option counsel performs deficient leigh under the th amendment that has been the law on this circuit nearly forty years and the supreme court recognized that principle in missouri the fry this case involves a straightforward application of those precedents there's no analytical difference between failing to tell a client about a fee offer which is what occurred in frye and failing to tell a client that he made guilty without a plea agreement before trial which is what occurred in this case both failures deprive a criminal defendant of the chance to make an intelligent decision about whether to take a potentially favorable plea option i'd like to focus my time  the evidence missed and judge ho is three fold st at the evidence sharif hearing mr y testified that he would have pled guilty before trial without a plea agreement if he knew that that was an option defendants do that they wanted their day in court and therefore it really didn't matter what the plea discussions right of the jail yes judge poe and that conclusion by the district court is subjected to no review and here is why the district court did not apply the a full complete and a little framework for the question of whether counsel's failure to advise in a opened the prejudice that offended the district court concluded that mr white was not prejudiced because he rejected the government's plea offer however the district court never asked the relevant question in this context which is whether but for counsel's failure to tell him that he could enter an open plea whether mr white deficiency is properly before the court the nd aspect is whether the open to the claim if is properly before the court and i think there are two independent bases for why the open sea claim is properly before the court st under jones  defendant advances multiple bases of ineffective assistance of counsel in the trial court and then the see a way is issued on ineffective assistance of counsel of counsel claims without distinguishing between the bases and this course that adjoins became that  defendant may advance all of the bases that he advanced in the trial court on appeal ok but is that this case or the end of pardon me if i'm it may be that i'm misreading the record in which case i want you to correct me if i thought that the c e o way covers only coun a for two reasons one is under john speaking as i mentioned under john's became this court said that when a defendant advances multiple bases of ineffective assistance of counsel which is what happened here and then the sea away doesn't distinguish between those bases and that all of the bases are properly before the court secondly the court this court held income margaux that if an issue is sufficiently interrelated to the certified issues then that issue is also properly before the court so those are two independent reasons for issue because that is what the government has focused on in its briefing and the government has raised two arguments one is that as judge hill mentioned that the district court found that mr whyte wanted to go to trial and secondly that he would have been worse off if he had pleaded open before trial versus taking the plea offer and as i mentioned before both of these arguments rest on an include incorrect analytical framework st the district court's a  position conclusion scuse me that mr white wants to go to trial again that's subject to the noble review because a district court applied incomplete and a local mark the proper test is is not whether mr white would have accepted the plea offer which is what the district solely on the question of whether counsel's failure to advise of an open he did this mr y and the proper test for prejudice is whether mr white would have answered that open plea but for the  accepted that would have been worse off if he had taken the open plea as the plea offer the question is whether mr white would have been worse off going to trial versus entering at the open plea and there the answer is yes mr  because if he had entered the open plea before trial the government concedes that mr white would have received at least two points for acceptance of responsibility we think that there's a basis to argue that mr wh could have received the full three points that is reflected in the rd circuit's decision a booth however even if we concede that the government is correct mr white would have received only the two points mr white's new sentencing range would have been between two hundred and ten months and two hundred and sixty two months the government concedes that in his letter bre in comparison when mr white went to trial and i was convicted his sentencing range became two hundred and sixty two months so three hundred and twenty seven months so what was previously would have been the high end of his range it came the low end of his range under molina martinez when a district court or uses the wrong sentencing range that is enough to establish the reasonable probability of harm from that error now molina martina's the supreme court of molina martinez of course  was decided in a different context that was decided in the context of challenging sentencing errors on direct appeal however this court has indicated has said that the standard of reasonable probability of harm in is the same as the standard for reasonable probability of harm under strickland and the rd circuit has also applied to the molina martinez standard in the context of stric terms and to go back judge to your original question about whether there is proof that mr white would have answered the open plea whether there is a reasonable probability that he would have what you discussed that briefly and i think the best case here for the court is really the last player decision in laugh flirt the supreme court agreed with the th circuit analysis regarding reasonable probability that the defended would have entered a plea of guilty before trial and the th circuit based its decision on two facts one at the evidentiary hearing the defendant testified that he would have pleaded guilty before trial if he had been correctly advised and secondly there was a discrepancy between the sentencing exposure he faced upon going to trial versus the sentencing sentencing exposure that he faced that he would have faced if he had pled guilty for trial that was enough in the th circuit save you to establish a reasonable probability that the defendant would have pled guilty before trial now the latter case is also very interesting for this case for another reason which is that in laughter or the defendant wrote a letter just like the defendant didn't this case and laughter the defendant wrote a letter to the court saying i'd like to plead guilty to a lesser charge and the government laughter said that shows that he was not willing to plead guilty because he was trying to plead only to a lesser charge the th circuit rejected that argument the th circuit said no the fact that he was trying to negotiate a plea is actually evidence that he would have pled guilty that he wanted to plead out and the supreme court agreed with that analysis another case that is instructive on the question of whether mr white i was there was reasonably probable that mr white would have answered the open it would have entered an open plea and very similar facts to this case and the district court made that conclusion based on the fact that mr that the defendants had told his uncle before trial that he wanted to make the government prove its case the rd circuit found that that was a clear error and here's why the rd circuit said that you couldn't at the time that the defendant made that statement and said he wanted to make the government kreutz case the defendant  all the facts he needed to actually make a clear decision about whether to plead guilty or go to trial he did not know for a while that he could actually plead guilty before trial and secondly he didn't know what the proper sentencing exposure he faced was a trial and therefore it was a clear error to decide that he wanted to go to trial based on that statement similarly here it would if iranians to conclude that mr w i wanted to go to trial simply because before trial key indicated that he was trying to negotiate a better plea