two years longer than he would have faced if he had been comparably sentenced in the appropriate guideline range the record before this court shows that both kronk's and strickland  satisfied that it shows deficient performance by counsel so serious that he was not functioning as counsel under the th amendment and it shows that the errors were so serious they deprived him  fair hearing with respect to the deficient performance mr start about was sentenced as a career offender the record before this court shows that before federal sentencing trial counsel was aware of a potential problem with the state's sentence that was used to place them in career offender status that sentence was later set aside as illegal under north carolina l but counsel already knew about it and did not take the steps to investigate it that would have protected his client's rights the pre sentence report is the key to showing counsel's awareness of the illegal sentence and possible impact on mr stern about yes it's ok i said you there why do we have to look at the pre sentence report what's wrong with the part where counsel actually lodged a written objection saying i think the state sentence is incorrect and that's where i was going your honor because they'll get exactly what we need to look at because the pre sentence report shows that illegal states and the defense is investigating this conviction and whether the sentence was improperly enhanced the defense has requested documentation from the clerk's office and we'll provide an update if the issues with his conviction so that part of the record shows that he was aware there was an issue with the conviction and then at sentencing he actually with your thinking jackson and this is page  the points being added per criminal history category and the objection as well as its withdraw completely ignored the fact that that sentence was being used to bring him into career offender status so council was providing deficient performance by not addressing the issue of career offender status or investigating mat sentence in a way that would have let him know that it was an illegal sentence and it was corrected presented and the prosecutor and the defense both the grade that it was an illegal sentence and that sentence originally the sentence the illegal sentence and i'm using the language of the  court not my words state court called it illegal that sentence was originally over twelve months twelve months and up when it was corrected to be illegal since it became ten to twelve months to prejudice caused by the error yes the prejudice that was caused by the error was that because because counsel failed to investigate what turned out to be an illegal sentence and represent his client in that in the federal sentencing to let the court now that this was not a sentence that should have been considered for career offender status his criminal history category went from category four to category six his base offense level went from twenty three to thirty one and that increased thirty one points in the original higher level went from twenty three dollars to thirty one dollars because of the illegal sentence so he's got an increase criminal history category his gun an increased base offense level and the result of them out was  the advisory guideline range went from are a range of seventy to eighty seven months it became a range of one hundred and eighty eight two thousand two hundred and thirty five months now six months and as much as twenty one months that that showed harm based on counsel's failure to argue sentencing issues this this time we're talking about an one hundred and eighteen month increase on the low end and a one hundred and forty eight dollars increase on the high end you're talking about a minimum increase of craze of almost ten years out of this man's life because of tribal councils on the record in this case containing the request for release that was filed in the north carolina court does i'm sorry i didn't hear you goes my record in this case containing a copy of the request for relief filed in north carolina state court no your honor it does not have you ever seen it you have access to it i do have access to it and if that my my understanding was that because it was not a court order it was not necessarily appropriate  judicial noticed by this court but if the court deems it necessary to see that document i can certainly exist of medicare apia of it after the after an argument if the court directs me to what is it contrary to what you've been arguing to was not at all understanding of matters for judicial notice was the reason that i did not include the motion itself so i think i guess my question is whether the court would like me to address more on the question of counsel's failures or on the heart of whether i have have covered it well enough or if you have any more questions on those those two areas the major problems of three point but just to clarify could you just tell me what was the deficient performance in this case failure to investigate is that what you think the deficient performance was not the withdrawal of the objection and the telling the judge that none of this makes any difference to the guidelines range those th performance to investigate is the depression performance that primarily caused harm the things that you just mentioned show a lack of understanding but i guess i don't understand if you have the motion and we do have the motion what failure to investigate he knew everything he needed to know about the claim he filed the motion a couple of days later he obviously investigated it i just i guess i'm not understanding why how did he fail to investigate the claim as to wh filed a motion several days after the sentencing in this case it seems like he investigated it thoroughly enough to know he needed to file a motion and get relief which he did i'm just not understanding where you're pointing for your deficient performance significantly and right even a small amount but significantly in this case then he would have the duty to investigate that now the fact that he i was not aware you had a copy of motion i  performance the part where he withdraws the objection assures the judge that other objection