this time we'll hear united states versus johnson life come in counsel said that twice once when asked by the district court to advise the defendant of the mandatory minimum penalty and once when asked by the district court to discuss the sentencing g one point one of the guidelines speaks in terms of the mandatory she speaks in terms of the guideline sentence becoming the mandatory minimum when the mandatory minimum is greater than the guidelines so to that extent the guidelines are relevant in order to become the man or interest in that but the question is whether this defendant received notice from his lawyer from the court from the prosecutor who was asked by the court to discuss this as to the fact that he was simply going to be says that the only possible sentence was life in prison there was no statement during the al straightforward and i do believe that that's not for to me but if everything else was a lot of detail and it's like it's like explaining the plumbing when somebody wants to know which type is h which tab is called move your honor rule of and does require the court to address with the defendant the guidelines now you're absolutely correct i don't need to undermine the point that you know the guidelines since he was life but they can't i don't think it was error to say that here is a guideline calculation followed by the statement by the government counsel that nonetheless these  eleven page thirty three of your brief in which you almost fall on your short course is that the discussion of rodriguez yes and he and there's no question that this could have clarify this to make sure the record we wouldn't have this problem i agree with you wholeheartedly are and i would add to that it is unfortunate that once mr johnson indicated that he wished to withdraw his plea there is a that the court has discretion and that i mean that the sentencing memorandum talked about ranges and discretion in the wind at the sentencing when counsel dress the court the court asked for what what would mr johnson think going through this process if he's told that if he you know of the if the plea is accepted he won't be able to run for public office with with respect to the sentencing memorandum your honor with all due respect to my colleague who was defense counsel those are stupid argument to make but in addition to stupid argument to m granted but doesn't that plausibly reflect that that is the advice that he gave his client if that's the advice he gave his client and mr johnson would have had no idea that this was a mandatory minimum unless he understood what the term mandatory minimum was after own moon moon disquisitions about all sorts of other things and at the at the hearing and to particularly when the string was pulled not by the district judge but by the i don't think it's impermissible for the court to rely on a statement by counsel to express the penalties these are these are technical terms even if it seems rather obvious to all of us  from and in the circumstances given his background or whatever can actually understand what is going on that the plea was entered knowingly in voluntarily with a full understanding of the consequences of doing so my point being that not that that's mind here but that is that determination is made with having the defendant in front of for entering the guilty plea is not relevant from the record i mix in not disclosed by the record so well is that not only is it not disclosed by the record it can't be imagined i would not say that your honor well first of all he may simply not have wanted to go through a trial where the proof is overwhelming and secondly he may have felt that by putting himself in a better position by pleading guilty than accepting responsibility in the climate that we operate in now where the president is is exercising discretion and granting people who are doctrines and sentence where statutory changes are occurring all of these things may have occurred to the defendant to say i may be better off by standing up and admitting my guilt in order to line i'm not saying that that's his belief because through record does not disclose that all i'm saying is that there may have been motivations along those lines to put himself in a better light in the court in the event there was why would a defendant why would an individual say to police officer go look in my car knowing that there are drugs with me it happens people make decisions for us because usually when you drive your car you're have your lawyer sitting next to you that that's  demonstrates that the the lawyer knew full well at the sentencing the lawyer argued for dan we departure he must have been a delusion he wasn't arguing for a pardon besides at this time the only part of the president's we having at were for turkeys know that want to be asking for is not possible but we see what's happening to the law i don't want to be back here in five years or ten years you know re sentencing mr johnson let's do it now then judge mcevoy says well that's you know that's that's correct the law is in a state of flux but we're bound by the law and we get back to something you said earlier you said maybe mr johnson didn't want to go to trial and the evidence was so overwhelming but he would he owned a club he was not a person who was actually dealing hand to hand with drugs he was intercepted on the wiretap your honor discussing the provision of drugs to people who are subordinate so  prior convictions both of them when he was a teenager i don't know if they both occurred when he was a teenager you know the defendant said at least one of the was as i don't know and if and if he had been sentenced on the basis of a single felony information would arguments that he makes they're charging me with selling thousands and thousands of mine of drugs charging me for i should have been a millionaire i have no money check my bank account zero i don't own anything they were in my house not a dollar  scam not nothing anything to do with drugs reckon i had all this money these are millions of dollars they're talking about now i'm not giving any credence to the stuff a statement but simply pointing out there that he's got a story  and he's got a story of some kind which might be sympathetic to some jurors and all he needs is one after all to at least get through the first trial as it were so i mean i don't understand i mean he had something to gain by going to trial but am i wrong absolutely not i mean he's a complete and i don't know what he looks like home or what he's like in fact i just really hate reading his extended meditation it's kind of interesting you know what let me ask you assume for the argument only now that we man for reasons which seems to me to be the easiest solution in the in many of the sentencing cases where there's the slightest doubt it's it's not worth your  trouble not worth mine or anyone else's