition below and that's i think that is itself legal error in this case particularly because the standard to get an evidentiary hearing is his light as chris said all the times and in fact it's mandatory unless the evidence so conclusively goes against the defendant that none is necessary and that's just not true here mr narrative below isn't inherently incredible or conclusory it's supported by lots of facts it's all the  good morning your honour's amanda jawad on behalf united states may it please the court there was only one offer extended in this case and mr woolsey was aware of that offer because it was discussed on the record at the october th status but your friend on the other side says look he was aware of part of the offer but not the full offer and that toll could have been determinative and there's a factual dispute it wasn't on the record what his counsel thought and his counsel he obviously got rid of his counsel why not have an evidentiary hearing i mean you agree the standards very low right when the defendant presents an affidavit and it's neither contradicted nor inherently incredible it seems to me it isn't and you haven't offered anything more than a contrary representation we've said repeatedly he's entitled to an evidentiary because an evidence you're hearing is not necessary we're here the record does contradict the defendant's statements why explain that to me i'm not sure i follow because the only thing the defendant has ever come forward with to show that there was a and he offered that included a twenty three to thirty three month scenario  one piece of paper from his attorney well i mean doesn't use it what he was going to i mean mr wish and i talked about that last week i thought it was thirty three to forty one months he thinks it's and we know that's going to be lower before he gets cut off and what he's saying is my counsel never communicated that to me so i didn't couldn't make an informed judgment as to whether to x or to accept a plea like and i think all that matters is you know being in a usa and ninety nine percent of criminal cases is the settings right when the u s is prosecuting it's the sentence that matter right but there was an indication on the record in misrata was did get cut off but there was an indication that counsel does think that something lower and mr wish now said that he had a discussion with mr woolsey a day before the status conference where he went over all of this and that's in his letter which is in the record and also judge cohen asked mr woolsey do you understand what we're talking about and mr woolsey said yes and now me if i'm wrong this is a vague recollection so you should correct me i thought if the defendant and his former counsel had different memories the usual standard is to have a hearing and make a credibility determination maybe you're right maybe he's going to decide in front of the attorney but that's i thought threshold was pretty low on this you should tell me if it is a low threshold and if we're talking about simply about all of affidavits this court has remained in that scenario but i think what we cases like the valentine case or the pull a case that relied on either affidavits or vague statements on the record like in the valentine case so here we have this on the record discussion in mr woolsey says right after this discussion of what the guideline ranges and what the offer is yes i understand and that's because he had a conversation with his attorney the day before where they went over all of what was discussed three days prior to that between with the a usa and if you look at the transcript it never says offers everyone refers to it as a one off or in so what's clear from the record is that there were multiple different guideline scenarios discussed at that twenty october twenty six meeting but then the that conversation was cemented at the october th status conference where m was present of a silly question a written plea agreement was never prepared and right that's correct there's nowhere in the record that would indicate that there was a written plea offer in my reading of the transcript is that this was all informal in one of the reasons perhaps that it didn't become a written offers because a defendant didn't show any interest in taking the offer his next attorney that came in burgess burgess later in two thousand and thirteen you said and he and we have an affidavit from him saying this he never showed any interest in pleading guilty and mr will there was a big gap between this status conference in october th and when the case actually went to trial and during all that time mr woolsey that better i think your friend is right but i'm just curious because it seems like he's huge dissolve this corroborate that he probably knew is that what your argument is because the difference between twenty seven to thirty three and thirty three or forty miles one it seems like oh my gosh i just got six months which is even arguable because you could have gotten the same sentence thirty three months that would have made all the difference if you was never interested in does that make sense is my question makes sense in other words does burgess support that he probably knew which is your theory because the gap was so different he was never interested that it doesn't matter i think burgess affidavit does support our theory that he was aware of these different guideline ranges in where where the government was in terms of what we were willing to offer and was not interested in pleading guilty at the time it was never there's no indication at the record that the topic of plea discussions with ever broached again in that entire year long delay between this status conference and when the case actually went off another multiple offers there i've never encountered a situation where there are multiple multiple simultaneous offered at the same time and that really doesn't make sense way to bargain let me make two i wonder at the level and it's like why don't we start with the lower one and then we'll go from there but but maybe you haven't but i but i could what i was thinking would happen is you offer want to hire one and he says now i'm going to trial and then you come back for the lower one so that's what typically happened that could have happened here yes too but they're n brief made a very good point of you wouldn't offer someone a car and say do you want to pay twelve thousand dollars or fifteen thousand dollars you know the same way that a prosecutor wouldn't offer a defendant an offer to a lower scenario or a higher but his his response is makes perfect sense which is you didn't offer me a car with two prices you offered me a car and we said we'll get an appraisal i thought the appraisal would come back at eight thousand dollars you thought ten thousand dollars that happens all the time right and we fight the guidelines out it's the same that's all you're saying and you're the government thought to be thirty three to forty one when limited be indictment he thought to be twenty seven to thirty three and he didn't communicate this latter and heavy communicated this latter my guy