i raise which you may be concerned about don't worry about it it won't change the guidelines range in this case warns the judge off paying any attention to the problem and fails to either object or ask for an extension why are you talking about the failure to investigate why isn't that the failure and i don't know your honor i don't know the current of the investigation the brief does argue that it was an error on the part of counsel and he did make a motion to continue so that he could investigate and take care of this one thing i want to make clear though i've got i see my future clocks running down i am not asking the court to make a general broad ruling that women an attorney is aware of the collateral matter that he's got and they do a duty to go out and take care of that but in this circumstance that's what counsel dead so he failed to take care of his clients and trist i ask him for a motion to continue asking for a continuance based on the information that he had before him by failing to notify the court and and be straightforward and honest with the court that this is a serious issue that it raised his exposure significantly up on for no reason i can tell from the record why he would then i think that said so but she but all of these things you didn't say constitute in the form correct ye honor i would just begin by saying that i haven't seen the motion i don't think it's a part of this record and i was not even aware of who filed the motion or when it was filed and i will also note that we don't i'm i'm gathering it was mr oyo and we don't know when he found out the act got the actual records if that motion was filed within days of the sentencing hearing he may not have gotten them he may not have actually been aware that there was a sentencing issue until two days after the hearing one day after that you're hearing one hour after the hearing we have to have a hearing so that mr her royal has the opportunity to explain why he didn't tell the judge if you knew when he knew now there has to make this you counsel so i can i ask you why we need the hearing because i totally understand that in your usual case you want to hearing so the lawyer can explain what happened but here you know ready told the judge he said i'm withdrawing my objection and the reason is because even if you won't break even if you grant it even if for some reason he's not a career offender that won't make any difference and so he can say something at the hearing that's inconsistent with what he already put on the record so what do we need the hearing for because your honor even if he makes a statement and st of all i don't know why he would say that st of all i don't even know what objection he was referring to but let's assume he's referring to that one he said all of them right even yes but even if that's correct we can't show prejudice they can't show prejudice unless they can show that that there would have been a consequence that would have followed from his decision not to withdraw the objection now if he did not know until hours days you know after or even a couple of weeks after the hearing if he and  dice to go to state court and file a motion for appropriate relief for his client he has no duty to do that no federal defense attorney has a duty they don't even ordinarily i would say just have the duty to look behind a state court judgment mr her ojt provided exceptional assistance of counsel if you ultimately found that there was a problem and went and got it vacated and perhaps mr start event is going to have some way of taking advantage of that i don't know that he can in this case but if he did if he failed they have to show not only deficient representation but also prejudice they have to show a reasonable probability of a different result if he had stood up there and said your honor i'm not going to withdraw this objection but  know i don't have the records right now i don't and even if i had the records we don't have a stake or that state court judgment was in effect this court's decision in bacon think that was in one thousand nine hundred and sixty makes very clear that a federal law using my speaking to loudly i'm sorry i think i'm in mourning ok thank you i'm sorry bacon makes clear that there is no response that a defense attorney collaterally challenge a state court conviction and that when a district court is assessing whether or not a defendant is career offender the court has to defer to a state court judgment at the time of mr start of it was sent to sentence that state court judgment was alive and valid representation what then the question is what did he actually have that day do we know do we know what he had at the moment that he stood up before judge whitney and said i'm going to withdraw these objections we don't know and it's not fair this court has made very clear that it's not fair to hold a defense attorney to that to to hold that a defense attorney has has provided constitutionally deficient representation unless the defense attorney has the opportunity to explain his actions there has to be legal air on the part i thought your argument was we couldn't tell from this record that's what you've got you've been saying it is but here's the problem ineffective assistance of counsel he's named one error and that's ineffective assistance of counsel court can't remain and unless it finds conclusive on the face of this record that there was ineffective assistance of counsel to fish representation any reasonable probability of a different result what happens and what i always happens is a agree illustrated demonstrated ineffective assistance both deficient representation and a reasonable probability of a different salt you bet we would concede we've done it before and we would do it again but you can't really manage this court with all due respect has to actually find in order to remain that there has been constitutionally deficient representation and i would respectfully suggest that the defendant has not and cannot meet his burden to meet both those problems on direct appeal i mean that is the whole purpose of this cour more to explore the deficiency prom but you're suggesting that what we really need it for here is to explore the prejudice