smith on behalf of christopher dominguez mr dominguez was told that if he went to trial and was found guilty he would face a mandatory minimum sentence of sixty years wishing to avoid this severe sentence he decided to accept a plea agreement offered by the government for a twenty eight year sentence the problem here is that mr dominguez did not face a mandatory minimum sentence of sixty years his decision to plead guilty was based on materially misinformed information this court should reverse for two independent reasons st mr dominguez his plea was not knowing alternatives as presented to mr domingo as his available alternatives were one go to trial and face a mandatory minimum sentence of sixty years or to accept a plea agreement with the government for a twenty eight year sentence the question is what are the relevant available alternatives is it doesn't necessarily follow not every all not every factor is going to be relevant to the police decision that is going to be made i mean that there are there are things that are not intricately involved in the  some things are some things aren't and so these were not charges that he was asked to clean guilty to right ok well what case you have that would say that that your knowledge of charges the just the amount of magnitude of charges that are not charges that are in to really tie to what you plead guilty to or more to the point are not the charges you plead guilty to can affect the  your plea the case that we rely on in our brief as united states we go where at the th circuit where they found that when the defendant was misinformed as to charge conduct that was later dismissed the defendant was bereft of the opportunity to intelligently way his options and that decision makes sense because the relative value of a plea agreement is based on what you face if you go to trial a defendant can't intelligently choose to enter into a plea agreement for three years and less he knows what the risk he's running in if you likes to go to trial that agreement might be good if you have a mandatory minimum of three years in a stat max of ten years but it's not that good if there's a mandatory minimum of zero to not including you know the charges that the government dismissed not including the incident in new mexico that was not investigated so there are a whole universe of things out there that were not that were that he was not held to account for agreement i would reject the notion that there's any consideration at all about his god the question here is whether he intelligently chose between the available alternatives and he couldn't have done that because he wasn't informed of the available alternative that begs the question what are the alternatives it is not clear that everything that is out there in the universe of things that can be considered is going to be materially bear on that's why i started this out with the d materially bear on your decision to plead guilty and the supreme court took the position that that would that in a situation where it is obvious that you would be deported or removed that is intricately involved in your plea is not self evident that that is the case here and so what i'm asking you is is i guess your best case for saying why it is a well open alternative is a relevant alternative additionally under the supreme court decision and boy can be alabama where they talk about an intelligent plea and said the defendant has to be informed of the likely consequences and they have to be informed of the applicable sentencing range that includes both the mandatory minimum and the stack max it's what he's but within the range of what he's pleading guilty to he was informed what the what the relevant right what the well of it charges were what the maximum was on the charges what he was going to greet to in the guideline range he was he was informed of all of that what he was not because of this this isn't a case merely about a mission this is a case about infirmity of expression of what the mandatory minimum for him would be the court told mr dominguez that he's looking at a mandatory minimum sentence of sixty years the actual applicable mandatory minimum sentence was twenty seven years let me ask you what does it does it matter for your purposes whether in fact the the st step that went into effect before pronouncement of sentence or after i wouldn't concede the point that it went into effect after but it isn't material to our the outcome of this case and here's why mr dominguez his trial was set for january th two thousand and nineteen this act was passed on december st at what time we believe we know that it was past about ten o'clock eastern standard time but even assuming that it was an hour one way or the other it just wasn't true that he was going to face a mandatory minimum sentence of sixty years if you went to trial on january th two thousand and nineteen that was just an incorrect statement of the law and mr domingo has elected to enter into this a plea plea agreement by considering what the court told him was the applicable law and weighing that against the value in the benefit of this pleaded therefore it can't be considered intelligen deliberate choice between the available alternatives no one ever told mr de mangers what his actual alternatives were gets look i get you to talk about mutual mistake yes in the opening brief we just discussed how plea agreements are guided by contract principles and to that end this appears to be the case of mutual mistake as choma tiriel term of this plea agreement or this contract the parties were operating