offer in fact the fact that he had sent the letter to the prosecution before trial saying i'd like to plead out if the government could drop the sentencing enhancements and make sure the probation doesn't attack them back on after you've agreed to take them off that actually indicates that he was willing to plead and  simply trying to negotiate a better deal so in conclusion there are two cases that i think really are exactly on point for establishing that there's a reasonable probability that mr white would have answered the open plea l trial and take the risk of going to trial the client needs to have all the information that is relevant to his plea in order to make an intelligent decision that was that has been the holding the rule of the circuit for nearly forty years and the supreme court  there was no mention of an open plea and the big issue when this case was before the court the last time was whether the magistrate judge or the district court should have held an evidentiary hearing during that hearing mr white was a bully represented by james whalen who st question mr white about the possibility of an open plea and mr white then testified that he would have done that but what's interesting about this at the evidentiary hearing when you read through the transcript is he kept saying over and over again mr white from the stand his focus was that he would have taken the government's plea offer that was on the table and that mr windsor was ineffective by not telling him that by going to trial he would lose acceptance of responsibility and on that point the challenge in the appeal but the bottom line is that we think that the cia issue i mean arguably it's close but it really doesn't matter in this case in light of the district court's finding that no matter what and this was based on mr wenders testimony and all the circumstances that the evidence you're hearing mr white one was insisting on going to trial because he thought that his girlfriend would testify in his favor and he as you point out in the letter briefly wrote a letter to his girlfriend bertha may russell before trial saying just tell them or tell your lawyer that we just ate the pseudoephedrine pills we didn't manufacture them so he was banking on the fact that miss russell would not testify at trial that it can't be for us maybe do it in your experience should just write own information over a very common open pleasers why isn't there more along the i don't know your honor why there isn't more law on them i don't have percentage is a very common probably the majority at least in our district are pursuant to a plea agreement but it's certainly not uncommon to have open pleas the issue for the defendant as here is just that it leaves everything on the table so from the defendant's perspective they've been sent to try to get the government to release certain guide spline and hansen's that would apply in a written play agreement and then of course there's still no guarantee that additional court would accept the plea agreement maybe not the opposite of an open plea but certainly not open is the absence of offer why is this a close call well i mean mr white still could have entered an open play before trial i mean just go in there plead guilty to the charges  ineffective for not advising him of the possibility of an open plea before trial because that way he would have gotten at least some acceptance of responsibility but they're not going still about an offer as opposed to a lack of a plea offer right question will claim was whether the defendant's attorney had told him about the possibility of an appeal and talked with him about that and it was really the exact same issue i mean there's no difference between the cia and the defendant's claim here there certainly is a greater distinction because the cia talked about a plea offer this was a not about a plea offer and again it's really not even mr white's claim or at least it wasn't in the district court he kept going back and back to i would have taken the government's plea offer if i had known i would lose acceptance of responsibility and the nd piece of evidence that i think proves apart from mr lenders word that mr white was cure that the prosecutor can't bind probation or the district court even with the britten plea agreement certainly not with an open plea so that again shows look this guy wasn't going to go to trial no matter what and that goes also and i'm not going to agree to either of the enhancements and so what's present before him maybe in a perfect world he'd say yeah there's a possibility of an plea but it would be dumb for you to do it because you would only be guaranteed to acceptance point instead of three he didn't do that but that it it didn't matter because there was already better play on the table of mr white still than one except that one so that's really all we had your honour's if unless the court has any questions we just rest on our briefing yes and i think the case that is directly on point there is the busquets in the rd circuit they are the rd circuit said that when it is deciding whether to go to trial or accept the government's plea offer and the the possibility a conviction a trial is very high and counsel knows that his client does not want to accept the plea offer on the table then there is another option that is available and that is to advise the client that he may enter an open plea the reason why that is actually not a you know not a dumb option is because if the client does not want to accept a plea offer that he that's already off the table he's not going to get the benefits about plea offer and the next question is a what's his next best option at the very least if he pleads guilty before trial he will receive as the government concedes at least two points for acceptance of responsibility that is exactly the case here if mr white had pled guilty before trial he would have gotten th two points as the government admits his sentencing guideline range would have been better it would have been two hundred and ten months to two hundred and sixty two months as opposed to his sentencing guideline range upon conviction actually file which was two hundred and sixty two months to three hundred and twenty seven months that is why under booth it's very clear that a counsel had a duty to tell his client that he completely open it was a better option than going to trial at the very least it was an option that the client had the right to consider and to determine whether he wanted to take his chances and go to trial to have the maximum statutory as sentencing exposure in terms of the letter again the government argues that the letter casts doubt on whether mr white would have pleaded guilty before trial the laughter decision exact is exactly on point on this issue and the laughter decision says that no  defendant's attempt before trial to say to try to negotiate a better clear offer than what is on the table is actually evidence and willingness to plead guilty it actually counts in favor of concluding that there is a reasonable probability that the defendant would have pled guilty that is the what the th circuit found of laughter and the supreme court expressly of course read with the six earth gets analysis in that case on reasonable probability in terms of the cia issue and whether this claim is properly before the court i would like to make just two quick points there the district court allowed mr y because at the evidence you're hearing it was  why he did not rise his client on it when this was raised at the evidence you're hearing the district court the magistrate judge said this is an important issue it's probably a novel issue and i'm going to let you supplement the record on with additional briefing on this issue the government not object to the supplementation of the record with the open quickly and i think it's important to point out also that during that evidence you're hearing there was some confusion about what test for prejudice would apply give some thought to you i know that's how the test is written and laughter but i want to give some thought to how to actually applies in this context i think that that part of the evidence for a record helps to explain some of the way that