prone to figure out what the judge would have said if the trial counsel had asked for an extension hours after mr sort of it was sentenced you got to state court records that apparently showed that it was an apprentice right was it a premier and mr i found out two hours after the sentencing hearing was completed then we know that while he may have made a misstatement of law on the record about whether or not his objection would have impacted the defendant's dive line range that may not have been deficient representation in the sense of yes here is and i guess that's my question how is that not deficient representation he knows there's a possible problem because he's lodged the written objection let's assume heroically i guess that he gets the records to two hours after this after the sentencing why wasn't it a mistake to stand up at sentencing and instead of saying i haven't gotten the records yet i'm going to need another five days to instead to say i'll just withdraw the objection because it doesn't make any difference so let's assume that he got a call from a clerk that told him that those records either didn't exist or that they said something they didn't say we don't  but i wouldn't have said that to the judge why didn't you say i'm withdrawing the objection because good news i just got a phone call from the clerk and incorrectly she told me or he told me there are no records your honor i don't know except that when he was when he filed the written objections it's really not clear he sort of says i'm going to investigate this that there's really any says i'm going to reform back to the court if there's a problem so my assumption from what he said at the sentencing hearing and i don't know if it's correct we have to hear from mr oyo is that he didn't believe at that moment i mean he's a he is actually quite a lawyer to even go behind the judgments and so i what he understood at that moment was out it i mean can i say it was deficient representation or a mistake to say that had that objection been well founded it wouldn't have affected the guidelines up to see that absolutely yes that's true and if we i was thinking of deficient representation a sort of constitutionally deficient representation of a magnitude that serious and and defense lawyers can make mistakes on the record all the time and i can't sue about a particular guideline range and it doesn't matter i think of it as a small mistake but let's say it mattered so it's deficient representation we still don't have a reasonable probability that he can show a different result when we don't know exactly when he got that information and you can say this court we can all speculate that he should have requested continuance we don't know what he knew though he may have gotten information from the clerk's office that was wrong that led him to believe that those records did not exist and i will say in our all of our simmonds litigation of course we have had conclusive on the face of the record is because as this court has recognized we don't hold defense attorneys to have to vet it had to have provided constitutionally deficient representation without hearing from them unless we are absolutely certain so that statement may have to clarify i just want to understand which is the hypothetical where you think it wasn't deficient it's that is it if he is it is it is it that he got incorrect information from the clerk's office before the sentence based on that he withdrew the objection except what he said was a different reason but maybe he had two reasons for withdrawing the objection is that the scenario so is it the incorrect information from the clerk's office or do you also think it wasn't deficient if he hadn't heard back but instead of saying i raise as objection i haven't heard back i'm going to need more time instead of saying that he said it won't make any difference which of those scenarios did you think was non deficient your honor i don't think that i i i will say this with all due respect it doesn't matter let's assume both were deficient let's assume both were deficient we still don't have a reasonable probability of a different result because we don't want to when he was able to establish that the defendant had received a sentence that was wrong and then and if he did not learn that until later if he did not know at that moment then the fact that he didn't ask for a continuance or the fact that he didn't say this objection really wouldn't matter but what we can't we don't know that it would have made a lick of difference because if it doesn't isn't there a reasonable likelihood that if he had said look i'm waiting to hear back from this court i have a real problem that the district court would have granted the continuance and how are we going to stablish that hearing well st of all let's say that he got the wrong information we have to we have to include that as a possibility if that was a possibility then in that this is the whole point where imagining what might have happened and we can't let it out that's not this court will rub a lot of counsel but just to be clear so the scenario that you want us to rest on is he did get information from the clerk's office it was incorrect information instead of saying based on the information i got from the clerk's office i don't have an objection instead he said this legally incorrect thing about it won't make a difference and then after the sentencing hearing the clerk's office got back to him and said sorry the stuff we sent you before was wrong here's the right information based on the likelihood that that's what happened you want us to deny really what i would like this court to do is apply the law the law says it has to be conclusive you have he said this wouldn't have affected his guideline range would not have ultimately prejudiced mr started that's why is that is there is that arya there are another one i think that the other i mean i think there are in i don't know what happened we don't know what happened even if that's the only scenario i can imagine at this very moment under this pressure i would say that that is enough that is more than enough because this court says it has to be conclusive conclusive means no doubt that's what that