testimony and then of course the timing of the the change of plea colloquy and the acceptance of the guilty plea by the district so mr cates testifies that he both talked to him right after shortly after the change of plea hearing and then also describes receiving the letter from i assume the district court accepting the guilty plea that's assumed in the record shortly before he told his counsel so it is based on mr cute as testimony but that would be the primary evidence in any event what and why hasn't this i have a textbook example of why we need these things to be done under two thousand two hundred and fifty five it seems to me mr vander corey if he were asked to provide an affidavit or or have a deposition or anything of the sort i would be able to clarify or at least we get his version of when mr cate record to assume that the district court made such an obvious mistake i agree your honor it is it then record it is a situation where i made a judgment call about whether to raise it because it had been at least minimally preserved and that was part of here's the exception to his appeal waiver mr cates and i made the decision to raise it on direct appeal i think that the record could be fuller and specifically if we were able to go back in time with me i made the decision based on the record as it is and part of that is because mr case is testimony doesn't necessarily waiver at all and there is there and there's no dispute as to his testimony and the government intimate for that might have been mistaken or lying and there's certainly not a finding by the district court that that was the case but at that hearing part of our difficulty also is that his depart did not make findings on eleven do you want but may find can't be sure which day well that's one way to read it but in terms of if if but to go back to judge woods point if this is not an absolute lay down slam dunk you lose at the stage there is i frankly don't see it on this record i see it as a possible plea but the you're presenting it in this context that where you are in essence heads kates wins tails he doesn't lose he gets to remain in for an evidentiary hearing which says to me this ought to be a twenty to fifty frankly i don't think it's essentially a five thousand and fifty argument here and there is that we can see it either way when you look at the time period i changed my mind i don't want to plea and and some during another portion of his testimony he says he's certain that he told him prior to getting the letter argument just fine i just don't know it i think is judge hamilton said i don't know how you can be definitive on it on this on this particular record and it it seems to me and i don't i'm not asking you to reveal any confidences of discussions with your client but i mean it seems to me that you it start out on page twenty four your brief you kind of shift into arguing in the rd person then mr cates feel strongly yes the issue needs to be presented now mr cates this mr cates that yeah well i mean he's he's i don't see how he can win on this record any and he has a chance depending upon what the faction of winning in twenty dollars to fifty five dollars i will tell you your honor that i have discussed it without discussing specifics and we discuss it multiple times prior i could tell from the brief and it's just you know if he invited p directs the argument that way directs the argument right and that's and and that's was definitely his decision to go ahead at this point and with the record that i currently have there was enough to make an argument or certainly not a lack of a dearth of evidence that that says that i have to file you know a frivolous do we are usual practice in such cases has been as i understand it to give counsel an opportunity to raise the issue of final time is that necessary here like without waiting with the with the defendant you bill another is not not to make you say right this minute but to give you you know an opportunity to consult with to consult with mr cates one last time and inform the court what the final decision that certainly is an option i rarely raise an effective assistance of counsel so i've never been i think out of the eighteen years i've done it twice maybe you can put in this case that certainly would be an option i suppose i could guess at what m capes but given your comments here today that might be helpful for him to understand of course we do at part of our evening as the district court made the findings on the iran issue on the wrong standard should be do one rather than two and download me the findings on the standard that was argued to him write the evidence however did point in another direction the court was part of that questioning but to answer your question specifically yes your honor that would be a viable option in this case i understand certainly that the gravity of the waiver that would occur later on and that's been explained to mr cates but i certainly could inform the court of the court ok thank you ambiguity leads to a presumption that counsel is affective and that the defendant cannot establish here the plane error occurred addressing the standards mentioned previously this argument was not raised below and in fact the motion to withdraw the guilty plea was filed after the court had accepted the plea is the problem that the only evidence comes from mr case furries the problem that mr cates himself in the record was not in a position to be specific about when he made the request i think though they are both problems your honor when we're looking at the record as it is and the lack of specificity