other than we're not considering this issue one way or the other it doesn't your honor that's afam judge ramos finds that the mcneil footnote plainly suggests the availability of the relief that you're seeking here and suggests it it lays out what the argument would be if a future defendant wanted to raise that argument it also the mcneil footnote also cites to the solicitor general's brief which also lays out that argument and says that it's a does anyone even the supreme court of the solicitor general ever say that your honor to be clear we've never relied on mcneil for support for the ultimate argument that the aca enhancement should be dismissed but we relied on mcneil for was the argument that this lawyer trial counsel was ineffective for failing to read to research the issue to find  because literally this would have been an innovative cutting edge unprecedented argument right there was no case had had so held  that had gone this way it's correct that there was no case that it is that is that ineffective assistance to fail to put forth such a creative argument your honor i do dispute the characterization that it would be a creative argument because the argument was clearly and is for such an unprecedented argument i mean the worst there was no support for well your honor there there there was support for it circuit had already thrown it out the only circuit that ever considered it well the eleventh circuit only ruled a few months ago there were two other district boards that addressed it in this circuit and afterwards afterwards afterwards that's true but there was also saxony even being arrested there was a nother defendant in the southern district who did raise this issue also represented by the federal defenders that argument was made and yet the context this mr saxon's indicted on a gun count which carries a mandatory minimum of fifteen years and counsel persuades the government to drop the gun  to put forth only drug counts there's no mandatory minimum and he winds up with a sentence of one hundred twenty months so it's hard to understand how this could be ineffective assistance when you put it into the big picture only someone to kwara with her not researching the issue i think i think that's a fair argument but but but i don't think it's just a matter of prejudice i think when you are evaluating the representation doing not look at the complete picture of the representation and if i could just add something to that is not your strickland first prong argument dependent on a finding by us that the argument would have had merit that she would have won the day on that point if she had if she had researched it which is at least open to dispute because in the rally case which was decided about the same time in the context of the federal fair sentencing at this very court refused to apply retroactively the fair sentencing act to people who were sentenced before the effective date of the statute an equally arbitrary and equally arbitrary standard your honor it the orc does not need to reach the merits of the aca claim because counsel here was ineffective for a failing to research to do any legal research on the critical issue in this case which is undisputed that this was the critical issue in this case and failing to make a motion that would have been likely meritorious which is the standard that this court established in in cornell the prejudice that the first question on prejudice is with the outcome of the case have been different and it is clear here that the outcome of the case would have been different had counsel made the motion he never would have gone into the u s attorney's office would never ha admitted to these drug crimes would never have pled guilty to these drug crimes which goes to the second issue which is well then what would the government have done this is a little bit of an unusual situation because we're talking about pledges in the context of a possible  government and that's months that's right your honor and the way the government has tried to say what it would have done is simply by asserting in its brief it would have moved for an enhanced means that it never actually contemplated or discussed with my client or his counsel and that would it would have brought in another just a question of fact you know that the trial judge made a finding as to walk the government would have done it is a it is a question of fact that ultimately there was an erro because the judge below relied on the government's assertion in its brief an unsworn really really where we are this is my understanding of the prejudice argument the crux of it is whether it's appropriate for a district court judge in the context of an assessment of prejudice to rely on the government's unsworn statements about what he would have done that's absolutely correct your honor and we say that that is that was and we usually don't we usually  don't trial judges usually except government representations of this sort mean you you know put in a usa on the stand to testify to to watch to these kinds of things to you don't necessarily put in a usa on the stand however through my file but i don't think so your honor in miami it's a proffer i mean the proffer the government makes a profit and usually defense counsel doesn't contest it on this kind of a thing i would think well yes especially representation there is no way that the usa could have said under oath in the hypothetical world in which you had brought the motion and we had lost this is what we would have done if we have a record suit less a second question which is eighth circuit case vs which did say where the government said we would have superseded with a cracked charge and the eighth circuit said well then you should have you should have actually done it you can't simply represent what you would have done and i  believe there is a case that an affidavit would have had to be brought in fact the rule actually generally goes against he views petitioners that he is petitioner and this there certainly is law could not simply assert in his brief this is what i if it went back then we would have an opportunity to cross examine the usa and say how how can you possibly say now you would have superseded with a heroin charge that had already been dropped by the state and worth which certainly made that argument and then we thought