back before i get to the law of the case and briefly recite a few facts that are directly relevant just to this claim so in two thousand and ten mr allman dingers counsel if he had the same counsel on appeal as his trial counsel raised a motion to dismiss in the district clerk of court in that motion he raised the murder problem and he said that counts nine and counsel eleven should be dismissed these were the money laundering counts because they fell under the view of this merger problem that was announced by the supreme court united states be santo's and this i bring it up right now because important because in that motion what he said was that he understood that the district court limited the application of the merger problem solely to cases to a lot of cases essentially the same set of operative facts as united states v santos and he expressed his doubt in that motion that the district court would grant relief on the motion i'm sorry i lost in the very beginning of the show who said this so this is mr allman dingers counsel in his motion to dismiss saying judge i acknowledge that you have previously denied motions on this basis and i doubt you're going to grant this but i'm raising it anyway and the reason why i bring that up is important because after mr allman manner was sentenced there were two cases that came out that expanded essentially went directly against what the district court had done by lynn and in the facts the most important case is united states speak loud and he noted states v cloud a panel of the four circuit applied united states v santos to facts that were very very similar to skates now here's why that's important because when mr altman dingers counsel made the decision of what issues to raise on appeal he did not factor in that change in the law so when he made the decisions on what issues to raise in appeal he was weighing the strength of this merger problem issue against what he believed alternately at the time in two thousand and ten the strength of it was and his belief at that time was it wasn't that great we don't your honor the way we know that is by looking at the case and looking at the facts of the case and looking at his explanation in his affidavit and his explanation in his affidavit is he made the decision on what issues to raise based on the strength of the issues and he only wanted to raise issues that he thought had a good chance of providing meaningful relief now he raised the substantive reasonable nys of m and whether that was a cough or a laugh i think is important because i brought up in my brief the number of times that that type of issue is successful and it is near zero is one of them the whole country  or twice with this very true it is one of the weakest issues that can be raised it's an important issue but on the the spectrum of strength of issues it is it's not a good one and here how he looked at united states speak loud he would have known that this issue had an extremely high probability of success and now we know because the mr all many years codefendant raised the issue before a panel of the four circuit where he was successful we know that the chance of success we have the benefit hindsight in other words and we know that the chance of success was essentially a certainty he would have been successful had he raised this issue and the four circuit would have acquittal on the money laundering counts now the government's position is and the position of the district court is well the district court has announced already that he would have or to the same sentence if there was any remained and so that's the position is essentially on an ineffective assistance of counsel claim you have two prongs to satisfy one is deficient performance and the other is prejudice and so their position is essentially saying mr all mending or cannot show prejudice because the district court would have sentenced him to the same sentence if there was a real man and the reason why that's wrong is because that is not the standard that prejudice is measured again prejudice in this context is measured against whether or not the result of the appeal would have been different and the result of the appeal is whether or not there would have been a rematch it's not the result of whether what would have happened down the road on that and there's a great case on this it is united states v menino is the third circuit case where they examined nearly this identical issue where the government said there's no prejudice here because he was recent it's he would have been reset it's the same thing whether we would have reversed in order to remove your honor the reason why i think menino is worth considering is because in that case the district court had made the same announcement in that case the district court had said i'm going to sentence him to the same sentence that's why the facts are a little more direct but i think the cases are legion you're sort of sliding by the question of whether in fact there was prejudice but there is prejudice that was the standard because of the assessment there's supreme court law that says just the additional assessment for conviction of another crime constitutes prejudice your honor i i fail to see under any analysis of the facts where prejudice would not be found in this case of course the reason why slide as westerns about collateral consequences two convictions rather than one conviction i agree with you your honor they are innumerable reasons to find prejudice in this case  arguments that i'm making are the ones that are directly responsive to the arguments made by the district court and the government but i think that the the other arguments you raise are important to collateral don't what once is what would you have his do and that's the more interesting question assistance of counsel claim the remedy is that the court grants an out of time appeal and then those to the issue would be raised on a direct appeal i do know that we do have the the concept of judicial economy where the court when it's when it's met with a situation where the case is going to be right back in front of the court any way the court is able to decide the merits of the appeal in this proceeding well this is a twenty two fifty five it isn't a twenty two fifty four so we're not to furring to the right to a state court here correct if if the court grants the out of time appeal it will be right back in front of the fourth circuit to decide on the the merits of the appeal itself i don't see why this court can't make that decision in this proceeding but i don't what i don't have is authority saying you can and you're able to do that you're not saying that such authority doesn't exist i'm not saying such authority doesn't exist and what i am saying is that i've after an exhaustive search i have found no authority that says you can't you know but what i don't have and what i did not put in my brief is authority why would we simply instructed to report that that's incorrect because the issue in this case is whether or not he received in effect of this is a counsel on appeal and this court doesn't have to do that this court can make the decision because it's  regard now