shoes here about effective assistance of counsel in new evidence the present issues about the complexity of representation in a federal case and what standards court need to apply to ensure that a defendant gets affected representation so the first issue that's before the court involves a question about whether mr elliott juma was it was given advice by his attorney in connection with his decision to basin's allegation i didn't get any advice from his attorney what is the scope of that argument that i mean and the allegations specifically because i think that the district court judge might be right that what what is it was it what it why would an attorney have to counsel their client in light of the oath oh you can't you can't perjure yourself right that's common knowledge so i want to know what the scope of the allegation here and and whether or not the allegation goes beyond that sure and i and i i think it does i think as a practical matter when you're talking about criminal defense you know i don't see how it can be adequate for an attorney to just tell a client you know you can't project you can't produce self when you testify you need to you hear what the client is going to to testify to the deal provide advice to the client about what how that testimony is like that come off and what the client's consequences might be particularly in federal proceedings where you can actually enhance your said substantially if the judge decides that you were lying and there are allegations in the motion that go just go beyond that in other words he didn't just want he doesn't have a legend in fact as a council just because counsel didn't tell him that he could perjure himself but he wanted he wanted more information about what the potential consequences could have been even if he testified truthfully for example i think that's exactly that's exactly the point so no one knows this was the question here is mr adie do most detention was being revoked because he was accused of assaulting his girlfriend they were exact there were no damning police reports you know indicating what she had made allegations to in the end she was period she came back to court and said it didn't happen at the hearing and mr testified said it didn't happen and so what the no one knows exactly what happened in the court because no one was there but you know the competent attorney needs to listen ok what are you going to testify to you know people don't believe that kind of stuff you know you know when someone says the fact that i think the girlfriend actually as you referred to recant it correctly that's sort of an additional twist so the strategy most thinking well the only other witness is going to testify says it didn't happen right so that's sort of a double layer here you've got the district court of the magistrate court believing an out of court statement to a police officer more than the two test live witnesses testifying to the event itself it's a little complicated i think it is a good no question it's a complicated question in different if it had been discussed properly  there might be you might not have been able to fault the attorney's advice either way but what what the what the defendant in this situation has to know is that first of all the courts are very sympathetic towards domestic violence issues they know that victims recant in that people deny it and so there's a good chance that they're going to decide you're lying and second if they do you're going to be in a heap of trouble when it comes to sentencing he were already pled guilty you're getting your you can get accepted struction of justice you're going to lose acceptance of responsibility so that's five points higher in your sentence do you want to take the chance in order to just be free for a few extra months when you're going to sentencing guidelines and so the fact that he didn't give them that he didn't discuss this issue with him i think is a standard that you cannot allow and when it comes to federal criminal representation actually just to add to that factually back to the five points to lose the points that he was supposed to get for except it's a responsibility i say was a sentence or a guideline sentence we've seen appeals on this should be able to tell me the truth i think the district court looked at the guidelines and i think correctly to say that the allegation or the assertion is that counsel was ineffective at the moment i think it was a he there right to the district court that he that moment right i mean as long as the as long as under it was understood in the record that mr was going to be able to contest the last amounts and his attorney objected to it then that's you know then there would be a factor in effect of assistance at that point but when he conceded to the judge that the agreed to last amounts when the record indicates they had not doesn't that doesn't that focus though hurt your case i mean your response to judge kelly and i'll tell you why and you can you can challenge me on this but everybody was confused you read the transcript the prosecutor you know was confused about what had been stipulated to the judge was confused about what had been stipulated to and we're really talking about what an lay reasonable attorney would do under these circumstances so the fact that his defense counts it was confuse doesn't seem all that and reasonable given that everybody else including the judge was confused i don't i don't think it i don't think someone looking at the police should be confused because the prosecutor explicitly said you know we're saying that this is the last amount your tourney is going to argue about it yes there's other things that create confusion the judge went back and cited specific points in the record that was in the plea agreement and you know but based on provisions but didn't mention specifically last would seem to be trying to cover that the plea agreement was what would stand but the attorney understood what the conditions of the plea were that was stated early on the record and then it's indicated by the fact the support in fact that he objected to it so you think we said we said we should ignore the fact that people ha different views a different point in time i mean almost everybody had a different view of this different points in time we should ignore that and say that go back and look at that that plea colloquy in the plea agreement and say no reasonable turn a could possibly have been confused by the saying nor the fact that people were confused well i think that first first i think that on the issue of what the attorney needed to do the turning needed to advocate for his client's position when there is clearly support in the record for the position that