morning your honor ethan balfour the appellant peters i'm going to begin given that lindsay though the man that has an issue has been decided it affects the st issue substantially move right on to the withdrawal of the plea issue and i'd like to begin with an to that there's also an appeal waiver right there isn't this two reasons why the government cannot enforce in this case one the plea is invalid because there was no quid pro quo alleged and the government's main argument on that point is the said he was pleading to commercial sex under f two so that ends the analysis and i think they're in correct that's the legal basis but that's why we need a factual basis for example of the judge followed up and said well you're pleading guilty to commercial sex what bob said why do you think you're guilty of the f two commercial offense and he said well i went to dinner with my girlfriend and later on that evening we had sex and is no quid pro quo that's not commercial sex that's dating and so some colorful arguments that the motions perhaps could have been decided differently and should've been decided differently yes i may tell you i think that you have some strong arguments there but i agree with that callahan there's a there's an appellate waiver here you know if you can slow down for me this is a pivot point that don't understand why you think there's an adequate factual basis well i think it's an adequate because you have to a commercial sex you have to establish a quid pro quo and we look at the subsequent plea agreement the government recognized that and changed the verbiage of i gave the gift on account of we were going to have sex for it but let's say i'm wrong i don't persuade you but you asked me to make the imprint because they sort of buttoned down the nd time around that the st time was in adequate yes that the factual basis on its face is accurate because nowhere in not argue it as a reason to reverse some argument defensively against an assertion of waiver i most certainly may do that we've said in the footnote this court case law the government asserts a waiver i can defend against it now the nd reason is the government has waived their right to it because what they say in the plea agreement is you mean waive their right to enforce that yes and the reason that is true is the government's argument and the case comes to you as the by acting the plead remain itself preserve the right to challenge the constitutionality and the noncommercial problem and the government's argument is that very agreement by entering the agreement which preserved it actually waived it some selenski oh it was a wave and this is the government's language in its brief here defendant's guilty plea waived any claim that the statute is unconstitutional as applied to him that's the answer brief in one thousand so the very plea agreement and i i mean for promised and they said the issue was waived because of the entry of the play that's there it's a terrible argument i'm not saying it's right but your position is from there your spring board is great they breached the agreement and now they can enforce what they saw to enforce it may have not been the correct choice but it was a choice they made and there's consequences for choices that's when things this court deals with every day consequences for choices you make and if you say the defender has waived his right to challenge constitutional of a statute based on the agreement that preserved it you're not meeting your bargain tim you could have said we want to win on the merits alone they made a broader argument than that and the consequence of that broader argument is one thing we gets argued withdrawal pieces i don't tell judge callahan out of the gate i'm going to try to save two which gives me three left so what i like to say on nichols is the three main errors are the two thousand and thirteen of them and change the law and so and judge snyder clearly got it wrong in her order nine relief she says that the twenty eight dollars conduct was reached by the revised statute pet base says judge snyder was wrong in that that's legal error per se of use discretion to she takes what i think i'm getting back finally your question judge callahan this holistic approach was need a good deal i don't think so but i don't think that's the correct prism on the garcia or garcia lopez the prisoners whether he had applause a reason to motivate him to demand a trial not whether the court thought it was a bad idea and that's what the judge said are just not or might be right pepe remember got thirty years per count stack seven in a row two hundred and ten years he might have wanted mr peters deal but that was mr peters decision to make and so i think the holistic approach decided nichols in sixteen and that showed that the registration with the present tense of that adopt adoption of the statutory language he wasn't required to register so he wasn't subject to ten consecutive and he should've gotten a guideline sentence which is why they ultimately offered a guideline sentence which is the last point it was plausible he would turn down this deal because he turned down a better deal and judge snyder knew it even if you don't accept the nuclear agreement she was informed the governor extended a sweeter  amendment that somehow that it would be that it would provide a fair and just result for him to withdraw the play but ok the t amendments to the residency issue price and so my understanding of the amendment is it casts its sort of closes a loophole and cast a wider net of people that were claiming that that's finished with doc question then i'll sit for a bottle that's the exact point rather i respectfully disagree you get to make that choice the relatively weak defenses in derogation of garcia he has a plausible defense and he has a declaration in the record i think it's fifty eight to fifty nine of the ers are seventy eight to seventy nine of the r s that says when i moved to hired a lawyer to tell california i had left as we settling abroad