because if the district court decides ok i'm going to analyze it under this new standard and then still fails to grant relief then we're right back in front of this court again so you want to take care of the conviction here not going to be freed momentarily no he won't honor no we don't have a situation where we speed is of the essence that is correct and if there are no other questions i'll yield the rest of my time back to the court please the court my name is jessica aber and i represent the united states in this matter this is a case as your honour's know about i defend it who was convicted of a ninety million dollars fraud and that has experienced retained criminal defense attorney a prominent attorney considered and decided explicitly not to raise this particular issue on appeal and the decision not to do so ultimately could not have changed the defendant sentence this could not possibly constitute to in effect change the results or the defendant it's what is i understand it there is one less if we should say that there was merger here there's one less conviction so arguably the collateral consequences of that might be different in the future his record would be different and we also have that supreme court case about the special serfs your honor i don't see how you can say there's no prejudice you can you start out your argument saying that not dealing with prejudice dealing with the first problem that's fine but i just don't understand the argue the government's argument about no prejudice well i would like to come back to the first prong of strickland directing to the second prong your honor there is no prejudice here because i think we're defining the results or what is very approachable here your honor more so than the third circuit's opinion and many you know because the court did not simply look at that straight reversal the court went into specifically whether plain error review would have been satisfied and in this little differently and that in the end the court found that there was no prejudice under strickland because it would not have made a difference in the defendant's old in the appellants ultimate sentence that was because you're correct that is talking about the lens that we look at about the special assessments it is my understanding under third circuit law which we cited in our brief specifically united states versus ross that have special assessment alone would not be enough to serve to constitute prejudice under stric well the affidavit is under penalty of perjury and as mr gandhi notes there are instances in which plenty of instances in which defense attorneys fall on their sword and say they made a mistake and that's like the menino case from the third circuit the trial attorneys said we made a mistake here but here mr pollack very clearly says he did not make a mistake he looked specifically at the santos issue he decided strategically that he did not want to raise that whether i don't i don't necessarily think that we can read that the affidavit as saying i did not factor in subsequent four circuit decisions in cloud and hall stead rather than the unlike a lot of affidavits the affidavit says i wanted to make i wanted to raise issues that would make a big difference either get a new trial or a new sentencing altogether with the judge being told forty five years is ridiculous but here is an ordinary case just assessing the effectiveness of counsel don't we make the judge don't we make the judgment with respect to whether in fact the attorneys rationale was in fact were example a strategic decision i mean that that's our bread and butter that's what we do all the time it's not like we take what he said at face value we look at it and we look at the facts and we make an assessment whether it's in effect that's right and the cases are numerous says your honor so all the obvious phrases you're supposed to give giving him deference but you know in other words the government wins another way that is true your honor and i will say in preparing for this argument i read strickland which i have not read in years and the types of alleged errors decide independently that this was not a good issue to raise on appeal that the merger issue would get him at best a recent thing back before judge pain pain gets hit by a bus or retires and that would  exact same sentence and that seems to be all the more reasonable when you consider that the codefendant who did raise the mayor merger issue did get the reset and saying is back in prison doing sixty years  i recognize that substantive and procedural resists reasonableness are extremely difficult issues to prevail on and and mr omitting are cites all the statistics about what a what a terrible argument this is but one which you agree with i agree but when you win you win big you get an entire reversal of the sentence you get to go back and say to the judge this is this is outrageous i want to much shorter sentence and we are talking about a sentence of forty five years for a nonviolent same according to you i do believe it is highly probable if it goes back before a judge payne he's getting the same sentence and that would be legally proper and it's completely appropriate under the thirty five fifty three factors would like to note it is a v guidelines in this case were life the guidelines in this case do not change if if these two counts are reversed here he remains at a fifty three or if fifty one and he's capped at forty three i mean so judge payne considered that and here that's conspiracy to commit money laundering count the two substantive counts are nine eleven count eight the conspiracy to commit money laundering even if even if mr allman digger prevails here that count should not be reversed or remanded because conspiracy as in this case back up and conspiracy is different in this instance in mr abdul wahed hobbs appeal the codefendant this court determined that the conspiracy count was not affected by the murder rule that his the conspiracy did not merge with the mail fraud because there were other payments proven pled unproven in the conspiracy that could qualify as the predicate acts for the can enter an appellate acquittal on those sentences and that those sentences would be struck from his overall sentencing package because his sentences are to run consecutively rather than concurrently so each of those is i believe each is a six really i'm sorry eighteen months and for each of those and so when that is struck those those two eighteen months sentences would be struck from the series of consecutive sentences that he received so it's it would actually not be necessary to send this back to the district court at all even for resentencing of the court like he's been sentenced consecutively and the sentence that merged crime that was murder is omitted does he get then get a shorter sentence he would have if you're saying to us he should if this if the court does not send it back for recent unsing and instead elects to strike those send sentences  then yes his overall sentence would be shorter by the terms of those specific consecutive sentences and the reason why be doing it and run around the district director of sentencing o