states versus gonzales number eighteen dash eight zero one seven will give counsel a moment to get settled crimes that were established based on the record it was presented during the second whether in the event that they were not establish whether this  and then finally whether or not to failure to establish an adequate record with regard to those two counts affects sentencing with regard to all ten counts but what it is if before you jump into those four issues could you tell us what remedy you're seeking here if we agree with your argument and the reason i'm asking that is i who i wasn't clear on whether you're seeking to bake a the entire plea agreement with that is go away is that what you want to do that how it happened that's what i think my client would want to start over yes and i think that could work to his disadvantage frankly and i we talked about that i think he wants the most released that he can possibly get well i'm surprised because i read the briefs indicate that you wanted re sent had the opportunity of getting a sentence that would put him down to a fence level of twenty three possibly and it might be a few years less but ideally that's probably best for him but secondarily if if if we think if if part of the plea agreement gets is voided because you have a situation where two of the counts or are no good then that affects all of the it avoids any additional cases they were either single charge cases or there was a challenge to all of the charges would you agree with i agree with that i and i did in part something it will be doesn't that like this doesn't that suggest when you have a multi cam plea but there's a challenge only to some of the cans those cases do not support the  route rather they indicate the appropriate thing is to remain for vacation well i did because i don't know that i can go that far because they obviously didn't go that far they didn't have that fax situation so i just don't know that you can say that but i will say i did for my are arguing as i understand your responses to judge murphy that if we were to agree with you about two my money laundering counts the the plea to the other a house in your view would not and the one thing you focus on and that's dollar amount that would possibly be lowered the dollar amount is independently established in the relevant conduct aspect of this and so don't those two things together mean ear argument even if you pray all the everything's harmless in the same sentence would prevail and we should affirm on that basis it's very possible and frankly the dollar amount could wind up being more if the government gets to argue the dollar amount in a recent in sync they may prevail on the idea that it's over five hundred fifty thousand dollars how could it be less if the relevant conduct establishes  it because there is that issue and because the plea agreement really talks about the fact that all of the he's doing a plea agreement and all of the crimes are grouped together i think you do get into the issue of really what is the dollar amount because the dollar amount does is the what is the determining factor as to what the ultimate sentence syncing range is going to be so i i i do think that the other eight counts are affected because that i understand i'm going to briefly mention because my clients wife is in the audience and because the wife and also the client want me to argue a case of ineffective assistance of counsel and i that i have a big expressed in the brief as well as to them that this is not the place to do it that they will possibly have the opportunity to do that in the hay vs but that involves an additional record and two whether there is a factual basis for them was present or should but i just fifteen fifty to ask you a hypothetical and i want to underscore this is a hypothetical i don't want the government to get nervous about this hypothetical but if if the government dismissed counts fifty fifty with this in the rollins case because if it does affect the other if you had to play and it affected you the plea agreement is done with regard to all ten counts and so two of them wind up not being a good i think you have to throw out a plea agreement and i think the answer is and i think the mistake in reading this obviously i'm new to all this just as you are and i'm trying to sort through whether or not there really has been a factual basis i think the government's mistake is they simply think that if there's something that all fisons a financial transaction then that's sufficient to make a money laundering count and of course that queller case indicates just the opposite that the transaction has to be designed for the purpose of concealment and we simply do not have any kind of record at the time of the plea to suggest that putting in going to a safety deposit box that has eight thousand dollars of drug proceeds in it or in transferring money from one account that the defendant controls to another account that it controls that either of those two financial transactions are necessarily designed for the purposes of concealment and so do you do you have a safe deposit box case there is an old one which is the case of the seventh circuit there are lots of other cases that involve boxes  i mean most of the safe deposit box cases that are sort of in this posture go against you well i don't know how many other safety deposit i sure looked carefully to try to find as many as i could write the only one i found case i won't say that there aren't any others out there but i couldn't find any more i think frankly if someone were operating their drug dealing business out of a safety deposit box and every time they did a drug transaction they took their money there and then when they want to do another one that took the money out i think that's a situation where a safety deposit what if they just did it once if they took the drug proceeds over there put it in and they went took it out  later i think you'd need more facts frankly is it depends on what you're going to do with them when you're taking them out or whatever how long it's there are a lot of issues if you're taking the safety deposit box so that you can put them in the car to go drive down to mexico like they did in queller and  go deliver to the drug lord and the answer is no it wouldn't qualify so correct can i just ask on the two counts that i'm looking at the plea agreement right now and then we have these summary statements and my first question is if if the if the summary statement isn't sufficient to state a factual basis the government could still rely upon additional evidence yes that is that correct yes but if the factual statement in the plea agreement