i told my father i have witnesses i can present them a trial and you think that's not most persuasive presentation the jury's not going to find out there and maybe you're right judge but garcia garcia lopez and st and i might be right but they say we don't look at it that way we say whether he had a that gave him a defense and that defense is plausible which is a low level on the liberal and generous standard and i guess the last thing i'll say on that is when i look at judge snyder's orders they're very careful that she worked very hard to deny relief that is the opposite of a liberal and generous approach of if it's plausible and it's new he gets to roll the dice with twelve in the box i'll save my minutes thank you a good morning may it please the court in law on arts and on behalf of the united states as the court has noted the defendant pleaded guilty pursuant to a binding conditional plea agreement in which he agreed to waive any right to appeal his convictions with the exception of the one issue he preserved and that was the right to appeal the dismissal of his motion to dismiss the indictment which was based on a number of reasons one of which he has raised on appeal that was the issue decided and lindsey whether the foreign commerce clause i was certain to say that once you took care of that argument correct so all we have le case charges both commercial and noncommercial sex his argument for why the most the indictment should be dismissed was that the noncommercial prong is unconstitutional and the commercial prong he had an inadequate factual basis but that argument has now evaporated because the noncommercial pronk is constitutional so as long as he marched with both he and he was charged with both so if it was not commercial sex it was noncommercial sex it doesn't matter after lindsay there is clearly a factual basis that he committed the conduct so the counsels are going to you breach the agreement by by arguing what you did on an on commercial sex challenge so there was no breach here because we have never argued that he was not intitled to appeal the issue that he preserved which was the  application the foreign commerce clause to the noncommercial promise he made that argument we responded we never moved to dismiss on that ground what we did was we made an argument on the merits as to why the district court did not err in denying the motion to dismiss the indictment and the reason is that he was charged with both commercial and noncommercial facts so even if the noncommercial pronk falls away his  indictment is still valid because he can still be convicted on that commercial prong and after his plea where he actually admitted that he engaged in commercial sex that issue is foreclosed so there is a difference between and this is why we filed a twenty on the supreme court's decision and doris that there's a difference between the appellate proceeding he was entitle to and the claims that are made or the arguments that are raised in that appeal we have never argued that he was not entitled to his proceeding and that's why in the garza case the supreme court said look it is not a breach of a plea agreement for a defendant to file a notice of appeal proceeding or to make the argument that he preserved he made it we responded to it however we did make an argument on the merits that that claim essentially did not have any merit and would not entitle him to any relief on a motion to dismiss because his indictment also charged commercial sex and in fact he admitted to commercial sex so the appeal waiver is valid there is no exception to the appeal waiver and for that reason this court should affirm the judgment and dismiss the portion of the appeal that challenges the claims raised in the motion to withdraw his guilty plea does the court address just since it was talked about and won't you have a little bit of time if assuming let's say he has the right to appeal if we didn't enforce the appeal waiver  why assuming that mr peters right to appeal was not waived by his guilty plea why wouldn't the amendment to eighteen u s c section two thousand four hundred and thirty two provide a fair and just result for him to withdraw his plea so there are  i would have three responses there st of all i would remind the court that in low this court emphasize that an appeal waiver applies even if this court thinks that the claims might be meritorious and in this case the defendant did not waive his right to bring a collateral challenge he can still bring a collateral challenge argue that he was actually innocent on twenty to fifty five and if he can make that showing he can set aside his plea the question is can he withdraw it and i would i would remind the court that under rule eleven d which is where the fair and just reason standard comes from that is a pre sentence standard that standard does not apply on appeal once we've passed sentencing which is where we are now this claim being raised for the st time on appeal the pepi argument that the conviction can only be set aside on appeal for the reasons that would normally apply meaning there is plain error and then you would have to get into exactly the point that your honor raised which is can he make a showing of innocence can he show that his substantial rights were affected and clearly here he cannot because as the district court found it you are twenty two he was nothing but a traveler he was in cambodia on a tourist visa he was traveling around the country staying at numerous hotels and guest told people he was there on vacation when he was arrested he had all of his belongings in a suitcase if that is not a traveler then i don't know what is so that the change in the law that pepe established was something that happened on appeal and therefore that fair and just reason standard doesn't apply it's not about whether i had a change of heart and now i want to roll the dice at this point he has to make a showing that he's entitled i think under plain air review and he can't make that showing and then i also