defendant alleges that his plea was a result of this advice misrepresentations from his lawyer and he offers affidavits from a lie a reliable rd parties there there was an attorney that offered one that a court should party he's entitled to an evidentiary hearing the year before that this court decided to do can case in that case they had the affidavit of two law enforcement officers in support of his his allegations there it was an uncapped deal that he was some pretty fine lines to be drawn and these cases and do you think our president has and tali consistent whether or not people get a hearing i think it is and i think when you contrast those three cases sanders and because they only tendered affidavits of the defendant himself and that's the key part here we have an affidavit of another attorney mr riehl a civil attorney in the case a witness cited wife i i'm not saying she's not credible but you have another attorney  held to cut it in there in support of what he says and you mind me what specifically you believe the attorney would testify to mr mr houston the civil attorney would say basically everything that m which is i was under the impression that the maximum sentence level here would be a level thirty and that mr riolo would not have agreed to plead guilty if that wasn't the case he was involved in the  records that were filed by the government supplemental appendix you'll see that mr houston sets in on several of those meetings and he also shared those meetings what do you what do you have in meetings that mr riehl is criminal attorney had with riehl about the plea and the circumstances surrounding it there's also an e mail that mr houston was copied on from the government's lawyer talking about we agree with your office level calculational level thirty  so he was he was heavily involved in it and he was actually handling it it appears what there was is there was a separate federal civil case relating to mr riehl his actions that was filed and he was handling that but he was involved in the discussions and that's how he came to know about this so i think that e mail is also very significant to it's not just mystery although saying this is what i thought from my attorney he's got an e mail from the u s attorney saying hey we agree with this often level it's way i'm going to plead guilty is if i can have some sentence of ten years then the lawyer needed to take some steps to effectuate that the lawyer was telling him ok that's what it's going to be that's what it's going to be what he didn't go out and get that in writing and a ten year deal it's it's number one you have the e mail from the government lawyer mr garcia or it's not from mr garcia it's an e mail from mr riehl his lawyer then bleat to real zero and mr that that's what it was going to be that there wasn't any risk of it go any higher than that and i'd submit to this court if a civil lawyer mr houston to sit in on these meetings and he's under that impression and it's buster buttressed by a claim from the united states attorney how would mr riolo not a lawyer view it any differently if a civil lawyer thought it was locked and i think it's fair to assume mr riolo thought it was locked in se alleged law and i just don't have this in mind did you move to withdraw the plea history olo thought about doing that initially and was told he reached out to another lawyer there's an e mail in the in the in the records that affects another lawyer name rosen bomb  efficient but it isn't because this is the nd time it's bounced up to this i think what's a little offensive to this court's precedent is the district judges refusal to recognize any of these cases sanderson's not cited in any of the r and r s or the district judge's  even credited by the district judge what the district judge did here is what this court said you can't do you can't solely rely upon the rule of an colloquy when you have these affidavits they're just totally blowing off this court precedent it be one thing maybe if they'd cite sanderson or some of these cases and say hey here's why it's different he's not even doing that real is pointed that out several times and that's all he's asking for is only asking for a hearing where he can either prove this offer the court can make credibility determinations because there is a counter affidavit from dollars is conclusively refuted and that's a pretty high standard to meet and that's where all these cases come from they can't conclusively refute it so that's what we're asking we're asking this court simply to apply forty plus years of precedent to this claim evidentiary hearing the other the other grounds on which the court granted is typical of appeal ability was on how the court applied the prejudice prong the district court basically said i hear what you're saying mr riehl oh but i would have given the same sentence anyway as that's not the standard when you're talking about a defendant who please in lieu of going to trial mr realist says i would not have pled i would have gone to trial and that's how it was supposed to be evaluated not is not what he did there he i'm sure the government's going to get up here and say well there was a heck of a lot of evidence against mr riolo would have been a total face mashpee went to trial well that's what was argued in lee lee actually is a football term all you had was a hell marys chance if you went to trial but they say if things are important to a defendant there may be bigger