case rocky mayfield's trial attorneys and dress like failed to discover a key fact that the fifty one certification was invalid in time for rocky to make that critical decision whether to go to trial or whether a plea based on an incorrect evaluation of the law and his sensing exposure that arose because mr dresser failed to discover an eminently discoverable fact rockey mayfield decided to go to trial even though he and mr aggressive knew they would be highly likely to lose as a result mr mayfield received a higher sentence and more counts of conviction then he would most probably have received had he pled guilty and i'd like to get right down to the facts of ineffective assistance of counsel and i think you can prove i think we can prove ineffective assistance based on six pages in the appendix first as for ineffectiveness on page two hundred and five mr jessica admits that he didn't know the eight hundred and fifty one was invalid in time for the plea decision that's the ineffectiveness as far as prejudice goes if we look back to page two of five dress admits that if he had known the age fifty one certification was invalid the plea decision would have been different and moving on to page one guideline range was possibly to ten and who whatever well he essentially said the same thing but all the same is why as mr justice said which was had we known the a fifty one was invalid we would not have been here today the decisions would have been different we would have played guilty well where's that in the record do you know him so it would be at the sentencing hearing when mr mayfield allocated to the co where he didn't present evidence in this collateral proceeding in the twenty to fifty five well he presented emails from sandra sec saying had we known need fifty one would have been was invalid our decisions back in january would counsel here i think it well it's subject to develop a review i think you can find it on the record but there's also the fact that the district court clearly erred in its factual findings regarding dollars prior to sentencing now mayfield's initial two thousand two hundred and fifty five motion contain a lot of allegations and i i can point to the language in that allegation that presents the issue we're presenting today but in mayfield's reply to the government's response to his two thousand two hundred and fifty five motion mayfield makes very clear that he is not challenging drastic failure to formally challenge the a fifty one he's making clear that the ineffectiveness arose when jessica didn't find out about the eight hundred and fifty one's invalidity didn't inform mayfield that it wasn't valid which in time right because it was determined at the time the sentence absolutely your honor that's you should find that there was ineffective assistance of counsel here and you should find that mayfield was prejudiced how can we do that if the district court never addressed the issue and never addressed for example whether may not the government's interpretation of the guidelines it's the court's interpretation of the guidelines and on i know one of thirty three use the fact that the judge later found different levels  guilty and had mayfield pleaded guilty the district court calculated his guidelines range if he had received three points for acceptance of responsibility at one hundred and sixty eight two thousand two hundred and ten months that's on page one hundred and thirty three  we know how do we know that the district court would have sentenced within that range well st of all that that one hundred and sixty two dollars to ten dollars is an after the fact estimate knowing what the district court did at the sentencing hearing right because the district court didn't find the same quantities that the government was recommending in the plea offer well that once and maybe maybe in misinterpreting what you're asking your honor but that one hundred and sixty eight to t court calculated at the sentencing hearing had mayfield accepted responsibility had he been able to write as a result for what the parties didn't know at the time of the plea negotiations whether the district court would find the quantity that the government was proposing so you i don't think that there's really analyzing what would have happened hypothetically if the lawyer had realized the mandatory minimum didn't apply you have to look at it from the perspective of what the people knew at the time of the plea negotiations don't you can take into account what we now know the district court found later well i know there's this obvious has a tense justifiable hesitance to engage in the wisdom of hindsight to to revisit these ineffectiveness claims but this is not one of those cases at the time of mayfield's plea he was laboring under the incorrect conclusion that acceptance of responsibility would give him three points off his guidelines range but that didn't matter because his mandatory minimum was twenty years well it wasn't and had dress it done his job and looked up to determine whether that a fifty one dollars was invalid dress it would have advised his client that your mandatory minimums actually ten years and so the value of accepting responsibility getting those two or three points off your often levels is three levels yes three levels think there is somewhere north of zero but in the event mayfield thought it was ear zero and that had mayfield known it was invalid he would have pled guilty which of which would have led reasonably likely to a lower sentence but also two counts of conviction under the anticipated plea and not a proper we supported a fifty one dollars so how do you put him back in a position that is fair ideally you vacate the conviction take it and that's what i'm getting and even if it directly even if it had the a fifty one in it we know now that that's invalid so i remained i would be able to advise mr mayfield that it isn't how do you know the government would have offered it without the mandatory minimum i i suppose i down and the government can address that but it's having done this for twelve years in federal courts the normal course that the government's offer plea deals that's why we have a ninety seven two percent plea rate hearing or for a more complete briefing so that i can attend to what you can register a hearing and that would include the disk or making findings on whether the government would have offered a plea agreement without the mandatory minimum and whether mayfield would accept would have accepted it if the government was estimating a range of two tended to sixty two dollars well i think  i think if you re mended for further briefing or for an evidentiary hearing all of that could and should come out however i think it's clear