under the assumption that he would receive a mandatory minimum sentence of sixty years if you went to trial therefore the twenty year was informed by that mandatory minimum you didn't make a mutual mistake argument  did you know and then this is not an argument on its own this is just saying why it makes sense that a defendant has to be properly informed of the applicable mandatory minimum and that essentially it would give the government a windfall we we threatened you with this mandatory minimum sentence you elected to enter into a plea on that and now we're going to hold you to that point even though we know after the fact that this threat was completely empty this this comes up in the context of a review of the court's refusal to allow him to withdraw the plea you're right ok will part of that analysis then is going to turn on whether whether it is to be accepted that he in fact would have withdrawn his plea and why given the nature of the plea in given the nature of the deal that he received and given the nature of things that were left on the table and not pursue beyond do we have a reasonable probability i think it's a standard that we're operating under that that we would believe that he would do that i disagree that that's applicable as to his st claim the reasonable standard are the reasonable probability of a different outcome comes in for mr dominguez nd affectiva so as i say ok well then what is the standard then tell that we're going to judge the question of whether well i mean we're deciding whether he would have withdrawn his plea what is this then tell me what is the standard as you understand it it's got to be turned on whether in fact the court can believe that he would have withdrawn his plea that is a fair reason which was please run a no no not at all ok so the argument just reason is that the standard now the standard here is whether it's a knowing absence of case law on this and that if the law changes courts most likely are going to allow a defendant to get out of this pleading he was formed under terms of just weren't true well as delusions are going to be a well what makes this case unique is not necessarily that's not like this case this get we're not talking about the charges that were in front of him the charges that the court but you know gave him his rule eleven on we're talking about charges over there were talking about charges he didn't plead guilty to were talking about the effect of those charges that's what makes this case different and so what i'm trying to get at is why are those things even relevant if the court gave him everything he was due knowing voluntary nature the plea intelligent i'm sorry knowing intelligent nature the plea that the court gave him everything he was due within this box of the charges he was pleading guilty to was that stuff even matter the th circuit case good man is particularly instructive on this point in that it says it's just because  where on the scale of mattering being you know and that's why i go back to fifty of those fifty have made a point of saying the reason they were willing to consider removal is because it is enterable to this plea to these charges the those charges the question then becomes why does anything else that goes on over here have the ability to impact the knowing in intelligent nature of his plea as to those   if you proceed to go to trial and the nd answer to that is that if you look to go she go that it says it has to be an intelligent choice between the a bailable alternatives you can't choose you can't weigh those alternatives d unless you know what they actually are yes but you gave me a rd in pronunciation i'll take that one too but i mean but the point is available alternatives within the context of that case meant available alternatives relative to the statutory charges that he faced they did not have they were not factually analogous to what we're talking about here and in when you talk about the poor devising him as to the possible i think at one point was life right that he faced on the stack in charges in this case to light ok up to life well the the court did then in connection with an indictment in which that was true that the did do and let me be clear do i understand correctly at the time that he had his ruhle advising him of what he faced because he did face those charges but when the court when he's doing his will leben colloquy this is the little box in the question is why does anything else get in that box and that's what i'm trying to get from you is to what  aptly based on material misinformation about the risks that would be imposed if they were found guilty we're not talking of course in the right we're talking and no you know this is knowing and tell and that's why in the go that they have to intelligently way they're turn unless there's any questions about the i c claim i would reserve the remainder my time for rebut there are a number of cases cited by the court by defense counsel and i do want to say st and to clarify because i'm i want to and judge holmes you beat me to this but there was no discussion of the stacking in the rule eleven call it if there was any discussion of that at all it would have been in his arraignment before the magistrate and we don't have any of that in the record so the question is was this a knowing plea the district court in this case went through in great detail all of the requirements of  and the defendant in great detail and very unequivocal e stated that he understood that he stated that it was that he understood the charges the plea agreement the