considerations than what may go on at a trial in losing a trial and in lay it was about the defendant may get deported mr riolo his claim was i don't want anything more than ten years because i want to get out in time to see my kids grow up and i said matter of getting kicked out of the country is important enough as a reason to set aside a plea and certainly somebody want to get back to their kids should be so for all those reasons i believe the court ought to remand this  distinguish between two related but somewhat different theories that we heard this morning the st is the theory that mr real suffered in effect of assistance of counsel because his lawyer put him under the impression that his offense level would be no higher than thirty and that he would face no more than ten years in prison and the nd is the somewhat more specific sciri that there was an agreement with the government that somehow wasn't reflected  i appreciate the authority standard is two thousand two hundred and fifty is conclusively established that there is no entitlement to relief i also appreciate that in hindsight it may have been the case that would have  saved to hold an evidentiary hearing standard for this court in this appeal however is whether the district court abused its discretion in declining to hold that hearing not whether in hindsight it would have been practically and in our view they don't conclusively show then that would be that would that would meet the standard wouldn't would and i'd like an opportunity to explain our will give you that are doesn't meet that statutory standard so the st theory that i mentioned was this idea that rio had an expectation of an offense level of thirty now that's something that the judge repeatedly during the reload not to rely on he said that you face a maximum sentence of twenty years in prison on each count so false hypothetically the government had said you  would be sufficient even in the circumstance that your honor describes unless the hypothetical is that there was an agreement a commitment to an offense level of thirty which is a separate kind of argument so the precautionary language in this case was  st that your maximum sentence is twenty years nd the probation office still needs to gather all the facts necessary to determine your sentencing range rd until that procedure is completed either either judge nor anyone else knows what your sentencing range is going to be forth even if the government makes a recommendation the judge isn't bound by that recommendation and th regardless of what your lawyer has told you the sentencing range may end up being different from what your lawyer has told you so in the face of all of that it's very difficult for a defendant to say having responded i understand in response to each of those questions for the defendant now to say he didn't understand after all that's precisely what the supreme court has warned against in cases like blackledge now you know but i mean we we live in this world and we understand that nobody really knows what their sentence is going to be until they get their sentence but you know here's a person who has you know his lawyers and it's it's going to be a level thirty the government lawyer says yeah great back up calculated the same way so he's he posture of this case where there's been no evidentiary hearing we have to accept that is what his lawyer told him what the judge told him is it doesn't matter what your lawyer told you the lawyers estimate of the sentence may turn out to be incorrect and maybe something completely different from what your lawyer told you because we haven't gathered all the facts and some porton to stress if what the judge said in this case isn't enough it's hard to imagine what would be you know the entire purpose of the eleven call cui is for the judge to address the defendant personally to make sure that the defendant understands the consequences of what he's doing no matter what his lawyer might have told him previously and if this very thorough colloquy isn't enough and it's hard to imagine what would suffice  on their side they have these affidavits from rd parties where they say the lawyer advised me that the offense level would be thirty and they cite the sanderson decision a way in which we respect the portrait understand the sanderson decision that was a case st and foremost about threats and coercion the lawyer in that case is alleged to have pressured the defendant into pleading guilty that's the kind of thing that undermines the truthfulness of the plea colloquy itself if a defendant is sitting in front of a court in the we call his lawyer the one who supposedly pressured or intimidated him is right next to him and of course you might expect that the defendant might say no no one has pressured me in that circumstance and you might want to leave some room for the police to be questioned on the basis of rd party affidavit that's not what's going on in this case in this case the critical issue is the effect of the judge's advice did the defendant understand at the time he pleaded guilty after he listened to all of the judge's warnings what the consequences of his decision were and on that point the best evidence of what the to the alternative theory that we've heard that there was some kind of agreement with the government that there should be a cap on the offense level of thirty the st problem and that is this court rejected that theory on direct review of courts