they're allowed to contest the loss amount and he had done so all the time that's where the attorney had an obligation to advance declines position so obviously every point can be argued back and forth in so it's the defense attorney can't just concede because there's arguments the other way and the judge s i'm going this way needs to make a record say no we are objecting to loss amounts we said that we could do in the political i mean we to maintain our position that were objecting to loss amount so it's not just you know about whether it's you know  the agreement has to be construed against the government or there's a lot of cases it supports and i think what's critical here i think would override the district court's decision is the appellate decision that judge kelly wrote i was a voting from judge tempted to obtain in excess of one million dollars he did not concede he was personally responsible for the entire amounts and he did not plead guilty to a conspiracy at his plea hearing the government told jumo and the court that that's why he was precluded from doing an appeal but he's not precluded from raising ineffective assistance of counsel and also i think it's a very very significant that the government turns out didn't have evidence to support its last amount that the restitution was all thrown out i think that needs to be worked in wall of this as well in that there was no difference at the restitution hearing between intended loss and actual loss there is no so that's the government's main argument it's different because it could have been at the hearing and just interesting question about what are the advisements of this defendant's particularly complaining about if you go back to his initial twenty two fifty five motion with the district court the specific allegation is that he was not and he's well but you're right you're right you're absolutely right with the way you characterize it but it goes a little broader than that there's a risk any time you're dealing with as mr questioner mentions that the district judge even if you're testifying truthfully i'm not making a judgment here about whether was truthful or fal or whatever the district court already decided that but you could testify completely truthfully and still get an obstruction of justice in hand spent because some other witness testifies and conflict and so my point is is maybe counsel should have sat down with said look you could testify completely truthfully but you've got to understand somebody else may testify differently than you and the judge could use that to to enhance your sentence and i think that might be a problem not having advised him of that so there's a couple things i'd like to point out response to your honor first this defendant committed perjury and perjury is providing a willfully false statement under oath and so we are dealing with a situation where the defendant had a belief that they were testifying truthfully and that testimony simply wasn't credited so just a factual distinction to point out but if the focus is that the defendant didn't contemplate a subjective review of the testimony i didn't realize that the district court might hear my testimony and him the negative consequences a result that's true in all circumstances like that if we even go back to mondo hano there the witness testifying before the grand jury was subject to a subjective review of that testimony in that instance it's the government deciding not to credit the testimony determining that the testimony was knowingly false and deciding to bring a perjury prosecution the there it i think it is a different situation than what presenting that you're not talking about the relationship between the attorney and his or her client in giving advice about how to proceed in a criminal case and so yes i think that's that's sort of a ninety degree turn from from what that case addresses although your honor what the case addresses that is significant here is the sanctity of the author and the significance of the oath has to communicating to the witness that false testimony will have negative consequences let me let me push you a little bit further that you know the oath does give you the warrant you got to tell the truth right then you wouldn't need a lawyer i mean you've got a lawyer for a reason to hope guide you through this system and that i don't know and tell me if you think i'm wrong that a person charged in federal criminal court might not know the nuances of the federal guidelines in this in the types of ways that this question that we have to be an ally whether it was objective we on a reasonable for account counsel to fail to advise the defendant of these consequences and so it cannot be that it was objectively on reasonable for counsel to fail to give th mohnish meant when there is no law indicating that there is such a requirement which when you say there is no law i like to kind of tease that out a little bit what what do you mean by that are you talking about the not going to pronounce it well  significant terms of the the import of the oath but there are no cases that have stated that he defense attorney has an obligation to inform a defendant of the negative consequences that can flow from untrue testimony and all of the cases that ha specifically decided this issue and recognizing that we're dealing with district court cases here but nonetheless all of these cases have concluded that there is no affirmative obligation for a defense attorney to make this warning because once that witness takes the oath the witness is on notice when you promise to tell the truth and you failed to do so there will be negative consequences the key to your argument really quickly just to tease out the key to your argument is that it was perjured testimony or false testimony if we were presented with a situation where it was truthful testimony or asserted that it was truthful testimony your answer might be different correct it would be an entirely different case i suppose we would be having to look at really the substance of the obstruction hansson in the self  there is there is another definition for obstruction that would potentially warrant enhanced with that circumstance but that's not what we have here so you're you are not saying that a mistake or possibly a defense counsel should tell this is leave aside and say well there are many cases where defense counsel should tell us about the general risk of first of all i am not going to yes we are not i don't think that this court has to specifically address that issue i don't think this court has to take on generally whether a defense counsel should get into strategic implications with the client and to what extent because the specific issue here and again