the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court order is in session is never mind proceed but there is a bit of an uphill battle and the absence of an evidentiary record on this issue yes it is usually is the case that this court and other republican or its have refused declined to rule the record an attorney is an effect but it is our position here that it is clear on the record that this person to person who represented kimberly kept the was not a defense lawyer did not work are you sure about that because well let me just tell you why i say that you know that you talked about his website so i took the opportunity to go to his website and it does represent what you say it where it represents but there's also some indication that he may have been a public defender before  a different website and so that's that's the problem with not having a thorough record here because we just don't know what his background set is well judge regardless of what his background is his performance was as if he were a potted plant and it during the plea he allowed his client to plead guilty and not understand the terms of the the two year cabinets do you understand  your client is running by urging us to decide this issue and a direct appeal your client may well be in worse shape than if there are further proceedings where the evidentiary record kept being developed just as judge thompson has suggested and i have you in fact discussed with your client the risk that your line of argument poses well the risk i suppose the question is have you noticed just with your client yes the risk my colleagues are suggesting that seems highly unlikely but i'm in it that that is part of the show we have to make that you know even to get us to remain for the the trial court to consider police i think that the record shows that the court did not explain to miss kits that there was necessarily going to be eight consecutive two year term transcript throughout the proceedings in which your client was in fact advised that this was not on or after sentence that it was a consecutive sentence so before you proceed to on out you better address the fact that the transcript does not support your claim the transcript does not support  prosecutors claim that miss kits was advised that this was a consecutive sentences and the guy just very frequently use the term on or after the judge also use the term consecutive so is your argument that your client college educated woman not have understood odan and after meant consecutive or consecutive did not mean on or after there was no place in the transcript where she the judge said consecutive when describing the acehnese so your argument has to be that when the judge uses that phrase on our after bad is and an adequate explanation of the term consecutive is that correct well yes it's inadequate to tell you the truth i've been practicing for forty years and the criminal appeals and i did not ever hear the term on and after before reading it in this record so yes i did not know that term myself i use the term consecutive and with a client i would definitely use the term consecutive at one point in describing the charge the judge uses the term not concurrent but in making sure somebody understands the charge the nature of the charge and with the sentence that is going to be imposed this judge did not do it and that if there's fair and in my view is inadequate  evidence on the record that the lawyer knew enough to advise the client but excuse me there is an adequate evidence on the record and you are pursuing and affect assistance of counsel claim in the face of a representation to us that there is no record as to what defense counsel in fact advise the client and your client at sentencing did say that she had been advised of the consequences including the sec and then saying arranged by her counsel yes and pursue priem couric has said that the statement about satisfaction with consul is really not to be credited because the the what's important is what happened i think the sentencing represent you don't know what happened the ready i don't know what happened i'm an appeals lawyer i was appointed by this court to represent ms keates after appeal and all i know is what's on the record that's all i know so although i have spoken to my client and i know what she says judge i was a printed by this court to do the appeal we are saddened that i am asking you as a palate counsel of the basis for your assertion that we should rename and when you may no i'm not avoiding the quite is the case law saying under the circumstances we are obligated to remount there is nothing that says you are obligated to do that masako the supreme court said that you can handle ineffective assistance of counsel cases in three different ways you can either decide it on the record which is not often or you can dismiss it for twenty dollars to fifty five dollars or you could remain and to develop a record now that it's what i've asked it for because in twenty to fifty five's and again i've been doing this for a long time there is no right to counsel so many clients that i've seen district court and that is really the only reason why i have suggested that in this case because especially during the sentencing the lack of preparation the lack of participating in the sentencing proceeding in any way that assisted his client is so obvious that in developing the record in the district court in the two thousand two hundred and fifty five miss kid should have a consul that's really my sole position but and yes our case law says that we can't do this but it would be helpful if you could better address judge le pen this is question to you so we can understand the prejudice that you are legend here the prejudice is hard to say when there's no council and that's why some of these cases say that when there is no counsel whatsoever prejudice has to be presume very good things to say i don't know how we can say that it didn't prejudice the client the defendant when nothing was done to mitigate the s all that's the position that i have perhaps the plea even if the plea is valid the sentencing there was no advocacy whatsoever and i've never seen a case like that frankly which is why i suggest that on appeal the court can take cognizance of the fact that nothing was done in mitigation and yes the prosecutor says well what are you going to show for prejudice but the fact is you know in every case in every case somebody is convicted and their sentence and you can say well what difference does a defense