just want to comment on this holistic argument and step back and look at the entire indictment because one count that has sort of been lost in the discussion here is count one which is the two thousand four hundred and twenty three d count that's the count involving travel with intent to engage in sex with minors and that count was sort of an overall in compassing count that it compassed all of the conduct charge and counts two through six and then we had count seven which was the twenty dollars to sixty eight dollars count that's the mandatory ten year for committing the other offenses while being required to register as a sex offender so this residency idea which is kind of what underlies his motion to withdraw the plea that's really not a political to the two thousand four hundred and twenty three v kept right if he form the intent in california when he left for cambodia as he clearly did since he was a registered sex offender and he engaged in conduct on route in thailand and he engaged in more conduct two or three weeks later  t residency requirement that residency argument just doesn't apply to two thousand four hundred and twenty three b and it wouldn't save him on the mandatory ten year either because he was in california when he committed that count  offense and form that intent and so that mandatory ten years would apply so again this was a sentence bargain the defendant was looking at a life sentence he made a sentence barkin to twenty to twenty two years that bargain is a out weighing all of these sort of possible roll the dice defense is a thing but things change very significantly it seems to me this is a tough argument for you i think you have a strong argument on waiver but but i think this one is much tougher the government came back to the table st of all after the cap and after these changes and the new offer was substantially more generous well st of all that that is not in the record that the actual agreement is not in the record but i would point out that there was a critical difference between the two agreements the nd agreement was not conditional it did not reserve defendant's right to appeal the denial to to basically raise all of these constitutional claims that he wanted to raise and those claims were not just the noncommercial he also reserve the right to resist to preserve for further if the supreme court all of the constitutional claims that clark had rejected regarding the commercial property and it's equally likely that he rejected the greenman because his best argument was to attack the statute as unconstitutional because he clearly was a thank you your honor ugh go to the hard question for judge question since this is clearly about the strength of the waiver i don't think the government really is doing justice to their brief the st argument they make in their answer brief this is page seventeen  dismiss was denied that's their argument on the merits and i think that's kind of incorrect because the idea behind the waiver was these did not cost the noncommercial problem was i don't want to go to trial on that i want to n the judge said no that's their argue about why that doesn't fly their next argument helpfully labeled three says the guilty plea waived the challenge on now page two hundred and nineteen this is the heading defendant's guilty plea his challenge based on noncommercial sax because he admitted in his plea agreement that he engaged in commercial sex act that argument is the plead that preserves it simultaneously they did argue that in the district court that's an improper argument it crosses the bounds of fair advocacy we trick is the argument and that's not fair when we gave you the pleading with us said you're preserving it you're waving and i worried about but you didn't you challenge the cost is a challenge the offense guilty plea bracket which preserve the challenge close bracket waived his challenge based on commercial sex because he admitted in his  aids in commercial sex act the next this nd paragraph of that argument here defendant's guilty plea waived any plane that the statute is unconstitutional as applied to him the  lindsay knocked out your non commercial sex argument what's left here is the in the conviction under the plea for commercial for engaging in commercial sex correct know what's in here is the and to withdraw the plea on whatever you may see if you don't get to that yet you don't get to that you what you have here is a conviction for engaging in commercial sex i agree with that ok you agree with that i do the government says you can't come here and argue that because you signed a waiver of your right to appeal everything that wasn't covered under the motion which challenge the noncommercial sex all the motion challenge both ok and he reserved the remains that he entered said that he had the this is what paragraph twenty in the usa oh this is your ninety agreed that defendants entry of guilty pleas pursuant to paragraph three above will be conditional and that defendant reserves the right on appeal from the judgment to seek review of the adverse to terminations of defendant's motion to dismiss the indictment for alleged violation of the commerce clause international law and the due process clause c r fifty five if the defendant prevails on that appeal he will be allowed to withdraw his guilty pleas so with my promise i'll give you all the quote for your honor the argument that the plea that preserved that challenge on appeal in fact waived it and they make that argument twice and i'm saying that is the breach they could argue that the st part of it without a problem that he he was guilty of it and at the end what the lindsey argument why they prevail there it doesn't apply were incorrect there's enough connection a form of commerce they could argue all of that but they can say by entering the plea agreement and telling the judge and the ruhleben under penalty of perjury that everything in this plume is true and accurate it's voluntary understands that by taking those acts he in fact