on the record that mayfield would have accepted the plea i think it's clear on the record penalty we all know that when people plea they get lower sentences and we all know that in federal court there's a plea rate of ninety seven point two percent there would have been a plea in this case it's just this test equally overwhelmingly likely thank you your honors as was mentioned this court is reviewing this issue to know and i'd like to hop in right away to one of the questions that you asked him about and his response was that there was zero value to him except in responsibility and pleading guilty from the trial from the united states plea offer that's simply not true the guideline range in the plea offer was two one hundred and ninety two two thousand three hundred and sixty five if he went to trial so that's right there down to two  harm the government concedes that neither happened here you look at the initial issue of whether this is a fifty one dollars was appropriate obviously and for hindsight it should not have been certified it's barely hindsight because everybody caught it by the time the agree after quite a bit of research though when you look at the government's trying to fifty five response motion before the district court in exhibit four or excuse me exhibit two is  certified judgment which was at issue here if you look at the front page of that sort of judgment is methamphetamine paraphernalia it says right on there felony it that was what was reviled in discovery that's what was in the original a fifty one dollars motion by everything on the surface it appeared that this was a certifiable prior conviction it was from around two thousand and two when you get down to the dates of when he was arrested and when he was convicted right in that timeframe within the period of approximately a month or two is when the law w changed in arizona so this no longer would make it a certifiable conviction so it's not like this was a misdemeanor conviction that was on its face invalid this was in the discovery as i said in exhibit two of the government's response it's a felony conviction for methamphetamine perfectly is it in the record whether the previous attorney actually investigated this issue for earlier and other words looked into it couldn't figure it out so went ahead with the plea agreement and then wow we finally figured it out by sentencing and now it doesn't count or was it well i just didn't even look at it until sentencing and now once i actually paid attention to it we figured it out i don't think it's in the record  through and when he discovered that i do think that as mentioned obviously the two hundred and forty dollars is out there and it's something that's being considered by the parties but it's not controlling on what the actual guidelines were here both in the  that he received would have been right in the middle of that guideline range yeah but it would wouldn't have been the bottle it wouldn't but so as we knew might of he might have said he how do we know whether he would said well if my recommended ranges is lowest to ten and the government agrees to recommend a two hundred and ten and i can argue for my rd level which would take it even lower maybe that is a deal w taking as opposed to the deal where i know my bottom is to forty i think we can look at what the actual harm would have been on the government at the sentencing in this case the low end was to thirty five dollars the government recommended two hundred and thirty five dollars at sentencing the judge went above that the judge said in looking at these facts looking at what's going on here the criminal history of the offense conduct to forty is appropriate so the judge went above the government's recommendation so i think even if you look if we try to go hindsight  know saying everything monday morning quarterback looking at that way the judge still said the low end of the guideline range here is not appropriate to forty is what's appropriate that's what that was after he gone to trial and didn't get accept responsibility if he pleaded he would have been starting at a lower range and so why should we assume the judge would have given him to forty if the range the top of the range was below to forty the top didn't agree with your guidelines elations and sentenced him at a lower quantity and so he would have been below to forty with acceptance with the judges drug quantity and i think if you look at it is that jurassic and mr hegner from there that the weight is thirty four that was in there when the p s i writer found the thirty two the government did not object to it  it's not in the record why the government didn't object to it but i think the evidence that was presented shows that it would have been thirty four either way i think you also look at the district court's findings on the twenty dollars to fifty five dollars motion and the court  the sentencing where the court says there certainly evidence presented that a plus for would apply here i'm giving you a break mr mayfield again we're looking back you know two thousand and twenty hindsight trying to say that the court would have still found plus two instead of plus four if these other things didn't apply i don't think we can say that we're looking back basically cherry picking the best findings to the support mr mayfield getting that lower be based fans level while ignoring  other things so i think that is where we're engaging in a little bit too much of looking back and nd guessing what was decided the requested relief by the appellant in this matter is that we offer the plea agreement what's now what that plea agreement entailed was that they would agree to these base offense levels it seems like it's almost being changed now to say that well we wouldn't have signed the plea agreement we would have entered an open plea and we would have challenged all these things and this would have happened that would have happened again i don't think there's anything in the record to support that if what they're saying would have happened that he would have accepted that plea agreement these would have been the base offense levels that would have been agreed upon by the parties what do you think if  in fact the court if it's ineffective assistance when there's prejudice and there's the remedy is at issue what would the remedy be in this particular situation given where we are now and what has happened through the sentencing and some of the issues you've raised right here i do think that's an important issue i'd i don't think there's any reason to vacate the conviction here i do think again it's not appropriate to remount but if it was i believe it would be the court panel would have two options to either remonde for consideration