what's in cross examination but you had still had the opportunity to make that argument we did make that argument your honor are you have some time for a look at these gentlemen will educate me a mere district court merits of the of the argument that was not made i think it may be of some moment but if the question is was it likely meritorious was there a chance this would have succeeded the first question is with the district judge have accepted it that we know the answer to be yes then there could be a question of alternately had the government taken any one of it was wrong guess well at the government take an appeal in front of the government has not taken an appeal in any of the cases where the class b issue was at stake so i think as far as considering on the on the ineffectiveness point merely failing to bring a likely meritorious even if the ultimate lee wrong motion would be ineffective and certainly found to research it on the prejudice prong all we have to please the court my name is danielle sess and i'm an assistant u s attorney in the southern district of new york and i represent the united states on appeal this court should a fur the dismissal of mr saxon's twenty two fifty five petition for several reasons but i'd like to pick up where mr grinstein left off and with judge mcmahon's question about whether this court has to reach the merits of the act the question in order for mr saxon to prevail on appeal and it absolutely does and i'll point the court to the decision of the second circuit and harrington at page one thirty and there the court said that if the claim is ultimately merit less then there is no prejudice and that case presented a question just like the one here the defendant was claiming that his attorney should have made an argument that his prior state offense did not count as an act of predicate but that doesn't mean that we must deal with the issue the court must deal with the issue if it finds for mr saxon in order to affirm judge ramos's decision there are several independent grounds that the court can reach in order to affirm that in order to reach all of the arguments that mr saxon is making absolutely the court would have to reach the merits of the aca argument and find that it was meritorious and i'd like to address one other confusion that i think arose from the first few minutes of this argument where the court has said use this language of likely meritorious that has been in the context of the prejudice inquiry for example in considering what a defendant might have done in a counterfactual scenario like whether he would have accepted an alternative plea or whether that defendant would have decided to go to trial the only other place the court has used that language was in cornell versus kirkpatrick where the court said that counsel failed to raise a meritorious venue objection that under binding precedent what have dictated the results favorable to the defendant the only reason that there's any language in that opinion about whether something is likely meritorious is because the venue issue was an issue that had to be submitted to the jury so although the court can say this was a meritorious issue under binding precedent because it would have had to be submitted to a jury a second circuit panel's not in a position to say absolutely what have what but what have happened under those circumstances where you have a legal issue defense counsel apparently failed even to consider the issue of the awkward question whether when the  third conviction actually from within is is that not ineffective assistance of counsel have not at least considered the question and looked at it as this court mentioned earlier this is not an attorney who was asleep at the switch she had a strategy she negotiated and she in fact was able to get such a good look at the question everyone else in her office was looking at the question there can't be a unique standard for the federal defenders so you have to consider more generally what is required of defense downhill reasonable to fence counsel have looked at the question thought about it there's not a single case saying that counsel has an obligation to find and raise arguments on open legal questions so had there been a bias and present that wasn't the question which you've now failed to answer three times should she have looked at it i mean would a reasonable attorney have at least considered the issue ideally an attorney would consider the issue but constitutionally no she was not required to look at the issue because ultimately you have to say did she fail to find a binding precedent and failed to bring it to the attention of the court and that's not what happened here she failed to raise a novel legal issue and whatever the reason for that whether because she had done research and had not the novel if it had been fairly clear than that then we would have a serious problem my enemy which she's fortunate that that that it indeed was a novel question yes if it had been dictated by second circuit or supreme court precedent absolutely and that would be like the cornell versus kirkpatrick case but i'd also like to draw the court's attention to the to later case in the second circuit and their counsel had failed to argue that the defendant's prior connecticut alford pleas were not aca predicates and there as the court said until late zero all the building blocks for turning to the prejudice analysis in this context i'd like to start with a very important quote from mcneil and there the court said that the key to whether prior offense is a serious drug offense quote can only be answered by reference to the law under which the defendant was convicted and that's a page a twenty now open legal issue is whether that rule applies to this defendant that rule applies but the way it applies might be different than the outcome that the court reached in mcneil with respect to a prospect of sentencing change so when you have a retroactive sentencing regime under which a defendant is actually recent inst then the law under which that defendant was convicted has been modified he's now been convicted under this new state sentence that you don't have to go that far do you he wasn't not only was he not actually recent and he could not have been rescinded because the  did not apply to him he was out of jail that's correct and