maximum sentences which haven't changed incidentally none of the maximum sentences changed under the st step act the range of the sentences the rights that he was giving up there was no threats or coercions and one thing that's very clear to he made it yes ma'am he said when he was asked if he believed that he had received competent advice of counsel so in in this case what what we have is a case that is completely outside of any of the cases that were cited by the parties and that's because this kind of situation doesn't happen a lot on the day that the defendant pled guilty the law changed now we can quibble over whether it was an hour before or an hour after and it doesn't really matter which brings me to another point where do we draw the line if if we being apprised does it is it a distinction with a difference i take it that we're partly talking about whether whether in fact the law had been changed at that moment or whether the law was changed two minutes down well let's say three hours or week down the road would that affect the knowing and intelligent nature of what went on right that's the st issue yes ok well on that issue if if in  would a decision to reject this plea agreement have been rational under the circumstance as i said i'm not i'm trying not to conflate these two are we talking about the knowing and intelligent nature of the plea or are we talking about the ice i see what we're talking about the ineffect game right now because i think this part is important ok because the court raised this would a decision to reject this plea agreement have been rational under the circumstances we know that his two co defendants had sentenced greed to sentences of thirty five years he  minimum sentences were dismissed out of this plea plea agreement one of ten years and one of seven the seven is the new mexico case the court as as you noted judge holmes had a very down seventy six months from the low end of the guideline range just to get to this plea that puts aside the two hundred and four months he saved just on the consecutive one hundred and twenty four dollars cs not to mention the additional charges that he was facing in new mexico and in wyoming and the charges that were on the table anyway in new mexico that were important enough for him to include in the plea agreement they have to have assurances from the government that he wouldn't be pursued on an additional nine hundred and twenty four dollars c in an indigent additional bank robbery and as the  r noted that case alone would have been another three hundred and twenty four months or something like that so all of this under pedia your honors it isn't rational now to believe that the defendant would all of a sudden say i want to change my plea there were certainly other considerations that came into the time between december st and february th when he when he changed his plea on december conspirators would no longer be sitting at the table with him so certainly there were other factors that came into this decision all of a sudden to change his plea which takes me back to where we draw the line it that certainly the law changed and i do want to say this too and this clear it volume five hundred and ninety five at the motions hearing it is not at all clear from the record that defense counsel didn't talk to the defendant about the st step act or the fact that it may change things down the line the only thing that's clear from the record and defense counsel's argument to the court during that particular hearing was that he didn't talk in any great detail to the defendant about it and told him what he said he tells all of his clients which is look if the law changes the law changes i have to talk to you about what the law is now well i mean it's really good enough i mean if you're sitting staying in situation where the law is going to change on the day of sentencing if the law changes the law changes  sixty years drop off i mean that's if you're if we're focusing now on the high sea clane i mean really why is it good enough to miss a oh i'm aware that there is this thing called the st step back but you know let's not worr about the law is what the law is well the law is going to change right away and that's going to alleviate what would have been a fairly draconian stacking situation exposure or that he won't face now you're telling me that competent counsel would not have been is he well unfortunately that's a little unclear from the record at ninety five what he says is i don't want to go into too much detail about what i discussed with my client but i will say that we that i went back and looked through my notes to see what we talked about what we didn't talk about and i'll tell you your honor the same thing that i tell all my clients this is the law as it is now which is what the court told the defendant but but i can't talk to you about what the law may be but we can we can take that one further step there's a reason inference drop from that to which takes us back to this idea argument right that even under the sixty year mandatory minimum which the court points out wasn't on the table at the change of with the would the defendant have it if we're focusing on the i c claim and the notion of whether the defendant would have withdrawn are you talking about the performance component of ineffective assistance or prejudice i'm talking about prejudice und ok and the prejudiced being that this was such a good deal that he would not have withdrawn from it yes ok but and i can understand why you want to start with the i see claim but is it not in fact