stephanie carful in your honors for a palin chase and smell of your own are what happened in this case is that mr smith pled guilty under plea agreement virtually guaranteed that he would be subject to a guideline  range that was seven hundred twenty months which was the maximum for the two counts of conviction and in addition that plea agreement contained in a pellet waiver provision but i'd like to address with your honor's this morning is why this court should not  force that appellate waiver provision in order for an appellate waiver to be valid a defendant has to understand it and in order for that to be manifest the district court has a requirement under ru eleven b one and to ensure to review the terms of the the waiver of the appellate right with the defendant and sure that the defendant understand that waiver this was an obscure waiver this was not a normal waiver that says you are waving your right to appeal a sentence of two hundred forty months or less war three hundred sixty months or less or as was the case here you are waving your right to appeal a sentence anything including or below the statutory maximum that that is an unusual provision it was structured in the plea agreement in and obscure or and difficult to penetrate way  seventeen johnson from this court in that case the defendant and to a plea of guilty he was asked during the plea allocution did you go over the terms of the plea agreement do you understand the consequences of pleading guilty he said yes i did and i sentence that he agreed to be sentenced to mandatory life imprisonment this court did not find the fact that he said at the rule eleven hearing that he understood those consequences to be a bar to this court's finding that he did not understand the consequences there is an additional factor here judge reggie and that is that during the plea on accused him during the world levin hearing the district court said not if i sent she was provided eighteen a if your plea agreement the district court said that if i sentence you to any guidelines sentence you are waving your right to appeal what what defendant it's exactly the same thing that's going on in johnson yes the the language is technically correct and yes a per defendant is technically saying they understand but because of the nature of the way for because of what the court said during the rule lev hearing it becomes completely clear that the defendant could not possibly have understood what defendant is going to say oh yes i understand what i'm retaining in th illegal sentence what defendant wouldn't believe that he have a right to appeal an illegal sentence and i think initially when this court confronted that issue with plea waivers it wasn't even clear to the squirt i mean it clearly is now but as johnson here we're talking about this is lawyers you have to look at what somebody in the in the defendant's position would have understood based on what was in the plea agreement and based on what the court said during the world eleven hearing there there is no reason that this court should conclude or can conclude on this record that he understood what is the purpose of having a supposed carve out this this plea agreement waiver provision purports for mr smith the right to appeal a sentence it doesn't he's being misled here you can't conclude in these circumstances that that is a valid waiver of the  years that he pled guilty to the you know waiving the right to appeal if he got up to the sixty years the four possession counts would have added an additional potentially consecutive ten years each sixty years versus one hundred years for a thirty six year old man what is the benefit of that the other benefits that the government purports to to be provided to mr smith in this play agreement is his right to argue for a non guideline sentence you've got to pled guilty to the entire indictment and not and argued yes that is the argument your honor because i believe that although it's an extremely deferential standard of review this sentence here was infected by the same error that the sentence and dorothy and jenkins were  granted those were different cases they were transportation there were issues about whether the just the court understood its authority or what the actual guideline that a that the mandatory maximum becomes the guideline but the guidelines to g two point one and two g two point two have the same origin the same history and i outlined that in in my brief so as your honor said judge toler said in your dissent united states versus brown in order for a sentence to be reasonable the guidelines have to be reasonable the guidelines were reasonable here in terms of the substance your honor i think you have to compare this case in the district court said understood that he was imposing essentially a life sentence and said that was appropriate in this case  honor i'm arguing it that that this court has the authority to consider that issue i think that the record is is sufficiently developed that you can consider that issue was failing to to address what what the real issue with this warrant was the initial warrant that the state court judge authorized a search for evidence of rape in the third degree and and all the and appropriately it arguing that the court should find that it does there is nothing jurisdictionally that limits the court from from from finding that in this particular case i mean again what this is this was such a let me let me try to say this precisely mr smith was led to believe that he was retaining rights by entering into this plea agreement including the right