the supreme court has recognized then your inevitability of differentiation for a defendant convicted of an aggravated felony so men have to think what are we to make i realize most of the time this is mentioned in  plea hearing it's phrased in terms of may have this effect might have this effect cetera but toward the end of the paragraph on immigration consequences  you firms that he wants to plead guilty regardless of any immigration consequences that this leave main tale even if the consequences real that's pretty broad so why are we to disregard that and and the nd question is somewhat different one how can you show on this record other than just his word for it that he didn't like sentence how can you show prejudice wouldn't you need earlier that that he wanted to roll the dice and go to trial but it does seem that there was very strong evidence on this tax fraud and identity theft all the rows tiriel sure well and  the supreme court if you're asked a similar situation and and we where well there was you know i mean in most federal cases to be honest there is often strong strong evidence against a defendant but it is still a defendant's braga to have to try to roll the dice and and whether or not you know objective observers may may consider it prudent or not to right to know when he enters into the plea agreement what the real risks of deportation are and that's where the supreme court has come in and said that there is need this you know distinction between cases where a defendant is pleading to an aggravated felony and deportation is essentially assured and well you know there are potentially some instances where a defendant appeal the the thrust of our argument on appeal is that he did not have the opportunity to fully prove this because he was denied an evidentiary hearing and so there is no record  the record wasn't free a day of it to be able to say on appeal on the basis of this record whether or not he actually received ineffective assistance but on the basis on his allegations in his motion to withdraw his appeal he of so the issue before us on appeal is you presented is the district court's failure to hold an evidentiary hearing on this point the reason i'm focused on it is is the following i don't know how in the world he could prove ineffective assistance of counsel with respect to the police unless we know the advice that the lawyer offered and i'm mindful that i'm thinking forward a bit it's not my job to represent in the course what the consequences are for merits without holding hearings all the time and we conclude that's an adjudication on the merits of the claim so are you saying i mean this is an important point for his future are you saying that the only issue the district court ruled on is whether to hold an evidentiary hearing and the district court decided no evidence rehearing was necessary on the motion to withdraw the plea because the record was irrefutable essentially because that at least it seems to me you could make a decent argument that's resolving that the court the court the court ruled that it did that i mean i don't think the court really ever made any specific determination of whether the assistance  whether judge sweeney went to prong two of strickland i mean we i don't know if we can resolve it but what you know i guess i guess my question is are you putting before us an argument about ineffective assistance of counsel no your honor i'm putting before this court an argument that the district court had an obligation once the allegation was made that set forth a fair and just reason to withdraw supportive of you know the mr on to me to kind of overcome those decisions and it was not a foregone conclusion that his motion was inherently contradictory to his  may be let me ask let me answer this the way that we would typically respond to these if we've got an ineffective assistance of counsel claim from this case as it is just based on a motion to withdraw i doubt our office would say that's  claim that his attorney with an effective hearing for that and that would be i think a little cleaner of a procedural record and of course the court of how that a appeal waiver includes a motion to withdraw so we would suppose that as a way to resolve this case and maybe oh boy that issue without preventing mr on a movie from raising the claim that he wants to hear so let me just be clear because i'm looking at the and  be granted and of course the appeal waiver and he's not the appellate judge so so he's entitled to adjudicate this motion to withdraw and he bases it on on a movie failure to offer his view he has offered no evidence whatsoever only on sworn assertions not entitled to evidentiary hearing a motion to withdraw is closed so whether the appeal waiver allows him to complain right now that that was an error would i think you're right depend on whether we were going to rely on the ineffective assistance of counsel preservation in that the appeal would have waiver or whether we would just say well as of right now on this record that's not raised and the motion to withdraw falls within the appeal waiver leaving then as i think you're saying open for twenty to fifty five where he would be able to take advantage of that reservation so that that roughly where you think we ought to be yeah i think that's correct i mean the last paragraph i suppose you could potentially read it as sort of addressing the we found a sure you know the president's down day sure but i think your honour's reading of it is fair if not  likely and i would just go back to it if the court finds that the people way i mean i'm one of the people here that response collateral response that i'm pretty much assured of the court that we're not going to say that this is the case you can't raise ineffective assistance of counsel claim we haven't done that at least since i've been here so i don't think that paragraph would suffice to bar a claim and future so mr rights let me just say i i greatly appreciate your and i think this is a this is this is a very tough transcript for this defendant on where this record stands right now and his only shot and it's up to him whether he takes it and what he can put together is on the on the merits of an ineffective assistance claim and i don't see how that could possibly go forward until we hear from the defense lawyer in the only way to do that in twenty to fifty five yeah i think that's correct i clear the prejudice hurdle he would have to hear from his attorney so i prejudice and that requires a hearing one way or the other and i don't i mean the court remains here for a hearing on the motion which are all that's essentially an ineffective assistance of counsel hearing is i think your brief also says this that there isn't enough difference this time i'm putting words in your mouth but i understand you'll be saying there's not enough difference between the advice that he actually got and what might have been perfect advice namely an explanation of the aggregate aggravated felony provisions of the immigration act to amount to either bad performance or certainly prejudice and i wonder to what extent is the government relying on things like you know even if you're an aggravated felony might be able to get deferral of for mobile under the convention against torture or i mean there are the are these sort of last gasp opportunities that some people very few very few but some people manage to get are you relying on that are you relying on just things like the language you know i'm pleading for a cardless of immigration consequence i think the latter as your honor pointed out in the opening where some of the argument is definitely more pertinent more compelling for our position certainly when someone pleads guilty regardless of removal that encompasses removal of course we agree that what changes on set a lot of that is you know remote or last gasp we're not we're not disputing that that's true though again if we're not brief we don't it's hard to predict the immigration landscape a decade from now so just i don't it's hard to say for sure that mr on a like one hundred percent will be deported i don't think that's fair to say so there has to be even the paragon ideal of advice that mr on a movie did or should have received wouldn't have to include some contingency for that but the main thing we're relying on that on the curative prospects of the plea colloquy in play agreement would be the language more more than the sort of shades on last thank you for that said if there's no further questions we dislike him point out that regardless of all this mr on that he is not going to see any contemporaneous evidence despite having an opportunity to file affidavit or again at the sentencing hearing he essential reiterated his motion to withdraw and it so without advancing any evidence in the court gave him pretty extensive leeway to make those claims again and there's no evidence on that so there are no further questions the government happy general i don't think anyone is arguing here of that the court should be able to predict the immigration landscape you know decades in the future the real question here is you know does mr only have a a right to know the current landscape and the current almost you know very highly probable consequences of his