evaluate the acceptance of a guilty plea pursuant to rule eleven requiring a critical examination of even slight deficiencies in the proceedings here the district court entered into material matters first to fail to make a full and complete inquiry into a mental status and second the court failed to advise appellant that the sentencing guidelines were advisory and imposing sentence the quote was required to review the factors articulated thirty five fifty three and most significantly it had the power to following the review of those factors to very above the advisory guidelines range the circumstances the plea here we can i ask you to looking at the record it seemed it seems to me that the district court did what you say district court didn't do that actually it did not district court inquired about it in the mental facilities about the medications  not a problem well actually the problem here is the unique nature of the proceedings the proceedings commenced with either this was going to be substitution of counsel or setting a trial date but yet in the middle of the proceedings or rather quickly into a two pages into the plea proceedings to the surprise of all in the courtroom the defendant elected to accept the plea or for that was being made so it was an unusual circumstance to begin with second with respect  client's mental state this was an unusual situation because mr de silver came into the courtroom in a wheelchair he was non ambulatory he was taking both anti depressant and anti anxiety medication as well as significant medication for purposes of the pain he was experiencing from the injuries to his spine the court asked and this is in the appendix and no your honor defense counsel no your honor the court goes into an extended discussion with the defendant about his  medication uses when you take this medication does it affect your ability to understand what's going on around here the defendant sometimes yes how about right now not right now the defendant says the court you're able to communicate with your lawyer even when you're on the medication yes ma'am but i believe the response that your honor is clear first counsel stay in the page a sixty six of the appendix that he did not know th of medication mr de silva received he couldn't tell the quote what it was the court didn't know what it was his client with an r q that was diagnosed by dr drove as being one of the levels love level seventy six and being diagnosed with both anxiety disorder emotional disorder inability to be able to coherently speak the propre time these were the kind of things that to rely upon what the attorney not knowing what the medication was or the court being in a position to know what was taking place with a person who was an object of lee ill and prior existing anxiety and depression issue mandated if there be a much further inquiry particularly under the unique circumstances of here where the individual comes into the courtroom in a wheelchair about to seek new counsel and instead the sides in the middle of the proceedings that he wants to enter a guilty plea resulting in a german so counsel could speak to him further about whether that's in fact what he wishes to do that the quote was on notice at that point to really make a detailed inquiry and they actually didn't rely upon the defendant's one guest of this past year where the time oh i was i was i was substituting the c g a counsel after the defendant indicated that he no longer had confidence in his district would counsel and that's when i reviewed the record concerning the events that took place what is it that you want from us that is what the what the created if you could fashion it yourself that we should enter brass king the quart to enter in order in this case extensive treatment both psychologically and physically that would place him in a position to be able to make a complete informed election as to what he would like to do at what point did he raise this  with the defendant in the m c c before he was designated and that that time he indicated he no longer had confidence in counsel and he wanted new counsel to be able to handle the appeal of the matter which is in this particular instance significant because just previous sentence that was above the guidelines correct yes yes that was a surprise to him yes in fact it's rather unique here because the guidelines here weren't really guidelines it was a set sentence of one hundred twenty months  as a result of that there is an unusual circumstance and typically if you look at the record in that the parties are all agreed that nobody would move to either a departure or an upward or downward areas in addition spotted by the court yes and then that this but then the district court it's a a number of occasions that would not be balanced actually a close review the record indicates what the district what i understood that it the court said that it would determine the appropriate sentence and the sentence could be different from what the parties at thought it well might be absolutely  however it stated in the context of an evaluation of the guidelines not in the context of a discussion as to whether or not the court sue a spot they would be able to vary upward up to what the maximum potential se the vast majority of that had to do that he waited until he was sentenced and he got he got the hundred maybe moms were that's correct above the guideline range of one hundred twenty mins which was a minute i think it's been pointed out here a given his mental state or physical condition was not reviewing the minutes of the proceeding to determine whether or not it was effectively but more significantly he had been advised by his counsel the guidelines are going to be one hundred twenty months everybody understands it's one hundred twenty months nobody's moving for an upward or downward variance here the probation department recommended a one hundred twenty months it was so the only documents he'd actually seen in between was the p s r of the case so we had no reason to think in any advisory that the quote was required to review the thirty five fifty three factors and that it had the ability and the power to vary upward that was never stated to him and but for the fact that those things were in a sentencing commission and submission as evidence of his remorse and maturity he did in fact that was submitted months after the plea was entered and that was as a result of the fact that counsel for it was very important for the court to be able to see the report of dr drobe the forensic psychiatrist but reflected the fact that the pallant had a seventy six i q and had significant psychological issues but a quote to consider which are factors that certainly should have been taken into account at the time the plea itself came into play my final argument being in substance and summary that in looking at plain every view there is a clear error here if you look closely at the requirements that this court has imposed on the laura for a very strict scrutiny of what takes place in district court and that's not done in a vacuum it's not just on the record it's who's coming into court what's taking place every single plea is unique in of itself every single one is to a spontaneous and that's the reason why and it was too generous rather and that's why in every single one of the proceedings the court is required to follow very every just about every district judge in the country has a checklist of things to raise in the room in a change of  what is it that she didn't have on her checklist what should she have vetted what is it that you would want her to do if we send this case back there i would say in the approximate twenty years that i thirty years now that i've been on the c j pa probably taken about since post book or two hundred please a portion of the colloquy that she did not include that i think should be included in all times all the three things that i raised that the guidelines on not mandatory to i must review the thirty five fifty three factors and they are one through six and where they fall into play and i have the power to vary  only based upon that those are the three things not and not none of those three items or matters were part of this record at any time