plea back based upon the failure of the district court to establish that he understood all of his rights and most importantly that there was a factual basis for the plea this is a case in the charge he acknowledged the charge existed but he did not admit to possession of the firearm in any of the proceedings in this case in fact sure yes well that's one of the appendix i've looking for where i'm citing i believe so tell tell me i understand that's not an inquiry into the facts the way we frequently see it guilty pleas but it's hard for me to conclude that your client didn't acknowledge concession well your honor if you took those that question answer on page one fourteen by itself i would agree with you but it's out of context the context is that the colloquy begins much earlier and at that point the judge is saying i'm going to discuss the charges against you and the omens charges and he goes through the language in the indictment and the and the elements and he has a free if he understands them so by the point he gets to page one fourteen he says he's being asked he answering yes sir but i would argue that in that ca context he's arguing yes so i understand the charge and i understand the element we're not saying he didn't understand the george was saying that he didn't how acute any facts supporting that charge importantly your honor there's only one instance where there's a firearm seized at any place to which mr hopper was ever seen and mr hopper was seen there days before in fact i think a week and a half before this is an apartment on two twenty to ninety five smith street he was surveilled there on january thirtieth and on february night we're going to seize from that location that the government argues well there's constructive possession of that gun but there's no evidence other than that surveillance tying him to that location counsel i'm troubled by something else the plea agreement which the defendant signed states that the defendant and the government agree to the following facts which form the basis of for the entry of the police of guilty including relevant conduct and paragraph d under that on a ninety five right in the transcript that are signing it but it hasn't done enough because he's not making that statement on undeveloped and this is this court has generally held that where there are contradictory statements in which a defendant is stating  something different in connection with seeking to have his plea back that they're going to give greater weight to the statement that he makes under vote in this case this is a false statement in the plea agreement would be a violation of ten zero one but equally to four state it would be a for statement when he told the judge prior to sentencing i never had the guts and we know he's got to for he's got two statements that are inconsistent with me where did he say that he says that in his where are you on page  y one thirty four he says i never possessed referring to the gun and he says that he says that in the about six lin down in the text he says i'm going in my case it was a nine twenty four c one a and i never possessed in twenty four c one a is a firearms count and i think it's fair that the understanding here is that he's saying he never possessed that firearm that statement is equal to the of the statement in the letter that both statements that he made neither under oath and in the allocution he does not make any statement under oath and there's no other evidence tying him to discussion in connection with this offense this is a a location in which he is seen very seldom in the course of the investigation he's never seen in possession with a gun in the case in this case and there's no court to find that on that basis he should have been permitted to have his his plea back that there was a there was a lack of a factual basis if he had made as i said if he had made the statement under oath there's nothing else in the record gun i mean there's no no possibility that he thought he was pleading guilty to something else it's not like he needed to have some element explained to him is that i didn't understand that to be your argument tell me what you did on count two and the defendant said i possessed a gun on that day i'm not sure the court would have had to inquire into the circumstances of the possession he admitted the crime it's not  like some other crimes where more probing would be required so instead he didn't give direct evidence so to speak answered a leading question why isn't that enough you could give us confidence that he in with a factual basis you should be looking in terms of a plain error i think what we're looking at here want to be making sure that there is a factual basis for the plea and i don't think you can get a from from this from this record i ask that is that by the time we get to sentencing there's the pre sentence report which there's no objection raised to the circumstances of the possession or all spelled out we're not in a situation where we have reason that the government raised in our brief initially is that at no point in time did the defendant squarely object to any of the the factual bases during the he was given ample opportunities as his court has already recognized earlier during my opposing counsel's argument that not only were the elements reviewed for both of the charges in detail with the defendant he acknowledged he understood what they what the government's proof would have been required by reasonable doubt and thereafter the judge reviewed not once but also twice with the defendant that these were the elements for each of the offens two elements specifically addressing the nine twenty four c charge were reviewed with them this is not an ideal way to take a guilty plea and this is not the only problem with the plea i agree your honor as we  characterized as is likely the floor of what a rule eleven sufficient factual basis would be and that the wiser course would have been for the line assistant to have inquired further the challenge for that though judge i'm not conceding that there's anything with this four level but the challenge is because at no no point did the defendant even though he was given the opportunity even raise a question that he was clearly advised if you have any questions please alert the court step back you can talk to your counsel and is is the court's already recognized there were two times it was directly addressed with the defendant and he said yes i agree pages one thirteen one fourteen and also the the judge reviews the charge again with him under pages one sixteen one twenty one twenty one in the defendant specifically again in response to granted the judge read the charge again he augments said a little bit i'll say a little bit by putting the specific date which is