this is a case where mr aris was offered a plea a plea bargain fifty seven to seventy one months had he accepted that offer and was given a at the low end of the range he believed would have gotten out about a month or two ago as it stands he is serving a one hundred eight month sentence he's got a long ways to go and ordinary and he went to trial ordinarily might say well you roll the dice you lost but that's not what happened here his he was failed by two people in particular is his lawyer and the district judge his lawyer immediately in the most immediate sense by not in that with respect to that in particular he put in an affidavit and contradicted below there was no government response below on his twenty two fifty five stating that that he was told by his lawyer actually two very brief proceedings both before court appearances that the offer was forty six to fifty seven months but that is trial exposure was fifty seven to seventy one now both of those figures are wrong the offer was fifty seven to seventy one the trial exposure was much higher because there's a a there's additional two years on a count that would have been dismissed there's mandatory identity theft count so as we know from the actual sentence in the case he got one hundred eight months now the the district court failed him in the sense that when he filed this his petition the court at first of waved at it and said oh you've made these arguments before they were rejected by the court of appeals on the main appeal after the trial which was not true and when he fought a pro se motion to reconsider and said i have made this argument about being missing poorly advised about the plea offer then the judge went back and said oh well that's self serving and that's gone and that was very much mistaken process without even hearing from the government  not to do this too much but you did write the fam decision and i think the district court completely disregarded fam and the other cases that both follow and proceed famine just to i'll preparing for i tried to read a couple times too and i saw here on the panel and this is a case if you look at that quote this is a case where there is a disparity absolutely in famine other cases point out that that enough can constitute the sort of objective in dishes that overcome this this sort of sweeping statement or your self serving by saying that you would have taken the p but you're talking unfair and they're about someone who's professing their innocence and the fact can use that as a point to throw in another really interesting fact about this case is that mr reese was hardly professing his innocence in this case he took the stand at his trial and basically said i did it he was professing guilt in a way now i know that he was challenging cases you know involves stealing checks from the building where he worked and  checks and they go shave him but he basically said i did that now he challenged some things at trial absolutely he said for example that he wasn't trying to harm a bank and that a bank was not harmed in this that it was the people  wrote the checks who were harmed and that defense did not work and i think the supreme court eventually kind of killed it but but this was a man who was not professing innocence he was professing a degree of guilt he was saying i did this so he really needed sound advice about whether to take a plea offer and he has said he had rejected earlier please please that would have been offered by the government right twice twice but he said there were conditions he couldn't accept and i found it difficult to find the record much of an indication that he really was open to taking a plea of the nature of us this last one and all but to a plea period what's what's in the record is his first of all his sworn statement on the twenty two fifty five the subsequent twenty two fifty five where he explains that a few had understood correctly the ranges that word issue that he would have taken the offer and as far as that proceeding goes both times when he was presented with the offers it's basically the same offer twice there were some minor clarifications made but both times it was preserved presented to him in th holding pens and i've never seen the one that would be at issue here but just before he's about to come out in front of the district court he's his lawyer says oh there's an offer on the table and he says the guy said forty six fifty seven and later on it it's clarify that it was fifty seven seventy one but but mr reese insists that not only was there that mistake that he it was not discussed with him the post trial range he was facing that disparity  important in the fan case and in other cases and yes your honor at the at the so at the second proceeding his lawyer did say i discussed it extensively with him in this yes he said something i think that's a quote i think that's a quote you can there are differences that can be drawn from these things from these statements mr rhys and since that he was not just shown physically the plea agreement lawyer went over it with him i think there's maybe glass in these rooms too but i don't think that's in the record but but one thing you don't have is you don't have all of these facts being presented to a fact finder the district judge in a in a coherent way where we can make sense of what the sides are saying that judge this or judge decide this case not even hearing from the government nothing you just discussion that and the district court was at least aware at the time that this is a long time before you got to twenty to fifty five but he was aware of the time that there was a discussion and the warrior said it was lose and you can complain later on about about not being given good advice about a plea offer and