when you have some doubt you send the back to the shoe court to review the full record again if we did that doesn't make sense to some judge mcevoy could not fairly determine this case on remand in answer to your question your honor i think it makes sense for a record to to be developed as to what defense counsel told his client and in all candor with the court we had some very spirited discussion in my office about whether to proceed with what characterizes a legal argument as opposed to the practical remedy of let's just have a hearing on this issue and find out what was discussed and in all candor i would say to the court why why he should we or in context of mr killen who was the one would you submit a sentencing memo i mean what is what if it's in the sentencing memo if your client know if your client knowingly agrees to for life i agree with you one hundred percent and i don't think it was a wise thing for counsel to do given the penalty even would be a wise thing for him to do if he misunderstood what the penalty was for then it would be a necessary thing for him to do and that is evidence that he didn't understand what it what he was getting his client into there is no question that the memo itself suggests he had a fundamental misunderstanding of the law and i ask you please to to look at his comment mr killen's comments counsel's columns to judge mcavoy what he essentially is saying to the judge look we all know the drug laws are changing he's in effect he's asking the judge disregard the law i think that's a fair interpretation and i don't think that's a smart thing to do he said he said we are watching the sands shift to before our eyes in terms of the sentencing guidelines but the sentencing guidelines are trumped by the mandatory minimum so whatever the sentencing guidelines may do or say in the future mr johnson spending the rest of his days in in jail so i what he said to the court evinces a further misunderstand he's working toward a result on that only makes sense if he has and continue to have the fundamental misunderstanding of the war that you posit i don't read it that way your honor but i i can't say that your interest of are you doing so obviously it says look can ask the court to be prospective in how it sentences mr johnson sentences is present tense now look at all the things he's done and against the things he pled guilty to and sentenced him accordingly what is then it mean to you it means to me i place greater significance than your honor i think on the term prospective i think what would mr killen was saying is let's not come back in ten years when these strong possibility that this is what he told his client yes this is what his client believed and he couldn't believe it other than the only source of this information would have been his lawyer and and  and again with all candor what i hope the court will do is in some context i mean obviously i can comfortable saying that the court is not going to leave this for twenty to fifty five proceeding so this is this is going back to the district court for whatever relief this court deems appropriate and i think there should be fact finding as to what counsel told his client you're confessing or i'm saying that i allocution itself is insufficient i would like i'm trying to preserve the guilty plea if subsequent fact finding demonstrates that mr johnson was appropriately of us mr so it's always a pleasure to see you don't get to not get me wrong but as we kind of administrative through counseling mr love rick your colleague who is the who is  a in the court he is he still with your office yes you're now what why would why would he not come down here and face and give us the benefit of information about what happened in court which understandably you're not in a position to use the of the son in with perfect good faith you've on several occasions during the course of this morning's argument you've indicated you did you might not know exactly what happened or who mr johnson understood yeah that's fine it would be nice to have him here and he would have the benefit of pastoral counseling from the bench and he could help us to you know be might and might be more helpful to us and not that you have  flew exactly so when you go back and you think about this case in the large for future reference maybe you can consider this question of whether it isn't advisable for the particular case to actually come with you at limited expense pregame only for one day the problem i think your honor is that in order to answer the court's concerns we would be going outside the there is an area that i am and i apologize for the amount of time i'm taking here that i strongly wanted to stay away from and i probably should still stay away from but apropos to your honor's concerns when i've characterized what the government has done here is a legal argument there remains the factual question what actually happened after it well just prior to the government filing its brief in this case there were proceedings in the district court ex party application by the government we want to go speak to mr killen and we want to ask him would you tell your client because we don't want to go file this brief if what actually happened is you to the court and said why did you do that without asking me and mr gurr zuck represented to the court that it was inappropriate to allow us to talk to mr killen will usually order allowing us to talk to mr killen and judge mcevoy rescinded his order allowing us to talk to mr killen notwithstanding that we already had an affidavit which i did not want to mention to the court because it's obviously not part of the record so i'm trying to say to your honor's is there is a lot  about judge mcevoy i can't argue that a fresh late would would be inappropriate but i'm hoping the court will do is say rather than set aside the elocution let's have a hearing either before judge mark worsen or some other judge as to what counsel actually told his client because if counsel told his client you're going to jail for life then all of this other information in the record that could be the judge and prosecutor talking about the sentencing guidelines and all of these other options and discretion and you will be able to have a gun in the future and you'll be able to run for public office and all the rest of it couldn't he have come to the conclusion that on that maybe misunderstood his lawyer and that and that in fact he he was going to have the and the benefit of the  would consider to sentence rather than mandatory so that as possible your honor but again all of the advice that counsel gave his client whatever discussions were had may bear on whether mr johnson in fact reached that conclusion that's thank you thank you very much so much for your time this will reserve decision our new page vs sag harbor is taken on submission united states versus