think i can boil it down to just a couple of propositions a combination of factors were mr harris was deprived his right to counsel and also the issue relating to the rule eleven violation i think is worthy of mention factors i think that are here that had affected mr harris his right to counsel at sentencing is the fact that there was a rule thirty two violation the district court required the present report to be disclosed only twenty days prior to the sentencing hearing i think it was in fact disclosed twenty five days prior to the sentencing hearing that distance between defense counsel mr harris was approximately one hundred fifty miles from the spokane  office location of defense counsel and of mr harris so you combine the rule thirty two violation the shortened time period with the distance of defense counsel having to travel in order to  through this sentencing procedures the pre sentence report with mr harris and it in shows that mr harris didn't have the pre sentence report until right around the time the objections were due because of the shortened time so gave him very restricted time to the third factor is the district court's failure once it once the district court was confronted with mr harris harris's motion to withdraw with defense counsel's most motion to withdraw and request for continuance as and more time the factor again that the prime minister hairs of his his right to counsel i believe the district court's failure to grant both defense counsel's request and mr hare's request for assistance of counsel i think all the pre sentence report after the judge provided mr harris the final pre sentence report and the adem them it was mr harris that actually the what was submitted by defense counsel was mr harris was hand written notes it wasn't so and then at the sentencing hearing the actual sentencing hearing although the fence counsel did make remarks and asked for the twenty year sentence the court and mr harris were the ones that were engaged in the discussion relating to the objections and i think the other prejudice is you haven't objected to anything i mean we don't have in front of us any statements that say these paragraphs of the pre sentencing report are factually incorrect i'm having trouble figure out what difference all this makes the difference makes your honor is that the failure to continue at least what i'm seeing from the record is that mr harris asked for the r dept program which was granted but was also claiming that part of the reason he was involved in these offenses was because he was a an abuser of controlled substances or not he has a very rich history and so i'm having trouble for help but any of his objections would have to do with this sentence imposed you're asking alternative he was facing was the government charging him based on his rich criminal history with a mandatory life sentence what there was more for him to think about and why  time was going to be necessary and what a new counsel would have brought to the table i mean this seems all very theoretical but not very real it actually is real because because mr harris did not essentially did not have the assistance of coun fullest degree that he was entitled to to go through all of these issues fact the court short well gave a very short time period for which for him to to discuss these matters and with the counsel that he continued to express concerns with about the diligence of his counsel with counsel telling the court that he is concerned because there is this impasse between defense counsel and the client so so so the prejudice is that he doesn't have the the full full protection of the systems of counsel in order to make what may have been the right decision in this case but he was entitled to at least the time to review it and to have  new counsel or a continuance or a sufficient continuance long enough for he and mr peeve and to maybe mend their fences but they weren't going to be amended in the short time period so mr harris was essentially left to his own johnnie potential of the team i don't follow him he may well be and i do know this because i did ask for additional time in this appeal to be able to review all the discovery and look at other issues that may be involved in the case and there were discussions about suppression issues and that sort of thing during the sentencing proceeding new counsel i think would after that too to go through all of that again because i know that those are issues at least in the record that client relationship where the mitigating evidence relating to drug abuse i understand that mr harris has he not a good record i get i understand that but i also understand that the full amount of the mitigation that could have been presented to the court relating to his drug abuse history wasn't there for consideration so those are the those are the things in combination i believe warrant to remain and and for mr harris with new coun to be able to go and review all of those things before because he does have the judge indicated he would grant his motion to withdraw fee persisted in it but he also said that if you persist in it i'm going to make you represent yourself he said that at the second ex parte hearing and then he said the next hearing if that you if you choose to go to sentencing you are stuck with mr peeve and if you only if you choose to withdraw your guilty plea am i going to then afford you new counsel so he put mr hares in a real box and nothing i think substantively that was raised by mr harris was actually resolved in the process and i think that's the prejudice that mr hare suffered and i do believe that counsel with new or new counsel given sufficient time to go through all these nuances may well end up in the same place same plea agreement but i would ask the court to  under these circumstances re mand the case or re sentencing with time to allow mr harris to decide if he wants to persist in the motion  to please the court and counsel my name is kaitlin vanguard and i represent the united states in this matter i would like to outline the issues that are currently before the court in brief fashion of the court has reviewed all the extensive materials in this matter  is the united states position that the district court did not plainly air under rule eleven by answering the defendant's questions on their several points in that analysis that i think are significant number one we're assuming there is no rule eleven violation if you look at the context of an imperfect articulated remarks so if we look at ruhleben ruhleben looks at more focus is that a judge should not participate in plea discussions and the judge should remove him or herself from the discussions about plea agreement that has not been presented in open court and i think that's a significant distinction here in this case rule eleven is there to help judges to help keep judges from shaping the plea bargain that the judge would find reasonable or appropriate that case instead reserving the judicial impartiality to judge the pleader as presented to the court so in this context these conversations that occurred that the defendant claims are erroneous occurred two months after the plea agreement was discussed and offered in open court and entered into by the can so how do you distinguish the garfield case i think the garfield case is difficult to distinguish although not impossible i decision in one thousand nine hundred three and i think given the way the other circuits are also shaping this analysis which would include i want to make sure i get the citation crack the fifth tenth and six circuits also draw this bright  really done anything respective to that decision but if we look at frank which was decided the year later in one thousand nine hundred four and the discussion that there needs to be flexibility in comments and discussion by the district court in the post plea cont frank said previously but the discussion would be more of political in the post please context especially when looking at some how some of the other circuits have latched on to frank and those principles as well as making that bright line rule in their