of this court explain why mercedes dela cruz and gaffney mercedes dela cruz held that defense counsel's failure to file a timely motion to suppress is ineffective assistance of counsel and that is exactly what the district court well those are two roads that lead to the same path so but either of those things could have happened so either as the district court said the motion was untimely or on the other hand for the reasons i argued also in my grief if the motion was timely then the sixth amendment violation was as a result of the district court's orders and if the latter is then you've got to get  what at what we argue in the brief your honor is that there was more than one kind of sixth amendment violation so first of all if the district court abuse of discretion prevented this defense counsel from filing the motion on time that is a deprivation of the right unusual or rare for the court to decide in effect if this assistance of counsel claim on direct appeal when it hasn't been reasonable that's correct but that was the case in mercedes and i submit your honor that that the record with respect to ineffective assistance of counsel is as clear as it will ever be and in fact it is as clear or more clear when the record would be an effective action is it the fact that they didn't cli we need to say that there was an ineffective assistance of counsel with respect to the timing of the filing right the substance of whether they filed or not is not the question the question is it was in effect at the file too late yes but what's our record for evaluating whether or not she actually was too late and it's really on her before as you suggest in her brief there's understandable reasons why it took her that long well so first of all the record that it's too late is that there was a magistrate scheduling order in place and that this was filed absent after the deadline for motions and without a specific request to file a late motion that's a position was that it was compliant with the magistra minutes to talk to her client about the alternatives that the district court was presenting in terms of preserving the motion to suppress so the court brief denied the motion to risk suppressed in the sense of refusing to hear pretrial refuse counsel's request to enter a conditional plea and instead offered the alternative that the defendant could raise his motion to suppress unconstitutionally ceased evidence in a rule twenty nine motion so is your contention that the district judge assuming the time we file your contention that the district judge while he ruled well by not ruling on the suppression yes yes and how can you raise that given the clik because in addition to that there is the was considerably more than five minutes i don't lapse between the time look what we saw us and the time the court reconvened to take the plea well the record indicates that counsel didn't even have the opportunity to begin to counsel her client until it was almost eleven o'clock and by eleven o seven she's reporting to the court he's he's still in the cell block but is going to plea and during that time the judge is repeatedly saying you know you have three minutes i'm bringing in the that's a violation of this you know that's just that's a claim that there's no way we should treat the plea as knowing because there simply wasn't enough time for him to be actually even despite what he said yes that we should just find given the extreme circumstances he was under and making that judgment couldn't be deemed a knowing plea yes because there wasn't there wasn't affected the court did not permit the conditions for effective assistance of counsel and in fact that was one of the arguments gap not just on that point presumably the counsel in the defendant were able to speak in many days leading up to this very pressured five minute period well the first yes so if that's right i guess just a question for you it was certainly noble that the judge was going to deny the opportunity to have the suppression hearing before trial he had signaled that time was short so she could have gone into that moment right before trial absolutely guaranteed to win and have the judge say you're going to have the suppression motion beforehand and so i guess my question is all vote without was a pressure time there are plenty of time for the defense to think about what he would do if they weren't going to hold the suppression hearing before trial would he clear or not and doesn't that factor into whether we should credit that it was a knowing waiver given that she's already thinking about i'm going to try and set up a suppression hearing pretrial that's many many days before you have to think that i might lose in my effort to have it many days before right you know i don't  counsel was thinking what counsel did counsel told her client all right those are all things that we can only conjecture about on a record you know just well i think one thing that counsel to argue that under rule twelve the judge was obligated to side the motion before trial to your lawyer and are you satisfied with the performance of your lawyer where the judge had had just said that the lawyers performance was inadequate and had just allowed you know only basically five minutes to talk about it and the judge perceives that there's a grimace in response to that question a yes but a grimace and understands what the grimace means and also understands that mr castro kind of feels forced into pleading guilty but the court doesn't do anything to offset the effect of that force and i just would ask this court to compare the change of clique of we here with the very careful steps judge woodlot took in daf in gaffney to explore whether there was a deprivation of the sixth amendment right to counsel and to submit that  predicates and so very quickly the p s r says that the the plea was for attempted burglary attempted burglary in puerto rico is a misdemeanor mr beaners in puerto rico are punishable by up to ninety days the government conceded it's brief that the the plea was to attempted burglary and just so as a matter of law attempted burglary under puerto rico law as it's defined in puerto rico law is simply not a so with respect to all of the so none of these things were raised counsel didn't raise any of these things below and i submit that this case is different from all of the cases where this court has put a burden on a non objecting  appellate you know the appellate who didn't object below