of whether the minus three should have applied in light of what was talked about in the courts order or i believe you could direct the court to apply a min it's an option to do that i think again well it's an option to do way to to as she said send it back and have us re offer the plea agreement i think that's something the court could do i think what i would say would be understand this plea offer to be a binding stipulation the way the way that i would clear him is listed out is that the base offense levels are agreed upon there is a glitch says it appears that the guideline analysis will be as follows and then he goes through his calculations but where does it say that this is a proposed stipulation  that the base offense levels are greed upon unless explicitly stated otherwise there is there will then that would be another factual question i suppose we would need for the district court whether the government would have offered and what they would have offered and what whether mayfield would have accepted it and again i think we're getting too much into hindsight saying that he would have pled i mean there's this argument that this trial was just a foregone conclusion mr morris and so they're highly likely to lose well i  would say that yes this this was a strong case but this was no slam dunk there was no benefit to him going to trial we have cases all the time where the guideline range is at the minimum mandatory where the defendant has nothing to lose and still pleads dollars he's talked with his attorney about it it's buyer's remorse it's i wouldn't have done this i would have gotten a lower sentence if i could have done that so your view is that there's not enough in the record if to to determine whether or not he taken and i don't think there's i don't know that there ever can be enough because we can never totally get inside the defendant's head as to why they decided to take a shot but i think we can look at what the government's offer was and what he was looking at if he except the plea offer as mentioned right away of the government's league offer was for the low end to ninety two dollars that also included only a plus two on the organizer leader as the judge mentioned in his order he said i'm giving you a break and only giving you the plus two instead plus four obviously the government often in their plea agreements has to give some type of carrot to get them to accept a plea offer here we have that we're only going to advocate plus two instead of a plus for if he accepted the plea agreement so not only was that the low end of the plea agreement was going to be two hundred and ninety two dollars but if he went to trial the government could still ask for a plus four and it could even go even higher so there was there was some incentive to the plea agreement in and of itself and there was the additional incentive of the minus three for acceptance of responsibility which would have brought it down to give the court considered to tell the district court to consider whether the minus three should have applied here and what the sentence should be not to vacate the conviction range though i would say the range that was given by the sentencing court at the original time if that if that is what the court here is going to do is remanded i would say consistent with inconsistent of the said five minutes ago because then you said the only way we would have offered the police agreement was with a stipulated guideline range and that would have been a higher range than what the court wonder you're resisting the nature of these ineffective assistance claims you have to go back and project what would have happened when you do the prejudiced analysis so i'm just wondering why we if we have to get to that we don't just have the district court make some findings about what would have happened and what was reasonably likely to have happened but for me if i'm hearing crackling correct me if i'm wrong is to send it back down with the original plea offer in place again and have the district court go from there i think that's certainly an option i don't think that would be in correct or not plausible if this was going to be remanded it was just the government's position would be that it be remanded with for the court to consider whether or not the minus three applie benefit to him receiving the two or three point levels off for except acceptance of responsibility the government said it totally agree with it the problem is duress it didn't know that those two things had value and so based on his ignorance of the law based on his ignorance of the sixty one certification being invalid he advised his client let's roll the dice and go to trial well he knew there was value in getting from two hundred and ninety two to forty in the way that didn't know that the value could go even lower than two hundred and forty well i suppose that's true your honor but the way jurassic advised his client and this is right there in the e mail it's the same either way it's going to be twenty years no matter what now certainly the court could've sentenced mayfield to three hundred months or even more arguably but you're essex advice was we might as well go to trial let's roll the dice so they're there absolutely was a benefit pleading and getting the acceptance of responsibility but because address x ignorance of the law mayfield evaluated that value you know the government also talks about quite a bit of research had to go into determining whether this arizona crime was a qualifier and you know on page fifteen of the government's read brief the government no it's the law confusing but there is no the law is confusing exception the strickland however hard it was to determine whether a valid jurassic had the duty to do so i would also agree with the government on one other point  understand that maybe i'm wading into a marsh that i shouldn't have you know i mean if that's just position i want to understand well vission i understand government say that the only way they would have offered a plea agreement was with a stipulated guideline range and they were operating on a different drug quantity so your man would have had to decide whether to take it with that stipulation and then take go for three levels off of that or he could have proceeded without that agreement and litigated the quantity that's what he's saying i would have to have a finding as to whether that's what the government would have done i suppose your honor but the the quantity he was never really in question the quantity here didn't didn't drive this ineffectiveness and well i see my time is up and i know it could go on like this forever and you probably could have thank you for considering this case well thank you for your argument