of there's no indication of any such agreement and we've heard no justification for relating gating that here today secondly the plea agreement contradicts that theory the plea agreement says that the agreement sets forth the only recommendations that the government will make and that anything not set forth in the agreement is not something the government promises to do makes no reference to a supposedly deal to cap the offense level thirty and there's the plea colloquy itself the judge asked mr riolo has anyone made any promises or representations other than what's in the plea agreement if his lawyer had told him the government has agreed to cap the offense level at thirty that wouldn't that would have been a good men moment to mention that you didn't mention that you waited until much later to raise that issue and the final point is if you look at m say that she represented that the government had made an agreement that the offense level would if there's nothing further on that then i'll turn to the other issue in the case which is whether the district court properly applying begins generally a court st determines whether councils performance fell below an objective standard of reasonable most and then determines whether there is a reasonable probability of bucks for councils on professional errors result of the proceeding would have petitioner to show a reasonable probability that but for counsel's errors and here's the important point he would have entered a different police citing hill against lockhart so the magistrate judge explicitly set out the rule that they claim he should presentation thank you that and did not get a plea agreement to that effect and then there are several other grounds he didn't challenge a certain enhanced when that was brought on but it circles back to that this is what the guidelines are going to be any message buys them about it it's no different than telling somebody mr houston the civil lawyers affidavit appears at pages sixty one and sixty two of the record your honor and as you go through there he talks about he was present at several meetings between real o and his defense counsel regarding his decision to enter a plea agreement the most significant factor in real ohs mind was that he avoided a potential sentence of more than ten years in it in these meetings it was my impression the government had agreed to a ninety seven month sentence and it would be unlikely a judge would impose one higher than that another meeting when they mention the plea agreement counsel stated to him in my presence she expected the office level in the case would be  thirty it was only oh she can let it is she is she is the criminal defense lawyer your honor miss van vliet and then he goes on to say defense counsel said i'll confirm that with the government and then we have a we have the e mail from the government and the record in the appendix at page sixty three and and is the one that was obligated to tell him that mr houston sitting in on the meetings is a civil attorney and related civil litigation i don't believe was under that obligation your honor and that happened i mean you were in practice it happens from time to time where somebody may get something outside their expertise they bring somebody else in and you talk about it happens with me a lot kind of the other way around somebody has got a civil thing pending in a way to kind of smells criminal somehow hire me to come sit in on the meeting so i can listen and how you might want to assert the th year things of that nature don't tend to those documents to the government as it relates to that claim you see that a lot of false claims act type cases i get hired to do that stuff  so government's lawyer ended with saying well late they cited hill in the st r and r well you can cite something all day long if you don't apply it it's no it's not worth the ink that you wrote on the paper i think the most important thing to remember is something that came out of judge martin's mouth which is you have to consider the filter through which mr real low was reviewing or accepting all this when he's sitting in that ruhleben colloquy he's got a whole background of information provided him by a lawyer he hired which he believed was confirmed by the government's lawyer remember the government's lawyers and one is trying to put him in prison and he sits down for that and he listens to ensuring answers the questions but that's a whirlwind for anybody and if you go back and look at these old cases they've got to ask the questions too and they told the district judge what they told him but later filed motions that were in support of affidavits and the court has said sanderson and all the other cases if that's the case and you have that reliable rd party affidavit then we got to give the defendant eviden do that it's just going to make the district judge mad he's going to give you a harsher sentence there's an e mail in the record to that effect that he sent so he is asking to do that and is in his twenty to fifty five motion understand where the courts come in from and what they say and we as well that  the newer case from the supreme court about hilbert's lockhart you take a look at contemporaneous actions at the time and one of his actions at the time was oh my gosh i have this information and it's not what i expected not what i was told let me try to withdraw the play but he got advice from the same lawyer that miss advise him if you do