there's a lot of case all the support that but the family other cases are saying there's got to be a coherent fact finding process here now that that certainly did not happen here i don't know how we can argue that it did so at the very least this case needs to be remanded i would like to suggest that that that that it's a little bit unfair to which was the march eighth two thousand and thirteen pretrial conference because mr culp suggested that the court below did not engage in appropriate fact finding because it hadn't heard from m then trial counsel but in fact what the but the transcript of the march eighth two thousand and thirteen proceeding shows is that the district or did hear from mr rhys's counsel it heard from mr rhys's counsel it heard from the government and it heard from mr rhys and self and i just like to walk through what each of the parties said at that march eighth conference just to put this on the table because i think this goes to the heart of the issue and why we believe it was appropriate for judgment who had presided over the entirety of these proceedings to determine that based on everything he was aware of from having presided over these proceedings including this conference that the affirmation that mr resubmitted below did not establish a prime official case the proceedings on march eighth two thousand and thirteen began with the government indicating to the court that mr reese was aware of the plea had discussed it with m understood the terms had reviewed them carefully and after doing that and understanding the consequences of turning down the plea offer was inclined to to reject it and go to trial mr barnett then spoke next  reviewed the terms had discussed it with his counsel which which is correct mr barnett then got up and did not dispute any of what the government said mr going to agreed and said i and my client have discussed this offer extensively mr garnet added that mr rhys has reviewed it and raise certain issues with it and at this juncture in the cases inform counsel that he does not wish to accept that offer and will proceed to trial reviewed the plea agreement that's a quotation from mr reese take issue an exception with a number of conditions and terms of the plea and for that reason i've declined the offer there is no indication in rhys's contemporaneous statement to the district court before trial that the reason he was turning down the plea offer was because he was relying on a representation from his counsel about the nature of the police there was no indication from mr rhys was relying on a lack of representation from his counsel as to the alternative what what what sense exposure to the face if you went to trial  affirmation but there's no indication in the transcript of march eighth two thousand and thirteen that he was turning down the offer because of some difference between what he had been allegedly advised he would receive after read discredits is quite there's nothing in that quite that would disagree with what he now claims but like i like to take it to the next step of this analysis which is mr reese's affirmation itself personally examining the written plea offers for the first time which is his affirmation claim i'll say more about that in a moment he says from reading the document he learned that the offer sentencing range was fifty seven to seventy one months and he also learned from reading the document that the sentencing range was non binding because that's a standard provision in plea offers in the southern district of new york and that the government had agreed to dismiss the aggravated identity theft count which was explicitly stated in the playroom on the second page he then says had counsel timely given me a copy of either plea offer i would have known the correct terms and conditions of the offer and i would have accepted the offer mr reese does not say in his affirmation that the reason he turned down the sought for was because of misinformation from his attorney what he is saying is that h says that he never got the document at all that's that's his claim as mr culp explained he claims that his counsel went into the pens in advance of the conference and had a very quick conversation with him he does say in yes your honor and the reason that happened was because according to mr reese he did not have a chance to review the document on his own because what he's saying in the affirmation and which is consistent with the document on its face is that the document contained the information he needed but he claims he didn't review it and going back to the march third two thousand and eight conference it was completely clear to judge and to the government that mr rhys confirmed true i told him all this stuff about a fifteen minute hearing the judge makes a simple evaluation which absent clear we have to give credibility determination to and all over with i mean i you know there's a dispute here about what you read into what was said i get it and i understand that the district court is busy and i understand that in your view this is manipulation i get it i understand establish that he knew what his exposure was well there are a couple of things that can help established really part of what the lawyer yes is responsible for doing yes your honor so a couple of things i did point out  the march eighth conference does actually establish that he reviewed the document the document would have given him as he himself indicates in his affirmation the information he would have needed because as reflected on appendix page hundred twenty nine which is a copy of a plea offer that has the language here there were on the first page four successive paragraphs the second third and fourth of them all indicate that the maximum term of imprisonment