to appeal the denial of  complainant the indictment was for production of child pornography with respect to the federal indictment he was not indicted in the state of child pornography production with respect to two different individuals not the original witness the investigation led to additional  right so it's not correct that he wouldn't he couldn't be worse off if he stood trial and was convicted i'm not saying that he couldn't be worse off your honor yes i'm just saying a sentence of the statutory maximum morning your honour's tiffany hartley on behalf of the apple e united states we're only here today because mr smith does not like the result of the bargain there is though appellate waiver provision that's provided for in our plea agreement is not that an orthodox appellate waivers which this court examined in its cases united states versus rossa united states versus martina rios and united states versus goodman in those cases the problem what the appellate waivers was the fact that none of the parties knew where the guidelines were going to end up and so there was something unfair that this court found in the fact that all the parties are going into sentencing and no one knows where the guidelines are going to be and yet the defendant is waving the right to appeal a guideline sentence as determined by the court as in the case of united states versus united states versus martinez reus and in the case of united states versus goodman that defendant was waving her right to appeal any guidelines sentence up to the statutory maximum here the defendant's he asked about representation of counsel before he entered into his guilty plea and after the guilty plea and prior to sentence it's not as if he came to the district court and said you know what i don't like this deal i didn't understand the  waiver oh i didn't know that probation was going to come back with a guideline range of some seven hundred twenty months the complaint here lies in the fact that the guidelines ended up being the statutory maximum of the two production counts when put together he was waiving when he entered into this plea agreement and it's just now that even though the district court actually sentenced him to a bolo the government guidelines or the guidelines that he only found to be a what i also understand you to think that there's no substantive and reasonable this in this sentence says the trial judge stated that bennett was a sexual predator who targeted children between the ages of thirteen and sixteen with physical contact with them not just the creation of the pornography that included an eight year old so your argument is that whatever we do on the  right that is correct alternately you know obviously we do have a concern on the appeal waiver issue only because this appeal waiver on its face cannot be equally added with those appeal waivers which were deemed to be  when the defendant entered his guilty plea he waived his right to challenge  because the fact is that there could be a whole roast a whole host of decisions that council makes in order to provide meaningful representation and quite frankly certainly in this case it is not married  councils represent the defendants representation is now concerning trial councils allege and effectiveness have nothing to do with the issue that was specifically carved out issue here is specifically limited to judge mccarthy's issuance of his report and recommendation which has nothing to do with the determination of ineffective assistance of counsel so  it so that has nothing to do you went that has nothing to do with the issue being carved out to you that you can examine what the record is currently before you but again i don't think it's sufficient in order to provide you with a basis to say to address any ineffective inquiry of any decisions that were made between counsel and the defendant and you seem to concede that those could be raised in a twenty to fifty five cases seem to say that the only thing that could be raised when there's a in a twenty two fifty five is the voluntariness of the plea not for example did he do a good job in the suppression motion and hearing are you conceding that if we were agree with you on this appeal we could reserve and say well he could pursue that in a twenty to fifty five and there's no bar to his claim ineffective assistance of counsel with regard to the suppression no i would not say that i'm just saying that when he raised the twenty to fifty five the general mechanism that he can certainly raise in the twenty fifth he can most defendants can raise the issues and they certainly do they try to raise the issues and the twenty to fifty five but again it's that up to the district court to take a look at the record to see whether there was a thank you assistance of counsel on the suppression area issue we leave that to a twenty to fifty five and then you come back on the appeal of twenty two fifty five and say the only thing you can consider in an of counsel had been effective he would you would not have been pleading guilty because the materials would have been suppressed now are you are you saying he's he could bring that on a i would say that that again we're going back to issues of you know what he would in his particular case have to raise and he would most likely again be barred by the appeal waiver in terms of trying to show forth why there is a rule of law in violation when no there's been absolutely no mention of any rule violation there's no bleak reference to the fact that  didn't understand the waiver itself that is properly preserved for direct