february nine twenty fifteen and is this court noted the p r because the government's position remains that despite mccoy which we claim is an episode here plain error is the standard and once the p s r comes in his reviewed the p s r details the three search warrants in this case that will all executed on february ninth two thousand and fifteen as the court noted that the one particular location two ninety five smith street that's where one a stolen three fifty seven firearm handgun is loaded with five live rounds within that same apartment that's what is seen on surveillance connecting specifically harper two to ninety five smith street edition harbor other documentation including harper's wallet and his passport to ninety five smiths street compelling evidence the government asserts specifically that's before the court particularly the search at two ninety five smith street and what is seized during that search is review the four words that the defendant raises and i never possessed are hidden within the sentencing letter it's very clear the thrust of the letter is one hundred eighty months that i agreed to in my plea agreement which was signed is the court noted after judge  c went through in detail it's signed that's the court's practice assigned and at the end of the proceeding and the defendant so he makes the statements there and he also i've reviewed this with my attorney this is it i understand all of the circumstances and all of the the contents of the plea agreement it's not just what he says in court he then though at sentencing is given the opportunity because the judge correctly i i  t looks at it as a sentencing letter too long too long to be away from my family one hundred eighty months and addresses the one issue with respect to the inquiry that mr harper has as to the difference in the guidelines he didn't understand why one hundred twenty months applied the judge works through that the defendant says i understand and they are after the judge asked some would you like to address the court what would you like to say no point does the defendant bring that up nor does his counsel no one objects to anything no one objects to the imposition of the sentence the defendant doesn't choir he asked for a copy of the sentencing transcript so it might make you wonder why why he's doing that at that juncture but he's clearly given the opportunity to raise it and if you look at the appendix the defendant isn't shy about raising issues with the court below he raises twice he brings issues concerning questions he has about competency with his counsel he gets his first attorney he gets a new attorney i would say he gets the attorney kicked off because the magistrate is very clear that she's not doing it because there's any question with respect to the representation that's been provided to the defendant but then assigns the counsel who works out this very advantageous plea for him because clearly when you look at the p s r and they start to talk about the relevant conduct within the p s r there's clear proof if he had faced the two hundred eighty grams or more of cocaine base with his prior eight fifty one he would have faced a twenty year man men and if he had gone to trial because the government's not going to personnel plead to a drug count the conspiracy count on count one and then try you on the others it's not there's a whole works he would proceed to trial with all of them and you can see in the p s r once we get to that point again his co defendants have all pled guilty they're falling off so he's soon to be last man standing so he would have faced twenty at least on the count one plus an additional five for the first he still would have faced other charges including the eight fifty six premises charge plus other counts including  twenty two g felon in possession so if he had proceeded to trial and been convicted he would have faced forty five years and a mandatory minimum so if i can just with respect to mccoy i'd just like to  while i haven't had a chance obviously to do anything written on it i did have a chance to review the case issued recently by the supreme court that is factually distinguishable mccoy absolutely is clear on the fact that the defendant there maintained his innocence and wanted his defense to do to assert essentially that in his counsel he was a nationally really his initial counsel was relieved he proceeded pro se for a period of time and thereafter new counsel was retained by his family retained counsel made a strategic decision based on what he perceived to be the overwhelming evidence of the defendant's guilt to spice despite his continued profession i'm not guilty i was in idaho and in fact was arrested in idaho and extradited back to louisiana to face the charges he took the approach and conceded on opening and closing despite the defendant getting exercising his right to get on the stand and saying i am innocent i didn't do it the defendant brought it up several times directly with the court directly during in court proceedings that i've already described and also prior in front of the jury even and that's the basis they at suai it's very clear the supreme court finds that to be a structural error that isn't subject to plain error analysis but i ask the court to continue along the same vein of your and you know the government keeps reaching to other portions of the record and says well because of this other action or things founded as a locations he must be guilty but these are the two searches have nothing to do with mr harper he was never seen at a location and there's no and he was never on any conversations with anybody telling them to go to those locations in fact i would say that those searches indicated to the source of the distributing for somebody higher up certainly isn't that the fact that his wallet and and passport were found is of no meaning it equally could be some sort of collateral to make sure that mr hopper follows the directions of the government we first took constructive possession but there's no linkage to him and in the case they cite the facts are completely different the individual was found on a bed in an apartment drugs in the past now you are nearby  loaded gun is under the bed here all we have mr hopper was out of these premises ten days earlier finally i think it's very important to think about this idea of the risk that he takes by taking his plea back because i think that's serious volumes to the credibility of the statement he's well aware that if he gets this plea back he's going to be facing the other charges but he proceeds on that and he  and to me your honor that indicates a belief he has that he's not guilty of this choice and he wants to have this charge adjudicated properly and what has no further questions i'll rely on my