your honors mr flores is an immigrant with a sixth grade education who speaks no english and had no criminal record prior to this case she has alleged that he signed the plea agreement at issue because his attorney told him to do so whether he wanted to or not he signed that agreement on the very same day the district court denied his request for a new counsel when he tried to fire that attorney the plea hearing in this case was held on the very next business day mr flores has alleged that he answered questions at that the hearing as he was told to do so by his attorney the transcript of the hearing shows mr flores voicing a number of factual objections to what was happening and his attorney repeatedly interjecting to assure the court that his client wanted to plead guilty most troubling it was the attorney himself who had to  months yes he wasn't dunn's well below the guidelines range i'm sorry he was sentenced below the guidelines range and this attorney whose conduct you're attacking who managed to negotiate a plea agreement that guaranteed a blow guideline range without cooperation correct yes your honor and an attorney in that situation whose client is disputing minor details of the government's account knows that there's a one of the things that troubles me here about your theory is the failure of mr flores after mr edgar stopped representing you but before he was sentenced in the felt pressured to accept the p that after the fact account but the kind of case that you are making is one that could be raised again many many guilty plea cases where the person  pled guilty has given all the right answers fails to seek to withdraw the guilty plea in the district court and didn't even respond to the notice this court sent him when we sent him the record in the brief he would have had no reason to make that request if he had not actually perceive the energy brief and then our record indicates an order to the clerk to transmit the record to  of he says he did not receive he filed a notice with this court in order to get the record because he did not know what was happening he has represented both to the district court and to me and to this court and h twenty fifty five which he is entitled to one twenty two fifty five it is a safeguard for criminal defendants like mr flores who is claiming that he's guilty fears not voluntarily give up my i guess my question probably very you could hear the simple answer how twelve his appeal proceeded and he filed he did file this twenty five motion in two thousand and thirteen so it has taken some time to get here but his twenty five motion was not that that long after he is now i get sentenced to a two hundred sixteen months yeah right and if if he is successful in getting his guilty plea vacated and goes to trial i mean i'm trying to do some ballpark calculations here but  he would lose and he's convicted he would lose the acceptance of responsibility discount the guideline range for that would be three hundred sixteen year months to life correct yes your honor and that's what he wants he understood that the  obviously we have taken care to well room for extraordinary cases where somebody can make a compelling case that a plea was not voluntary despite the appellate waivers and  collateral journal and waiver can you direct me to examples of cases where we have talked about that not just theoretically but where we have actually granted relief from those old waivers your hon take the cases that i have come across where this court has acknowledged that that possibility exists but for the most part not granted relief because i pretty conclusive or you have not given us enough here to do more to look beyond what you said at your plea hearing and what you signed in that plea agreement mr flores has submitted that pretty specific and troubling allegations that his attorney did not  council time to explain some things to in writing it it is unclear to me from reading the record she spoke with his attorney by my count five times off the record in response to him trying to answer a very basic questions like do you plead guilty so on and every time he tried to voice factual objections his attorney immediately interjected and said actually no he really doesn't want to plead guilty so i think the transcript does leave some questions so what was going on and this case is different because of the very specific allegations he has me right that if all of those specific allegations were indeed true he had the opportunity to litigate the issue with new counsel when his counsel that performed in the way that he alleges was true and then also in direct appeal and we've gotten layers procedural default here your honor that the government is were fitted any procedural default argument but even putting that aside he said his appellate counsel misstated his wish that he always wished to challenge it and there's no procedural bar to the court hearing his twenty to fifty five motion and it is this it does permit him to raise this issue now notwithstanding his his failure to do so before what do you think one of the united states give up in return for the waivers of appeal twenty to fifty five is usually much more difficult right your honor at at a minimum she is entitled to an evidentiary hearing for the for a determination on whether his allegations are true whether in light of the new allegations you can view what happened at the p hearing as a voluntary as a voluntary guilty good morning and may please the court i'd like to begin by picking up the thread of procedural the fall your honour's