would apply  that is a valid reading of what happened on the th is maybe they were going to agree to disagree as to the guideline range and that would be worked out later but mr woolsey heard this conversation he heard the prosecutor say what she believed the ranges and that her attorney had a different idea which as you point out just the part would have been lower and mr woolsey heard that and was present at the time so and then we have this extra letter from mr wish now that kind of corroborate that he knew what was going on because mr bush now says we met on the th which is the day before the status conference in judge cohen relied very heavily on this transcript of the status conference when he made the determination that an evidentiary hearing was not necessary and i think what's helpful about the transcript is that it it happened contemporaneously when all of these discussions were happening so any affidavit that could have been written four years later when the twenty to fifty five was litigated or an  evidentiary hearing that may have been seven years later is not going to be as accurate as the parties putting their views on the record at the time during when plea negotiations were happening and that's what judge cohen relied on in making his decision and that was not an of discretion then the supreme court cases on this offer and a duty to communicate deal with the judge the power was just putting it that you know what's on the table is this plead to this there's debates about what that would mean sounds and that you're able to then capture the lower one later when they deal with that i thought they were just more straightforward they want about sentencing ranges they were just you plead to x y z or you plead to just x y i'm not aware of any of the cases that that specific scenario but in the other lower courts in other words it's ineffective you didn't convey this way of perceiving the offer i'm not aware of a case that talks about any offer that would have a dual guideline range or an agree to disagree on the guideline range but there are cases from the circuit if you look at the griffin case that say that even a tentative offer does need to be communicated to the defendant and we're not we're not disputing that offers don't mean that offers need to be communicated to a criminal defendant it would be ineffective had mr wish now not communicated any of this information to the defendant what we're saying is that he did communicate and we know that he communicated that because it was discussed on the in the october th status conference and judge cohen confirmed with the defendant that he understood what they were talking about and judge cohen also went over the maximum sentencing guideline exposure there's the smith case also from this circuit says an attorney has a duty to go over the the potential implications of a plea versus going to trial and judge cohen went through that and said you're facing a maximum of exposure of what we estimate as seven or eight years and you realise that's very different from what the prosecution is offering you which is somewhere in the range of thirty three to forty one months so he explained that all of mr w meeting and there's no declaration there's no submission of anything that may have been filed in the u s attorney's office related to what happened at that october th two thousand and twelve meeting i wouldn't be here though except for the notes the cryptic notes that i mean that is what seems to a proud him here and given him the idea that he may have a claim i think it was the notes and also mr bush knows letter describing those notes as being multiple offers the notes don't say i thought he basically walked back any idea that there were several i don't think that's true i don't i haven't seen anywhere in the record mr wish no walk back that there was multiple offers sometimes he used the word scenarios instead same problem imbedded in that the later be a debate about you know which ranger in because of how much money was at issue in that setting if you just the be no problem right if you just plead guilty to x then it turns out if you had pled guilty there were two options and god only knows what happened right that would be a problem right so yes i'm trying to marry why there would only be two options are there only two options because they've agreed on the amount of harm now not just some just making the point just a run of the mill case you plead guilty to x and then at sentencing they're going to want to know what what amount was at issue in this crime to which you played guilty and to me i'm just simplifying it maybe it has three or four possibilities but just two and that said you wouldn't be troubled right even though it were to be ineffective if you didn't convey that you know we don't really talk through this but you know if you pled guilty there actually could've been a lower range of which showed it was worth less than five hundred thousand dollars for example that would be ineffective because you didn't so i think i think it's different here and there were two particular i am not you and i'm i wasn't asking the same facts and trying to figure out the nature of the principals how that works i guess i guess would be ineffective if you didn't lay out with your client here's the range and that would be problematic not to say it could be lower it could be higher that's correct and that's different than the supreme court cases you know try and laugh that's different right you agree with that but that's something more rather lower court cases that deal with this type of problem of getting into exactly how the sentence will break out if you accept the plea not that i have seen your honor but that's that i haven't seen you discussed them at all it would have been at that time that's certainly or it could be that my head my habit when i represented defendant is to do thusly it could have been that yet so but i think that there right it is burden but i think the burden to get an evidentiary hearing is extremely light and here it is abuse of discretion and it is abuse of discretion that's correct but i think that the judge does abuse of discretion when he doesn't make  so i don't think that the judge would have acted within his discretion here by just ignoring the things that would have been the contradicted facts that justify an evidentiary hearing in this case if i have more time i have to say more or other not best way to put it but i did a series or another point you want to respond to one other point your honor about the status conference the judge did ask do you understand what i'm talking about  mr wells he did say he understood but he only understood of course what he was told and he wasn't told anything about the twenty seven to thirty three month offer scenario about any about how the different offers or scenarios were tethered to the amount of loss or anything else other than there's a thirty three to forty one month offer period and there's no reason for him to know to ask about things he doesn't know about so mr wells us that the court because his sentence or the alternative or man for a