not us told the last guy based on the fact that there's a perceived or we believe there to be a rule eleven violations such that there was not sufficient inquiry to make this court satisfied that it was a knowing voluntary intelligent plea specifically i think that the district court in essence challenge the fact that how he does pleas and how it's always been done in the court up there is that there is a  thereby it's incorporated that's the position of the appellant that that's not sufficient under rule eleven that there has to be a personal inquiry and it even compounded in this case based upon the fact that the allegations as set forth in the superseding count t do not allege a crime in essence he's charged with a violation of nine twenty four c based on possession of a firearm and ammunition and further ends of a drug trafficking crime from th e remember in this case the indictment also referred to nine twenty two right and it's oh i thought that was the impression i got was that there was some question about whether the defendant knew specific allegations indicating that he unlawfully possessed the firearm similarly when john coffin made a motion i'll be a pro se to withdraw its plea of guilty he specific fully address the nine twenty two g b and of failure to for the government to allege the nexus with the interstate commerce so thereby the record is clear that he's indicating he believes that he's playing to the nine twenty one g one in conjunction with the nine twenty four that if there are circumstances that raise a question about the defendant's understanding of the words we need to as a result of all these proceedings then that would be different maybe a different matter right and i think that that can all be solved by a simple inquiry what makes you guilty of these crimes but also with the court will look at the fact that the plea agreement is so confusing it alleges the wrong crime wrong section and in fact the crime that voluntary and intelligent in addition to that you know the court has indicated that it wasn't a person a violation of the rule eleven i believe that the question becomes is it sufficient just to incorporate and i don't i don't think that it is i think that the district court should have to make inquiry so that the court is satisfied that the elements have met so that the court is satisfied that a defendant is in fact  but maybe i mean personally i might agree with you i used to be that the it's up to the district judge really has to be satisfied that the district judge is running the operation and it's not just the government  that's correct and if you look at the other circuits and you look at the way but this court even this court has held that it's sufficient if there's some indication that a defendant in fact knows what he's playing into i don't think that the mouths of the words yes sir did you read you know the paragraphs is sufficient especially when the paragraphs in this case again delineate a crime that doesn't exist add nine twenty two g which in essence mr coffin by all accounts believed that he was playing to  in possession which was not the case so for these reasons mr kaufman is making a he made a motion and i believe that motion should have been granted additionally i would like to address the sentencing that occurred in this case  by all accounts the guideline sentence was a sixty month guideline sentence and what had happened is that the probation department did a calculation for a crime for which mr coffin wasn't connected at the defendant and the government neither of us were able to be heard as to how it jumped from a level twenty to a level twenty seven and if the court will recall that's exactly what the district court in fact relied upon in almost doubling the guidelines sentence so we're asking the court also to determine that that was an unreasonable sentence given what was placed on the record given the absence of what was i think your honor the pleased the court before the court considers the procedures that were employed during the plea the court has to decide whether the defendant's wave of his right to appeal his conviction should be enforced ironically oddly i'm not sure what the right word is but the one thing that was perfectly clear during the plea allocution is that the defendant had a very clear understanding of his waiver of the right to appeal indicating to judge sharp when judge sharp explained that if the sense exceeds one hundred twenty months you can appeal the sentence but not the conviction mr kaufman replied i can feel the sense but the guilt that the plea is still good meaning i'm still convicted is what he said so all of the claims that mr coffey now makes with respect to the allocution that go to whether or not he was properly convicted or precluded by the very clear waiver isn't there jurisprudence not necessarily directly on point but such that if there is  confusion some problem with the entry of the plea of guilty then that fact alone sort of trumps the the that the rule eleven violation should not undermine it and in my opinion well let me give you a hypothetical because i think it somewhat forms in line with what we're what we're looking at here you know i was told that i was going to be entering a guilty plea to x and my attorney said that was a good deal and all of that happened and it turns out all of a sudden i'm i am now guilty of something that i did not comprehend at the time now we we see those a number of times but that seems to me as a set of facts that puts it to play the viability of the plea agreement and therefore the waiver contained within it from the get go i would not argue if that's what occurred why is this case different from that this case is very different from that because the indictment alleged only  pled only alleged nine twenty four c violation in terms of the elements in the relevant facts in terms of the text of the yes on twenty two as a statute there is clearly an improper citation to nine twenty two g in the indictment but nothing about being a felon in possession of a firearm is alleged in the count was also it wasn't just in the indictment it was also on the player as a statutory citation but the plea agreement correctly sets forth the elements of the nine twenty four c offense and correctly sets forth facts that are relevant to nine twenty four c offense the ninth twenty two g reference is nothing more than a surplusage improper statutory recitation and and at the time of the please mr kaufman indicated to judge sharp that he read the plea agreement read the indictment win over the plea agreement with counsel understood its terms it was only at the time of sentencing which occurred some some significant time later that mr kaufman kaufman began to make allegations with respect to the citation to nine twenty two g but that there was nothing about that at the time of the what the other point is that as i understand it in the p s r he was he made points that the that the plea agreement that the of in question here was for protection in light of recent burghers and which is inconsistent with seems to me with use in further of the of the drug trafficking crimes and if that's the case doesn't that bear on this question even though it's you know if it it's it's a it's in the p s r if if the burglaries were not of marijuana deal marijuana where the proceeds of marijuana dealing then yes i would i would agree with you but in addition to that the factual basis for the plea it is in his plea agreement  kaufman agreed expressly that he had the gun to protect the proceeds of his distribution of marijuana and that was judge sharp to go over that very clearly with me at the time of the plea so even to the extent what mr kaufman might have said to the probation officer that contradicted what he said at the time of his plea under oath i don't think that would be sufficient to undermine the plea does it really contradicted or does it line it can be a line to the extent what was rob what was taken from the house relates to the trafficking in marijuana was carried on within the house that and that is what that's factually what occurred during the investigation and that's what you miss over your you're a trusted officer of this court can you just explain to me why judge shark has decided on this particular practice  whether any of the other judges up there in or the district do it i'm not aware of how anyone else that anyone else uses this practice this is the only time i've seen it you can see that when he judge sharp treated the determination about whether there's a factual basis by referencing the plea agreement and the way he treated whether the defendant understood the elements of the charge by referencing you please did if it's not in compliance with rule level then it is harmless error because of the statements mr kaufman they cough and made at the time of his entry of his guilty plea which was i did go over the indictment i did go over the plea agreement with my counsel and i understand what's in there so it's i think the record is clear that he does understand or did understand at the time of the entry in the plea what he was pleading guilty to with respect to the sentencing issue it is correct that the guideline for a nine twenty four c charge is sixty months but the commentary to the applicable guideline indicates that an upward departure may be appropriate if the defendant is not found to be a career fender which is the case here and i do have to apologize to the court specifically contemplated by the guidelines given what judge sharp said about this defendant's criminal history an up or departure was not an abuse of discretion and  corresponding offense level for career offender he essentially utilized the guidelines for being a phone in possession simply as a guide post to determine the extent of the departure and we submit that there was no abuse of discretion