motion to suppress to to preserve that issue for appeal was to enter an open plea to the court without a plea agreement because this court doesn't allow conditional pleas except with respect to issues that are cases positive which that motion was not so at any rate my client proceeded with that understanding and subsequently learned that that was not in fact the law was not the case that you know to play in or did not in fact reserve issues  e right so it seems to me that the real problem and i don't think there's any real argument that there wasn't a lawyer gave him appropriate advice the question is about prejudice right yes ma'am and was a tentative well yeah i think i think the answer to that is that certainly is an option that's available to the court to go after that of the attorney in operate but i think based on the existing record that we've got from the what seems like a more effective way to do did except for the mis advice of counsel he literally got nothing well that would doesn't you mean except for the advice that he could preserve this that doesn't really that isn't really a basis for maybe i should back up did he did she tell him that he would lose this right to challenge the into betweens appeal right if you went to trial no ma'am she told him that could be that that issue  trial because it would it would be the same no matter what our my client told me i can still preserve this argument right if he pleads guilty up and that's what she taught yes ma'am and if he went to trial and he didn't want trial he could to make a difference and just save him some hours of agony hearing this because he's still preserving his right to challenge which was yes exactly which was very horrid to him or so so the catalyst from his perspective is this he's charged with retained there he wanted to preserve the right to appeal that because obviously it's critical evidence and if we win that you know we've been how we see him if he wins that obviously substantially weakens the government's case because a lot of comments around so i want to preserve i don't think i don't think you can do that here because that would be a conditional right they could enter a conditional plea agreement with him but you can't do that in the circuit unless it's a case dispositive motion and a motion to spray this isn't technically cases but it knocks out winner in any case but it's a matter you want to have appeal to the to do look whether or not one with the other i'm just thinking in terms of is there a shortcut some way to resolve this matter without fool own trial understanding i don't think there is and i think we're sort of treading on what i'll call dangerous territory here because when you start talking about the merits the potential merits to the underlying of it you know that would be upset he's got it he would get what he was might be dangerous but if what the nd attorney did which is basically i mean he took back his your client took back his motion to withdraw his plea and went ahead and with a sentence that's accurate and of course there's a you know why isn't that take back sort of ok clean slate now well for several different reasons one is because it's long after the fact it came out of the impact of his decision making at the time that he was given this issue whether  wins question just makes you you series of questions and if we should if the government should agree to have a hearing on the army with that he wants to preserve then he would have the right to to come up here and appeal and why would that satisfy your you're not appointing you're not attacking the conviction per se never know what a jury is going to wonder you never know but of course you never know but i mean do you make as he claims that's what would have happened we don't know is that his contention i'm not sure that he would go quite that far that i would go quite that far libel i think what we can say is certainly  evidence yes or yes or very you're talking about back to the whether he could interact conditional please cite in your reply brief united states versus its jail or court circuit case for that proposition but i don't believe we would have confident with that well he's but i guess my question it's not really so much as what the government have done it he's saying that his client could not enter a court during the process of having a hearing on the morphine withdraw the guilty plea and she said we didn't talk about appealing the suppression issue i didn't tell him that i didn't think the trial was really an appealable issue with answering the question could there have been in another case can the government enter conditional plea on the suppression the kind of evidence the kind of issue that he wanted to suppress you can your honor that end you entered into conditional guilty pleas i have yes so i'm asking you to base your answer on all those where does this business about it must be a case dispositive come in i think is the  understand where it is in our law but what i mean asking you is that a barrier from the government say this is a case dispositive so we cannot enter into a conditional plea with you i have never understood that to be i thought that the entering into a before and he had rejected that in the city could come to me based on the incorrect advice of counsel he rejected that because what was important to him was that he maintain his appellate rights his counsel testified about best i can from the record as i see it st of all i think that she discussed his appeal rights with him and essentially said if you will and then i think you should put in the record in this i think this from the joint and it's that he she put in the record that she simply did not tell him that he would not preserve his appeal rights i think that conversation is ambiguous you know the conversation you're talking about and you just i just don't think it's quite they are that's correct the government but i thought your argument was that the instructions and the dialogue that the court gave saved everything that's correct and so that's the next step and so in this instance were you know the  rights the defendant is giving up she said you would have the right to complain about any mistakes that might have been made before during the trial given all that right do you want to stand and the defense said yes ma'am and then later on she talks about the idea that he cannot appeal now anything related to his conviction which is a bit more open ended i guess but in this particular instance this is exactly the type of thing that i think  lee suggested that we have to worry about which is whether it's a general and equivocal instruction and i submit to you that the judge made it very clear at the judgment go ahead i just made a very clear that he is giving up any right to contesting the state made before trial and this is the only living issue was the search warrant and so the only mistake she could have been referring to is the search warrant and as a result it is not a general and equivocal instruction like you had with it was a largely specific and certainly unequivocal of warning to him of what rights he's given up and he immediately answered yes ma'am to that record only do you measure it against  recent four circuit cases the effectiveness of what the district court told right now had and and so i understand how you characterize the instructions but and they're certainly  that the court system has to be able to rely on the dialogue between the district court and the defendant and in this instance that language was adequate and then added with ruhleben will save miss advice in the circumstances that came up here and so as i see it is a curative power to the rule left in