court should dopped a same or similar standard that the rd circuit slick circuit and the th circuit have are right he adopted which is not that the pilot has to show that it's reasonably probable that he wouldn't venture to plea absen allocution but that there's a reasonable probability that he didn't understand that he had a right to appeal and that he was giving up that right and that analysis has to be made based on the record as a whole and under that analysis the waiver cannot be enforced in this case st of all the plea in this case took place immediately following a competency hearing mr crow challenges have been found to be incompetent right before the play out and the doctor testified that the question is was competent but that the doctor couldn't make a prediction about whether or not that would be true that it was a fluid situation and that particularly when this the coach and it was  tended to revert into into a world of fantasy but then we transition into the rule eleven hearing which i think can only be characterized as exceedingly awed st of all mr christian is repeatedly referred to himself said we knew it was wrong we received a single photograph on an august and we knew we were doing this wrong the other extremely troubling aspect of this ruhleben hearing is that the majority of the explanation to m district court was asking without checking with his attorney again that's a perfectly legitimate thing for an attorney to advise the client but when when the boy or is then providing essentially the explanation of what a waiver is  what a guideline range is does he understand if he's waving his right that doesn't provide this court with a basis or any one who reviews it was the basis for determining that mr christian is really knew what he was doing what was the waiting even at the at the very end of the plea allocution when the district court got to the point of asking you know i've just explained all these rights to you are you waiving these rights said what do you mean i don't understand that he couldn't understand a way for his court turning again in this again in something that is not on the record explain whatever he explained but the court is left with venue your green to pay one hundred dollars special assessment you're going to pay that by check certified check with one hundred dollars to the clerk of court before sentencing and you're waiting your right to appeal or bring the twenty to sixty five even th didn't say yes i understand all that he asked the court what the twenty to fifty five again the disick or didn't answer is we lawyers did in the off the record conversation so in this case unlike all the other cases that this court has considered police a lot of united states versus clock in each of those cases there was a basis for the court to conclude that even if there were some violation of you to comply and none of those cases were there the whole scale failure to follow the requirements were eleven but even in those cases there was some other basis for the court to conclude on the record that the defendant knew what he was doing to determine what standards should this court apply in these circumstances what substantial rights have been violated when somebody seeks to invalidate the power and i would suggest that the appropriate standard there is is there a reasonable probability shown on the record the defendant's burden account burden that he didn't understand what that he had a right to appeal and he didn't understand that he was waiving the right to appeal i mean that makes sense in this context the whole issue of rose and the those cases was when somebody speaks but invalidate their plea what do they have to show to show prejudice the show harm and it makes sense in that context that the show harm there you have to show that it would if i can play because if you would have taken the  harm completely different in the situation where what somebody is playing is i didn't understand and if you go back to d d the mental principle without waiver that is the basic ringback due process issue  is that if you're giving up a right d you as a defendant in the criminal case have to do with that right is you have to be told you're waving it and the court ringback ensure that that you understand those two things so i would it did have a financial benefit to him your honor and i could never serve the court nor could any lawyer what the government would have done is the reasonable for you to ask the question to conclude that that was part of of the bargain for the government yes but the government what what what reason do we have to think that it was not convinced it would think that it was there is no reason to think that it was not and had he gone hiking knowingly and i legitimately waived entered into that deal that would have been fine but the argument is that he didn't know what he's doing and he didn't know what he was waiting and that that or at least that it's reasonably probable based on the record in this case that he didn't understand he had a right to appeal and he didn't understand he was giving up that right so regardless of the benefit it was getting from that he still has to understand the terms and agreed to them but the judge told him he was giving up the right to appeal right to a fall of twenty dollars to fifty five dollars he apparently education does not understand our strategy of any judicial proceeding particularly a sentencing but the usual cure for that is there and he's got a lawyer understand your argument as to why that had happened here yeah ok your honor what i would say is that we don't know what his lawyers that because you never know i mean the lawyer was spending right there that was obviously a back and forth a discussion or a representation of i would judge johnson just said yes but your honor under that standard the just the court wouldn't have to say anything doing a rule eleven elocution because you're engaging in a presumption that the that the lawyer has done the court's job there's a reason that congress and the rule eleven you know give that that job to the district court  what was wrong absolutely nothing's wrong with it it's something i do every day when i take a plea what's wrong with that is that the just the court didn't then follow up and say ok but with your lawyer now are you waiting understand a waiver means you're not going to be able to do this later you're giving up your right to do that and it wasn't just with respect to the waiver really different from what happened because st of all the background going into this case judge the obvious difficulties the client was having this is not a normal situation where you know every i wasn't daughter never he was in cross it was every single fundamental issue the client had to consult with his attorney and many of the rights that he was entitled to be advised of he wasn't advised of on the record by anyone either by conferring with his attorney or by the just support so it is you or will you were able to really raise any issue you want to well what it what you're able to raise is that your waiver with not bow and therefore yes that would be a i think you could raise anything that is a waiver is not valid then you can appeal whatever you could have appealed anyway absolutely later thank you park no questions thanks i have a few questions for counsel let's assume for the argument this is a hypothetical but you prevail here i'm following up thing