the case that quite apart from whether he would have withdrawn from the deal once he knew about the st step x effect on his on the plea isn't it entirely discreet inquiry as to whether at the time he said i plead guilty that knowing and intelligent plea it is oh this it is to me about that i will talk to you about that and the most important consideration is an evaluation of the rule eleven colloquy and the reason why that's the most important consideration and that's that's consistent throughout the circuits the reason why that's the most important consideration is that if it isn't we go back to the same issue that i've started with where do we draw the line if it's an hour after the law changes a day after two days a week we have to go to the rule of and call it week and judge home to your point about the fact that we weren't talking about stacked issues that the district court didn't advise about stacking there was an improper advisement given the defendant the defendant was properly advised under rule eleven of the maximums which didn't change prior to st step back and after st step back and the minims to which he pled incredibly again advantageous to him and there is no argument there is no argument that this wasn't voluntary and that's a no no i think this is taken off the table but the point is that the word uses of available alternatives case being used  montreux thereof and and the question is why isn't that an alternative he should have known about i mean in the context of the pleading guilty i mean because quite apart from again we i think you've accepted the premise quite apart from whether he would walk away from the plea later the point is why wouldn't why wouldn't that so and to use but he is where why wouldn't it be so intricate to his decision to plead guilty that he would need to know about that well st i don't think the record is clear that he didn't know something about it we can't hang any how much can we hang on speculation about what is what is lawyers did that were did not and that's it exactly judge which is why we have to go back to what the law is what the case law says that the most important consideration is the about you ation of the ruhleben colloquy and it and it's important to note that nothing in the ap brief or his argument today suggests that he thinks the court failed in any way to properly advise the defendant well i guess back to the question why why why wouldn't that have a huge impact on somebody decision whether to plead guilty and you say it's a line drawing problem and i guess i need you to explain that more why is that a line drawing problem do you i mean i guess are you say there are he was properly informed at this point and it's a line drawing problem when we count the st step act as effective is that no you know we're i don't think in terms of  about the line what i what i what i asked the court to consider is assuming the court says all right because a lot changed on the day that the defendant in his plea and because the district court didn't in it its rule eleven colloquy advise him of the stacking provisions and how the st step act could change that because let's let's remember the district court was also unaware that the watching the government was unaware and i can tell you that may not have been on the record but i was the government i was unaware and defense counsel was unaware and presumably the defendant was unaware that it was changing on that day so the the line that i ask about is pretty assuming the court says you know he should have known on that day because the law changed on that day what happens when a defendant comes before this court in in a year from now and says the law changed two weeks later and under your decision  domingo's i think that i should have another bite at the apple because the law changed that's my point is that if you're looking at me judge like i didn't answer your question but it still doesn't answer the question i guess why at that moment of sentencing i defended shouldn't be informed of the st step that well wow well i think that if  that the district court any time there is legislation that could change the outcome of a plea agreement then the district courts getting involved in plea agreements and i don't think the district court can do that i don't think the district court can do that nor do i think the district court should be responsible just like defense counsel and the government should have been necessarily responsible in this case to be watching as the appellant suggests it's smartphone every nd to see if the law has changed at any point i don't think that's reasonable either and i do apologize for jumping back and forth between ineffective assistance of counsel and knowing and knowing guilty plea but they're connected because this  just one point in that the mandatory minimum was integral to mr dominguez is to susan and also there is a reasonable probability that the outcome would have been different and we know this because the record is very clear that when coun how do we know that's all he told them i mean he to the point to counsel's point the prosecution part of the issue would have been he would have been a joint trial with two other people who had more damning evidence against him and he did and so now that evidence is off the table so how do we know only about the st step back and about that time mr dominguez moved to withdraw his plea these stacking provisions were the driving force behind mr the man as his decision to enter into a plea agreement accordingly requests at this court vacate in permit