proceeding the language a judge has now used which is that once again any mistake that might have been committed before trial and i understand that but he but he having been warm about this he made that decision not to go to trial now whatever whatever and you know december itself will swap you leave the other cases because whatever possibility is out motion to withdraw the guilty plea one of aspect of which is the issue of credible legal innocence and the other of which is an explanation that he did not understand as a friend not understand among other things the criminal conduct he's accepting responsibility and he wants to move forward with with the hearing percents hearing and so on because i believe there is a little different running from citing to the same aspect as you i think that's right  your honor in discussing with him i do not think that he understood that he was giving up the right to the pretrial suppression ruling during the but if you go to the record on page fifty six dollars what he actually said if you were found guilty after that trower you would have the right to appeal to complain about any mistakes that would have been made for going to trial right i just i just changed because she was reading the race is getting hot in generic passion and so the language comes out what do you mean does it mean a whole lot to tell a defendant you were lose the right to appeal as the post is saying if you were found guilty you seems a bit misleading the many put in there say you told someone they gonna lose the right to ask you know sky st proceeded to point oh better i mean well i mean that's a whole different kind of advice that by saying you would lose the following rights and you have the right for example trial by jury you lose that you have the right to appeal any mistakes made before during trial you lose that and so if she were perfect thing to put in your complain about convention yes that is the determination of guilt but you and the government will have the opportunity to appeal if you think church titus makes a mistake in determining the guidelines or some other passion in sentencing you do you understand that both sides have the right to appeal under these circumstances and this is not a person who has gone to law school and practiced for many years this is a person who fatted he has lost or given up the right to complain about those aspects relating to his convictions such as a pretrial motion and what's left the only thing that's left of this is be getting a legal sense especially as  are found guilty after that trial so you didn't have a trial so you would have the right to appeal to complain about any mistakes there might have been made before or during the trial now he has to understand that that only applies if you have a trial and that these mistakes his mistake was before yes that doesn't tell him that if you don't have a trial you don't have the right to complain about mistakes made before or during before the trial does it all goes to if you plead guilty after that trial if you are found guilty after that trial it doesn't tell you which would happen if you don't go to trial i understand you are that that's true it does not say that i'm not trying i think  cures and this doesn't seem to mean quite there well again your honor i think that the language is sufficient to get in the way she spoke good that you give up the ball right and i'm going to run through those rights you have now and they don't now exist for you and so the understanding in the end would be that he does not have any longer the right to complain about a state made before trial and so i think under the circumstances it has been sure and again it's not to be taken in a vacuum because when mr mitchell comes in to represent the defendant in the sentencing proceeding the number of vehicles the sophisticated needs it has and he argued against all of those and that was preserved by an open police we got a benefit or he was able to reserve the right he didn't win any of them but he certainly had the benefit to argue everything that even the all a problem but you're right it's a fair and just reason that's rational and you know well and in the end i submit to you that it isn't rational to have argued to preserve a right to appeal issues that would make no difference ok the supreme court says this inquiry focuses on the defendant decision making not the likely outcome the trial right and i understand that but the decision making can be cured if there is a visit by us his decision here still has to be rational and can be cured by this rule level but the question is we look to contemporaneous evidence to substantiate it defendant's expressed preferences i don't think there's any doubt you don't in a case in which my both my colleagues wrong to show prejudice the decision need not be optimal and does not need to ensure acquittal it only needs to be rational correct and so i am i think i've argued and i  so i think this case comes down in least your your and your argument that you're making here is whether his decision here his his what he wants to do is rational is what we did say that yes yes no it's not so we have to say about that well i don't i don't necessarily well what i said earlier i mean he just didn't get anything really for ripley he got the math and even your examples from responsibility  t you didn't get anything for the agreement you may not but the other side says there is so why is not the remedy similarly send it back at least this stage to trial judge who says that tom and if this court in slate judge crater right has expressly that in these types of cases we don't have to look at whether to defend it would've been better off we don't even infer that now the family are reading straight from primo versus more united states supreme court case in two thousand and eleven that we send it back now for the district court to determine the whatever the standard is with regard to the prejudice problem because in your great you ask for that you're not asked for that as an alternative that well insane to be a good healthy mind and body does that mean he has to be rational in the eyes of the court does it mean he has to be rational in his eyes his only has to be objective lee rational or subjectively rational that's what i think we know from that quote i understand the point and but i think it goes back to the observation you made earlier from the legions i mean please two thousand and seventeen supreme court made it very clear that this is in these types of standard is not an objective standard a reason one is that we nd guess whether or not and part of the reason that i have a sample battle and judge we don't really mean it that way on the one hand i don't really think it matters whether he got anything for his plea or not the question is based on his own strategic objectives at that time would it have been rational for him to go to trial and to have to forego a complete procedure it's really that simple and that straightforward and may be part of it to the extent it would have affected his decision so even if we look at it from an objective standard judgment as you indicated and we conclude that this was a highly improbable that he was ever going to get any relief for the motion to suppress doesn't matter when the defendants decision about going to trial turns on his prospects of success and those who are affected by the attorneys err for instance where a defendant alleges that his lawyer shouldn't have but did not see decision depend we don't care even house we have the chances are so we don't get into this alternative for the no three from from lisa's it's not only unnecessary to view the possible alternative hypothetical serious i