that mr king provides to the court based on what he said based on his testimony even there is a scenario in which counsel was effective what mr keats testified to at the hearing was not that in that window between the change of plea hearing in front of the judge and the acceptance of the guilty plea i talked to my attorney i told him i wanted to withdraw the plea and he failed to do so what he testified to is that he at some point in time received a letter we don't know when he received that letter we don't know where that letter came from or who it came from but he received a letter and he says shortly before i received that letter saying that the guilty plea had been accepted that's when i talked to my attorney so we're dealing with a situation here in which the guilty plea was accepted on october rd let's say whoever sent this record wherever it came from let's say when i got that day to mr cates at the county jail the following day on  october th mr keats could have had this conversation with his attorney where he allegedly tells him that he wants to withdraw his guilty plea the mr vanderhoof says it's too late and then the following day or the day after that up to her th or  that scenario where no error occurred let alone a plain one we haven't even yet gotten to the fact that mr keith says testimony hasn't been subject to adversarial testing he could have been mistaken mr vander why hasn't had an opportunity  to weigh in and at a prior suppression hearing the court had found mr keats to be an incredible witness yeah i mean this is actually all about as i understand it mr cates use and he says it would have been his constitutional right if he hadn't pleaded guilty but mr case is interest in pursuing the suppression issue which of course he's already lost on but yes your honor that's what came out during the motion to withdraw the guilty plea during that hearing it's as you can see from the transcript it's only on four pages that the issue we're talking about today is even mentioned out of an almost forty transcript the focus there was that he didn't knowingly but didn't voluntarily enter into the because he did not he essentially didn't have enough time from the time that the government offered the plea agreement and he accepted it to decide right i sa this is my life you know you've give us thirty five days or whatever he said that's crucial time and his contention on the district court level was that the motion to suppress issue was so important to him that he wanted to be able to preserve that and that's the issue that he changed his mind about he wanted to go to trial so that he could preserve that motion to suppress issue and he came to that to get rid of g m p a waiver i guess that's what withdrawing the plea would have done correct that's correct your honor we're getting somewhat into the plea negotiations but what happened from a timeline perspective is mr cates was indicted on a single count of felon in possession of a firearm while the case was pending we received results from the laboratory that drugs found on his possession were had tested positive so that would have been the superseding element would have been to add those drug charges because in his confession he admitted to the gun he admitted that he was coming from chicago to sell and to sell drugs and based on his criminal history he likely would have been classified as a career offender on drug charges in addition to the fact that he was an armed crew criminal on the gun charge so mr cates from the perspective of the government certainly did get some benefit of this plea deal yes he waived his appellate rights but he also was not facing charges where he would have been classified as a career offender based on the scenario that the government has laid out and based on the fact that we just don't have a record here that can answer the point questions about what happened if we can't answer the questions about what exactly happened then we can't say definitively at this point that mr vander coil was ineffective or that mr scott inskeep was this is not one of the rare exceptions where this court has the evidence before it on direct appeal to find that counsel was ineffective because of that in ambiguity in the record it appears at this point at least that mr keats wishes to proceed on the merits that's his choice the court in prior cases has followed the practice of in the florist case counsel was asked at oral argument and confirmed that mr flores in fact wanted to pursue the ineffective assistance argument in a direct appeal and harris the court asked as was indicated previously for a submission following oral arguments confirming the defendant's request here at least today mr petes appears kind of self in the same situation as mr flores and mr harris and that he knows the risks of going forward and he all right thank you thank you your honor and i think for the as i was looking for before it's during direct testimony questioning that he mr pitt said after i took the pill i can tell sure about that and then when subject to cross examination he states i know it was before i got the letter again that's still with the window i dispute the government's argument that this is not been subject to a serial test today they cross examined mr cates quite thoroughly about this issue and others it was clearly raised during the testimony and although it was not razor writing that argued substantially there was enough there for the district court to ask questions about the timeline and try to get the timeline straight for the district court should have made a ruling on perhaps both