advise people at the initial wrangle as to the knox among sentence possible and no reason to think that was here thank you or your honor that's actually one of the speculative findings that we find in this report but that get him to do the settlement unsuccessfully didn't happen to mention what the penalty was well you're the only evidence before the court that that is correct because the only evidence before the court is just what mister fairlie cannot testif going on here one is that palomar is said it's a winnable trial but i think you're also trying to tell us that one of the problems here is that someone he was only told forty five years he wasn't told life well that is you know where he's pushing a client to go to trial not because the client has a chance of winning a trial which is completely original but because he wants to get paid more your honor and there's evidence in this record and it's number ten that after  the most reasonable inferences because he was engaged in this on a living because he was engaged in illegal activities when he runs into an attorney that tells them this judge's report in recommendation this court has previously determined that failure to object to report recommendation precludes appellate waiver and this rule makes good sense because such a rule isn't porton it prevents litigants from sandbagging the district court if mister fairlie scieno was not in agreement with the district quidam excuse me with a magistrate judge just prejudice determination an objection would have flagged this issue for the district court who could have either looked at the transcript or held additional proceedings to get that to get that issue straight and then of course if mister from the sienna was unsatisfied he could petition this court for a a certificate of appeal ability and the mere fact that this court granted so it's the government's position that not only did he fail to do it below but also on appeal he failed to recognize in the opening brief despite the fact the government had had flagged the issue in a motion for summary disposition the failure to object to the your honor as the supreme court has it's fully and in full candor it can be excused the it can be excused in the interest of justice however the importance of flak being issues for the district court and then so that they will no longer be sandba and can take this very issue it would have made an even better record for your honour's to be able to to look at this very claim had it been flagged below but move into the merits that hear it all boils down to prejudice and is your honour's are well aware and the prejudice determination here boils down to the factual findings that were made by the magistrate judge largely on his his why but why should we look at what the st time he did or didn't do particularly when you think about the timeline here right mister mchugh friend i think it's only in this case for six months by the time of the presentation of the plea offer by mister palomar as it's it's actually i think ten months later and it's a year later to trial why why should we look at all to what the st attorney said or didn't say your honor it is an important consideration because it shows the thought process of this different from the beginning and it also helps us gauge his credibility for example during the evidence  and he had stated that part of the reason he got a new attorney was because of the language barrier with women then attorney to get her but the truth of the matter is he had filed a pro se filing with the district court in spanish the translation  exchange cut off anything the prior tourney my might not have said about either his exposure about the strength of the case or about whether or not he should have taken the plea well because in this case too attorneys to look for a twelve and a half years your deal because he believed another codefendant with a similar role was given a twelve and a half year deal so he was willing to put the forty dollars to forty five dollars minimum is on the line to secure a twelve and a half day and not only that you have to prove what it's worth on the record at the award changed quite hearing mister bond a lot of state to the district to the maddest your judge at that moment that he was proceeding to trial contrary to counsel that now that's the only thing we have on the record of mister about a lot of because it costs the hearing but to the extent that there are at least on the records to contractors who present him a fifteen year offer and to the two attorneys he said he wanted twelve unhappy your offers both attorneys at some point in time recommend if you take the offer we have that on the transcript of the aborted change play here given all of the testimony ultimately the magistrate judge found that mr judge during the evidence you're hearing that he told the magistrate judge during the aborted change of pleas hearing that he wanted to discuss this with his family that he needed more time because he's trying to create this narrative but review of that transcript shows that no such interaction happens but review the transcript shows that the case was called mister problematic is set against the advice of counsel he's proceeding to trial and the magistrate judge said ok we'll send it back to the district court so there have been instances on the record saat and was able to question the credibility of this individual who had received an offer and then given the practice of what the magistrate judge have explained it was during the hearings explain the mandatory maximums and minimum and there's also another part of the record that supports the court's finding that he in fact knew he was subject to a life sentence if we look what happened at the sentencing hearing the  and here you have the just your court asked whether the p s r had been explained to the defendant and it had in the p s are included the correct statutory maximum and then he's being assisted by a courtroom  happened during his trial so when something upset him he discussed it with the district court he had said that ensure our was making eye contact with a with a government agent sitting at the table he was bringing up these issues that he was specifically be found on page if you will excuse me on six and seven of the sentencing hearing transcript when he was upset about something at a sentencing hearing he told the court that the agent was making eyes with a juror i thought i saw them talking in the hallway if he was really uncertain that he was that has a life sentence so you didn't know that this was going to happen counsel mentioned in the introduction before his allocution he his basic claim putting aside the life sentences she has basic claim is that he had an unwinnable case he was going to lose for sure but his lawyer to cvs him into going ahead and thinking he had a chance and so he tried the case and that was about practice by the lawyer if we were to agree with that and then vacate and remain and unless the court below could force the united states to re extend the settlement offer all he would then get is a trial and yet that would be the trial that we've already to create he was crazy to go through because he was certainly going to lose so i'm not sure of this is necessary because there was no prejudice but your honor is also not taking into consideration the possibility of a straight plea where you would have a minus three or three for acceptance of responsibility in this case also it's important to note that down the line the nd one hundred and twenty four c conviction was vacated because it was within the same conspiracy so in theory he's facing a very different pair ramma now and the minus two which he already received for the nd eighty two i see that my screen is frozen i just want to make sure that your honour's are able to still hear me we can hear you counsel him in my are my recollection is that we have had a at least a handful of cases where the assertion is that the that the person should be allowed to back out of the plea but they don't want to go to trial they just want to resign and saying and that we have done that in some this case comes down to like we said that prejudiced prong and it all comes down to the credibility determinations and clear error and is this court has one time explained and in very specific terms find him a deal the fact that at that at the evidentiary hearing he said that he just wanted a better deal that he was willing to throw throw everything away in take forty five years if he had gotten twelve and a half years y but he had not visited his client since july so it is completely consistent with the only evidence on the record which is mister anything else testimony and it's very reliable that he was  that that concludes the arguments for today the session of the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this honorable court counsel you make disconnect from the meeting