counsel has stated that the united states has forfeited the issue i would just respectfully the urge the court to of course the court can affirm on any ground present in the record and i think i agree with judge sykes what she said earlier that that there are layers of procedural default those layers are evident self evident in the record this court should consider them and should in fact treat this case defaulted to go back to the procedural safeguards mentioned earlier by josh hamilton rule fifty one b of this circuit is in place i think at least in part to give someone like mr flores notice that in ender's brief it's been filed and that his appellate attorney is seeking to withdraw and that's exactly what happened brief was filed in may of two thousand and twelve and about a day later day or two later this court in the docket entry reflects this this this court the clerk of this court sent out notice according to fifty one b with return receipt in return receipt is indicated on the docket docket item twelve which is the letter hamilton mentioned earlier sent by the appellant back to the court regarding the that was sent on just on july second two thousand and twelve that was after the deadline this court gave in its fifty one b notice of june eighteenth two thousand and twelve in the court again issued a second order directing that the record be sent to the appellant and the docket i think reflects it was sent and extended the response for the ender's brief until august sixth two thousand and twelve and then it was only in several months later october nineteenth two thousand and twelve that this court issued its non presidential order granting the motion to withdraw and dismissing the appeal now what's in that several months from may until october did the appellant indicate any kind of response any kind of objection to the representation contained in the interest brief that mr bratton consulted with mr floor as about withdrawal of the skill the police so i think the procedural  regularity of abiding by this court's procedure is evident from the record in this court should be confident that the representation that mr bratt made as a member of the bar that he followed this cour instruction to consult with his client is true and beyond that i think the court can be confident just based on the way that this procedure work and it did work perfectly the court should be confident that in fact this expressly that is true your honor i went back i looked at the response i did not see anything there but again i think that just based on the fact that the matter was well briefed fully briefed by both parties at this stage and the court can make that finding of course based on what's present in the record and i think it's present here and the third reason your honor is for procedural the fall to be bypassed here necessarily requires a finding that based on the theory of t that mr bratton committed ineffective assistance of counsel and that argument itself locus is specifically on what is alleged to be in this statement about whether or not mr flores was consulted about withdrawing in other words a lot i think the court would basically have to find that that there's a law in the record from mr bratton and not only that find that its own procedures which appear on their face according to the docket to be clear going through in exhaustive detail through the the police ensuring did mr forest was aware of the nature of the charges he was facing aware of the consequences of pleading guilty aware of the consequences abiding by this plea agreement and at every stage while he was under oath at the key questions in this scripted call it we he answered yes showing his understanding and showing that he was taking this step voluntarily and on the topic of the plea agreement your honor i think that he did he did definitely give the benefit of the bargain in the court asked questions about the sentencing range of these like this are fairly common in our district where there may be a sacrifice on the part of the government as far as the top and what sentence the prosecutor might want to argue for in exchange for waivers of appeals waivers of twenty to fifty five's and i would say that in this case mr florida's got the benefit of this bargain now only now is showing buyer's remorse and wants to go back and is asking this course this court to disregard everything he said in essence in response to the police colloquy i think the district judge was well within his right when the twenty to fifty five came around again to deny the twenty to fifty five on the basis of the finding that it was in fact in knowing and voluntary police and after all who better to make that decision judge lawrence was the one who conducted the colloquy he was fair he was able to assess the demeanor of mr flores in open court i'm sure he was not a party or listened in on any of the conferences of course that mr flores had with mr edgar but i'm sure the judge could assess how long those con those conferences took and by the body language what language of mr florists if he was having a major problem voluntary and knowing plea so at the end of the day your honor i think that the waiver should be recognized and strictly enforced but even even if not even if we get to a guess  you everything else i'll give you a minute to respond default is inherently a factual one given the potential and ineffective assistance it's the court should not address that issue for the first time on appeal especially when it is very clear that the government or fit at that argument