for count one was thirty years the maximum term of imprisonment for count two was thirty years the maximum term of imprisonment for count three was twenty years and  well there isn't there in the second page of the plea agreement but as a standard in our district and as would be included in the complete copy there's an indication of the entire term of imprisonment that mr aris face which was the eighty years and that is entirely consistent with his affirmation representation that when he reviewed the document he understood its terms its terms included the potential exposure that he faced even under a plea agreement so certainly after trial with respect to the with respect to judge process your honor the question is twofold because on the one hand as your honour's opinion and fan makes clear an affirmation which is self serving in this posture on its own it is not sufficient to establish aphasia case and that what is required is some objective corroboration and the reason for that is because ordinarily the potential penalties for filing a false affirmation are not themselves sufficient to assure that defendants who have a very serious interest in obtaining lower sentences after they have gone to trial and are dissatisfied with the results those penalties are not enough and so what this court ramel also requires a significant sentencing disparity which is what we have here his offer was fifty seven to seventy one months and he was sentenced to one hundred eight months and no one looked him in agreements just so your honor is aware of how these proceedings went typically in these plea agreements or office and this might be the only exception and the certainly the only exception i'm aware of her plea agreements typically have a paragraph that says any open counts  dismissed at the first conference at which mr aris appeared mr aris said that to the extent that his offer was going to dismiss account for he wasn't satisfied with the government's first offer because it didn't say that but there are some inferences that can be drawn from the fact that in the second in the second agreement there is language that says any open count will be dismissed including count four with her which charges reese with aggravated identity theft that was in there because rhys said you're playing games you're claiming that count four is being dismissed it's not i spoke with counsel who said that this was mr reese's concern as mr reese was standing in court i was sitting in court and i do think that their record is going to show if the case is reminded that mr reese had plenty of time to review the hard copy in court mr judge morrow asked him if he had had an opportunity to review it discuss it with his counsel and i think the reason mr reese when asked that question on march eighth says to judge maria judge moore yes i've reviewed this document i quibble with many of its terms and does not say judge i haven't really had a chance to review this document because things have been so rushed is because there is no basis for that suggestion that is simply an affirmation a point in his affirmation that is absolutely false i do think that there was enough of a basis for judge mero to conclude based on everything in front of him that that was the case at a minimum a list which was initially seemed to suggest that he thought that the proof had been a deuce be arguments including arguments that had already been rejected on his direct appeal and so judge murray was responding to a variety of arguments in that first opinion it is i think in light of everything that judge saul about this defendant which included his testimony at trial that was false and some significant respects which included the information the judge maria was aware of that in prior proceedings this judge gleason described in that transcript that we quote mr reese has submitted fraudulent documents and that to everything that was said but quickly on the march eighth transcript he it's at least subject to dispute whether my client is saying i had the documents and bear in mind he's a client not a lawyer but whether he was pleased with given the document or whether reviewed it with his lawyer those are two different things they could be talking about it or him looking at it i don't think it should be attributed to him a lot of the fitly conclusions that kept opposing counsel is drawing be did have it in the stands but he says i've reviewed the plea agreement second very important the government's argument is constructed in a way as if judge marone had this transcript in front of him when he issued those orders the first one which made no sense judge carney as you pointed out because he said the second circuit has rejected all this stuff and you were proven guilty beyond a reasonable doubt this was an entirely separate claim supported by a lengthy affidavit but judge maria wrote that even in is other version of the decision in this case where he just dismisses i think in violation of family the statements and self serving he doesn't say well i went back and reviewed the march eighth transcript it was three years prior in fact i say to you as a as officer of the court i'm almost certain this transcript this year because i ordered it no i don't know of judge maria has the ability to get a transcript and have it not be reflected on the docket or something like that but i ordered these transcripts so i don't think we saw at the very least he does not say i looked at this march eighth transcript in these the following things that were said that were few what you say in your affirmation that never happened the government never put anything in the lawyer never put anything said none of these things that in famine other cases and should have happened did happen in this