to the point raised by judge sessions regarding b two which i think is fundamental and and excellent and b two is referenced in the opening brief and in answer to the question about whether the magistrate judge well it did not fulfill that in open court what's interesting and i think a cause for additional concern as referenced in the briefs and as demonstrated in the excerpts of record he made t fowle not at the hearing but in his report and recommendation so in the our in our he about that mr cardew no this was true for both cases that mr gore jr was competent to plead was leaving voluntarily understood all of the rights understood sentencing guidelines etc and there's just nothing in the record to support that so that of course the district court judge in a very difficult position the district court judge accepted the our in our there were no objections accepted the are not and surely surely we don't expect the district court judge to have to go get a transcript to make sure that the representations of the magistrate judge as reported recommendation are accurate ask you in the same question so we've got two lawyers there one from each side about to plant a potted plant from your side yes what's going on here well that's somebody some point is the job of the lawyers to protect the judge from the judge's mistakes i agree your honor and i cannot speak to the practice of the attorney in this case but i agree with your honor's it appears that this has been a pattern of practice in which attorneys both for the defense and the government have been acquiescing i don't know how many other cases would be in the pipeline and i suspect that many of these cases if the plea agreement is not rejected in particular it does appear that that all parties have allowed this to continue i would hope that defense counsel in these cases are at least themselves confident that their client is competent in pleading voluntarily however we don't have assurances of that from the record and certainly in the case of mr fuentes gul was as you know we've alleged ineffective assistance of counsel at sentencing and there's nothing to inspire confidence of a full counseling and assessment of their client's complete understanding you may not know the answer to this but i'm trying to get a sense of the sort of the practical aspect of this how about these both of these particular cases is that when the general colloquy in a change of plea comes to where a defendant would begin to talk so that you actually knew what the defendant was saying or what he was thinking that is you know how long you've been in school what is your occupation what is your psychological condition have you been hospitalized for one thing or no that's when all of a colloquy is stopped at least according to rule levon and they go right to the questions which require just a yes or no answer so in both these cases the police were very fast because they the only questions they were asked of the defendant of the ones that can be responded with yes or no which means of course the judge has no sense of the level of skill or intelligence of this particular defendant so it's interesting that they stop right where the defendant would ordinarily be required to say something that that's what's omitted that just about if that's all that's absolutely true there's nothing to indicate anything other than the fact that the defendant is able to understand the signaling that a yes answer is what's expected and judge what your mentioned earlier the on mass proceedings you know we have to streamline proceedings still and i can say that i've seen many cases where those plea proceedings go through it's very similar it's all yes yes or no questions yes or no yes or no and then guilty at the end and there have been numerous instances where in the subsequent case involving a particular defendant it comes to light that there are language deficiencies so extreme as to render the defendant incompetent and yet they were able to go through the entire proceeding with the yes or no it just doesn't provide the reviewing court with the necessary record to feel comfortable that assured that rule eleven and the constitution have been complied with i will reserve my time unless the court has additional questions ok and we've got quite a bit of time  please the court again i'm tanya miller from the district of arizona appearing for the government in this case as well here to the courtship term because the defendant has failed to meet his burden of showing some evidence in the record to indicate that some air flowed from the plea colloquy in this case outcome of the hayes is going to be there's going to be an adjudication of guilty whether based on a plea or whether based on going to trial i get all that but it is that is that all that i mean it's not the end of the story in the sense of what what the government used to show me just because i'm going to get convicted if i go to trial doesn't mean i want to i want to plead well you know and i believe that it was the supreme court in the von case which pointed out there are a number of factors for the revealing court to consider when making the decision about whether playing or resulted in a situation such as this as your honor pointed out the strength of the government's case is one of the factors to consider and in this case we know from the pre sentence report that the government's case was strong open plea it's a plea with recommendations or all kinds of different please so for the government really to say well you might preclear he would apply sooner or later assuming that the error was an but fairly minor and the government says well he was going to plead anyway is that a different case from this one where the error was agreed has or does the government merely