benefits that might accrue from the district judge in denying the twenty to fifty five first seem to indicate that there was just there is no duty on the part of counsel to discuss a plea with the defendant if the government doesn't offer a plea agreement and i don't think the government doesn't seem to be defending that position in this appeal because of course the lawyer the duty to discuss with his client the option of pleading guilty regardless of whether or not the government is going to offer a plea agreement because there are still benefits you may be able to receive by pleading guilty regardless of whether there's a plea agreement now obviously the most the most obvious one is the getting three levels off for acceptance of responsibility of talk some more about that but beyond the acceptance of responsibility every our entire criminal justice system the sentencing part sort of reduction but still brings him down to the three hundred sixty months well he was that light and i'm going to trial and that was an error a factual error that the district judge made in his ruling on the twenty to fifty five now it was i think based on a statement that the government made in its response to the twenty to fifty five it and i'm not intentional i'm sure but they suggested to the judge that mr hicks was guideline range at the original sentencing was three sixty to life in so even if you pled guilty got three levels and went down to three sixty to life that wouldn't have changed its guidelines range which is factually in accurate his guideline range at the original sentencing was a lot and judge  more weight the argument about that we think that he has some rehabilitative potential if you've come in and pled guilty instead of done and doing a multiple week trial and even under the thirty five to three a factor when you're looking at the need for specifically turns and the history of characteristics of the defendant the fact that the defendant came in and pled guilty versus going to trial is just an issue even before the guidelines existed in this case there's no evidence the government would have given him the third point and it's speculated pretty would have gotten the first two even if he had played pleaded guilty it is somewhat speculative anytime you're dealing with the ineffective assistance of counsel claim you're trying to gauge prejudicial you you can't go back in redo it and know for certainty what would have happened had there not been ineffective assistance of counsel and that's true but but even if he hadn't gotten the full three levels off i would submit to you even if his guideline range was still life the fact that he pled guilty rather than going to trial would have impacted the sentence that his sentence most likely would have been lower ages i've been doing this with the judge to close that sentence so it wouldn't but the judge when he said that he was under the misapprehension that the if he was that he would have been at three sixty that he wasn't three sixty to life and the judge chose to sentence him to three sixty and that he would have been reset in stem to three sixty to life and ended the i think with those errors and a lot of themselves would cause enough concern to send it back because he just he's we send it back to the attorney who's died the district judge who's retired i'm trying to imagine what this hearing would be like well look i understand those but i want i want to put out some timelines for you mr hicks filed his his motion did you answer my question yeah if a different judge is going to speculate about what happened but that can't be mr held against mr hicks he filed this in twenty fifteen and he filed it the disc were ruled on it in may have twenty six team defense counsel died in may twenty seventh it can't be held against mr hicks that defense counsel died a couple years after mr hicks filed this twenty two fifty five petition and so i understand your point judge and your concern but i don't see how the fact that defense counsel has passed away and judge zagel has retired would be a reason to say even though  were got to forty five when he said in the sentencing transcript that he thought that the the right to appeal sort of the forty six and he said he was accepting survivor and nobody objected to forty six with the defense counsel file a commentary saying he wanted evidentiary hearings on the drug amounts but then puts a sentence in that says today look at me and did anybody object to the forty six hour i don't think so but  but what i noticed in preparing today is there was actually two sentencing hearings and we don't have a transcript from the first one the first one was on june twenty eighth of two thousand and twelve and this is one of the it's on a documentary on the docket she and then you have the july third two thousand and twelve and that's why on the july third twenty twelve which is when we do have the transcript of judge eckels says as ice told you i would i went back and re read the pre the pre sentence report and i apologize we didn't catch that earlier order of the transcript of the june twenty eighth hearing but we didn't know nobody else did either so i don't know if something happened during the course of that that led him to forty five it could be that judge is able misspoke and said forty five instead of forty six but you know the government used the forty five in the response it filed in the twenty to fifty five case it used the forty five to calculate that will haven if you pled guilty his guideline range would have been that he would have gone down to forty two in a forty two and a six is three sixty to life which is of course less than the life range they faced after trial if i could reserve  calculations of his gun range were correct so the guy was forty six doubt george segal did say at sentencing that his guideline was probably forty five but it didn't matter because the front of the judge according to the guidelines the table the defense level maxes out at forty three so he wasn't required at the sentencing hearing to decide whether it was a is speculative as church cites you point out that is he would be required to accept responsibility and that's not a sure thing with it with any defendant and particularly with mr hicks and it's not a sure thing that you were would have received the third point for a timely plea the government's instance but even if he had it is his range would have been still life in prison because his guidelines would have gone from forty six to forty three category six and the only potential benefit that's been pointed out so far is that mr hicks would have been would have gone into sentencing  having pleaded guilty rather than having gone to trial and perhaps that's a benefit perhaps not perhaps he could have said that you know i'm i'm a remorseful man i accept responsibility and so on and so forth but the district court explicitly said twice at least in his decision denying the twenty to fifty five motion that hicks would not have thank you thank you pat anything further because he was that life after the trial he wasn't three sixty to life and you know i've been doing this for a while in the trial courts people who plead guilty get lower sentences than people who go that especially since the guidelines it's it is the built in ingredient of our sentencing scheme is that if you plead guilty and accept responsibility you are entitled to a lower sentence than someone in titles the wrong word is it it is more likely you should more likely get a lower sentence if you truly accepted responsibility it as part of that guilty plea and save the court and the government the time and resources for doing  to be a much stronger argument if you've accepted review pled guilty and accepted responsibility then maybe you get them in the minute and the twenty five years may the judge says hey i think the twenty five is enough and you know five years is a long time  would it be correct under your position that a defendant who goes to trial and is convicted who's entitle to an evidentiary hearing under twenty two fifty five as long as he signs an affidavit saying my lawyer didn't tell me  conclusively establishes that it's not true then it's not then you don't automatically get the hearing your honor so it's not automatic thank you very much th