lawyer make anyway but i suggest that a defense lawyer who does his or her job and presents mitigating really she would like at least a new sentencing to she can i don't know that she would want to withdraw our play she did not move to withdraw her plea she knows that she did something wrong cheer good like a chance to show the court that she shouldn't be punished like this that's really what it is i bring brought on this appeal the fact that this that the judge never told her about all the the add on time and once again i'm sorry but i never heard of on an after time myself maybe it's something used here and i don't know but it's not in the district of men i don't usually practice in the district of massachusetts so i don't know who uses what terms there but what i'm familiar with nobody's ever used that term for consecutive time but missed it doesn't count the government u think believed that at least a remained for a new sentencing proceeding should be had where counsel can actually advocate for the client what's the prejudice the sentencing at least here because the defense position just was not presented anything else i think not but i think i'm a defen lawyer has to be more than a potted plant and that we've passed the for farson mockery standard and i don't think you can even say that this was a reasonably reasonable defense presentation video at this time and attorney bloom please introduce yourself on the record good morning your honor sara bloom on behalf of the united states may please the court i would suggest that in the reply brief for  the st time defense counsel it raises the argument under cronic that there was a complete lack of counsel below and therefore that pages need not be shown this argument fails for at least three reasons it was waived because it wasn't raised in the opening brief it is an right because it was not developed in the record and in fact it is without merit because i would argue that the record below actually demonstrate that counsel was effective and was vigorous in defending his client in his own way and in fact successful in not only having her interplay which got her acceptance of responsibility  credit but in advocating for based upon her personal characteristics in more than ten pages of the transcript it reduction in her guideline range and received a substantial variance in which judge kasper noted the very factors that had been presented by the defense counsel ms gets his personal history her substance abuse issues her issues with her st husband and abuse her issues with eight busa where a friend her medical history her the fact that she was the sole caretaker of her mother that she and her mother had serious medical issues although this was argued at length by her counsel in addition to her genuine remorse was considered by the thirteen years with respect to your question about what was said record below in fact this kid was informed in various forms repeatedly about the nature of the on an after or not concurrent time during the police hearing the court asked the government to state the maximum penalties and the government said that there would be always the possibility of a five k motion so even though it is a mandatory on an after it is not it would not even be correct for the court to say that it is necessary and i would there is no possibility that it could be anything else because there is another possibility the possibility that was in discussion in this case of cooperation and five k although that did not come to fruition so i think that what the court said here in explaining the  and so both the defendant was informed by the government at arraignment by the courts request to the government at sentencing and then the court went through there and reviewed those and explained those to the defendant and i would argue that  no the objections were filed to the draft yes our yes our issue no sentencing memorandum was filed and then at the sentencing the counsel offered and the court received some medical records some be a dispute about these letters defense counsel says that the counsel did that present letters and you say that that's an accurate maybe i can clarify that i think what defense counsel means is that they weren't filed before the sentencing date he didn't seem to be a plea on there was a discussion during the sentencing the defense counsel mentioned that he had some letters and  indicated that she would take the letters and did take the letters but there were not final that in the ordinary course before the sentencing but i don't think there's a dispute that in the end the court did receive the letters did consider then and reflected that the court considered them in the sense in coming to the set and they were indeed that also referenced by defense counsel that one of the letters talked about miss kids his care of her mother and how she had been there to care for her mother in a critical moment not at least i can't think of anything and i think that but i think if you go to the strickland standard it sort of addresses what the issues are here which is because that is it least on this record it is actually clear that a lot of advocacy for her it may not be the most conventional advocacy but the strickland standard requires st of all that the advocacy be outside of a reasonable range of professional choices and i think one could argue here that actually discounted was that if in his genuine concern for his client in his very not traditional manner  you could possibly meet either the argument that this was simply in the active that met the standard for be outside the reasonable professional performance let alone to show prejudice where the information was there before the judge it was argued before the judge in the judge specifically noted on the record that she consider all of those factors and actually i hear there read downward in it to a significant degree to mr gets his benefit client who was in so much trouble and so it was to show remorse to show xstrata explain create some sympathy for her which i think he did quite effectively and again without a developed record  and on a good record it may be left evidence that it was in the room but i think one also knows that eight judge takes into account the totality of those facts as judge caffrey did here in  excepting the letters even if they had been filed and considering them and making sure that the judge came to a fair sentence based on the actual facts of this person which were truly presented in that courtroom so i just don't think