need to show assuming that this is now not what happened but assuming that the question was how do you plead the defendant guilty no more questions you make the same analysis under plaine you do however in such a case your honor the defendant would likely be able to show that he did not understand the extent of what it was that he was doing however in both of these cases that is not the case because there's adequate record after having multiple opportunities to discuss his case and as well as the guidelines and the district courts in this case the tenet was given the opportunity to withdraw his guilty plea after the district court informed him that it was going to depart upwards from the guidelines the bases there from and actually had told him that it was going to impose a forty month sentence in this case and the defendant elected not to and the judge says i'm going to do  to correct your honor and then he was given an opportunity to consult with counsel about that and the defendant elected not to and on the record indicated the defense indicated that what he would like to do is to proceed and be sentenced and then the district court of the fact that the guidelines were merely advisory that he intended to part upwards that he had to consider other statutory factors including deterrents than it was cracking a sentence therefrom and also that he had multiple opportunities over the course i believe it was of those one thousand dollars days to consult with counsel about the situation and then at the final sentencing hearing the defense represented that what the defendant wanted to do despite all this represents taken from the court was to maintain his guilty defendant i cannot recall at the moment whether in the nd case where the defendant himself addressed i do know the defense counsel did address the court in that case so when when when you bring up plane air review clause when be to says a judge has a responsibility to ensure that voluntariness and knowledge are on the record and if the judge cannot be assured that there is sufficient is a responsibility on the judge and when you look at the transcript here this judge accepted a change of plea when in fact there was no disclosure about  made to him nothing which would show knowledge or voluntariness and so then when you look at b two you say a judge should never have taken this plea so as a result that's a little different then plain error review which focuses upon the defendant here you know i've done thousands of the is i know that my responsibility is to check to see if it's knowing involuntary and if i haven't done that i can't take that plea and so that is another issue here in this particular case which is separate and apart from plane air r well your honor taking it is separate and apart and as you've asked i would submit that actually the record does contain evidence to indicate that the plea was voluntary in this case and in the other case in both cases the magistrate explicitly asked the defendant are you doing this voluntarily and there's a statement from the defendant on the record that he is and as you noted combined in that question there was also the question is whether or not he was doing this because he was guilty and the defense has presented no evidence to suggest that the motivation for doing so was ever a threat or his mental condition was unsound at that time additionally as i pointed out under oath the defendant asserted on the record that he had reviewed in his native language the plea agreements in both cases the defendants did and within those play agreements there are about those that he has not had any medication errors then out of the wise under the influence such that he wouldn't understand that was what he was doing that he was pleading guilty and there is also explicit of ours embedded in there that he is not pleading guilty because of threat or to rest or for reasons of other promises which are not contained with your position you say some time q yes thank you yeah i'll start where judge pleasure just left off exactly there is a reason why we have the required rule eleven colloquy in addition to any plea agreement it is so that the judge can determine in open court all of the requisite due process and rule eleven requirements the policeman is insufficient in particularly i don't also want to continue cross contaminate the cases too much but in the case of mr fuentes this is a man in his forty's who had four years of primary school in when he was a child in el salvador and has since gone through a very traumatic life in a war torn country with the death of his father with recruitment into the military thirty years of post traumatic stress disorder anxiety and depression seventeen years of psychiatric medical treatment there is there is quite a bit to give us concern on those particular facts as to his competence and his understanding and again  we cannot unfortunately we cannot depend on an avowal by itself of having reviewed a plea agreement which is quite complicated these legal concepts are quite complicated that someone understands these rights second i would like to touch on again go back to the b two argument judge sessions has has been making which i think is is absolutely correct and it occurs to me china's back into the arguments we've presented that one other consideration would be for the court to use its supervisory role to decide at the appropriate and appropriate course of action here because really allow we know these guilty pleas to stand when i was speaking about this case with my colleagues one of them sergeant and i said oh you can i use that line and she said sure she said it's like spitting on rule eleven and i don't mean to be too colorful but it really is it really is just saying hey it doesn't really