appeal or it's it can be correct the argument it wasn't it wasn't a valid plea because underlying proceedings occurred with ineffective assistance of counsel is something that we would not hear on direct appeal waiver or no because it would require factual development right and so why is it covered by the not quite developed and i feel that it's not quite developed in the matter that's before us right now so that's why i would be yes not not on this record but if i understood you a moment ago you were suggesting you'll you're going to invoke the ple i mean that would be one of our arguments naturally speaking in terms of the validity of the entire play itself that we would employ invoke that aspect of it so the question becomes whether the carve out on the issue of suppression is should be read read expansively but when we read plea agreements we're supposed to read them narrowly and quite frankly narrowly true narrowly against the government but the whole issue here stems from the reasoning for the suppression of evidence that was issued in the report and recommendation by ma the how how the warrant should be what went into the war and what they took once they got the word and that the that is short years for which he was sentenced are based on the material that they took not on the initial complaint by the by the one witness it was based on what they found in the arms and if it was if you had ineffective assistance of counsel in that litigation well then i think there is an aspect of preservation with respect to the fact that it has been and is being a raise on the direct appeal so without knowing what the hay vs argument is going to be it is difficult thank you your honor my concern is about whether this can be raised via hay b s is exactly what judge droney mentioned this court's case law regardless of whether the government concedes or or not certainly they could not assert an objection if  filed but this court case law is that even on a hate b s the only basis given the guilty plea that mr smith would have for raising ineffectiveness as in effect assistance of counsel would be with developed and i would say there's i do there's counsel gets to explain why i well i think you're saying i would say that this court has recognized one exception to that that counsel's generally does have a right to explain and that is where the record evidence before the court shows that what counsel chose to do or in this case not to could not be the function of a strategic decision if my argument is correct and that the warrant was facially invalid that was the evidence for the prosecution it's you can look at those computers and looked at the other charge that was asked for the affidavit we don't know why but there's some basis here at least to believe that it was before the issuing judge and then what about good faith and they said you can can you can look at these computers you get that warrant the police officer say well we have the authority to look at those computers i was at that clear who was at the end of the day his words say i don't think we're going to win on this was not justified by the probable cause in the warrant and the particularity requirement which is that the state court judge said you may see search for evidence of rape in the third degree that was the limitation they couldn't go then go and search  a completely standard they they didn't tailor it to this particular case but they grabbed right they grabbed you know the standard thing that they use in any case where for example you want to find drug records on a computer  of the rape and you now finding a horde of child pornography along with it you may have an argument that you can't seize it but then they go and they get another warrant and i know you have arguments about that too but i tend to agree with judge droney it's not obvious that counsel would have no strategic basis for thinking this is a loser and i'm going to pursue other arguments other challenge except it was one hundred percent clear that the franks argument was a loser and was so one hundred percent clear the counsel didn't even side franks there was no basis for arguing that the frank standard is extremely high there was no basis for arguing in this case it cannot looking at this record i don't think any reviewing court could reasonably conclude that that was a strategic decision here this can be decided by this court without any opportunity for counsel to explain to me counsel may have no explanation which would support your view or he might but you know it's not simply that if there is a a question we we leave it to haiti is the preferred that's exactly what went on here and that is that you know you were your church what you preserved as a challenge was that judge mccarthy and the district judge got it wrong on the franks hearing you on the franks issue you didn't preserve there were other issues that should have been pursued so i i agree that if in pursuing the franks argument counsel had failed to cite a controlling case or done something else wrong you could argue his ineffectiveness as part of the the franks issue should have been decided in our favor i'm not sure what you preserved lets you raise lets you say counsel should have raised a host of issues that were never  i think that's a legitimate question that the court has to decide my concern is that mr smith will be left with no remedy given given what happened in this case that that he ends up pleading to a plea agreement that preserves essential you know rights were clearly he believed he was preserving rights thank you your hon