circuits about the pre post distinctions but i also think it is worth noting that as a matter of like a policy consideration looking at the gonzalez melon court case which talks about that was in a post plea context but that was a specific instance of a district court judge looking at it offend in sentencing and saying if you do this i will do this if you agree at appellate waiver i will give you the sentence and that is so similar to a plea discussion that would make sense to ply indian usual context as the ninth circuit said in that matter to apply the ruhleben type of prohibit on that type of conduct but i think i think we in the post via context of ruhleben violations i don't believe look at the record mr harrison knowledge that you knew the information that he was a facing a possible life sentence possible mandatory life sentence and he persists repeatedly in the line of inquiry with a district court is always the defendant who brings it up and says what about the fifty one how are they a put bill in my case and he asks each and every one of the ex parte hearings he's the one to bring it up and ask is not the district throwing court posturing or saying something to the effect of you know if you do this you're going to face a mandatory life it's mr harris saying what about this am i facing life is this real for me and the district court provides him factually accurate information and those are found on the e r seventy six ers ninety six to ninety seven e r one o six and one o seven and there's a particular quote that i like from mr harris on our one zero seven saying my only hitch since the beginning has been show me these eight fifty one's show me how they are real threat to me the court responds and says yes they are they do apply for you the defendant they want to discuss the whole memoranda which provided prosecutors guidance in filing of the fifty ones where that would be appropriate the court says this does not have the force of law that's just guidance for the attorney from the attorney general that's it you are one zero eight and one hundred nine the defense attorney says that you are one twelfth but he had discussed all this matter with mr harris so that seems to resolve the inquiry but yet in the next a couple questions for one it's emphasise that the mr harris knew about all of this and yet he persisted so one point when the government argues is a reasonable possibility or probability he actually would have withdrawn his play it's hard for me not to answer that question yes given that he did continue to pursue the inquiries now we don't even have a clear statement today as to what he would do and that may be a problem for mr harris but at least the fact that he has continued to pursue it it's not clear to me what he has to gain unless he's given serious consideration to the possibility of withdrawing the plea and taking his chances at trial so why shouldn't we say ok there's at least a reasonable possibility of that well i think if we go to the next ex parte hearing your one forty two and one forty three the defendant talks about the fact that he wants a better deal he says so can i hold onto the c one c agreement and get a better deal and the district discussion i can't engage in that inquiry that something that you have to discuss with the government so i think even in that context he would be stating i want a better deal not what i want to go to trial he's saying i need to get a better deal and that is what his focus was on that matter but i think even if we would all like a better deal then it's easy to say it's easy to negotiate a better deal but is there any reason for him to believe that he could get a better deal i don't know what his thought process was that or his conversations with his attorney on getting a better deal was certainly hope for one i don't believe he would ultimately was the one but even if he invited air doctrine doesn't resolve that inquiry under the miers doctrine even if even if there is  the defendant has to show that but for the error he would have gone to trial and that kind of has into those comments that i just made and the air has to be such that it undermines confidence in the proceedings arguments that arguably could have had an impact are not sufficient under that myers case law standard and you look at the totality of the circumstance include the strength of the government's case and as i've outlined in my briefing and in the plea agreement that's attached there's multiple cooperating defendants are controlled by search warrants there's a cache of gun caches am a detonator core blasting cap stash of controlled substances explosives the potential for nine twenty four c so on and so forth and meyer still goes one step further for a fourth analysis that half even if the defendant makes all of these daunting showings these first three showings the court still has the option to decline to exercise its discretion because the defendant has to show it seriously affected the fairness integrity or public reputation of the judicial proceedings and there's just one thing i wanted to highlight about  defense counsel's comments before i run out of time here i don't think this defendant was denied counsel if you look back in the record ultimately the continuous asked for was one week the judge judge quackenbush gave him three days after engaging in a week's worth of ex parte hearings there was two months to prepare for sentencing the court offered to move it out with then was reluctant to do so when it was clear that the only thing that would be accomplished is repriced replying the same ground over and over again and ultimately defendant chose to withdraw his motions to terminate his defense counsel and his motion to withdraw his guilty plea so there is no opportunity for a judge quackenbush to make finding that ultimately he withdrew the defense attorney proffered that he had met with a client every day to include twice on sunday and estimated that the approximate meeting time was forty minutes each so i think based on the totality of those circumstances  he was not denied the right to counsel and further judge quackenbush even at the sensing hearing was like tell me why mr peeve and should be removed articulate for me the basis and in light of that mr harris stop pursuing it and said he want to  i believe that the record cites or given by ms bonds are insightful in that mr it's mr harris without counsel it's addressing the court and that's what the that's what i believe is the biggest structural error in this case  l he's brought a motion to withdraw counsel and counsel him self is triggered so i'm not sure who else may now use if it's something else that happened and if if there if the appointed counsel had stepped up harris's complaint would be but that's not the guy i wanted so who else is the judge posed to talk to at that point well that's true except that the judge isn't addressing the motion to withdraw at that point he's addressing whether or not he should he is addressing whether or not two things were not there to be new coun and both mr harris am defense counsel are asking the court to appoint new counsel and the second step in that is the motion to withdraw so mr harris is essentially left without counsel because his his counsel is asking to be removed at that point also so and then i think that one of the factors in this case that brings garfield right into focus is this was an eleven c one c agreement neither party is bound by eleven c once the agreement citations in my reply brief until the court accepted and and the defendant has the right to move to withdraw a plea for any and based on any fair and just reason and in this case the judge quackenbush found there was a fair and just reason he just didn't want to allow he was i think trying to protect mr harris from himself but he wasn't allowed he wasn't he wasn't giving the process  the time to to work so that mr harris was making a fully informed decision of what he wanted to do and i think that's where the prejudice thank you very much counsel both to you for your argument today this matter submitted in mccall the next