going back to the district court is whether he needed to be advised of the potential obstruction enhanced meant and we must keep in mind that this is the defendant who committed perjury can i ask a factual question you've been saying perjury and i don't i don't have that record in front of me did the district court call it perjury or was it just untruth because there was discussion of untruthful testimony because there are there is a range of me courts make credibility determinations all the time every day every trial every case and who to believe more and it sure that that's necessarily the question it seems to me it's more of the question of what is an attorney's obligation in the first instance to educate their client about a certain decision and that that sort of you know is  different in every situation and i'm not sure i'm wondering why we should have to have a district court or an appellate court case out there that says yes you have to advise your client about that when i think if you ask a handful of defense attorneys i guess that they'd say yeah the allegation by mr ron is you know isn't that my counsel failed to engage with me in a conversation about whether or not i should testify and as a consequence i testified it went badly and i was prejudiced the allegation is far more narrow than that and so i realize the concerns that the court has and in terms of what must put a defense attorney on notice but it's particularly important in this case in light of the procedural posture and the framework that we are we are mindful of the specific allegation and the circumstances that defense counsel and i do want to address the second issue that mr has raised your honour's which is whether counsel is constitutionally counsel would be able to argue last at sentencing and the district court no not in the distinction in the contradiction between that oral statement and the plea agreement and it took the time to clarify to correct the potential confusion so to the extent there was confusion during the hearing it was temporary the district court specifically walk through all of the enhancements including the stipulation for law as to paragraph six be other parties in agreement regarding that enhance contrast with paragraph sixty which was a role in hampshire where the parties disagreed and after that clarification mr audition was placed under oath and questioned by the district court twice he acknowledged under oath that he had no problems reading the plea agreement and the sentencing stipulations twice he indicated under oath that he understood the plea agreement and the sentencing stipulations twice he confirmed his signature to the document he confirmed that there were no other promises made to him other than those contained within the plea agreement and sentencing stipulations and he confirmed that he agreed with everything in the document but did need to me lose i mean if you go to our i forget which one whether it's one or two but if you go to judge kelly's opinion for the court were the language the judge back and read didn't he lose the ability to argue that on appeal because his attorney failed to object to it at the time the last about was not objectively unreasonable for his lawyer to concede that they were bound by the stipulation because of the law in this circuit which is that a defendant is bound by the promises made in the plead remit and counsel doesn't act objective demonstrate that he was not prejudiced and i'd be happy to address the import of the restitution hearing but to be clear almost right as you move has done is point to the restitution hearing and based on this i was prejudiced and i was like it th what we're talking about are the actual realized losses by the victims that the government chose to present at the restitution hearing which was admittedly several years after the defendant's initial sentencing for dealing with sentencing loss the guidelines was that this court felt that the government had not come forward with evidence to confirm that the victims still maintained losses was not that the government hadn't proven that the losses existed at the time that they were incurred it was that many years later government  you should have gone again and confirmed with the victims that the they maintain these losses had not in any way recovered against them is it possible that the that the district judge imposing this relied on the actual losses that were otherwise found the losses that we ended up overturning in other words the same things went into both calculations early well intended loss in a case like this always subsumes the actual law that's true but even if you're right about that there could be actual losses that were included in that calculation in addition to the intended losses you're talking  about that now have been found to be insufficient but that would just make them actual that would just then turn them from being actual options to intended losses your honor so they would still count against the defendant for sentencing purposes maybe ok and again to be clear m then puts that loss in the intended loss category there is clear support in the language of the plea agreement contemplated intended losses certainly reflected in p s r s well i see that my time is up your honors i would request that the quarter from the distant decision of the district court all one of the most critical decisions or above most critical s roles over the fence lawyer is to discuss with the client whether or not to testify in a court proceeding and so that did happen in this case right everybody agrees there was perjury and that's why you have a lawyer is you know that that they might find that you committed perjury and with all respect i have problems with judge davis deciding without being at the hearing and seeing mr eligibles testimony and having these comforting facts for him to be so confident that mr committed perjury i think it's unfortunate frankly that a judge would take it upon himself to you know make such a judgment but i think you also if you riffed defense attorney practicing in federal court you have to realize that that happens in the client might not know that and they might assume that you know that someone's that no one else was there so we'll have to decide you agree just to clarify this you agree with the opposing counsel that the district judge did in is that the government casually said there's a million one point one million dollars in restitution and when they had to put up in back it up they couldn't in so there's there's a very strong reason to believe that that happen with respect to laws for purposes of sentencing i thank you both for your argument casey sixteen dash three zero five zero so many for decision