as this court held in rivera and as the eleventh circuit held with respect to this specific class b felony type conviction if it offend is not eligible or if he has not been recent events the fact of his underlying conviction has not changed he remains convicted under the previous sentencing regime and under the defendant's proposed rule it would end up running headlong into what the supreme court has said in mcneil and rodriquez and what the statute itself says under their scenario if a defendant is serving a sentence of let's say over eleven years he's not eligible  denied free sentencing under their proposed rule that defendant would actually be serving a sentence be on the maximum prescribed by law and that simply doesn't make sense as a supreme court has already noted interpret in th hand the defense claims there are some some absurdities with respect to the government's position about similarly situated defendants being treated that was also true under the fair sentencing at i mean the arbitrary fact that you got sentenced on august second two thousand and ten as opposed to august fourth two thousand and ten nothing could have been more arbitrary and yet this court held that the august guy on the second guy was out of luck that's correct and that's already part and parcel of some established features of the statute for example the circumstance in mcneil same state offense but if you committed it before the prospect of said i think change you're treated one way if you commit it after you're treated another the rivera case if you've been convicted of a class the felony conviction doesn't really want to deal with that argument today he'd like first to consider the argument that you should have done as your office never does and put in an affidavit instead of making a profit about what you would have done in other circumstances think very carefully about what you want the government is not presently aware of any case law requiring such an affidavit and i'd also like to emphasize that in this case judge ramos knew the whole landscape of the case he wasn't only relying on the government's records and you have a little discomfort with a trial judge in essence trying to determine what the government would have done if the aca claim had succeeded i mean as it is it fair to hold the defendant to that kind of prediction as to what might have happened with respect to the facts of this particular case the court had a lot more to go on than the representation of the government there with the fat to go here but there's still that that the trial court is saying if this had happened then i think this would have happened and i'm not sure that it's fair to a defendant to then use that time to it's not speculation but it's it's trying to determine what would have happened don't know if it's fair to hold the defendants of that kind of thought process prejudice analysis sometimes necessarily leads to consideration of a counterfactual world well i mean surely it's fair to consider what the defendant would have done amiss with the defendant have have got insistent on going to trial him that's fair but it i'm having a little bit of difficulty on what the government would have done here would be artificial to say what would the defendant have done if the charges had remained static except that people keep asking you about what not what the defendant would have done  you would have done no one can say that judge ramos and judge for a long time before that he was an assistant united states attorney and a defense counsel in private practice and he knows a lot about how the united states attorney's office operate and he probably has in the back of his head the fact that you guys routinely supersede an enhanced if you don't get your way during plea negotiations but is that a fair basis for him to go ahead and accept of which we disagree with at most a rematch would be appropriate setting forth the appropriate legal standard to evaluate the government's counterfactual world rather than a strict reversal thank you all here  briefly your honor i did want to bring the court's attention to cole how is the holder five seventy one f there are two ninety six where the second circuit said quote and attorneys and sworn statements in a brief are not evidence and that's what issues into play but not an even playing field it's never is your right finally i did want to just make one final point which is even if the court were to credit the unsworn statement there is still are another legal error that the court made which is that we challenge the strength of the evidence on the heroin charge the likelihood that the government would have succeeded in getting the attempted murder and hence men and the court sa i do not need to consider this at the merits because these claims would have been holler colorable is not the right standard the right legal standard is would there have been a reasonable probability that saxon would have gone to trial and even if the government thought of all of these creative ways to enhance the sentence the more it would have enhanced the more likely it would have been that saxon would have gone to trial on one of them and finally the court said below that they can't th can't be a myth because i thought that you were you saying that the the the greater the possible exposure the more likely he would have known to go dry i should be clear all of the various things that the government would have done only would have brought the defendant sensing exposure up to the sentencing range of the plea agreement but the more he had to fight at the more likelihood he would have gone to trial against one of them and if i could just make one final point which is the court said below even if the government had only superseded with a heroin charge the guidelines would have been the same as in his plea agreement with the court failed to realize that if it had done that and the and the defendant went to trial on the gun charge and won the gun would not have been part of the relevant conduct that the court would have considered so the defendant would have been better off in a situation where the only charge was heroin because then there would not have been a gun which certainly had a significant impact on the thirty five fifty three factors that were considered below thank you i will reserve decision