completely devoid wallet while the government is certainly going to get up and say it's in the pl agreement or had he read the riemann and he signed the agreement she did that right he did but the difference here is he came into the courtroom not anticipating to plead guilty and somewhere along the route in that courtroom that changed so that in the gates but took place maybe i'm not sure about that i mean with the plea agreement reduced to writing wessels yes was the plea reman submitted or or conveyed to the defendant my understanding is his are that they were was there a statement in open court by counsel and or the defendant that he had read the plea agreement yes that he understood the plea agreement yes again though that gets to the question of the rule eleven proceedings themselves on the loro requires a very strict scrutiny of the actual proceedings themselves and to look very closely as to whether or not there are any deficiencies in the pleading in the courtroom itself and those are the reasons why i asked at the court to consider in its decision in this case setting forth for further use on pleat provisions and at the time that will levin proceedings take place that the specific questions that you would ask be included in that good morning america please the court my name is hagen scott and i'm assisting the united states attorney in the southern district of york i represent the government here and i also represent the government in the court below because the district court fully complied with end because the defendant's plea was knowing and voluntary the judgment should be affirmed i'll start briefly on the medical issue i think largely for the reasons reflected the colloquy there was a foal a discussion of any medical issues and any issues with the medication itself should it have i don't think that's necessary or honor and in fact in the cases cited by my adversary for example in t n and resell oh what the court says is the district court needs to inquire as to the effects on the person who is it belittled to understand the inquiry is do you know what's going on not a catalogue of medications here i think in fact the inquiry was was one better although neither the district court nor the defense attorney knew specifically what medications were being taken on page sixty six the appendix you can see the defense attorney had actually spoken with the defendant treating physician and was able to give the district court assurances both as to the medications of fact and as to the fact that the defendant al suffering from depression and anxiety wasn't suffering from some more serious mental illness that would really cause perception problems so you know having a defense attorney recite medic medicine names doesn't add anything because neither courts nor lawyers or medical experts i think it's actually far better here for the for the attorneys that i spoke with his doctor i have no concerns about his ability to perceive based on consulting with somebody who is a medical professional so i think here the inquiry was entirely sufficient moving on briefly to the guidelines issue just  of walk through that i think that the district did say essentially all of the things that mr nelson suggested should've starting at page seventy three of the appendix the district court says by pleading guilty or exposing yourself to the possibility of receiving any combination of punishments up to the maximum that i'm about to describe six lines later the district court says the maximum term of imprisonment for count for the county was pleading guilty to is life do you understand that yes then moving on four pages to page seventy seven the district court reads rule eleven b one am almost verbatim makes it a little more colloquial to include a specific reference to saying in which the district court said she would determine a reasonable sentence for you based on the sentencing factors contained in a statute called eighteen united states code section thirty five fifty three a do you understand all that to which the defender replied yes ma'am don't see how that could be plainer than continuing on on that same page and i think you're on to refer to this the district court judge says both that nobody can predict your sentence and you may be surprised by it only i'm going to determine your sentence and further cautions the defendant similar what about your adversary's view in response to judge who promises questioning that with respect to the section three thirty five fifty three a factors that there needed to be more  discussion more detail as to each of those factors i don't believe that's a requirement it's not in the rule i'm not going to speak from experience to you but i certainly this is this is the checklist that judges use again and again i think it's permissible as judge nathan did to say look if you discuss this your attorney have you gone over these factors in detail with your attorney there certainly is room for an attorney to explain things and then to finish up consist with judge his inquiry at page seventy nine  that the district court did indeed ask have you read the plea agreement have you reviewed it with your attorney do you understand it and that is important because the plea agreement also says that the officer is not promising any sentence and that the defendant offered use to writing day of pleas were not uncommon in this court firm many of them here however the this appearance was scheduled as a change of pleas hearing a week in advance the plea agreement as judge processed was reduced to writing and you can see the date on it is a day in advance so this is not a spontaneous decision to plead guilty it is true that on the day of apparently mr de silva had a second thought the government filed a quick letter to judge nathan and said do you want to postpone this but when mr civil showed up in court and had a chance to speak with his lawyer he said you know i want to go forward with this plea i scheduled last week that was reduced to writing yesterday so this is not a spontaneous or last minute decision not that i think it would matter if it was i'll rest of my research  in rather brief response to the government's position on this case was indeed sui generous because of the procedural history he had requested new counsel he then stayed with counsel he then requested new counsel again he didn't want to play he wanted his plea he didn't want his plea he wanted his plea he said the minister capacity wall the government points to the fact that questions were raised concerning medication and that the attorney in the case did that he spoke with the doctor concerning his mental ability the attorney very clearly spent state to page a sixty six that oh i do not know the specific dosages what types of medication or the panoply of all of the medications that he's taking and that's where that they have a medical here is can he understand what's going on at the time i thought nobody in that nobody in the room would be capable of saying oh my god it's sixty milligrams that that causes a person to be unable to  function you know away so what difference would it have made just knowing knowing either the you know the the the name of the medic medication or the or the dosage it's not the name of the dosage it's the combination of them when you taking and thought a minute ago says that if you're taking anti depressant medication anti anxiety medication to that end significant pain medication it's at the same time he knew that everybody knew that back and they relied upon statement that this is fine and the defendant who is of the who has changed his mind three times in the last four days i understand very clearly their lives and it's our position that under the circumstances here we have the quote failed to articulate the thirty five fifty three factors in the the very thirty five fifty three factors that the quad then really wide a point for purposes of enhanced sing his sentence had that been done then there was a reasonable probability that the defendant would have really thought closely about what he was doing but that wasn't stated rather what was stated and i'm going to look at the thirty three factors as well thank you thank you thank you both for your