on appeal to produce shakhtar documents or show that something would make a difference for two reasons the first which this court knowledge isn't it is kind of an exception to that rule was precedent in this in this circuit saying that burglary and robbery are crimes of violence under the guidelines of the so they are under those precedents are either undermined by discounts or or now i circuit has said under those circumstances you don't apply for this law yes but this is this court first of all because of the identical language this court has repeatedly held that the two residual so first of all the court has applied some constitutional provisions to the guideline the supreme court has said the ex post facto provision applies to the guidelines that rings of notice and so does this secondly the reasons the court gave in johnson for the  unless you're right about the misdemeanor that's correct yes i will say though that thank you the government here we lot relies on the residual clause with respect to the burglary offense but it does not rely on the residual clause with respect to the robbery being a crime of violence and two k two point one refers you to us as she for the one point two for definitions and there it says that a felony conviction means a prior federal or state conviction for an offense punishable by yes and i have the records of conviction and i have the translations of the statutes in the records of conviction which the court had access to i believe their public record they you can look at the record and you would see that indeed the drug offenses also qualify and even if we don't know the district judge actually relied on those two and the government doesn't argue that those of the through we should just say those are the two i r it it actually be cited the i understand that we don't there's no indication the judge actually concluded himself that they qualified so i just don't point out that what we're engaged in here and you know for me is right when it's objections at sentencing and the reason is because i believe defense counsel was concerned that possibly his client would qualify for the i'm career criminals act which would carry discussion a minimum of fifteen years so i think they were happy with what they were getting and that's why there were no objections imposing a higher sentence on the basis of two crimes of violence why can't we just get from the judge should we have to go to the judge as a statement as to which are the crimes of violence that supports that conclusion well your honor at first i would say just did show that the burglary and the robbery were crimes of violence i am not sure honestly off the top of my head whether it classified the drug crimes as crimes of violence or qualifying but  you're right the briefs focus was on that burglary in the robbery because our position was that that was more than sufficient so in the burglary you say is falls within the residual cla is not implicated at any point because both of these statutes specifically say that violence is involved so there was no reason for the district court to interpret whether or not the act was violence violent so johnson does not apply ninety eight any person who are lawfully takes personal property belonging to another in the immediate presence of said person and against his her will by nene's of violence or intimidation challenge her a third degree felony isn't intimidation the whole well that was the whole but it's a whole issue is whether intimidation and i thought that if you saw suggesting violence is different than intimidation well the fact is ok as an initial matter i would point out that he didn't he didn't object to the facts as specified in the p s r which means that he admitted to the events as they unfolded there was no objection to the p s r but we don't look at the facts of the conduct we look at the record of conviction a conviction has a divisible offense or could have been temptation it could have been violen because he agreed to the facts is assuring the p s r that he was carrying an armed weapon and that that's not shepard material but doesn't show what he was convicted of that shows what he did but i would say that the you never need to get to investigating any kind of interpretation because he admitted to what he did the facts in the p s r so is your argument that because he admitted it yeah because those we never held in fact i think we've said before it's unclear whether we should be looking at facts for purposes of play in her view because if you just read separate the question isn't what did he say he was doing and what  he actually do the question is what he was convicted of and the only thing that could tell us what he's convicted of would be legal separate materials people say i did it off following things i can still be convicted of something that was just intimidation but  p s r said that he was convicted of crimes of violence and he it was the media's right base that only on the statute which has the visible prom that's just a legal conclusion which could be incorrect i would argue that if he admits that they were then that that argument for his her closed we should treat that as a concession that he was convicted of the violence of wrong rather than the intimidation prong yes because there were no objections to the and i believe that the reason was because he was aware that his record might qualify him  on the robbery is the residual cause implicated in the robbery conviction or not or is no but i will read it to you article two of four is  if the burglary crime is committed in inhabited building the finder shall incur a third degree felony and it refers back to forty three one which is any person who enters a drawling building or it does it well how would that comport with the intimidation i think we got confused i think you meant intimidation applied to robbery that's correct the whole discussion was generic burglary which requires an unlawful entry element right so it says any person who enters a dwelling with the purposes of committing a crime and in and then that's two or three and then it he can't admit to that unless you're relying on the residual c imagine was check fraud and he admits to it being a crime of violence that doesn't make it a crime of violence that we have to affirm i suppose it could be a crime of violence that there is some violent aspect involved it's not going right but the point here is if we have a are you relying on the residual