right so if you goes back why isn't the government entitled to reopen the whole thing i mean if if if if as you say there's some question of competency or whatever that the waiver provision not voluntarily and knowingly waived his right to appeal not arguing that he wasn't competent he's not arguing that he didn't understand but he fully what was happening he is saying that it is not apparent on the record and in fact it's reasonably probable from everything in this sentencing i don't think that we are in a position to do anything more complicated than that in response to your appeal assuming that you possess in that respect this matter goes back to the district court be a number of other required steps and he does that and then he lead him poses a sentence is that right yeah are you sure that this is in your client's interest you were going to argue that the sentence wasn't substantively reasonable is that right yeah and wasn't procedurally reasonable post it turns out that the judge had made and the government has an opportunity to respond to those arguments right yeah well as it turns out that the judge johnson this made an error in the government's correct can you then impose a higher sentence circumstances would decide do we you know and if i can just clarify one point your honor i think i was with understood i'm not saying at all that the judge johnson would retaliate what i'm saying is but he could you've heard from you and from the government and what if he doesn't he decides not to go below that calculated guidelines you would have no trouble with that would you because the presumption is that the guideline and you will have convinced him of that and he no longer he may not be interested in in providing any further benefit to your  client presumably he provided a benefit to your client when he imposed a sentence substantially below the calculator guidelines now that we're going to recount here the guidelines and he may just decide at the impose a sentence less than apparently prescribed by the apple core guidelines that's a part of the issue on appeal is the absence of an explanation for this but what the what such johnson did say is that he considered a psychiatric report and all the other evidence in the case for all the other relevant factors in the case and that was just that but there is no doubt that he imposed a sentence  understanding the risks and rewards implement permutations of the appeal then he was certainly able to understand the the appellate waiver that he entered into as part of his written plea agreement the challenge to his sentence procedural or substantive error i want to speak st about the waiver itself because the record is clear that he knowingly and voluntarily waived any sentence below two hundred and thirty five months at the outset of the start out the proceeding by identifying himself as we he was asked about medications that he took he gave very thorough explanations about what he was basing their effects on him but the mind was clear and he was able to proceed once when he didn't understand something and counsel as as he was supposed to do explain to him when he was unclear about something i think to suggest that something the feria went on outside the record when his  court appointed lawyer is doing exactly what he is there to do during a plea proceeding i think is wrong the strange mannerisms that he exhibited during the plea were really not strange at all to me notably dr testified at that hearing stated flatly that he does not suffer from any psychotic mental disorder he does not have any dissociative phenomena i believe was the term this that was actually done over the course of one monk said which is by far the most comprehensive evaluation d of the defendant during the pendency the case said that he had an extreme exaggeration of symptoms and that he during the police proceeding was really of no moment for the participants who were involved because we had just sort of very thorough explanation about where it comes from and its relevance and it really has no relevance so i don't think there  knowing and intelligent waiver that he made and certainly don't call into question that we as a whole which as your honest point out counsel is not asking for if it's interesting that all of the instances where the defendants capacity a production count which was completely supported by the evidence in the case it was certainly not done for evidence sherry reason so that was part of the bargain for exchange and now the defendant is trying to get another bite at the here turning to the procedural or substantive error if you look at the sentencing transcripts the government and the defense and the defense counsel had had agreed on a guidelines range in the  somehow unaware of the guidelines because a really what the ministerial error and me in the statement of reasons it simply doesn't say that you know because the advisory ranges over the statutory maximum that the effect guidelines range is two hundred and forty months if it just doesn't make sense when during the proceeding itself all parties were clearly on the same age and there was no objection by counsel when the statement of reasons came out shortly after sentencing the the the the the the p the court adopted the p s r without error which which did accurately state that the effective guideline range based on the statutory maximum was two hundred and forty months but this is really neither neither here nor there the fact remains that the they've been of reasons articulated why the court decided to vary down there is just no substantive error and the idea that mr could chinese is case and the sense that he received should be considered among the collection of cases where sentences are hypothetically i think again you have to look at each plea proceeding on its own i think that that's a difficult question to ask i think it's it's markedly different from what is being asked of the court here which is to it i think it's it certainly could but i don't think it would carry the day on and on a on and on and appeal waiver i don't think it necessarily undermines the vala knowing and voluntary and the of the waiver certainly in counsel seems to be arguing that that putting all those together was somehow confusing to mr cripps fairness and i think it's notable that he asked will look to twenty to fifty five when that when the court used that vernacular in the context of the the appeal waiver so this is this is someone who's clearly aware of what's going on and when he doesn't understand something he asks about it and honor thank you i think the last question posed as where i'd like to start which is is there some standard level below which the requirements of girl sixteen have have not been met that that it is other rule levon hearing i'm sure that before this court in addition to that the point about about everything taking place off the record is not the coach and as a lawyer shouldn't have been stepping in and helping clarify what they given the state of the record in this case it's impossible to determine what mistake the chinese understood and that not just in general not just all the theoretical or technical rule levon violations but that's all with respect to what the support for that because several minutes later closer to the end of the roll evan hearing the difficult judge says he understand now quickly talked about all these right you're waving and missed the coach shown i