worse sufficient then we would really need to  and i guess i'd want to know a little bit more about what that means but but the other one talks about transferring funds and it alleges that earned from unlawful drug sales conducted financ at least in part conceal why why isn't that one sufficient because transferring money from one place to another if if the other bank account had been legal funds in it it unquestionably would  know i understand that but this is something that the defendant agreed to i mean it's in the plea agreement just there was a transfer of money well no it says more than that it doesn't just say there's a transfer it was  just simply parroting the the elements of the offense and that's insufficient the judge needs to make a comprehensive record to establish what indeed the purpose was if if this is a if these two counts or improper then it is plain error i don't think it's necessary it's not fatal that i fail to argue player in fact when i first saw this i thought into the rug that i didn't present the plainer argument in the opening brief it's also not the end of the road that i didn't even mention the appellate waiver in the opening brief either that was an argument that would benefit  the government and they'd had an opportunity to write it and they didn't so the only other issue might have to do with whether or not the appellate white or if it does in fact exist in might  apply is twenty three or twenty five and there's just a host of things here that create all sorts of problems with with that obviously the judge goes to the senate to the plea called there's no there's no indication that there's any consideration for the change of this amount both the judge and the defense attorney refer to the level as being twenty three at the time of  the in subsequent proceedings if they didn't understand it to be twenty five there's no reason to believe that the defendant should have understood that it would have been changed to twenty five so based on this i'm going to reserve the remainder of much on thank you  mr one discussed and what the court asked about the factual basis for both counts includes intimate admission by the defendant that the purpose of the transaction the use of the safety deposit box the transfer of the money was to conceal one of the statutory  the nature source ownership control location of the proceeds one or more of those it's admitted the defendant never ever said anything to the contr that is a sufficient factual basis there's simply no reason to believe the defendant that a judge has to say to a defendant how how are you going to do that how is that going to conceal it the judge may but it's not required plead colloquy is all the time have defendants simply admitting their intent that you need more than that and it may be that this happens if it happens regularly but here we have a situation where someone's actually challenging whether that is enough and what's what's your best case that that is enough your honor if we look at ruth which we've cited in our brief could you say that again ruth are you t h thanks cited in our brief this court held two things that matter here one is that when the sufficiency of factual basis it is challenged that's different from when a person is convicted at trial sufficien evidence which the friend and she or cites almost exclusively cases where people are convicted at trial but it also says there's a it's a case where the defendant it made it that he was a  thousand four see case so defense admitting that he possessed in a firearm and further into his drug trafficking and carried it while drug trafficking and there's eight a summary in that case of a particular facts about when the defendant was found with a gun where the gun was found a tape recording i believe with the c i where the defendant talked about having a gun around and then the court asked the defendant did you intend did you did you knowingly possess that gun knowingly and willfully possessed that gun and if it said yes and that was enough defendant never contested that the defendant did not for example say you know i agreed to sell marijuana but i did not agree to sell cocaine which is adams which is a plea agreement case which is a ruhleben case where second circuit i believe  appellate waivers where the defendant said you know i'm agreeing i'll agree that i i sold five kilos of coke but i didn't and there of the adams court said you know just saying you'll agree to it's not enough but here it's that's not we don't have that case the defendant below when he was in front of the district court never said i just put that there for might my daughter  that money because i got better interest but i agree yeah i intended to conceal it because i agree deplete he didn't say that and we this court has repeatedly said in many contexts that the solemn under oath statements of a defendant in the district court should be given more credible credibility and weight then the post hoc oh no no i didn't understand kinds of statements the come in appeals and collateral attacks so there is a sufficient factual basis to defend it and made it his intent and his purpose in each transaction and each transaction does cover the elements of the crime they take it at it look at it they put it back that's an access but is that why would that be a crime here if that's all he did don't you need i think you need a little bit more than what you  that's exactly what happened we knew from bank records that he went on to that particular day those charged in the indictment and he signed in and he looked into as he is a safety deposit box but the agreed upon factual basis t he one the defendant agreed to included that he was at the time knowingly using that safety deposit box to hold drug proceeds and he did so with the intent to conceal one or more of the statutory elements if all we had was his access of the box you're right and the defendant would be right it's not one hundred fifty six money wonder well are you telling us that we shouldn't look at anything other than the plea agreement to address this argument that there was a lack of factual basis if you seem to be you seem to be saying that's it that's it that's what you look at and long as he agrees that there is a purpose to conceal or to be that ruth says that so much and that's not the holding in ruth but the holding him but they review basically a description of some facts that describe the elements and at least as to the element of the defendant's knowing and willful possession of the fire h e simply admits it and never denies it and i think that yet that is enough under oath before a judge with an attorney standing next to him where all