means and i will say that the united states did we do care about this sentence and we we do we have talked with mr stern events counsel and we have looked at this and considered what we could do at this point here we are at oral argument the only thing i can tell th is that the only possible correct legal decision is to let mr oyo come into court swear to an oath take an oath and tell us what happens and if he tells us information that demonstrates that he would knew that he could have known that he should have known but i also want this court to consider the possibility that what this actually means in terms of a federal defense attorney that's not normal so i'm not at all sure that judge whitney would have granted a continuance in the skit situation and they are as well to hear it and just can i ask you this question you know i think i followed all of your argument about we should let the probability that i would have granted this and merely were aware of but i thought you were saying but but and this is just supposing this doesn't mean you lose the case here but suppose you're saying that that he is positive comes true can proceeding explain what that judge would have or would not have done but having said that even if they have the basis in the record for what he did do we can do i'm sorry i'm i'm assuming that we're ineffective in the sense of deficient representation or ineffective in the sense of different deficient representation and reasonable probability because it's an effective me as both prong so i just want to clarify be sure but i thought what you were doing was holding out the possibility that no matter what the defendant here came up with the district judge could say well it doesn't make a difference to me i don't like the way they know look i'm going to give you a grade sentence no d your honor and i and by the way i don't with all i don't think any just respond to that the reason we go through the exercise is to give the defense attorney the opportunity to explain to to explain what he knew when because we don't know that on this rec explain why he took the steps he took when he took them the rather extraordinary step of filing a motion for appropriate relief if that's in fact what happened is right and i would request that this court you know recognize what is in the record and what is not in the record you and think of a jesuit i don't care if he's not a career fellow i'm still going to give him ten years more i can fathom that this is not a case where it's in the soup if we found out what facts alone and it could somehow cabinet you know consistent with a hypothetical of what i meant no the hypothetical is not the question is the reality of justice of ten more years that he should guide this is already tried colia all interact on in terms of the judge there has to be a legal avenue for relief there has to be we live in we live in a world of of laws that determine whether or not there are errors that occur this wasn't an error he was sentenced properly when he was sentenced and so the question is does he have an avenue for relief now if he has an ineffective assistance of counsel claim the answer is absolutely he has an avenue and the judge will have to make that never occurred in the district court we're reviewing your reviewing with all due respect judge whitney's conduct and decision to impose a sentence that was entirely lawful when it was imposed and is still lawful and i am sorry for mr start of it and we reached out and we have tried and made an effort off the record so i don't want to go too far into that although i would be happy to if the court wants to hear it and we made significant concessions to mr start event in the process of ninety months sentence in district court only to have his supervised release revoked only to be back i am sorry that he that this stay that theoretically he's now could have if the timing had been different received a different sentence i suppose but his sentence is solely lawful and just and it was when it was imposed it doesn't make up a way to create justice when none exist judge harris case in question  have offered other avenues for relief but this is this current avenue for these he can file a need based case based on ineffective assistance he couldn't file could he file a two thousand two hundred and fifty five just based on the simple fact that ok no your honor it would not and but i just really think it's important to impress upon the court that it was a lawful sentence it is a lawful sentence and this court has over and over and over again said that unless the record demonstrates both deficient representation and prejudice then this then that claim cannot be considered on direct appeal and to remain and is not appropriate because you're and that's not what you're being asked to review so it wasn't a question of whether judge whitney properly senate stern not this is all about the attorney's conduct i don't want to get into the discussions about negotiations to settle this i'm i know that ms wright chose to do this i will only say that the we were unable to reach an agreement in part because the  offer was still significantly higher than the guideline range to which he would be extra if his attorney had had done his job right the other thing i want to i want to mention is that  asking attorneys to do a lot more than they might do other than what they're contractually agreed to do with their client i also said in my st portion of the argument and i want to make this point again we are absolutely not asking this court to create a duty for attorneys retained or appointed to go and investigate collateral matters so i'm not asking for a broad ruling just that on these that in a state court order he already served the entire state court since there was absolutely no benefit to setting that state court senates aside or are reducing it to under twelve months ten to twelve months there was no benefit other than to remove the career offender status so i just want to mention that yes i agree and now i do define a motion for appropriate relief that was one of the  points i wanted to respond to i were not asking for that i don't think i have anything else to add unless the court has questions