the other aspects of rule eleven have been complied with what more is needed assuming you're right just from a belton suspenders perspective is there anything in the pre sentence report that would support his use of the  safety deposit box for illegal activity you know i don't think it's in these pre sentence report but in the plea agreement itself you'll notice that in the forfeiture section the government agrees to return three thousand dollars that was three thousand dollars from the safety deposit box so in fact there were commingled funds inside that box and it's not in the record but those belonged to his his daughter who said she got them from a clean business and the government pivoting over to the issue we spent a lot of time talking with opposing counsel about assuming there wasn't a factual basis for the two counts then what happens what happens to the eight counts and what happens to the on the bottom you know the defendant says the court should reverse these two convictions and remand the case to district court for further proceedings which should include re sentencing as to all counts there's no suggestion that i've seen in his briefing through the service or reply that this court should be reversing his convictions on the other eight felonies and there's absolutely no reason to do so he doesn't claim that there was and what do you think the law requires under those circumstances your honor i think that under the circumstances of this case where we have an appeal waiver in the sentencing agreement on condition made at the time sentencing and we can appeal waiver a plea agreement think ludes multiple counts eight of which are unchallenged including five additional unchallenged one hundred counts that those waivers should prevent any recent unsing on any count that's not reversed those other eight counts should not be touched to do the numbers matter but what if there instead of two out at hand it was i don't know eight out of town what would that make any difference your honor i think the numbers matter i think it's which convictions so in this brings me to the appellate waiver and rowing's this is this what you addressed in your supplemental yes your honor and i think we also address in our international brief as well but although not as much detail i was interested in your i guess that we were we were connoisseurs reply and yes your answer sir is there really that much daylight between your two positions on whether we should the appellant wants us to go with these other circuits in yours and now you don't need to do that but i'm trying to understand how it's practical daylight really is between the two of you and that is your honor i think there's less difference between this court's approach to appeal waivers when there's a rule love and challenge in the other circuits then i thought at first when i wrote my reply brief versus the surplus and but i do think there's a significant difference between the defendant's position and what he needs to go forward and the government's position in this includes what it means to look at rowling's as a plea agreement that stands as a single agreement you know this court should start with whether or not the appellate waivers knowing involuntary and whether or not the claims made here invalidated and they don't the plea agreements fully supported by eight unchallenged undisputed knowing involuntary guilty pleas including five other money laundering counts and i think this is this is key you said would it matter if it was eight instead of two well if the defendant were challenging all of the money laundering counts plea agreement where all the stipulations regarding guidelines relate to money laundering where the money laundering guideline controls were every agreement regarding forfeiture everything undisputed guilty of five one hundred grams fully supports his plea agreement fully supports all of the terms of his plea agreement including the appeal waiver so i think it's not the number your honor i think it's which counts can which counts make that plea agreement and which counts break that flagrant and that's the defendant's burden well whenever you have a sentence you always have the grouping provision that applies and what you're saying is that under a circumstance like this case and that you would not apply the because grouping requires you to go back and look at the the holistically at this and they gave you in a formula but so i don't understand how you can do what you want  don't i think you would group the same way in the end the the guideline would end up the same because the stipulations in the plea agreement also should but should survive but are you saying then that you have to consider group the two there are left to be sentenced or used to p s r that existed before and resigns on just those two counts because that was that's the whole criminal conduct that happened thank you counsel thank you corowa but i think it's one of the other two where they said it in money laundering cases you have to be particularly careful because it's a difficult statute and so the judge really does have a responsibility to make sure that the crime actually has been committed when you know from the district judge the sentencing is proceeding there are plenty of the opportunities for the defendant himself or herself to make a you have a defendant mid in all the l it's which are factual matters what is there unless he equivocates to put the prosecutor on notice of the prosecutor as to something else or the district judge  ok so that doesn't help us because then you can go back into your record in a case do you have a case that says that the mission of the factual elements  is insufficient did the cases that discuss this and again i listed them garcia estimate the estimate says that it's need to support the distinction between money laundering and other related crimes is very critical and that was the reason why there was it was you know sam minor might my concern in a trial setting you're not worried about notice to the district court or notice to the prosecutor because you have a record  that if you're dealing with a money laundering case the judge needs to establish what the factual purpose is the actual factual purpose of whatever it is that is supposedly creating the money laundering situation and that simply wasn't done here you've got him going to look at some money in the only thing that's in the record that i'm aware of is that money from his drug dealing activities purpose was to conceal that's what it but again just simply that's not sufficient there needed to be some further explanation i understand the money in the caller case was concealed as well