nothing that the government state in its answering brief or put forward to this court changes the application of the standard political to this issue which is kersey a case from one thousand nine hundred is the one i'm thinking of in particular but we have cases going way back that basically say you know if what you're complaining about is that your lawyer promised you a particular sentence and the judge ended up giving you arsons that is not a ground even in the pre sentencing withdrawal of context that's not a ground for the judge to with but you withdraw your plea so what you just zoom in on that and explain why do you think it's different from that kind of case right ok so defendant wailin in this case was given the focus is is the attorney's bad advice pre planned with absolutely no indication that he  gave that if defend it wailin any other advice except for this is a a base of offense level of fourteen turns out the court thinks that it's thirty four i understand you can't then we don't we don't allow you to change your plea just because you have a change of heart we know that but this is not that what this is is a plea entered into on  gross mischaracterization of sentencing and base offense levels in the senate he assumed when he pled guilty there would be a penalty and he assume that the penalty that his lawyer told him would be the penalty would be the pm when in fact that's not so he's expected to say x number of years and spare the most thirty four think africa yeah it was it was a level fourteen which is basically fifteen to twenty one months as opposed to a level thirty four which is  years yeah which is about nineteen point five years yes and what you want us to do is what i want you to find that he had that he met the standard specific point your honor the desire to avoid a custodial sentence may well be the motivation for the motion to withdraw the plea but that motivation is not disqualifying if there is otherwise a fair and just reason to withdraw the plea that's at five forty seven but the garcia case that i mentioned and i know this is going to get you know twenty thirty years now but in that case the lawyer told the defendant you're not going to serve any more than eight years that was then if i say give the defendant pre plea and the judge ended up giving him two hundred thirty five months which i think is the same amount of time your client got right i think your case it's the lawyer said three to six he got to thirty five and garcia the lawyer said no more than you got to thirty five and of course you we said no that is not good enough to allow you to withdraw your plea and so i just trying to reconcile your argument here with what happened in that garcia case yes and i apologize it started to meld together all these cases but i thought it was two hundred months and then he got three hundred sixty months no you know he the lawyer told him you're going to serve no more than eight years and he got to thirty five to thirty five months two hundred thirty five months of the same roughly a little bit less than twenty years so we said that's not a big enough disparity in garcia to provide a fair and just reason to withdraw you say well i don't know your client's lawyer at the trial court level such three to six and you got to thirty five and you say that that is a big enough spread right and i think davis to me is your best case yes i want to ask government counsel about that case but i'm just having a hard time reconciling those you know garcia and davis they don't seem to me to be all that compatible i think i think and them the reason for that is this is extremely fact based inquiry by the court and this court as well to determine was this standard meant and the standard is very liberal very generous you just need a fair and just reason to withdraw his fair and just reason was that he had been misled by counsel correct that's that's absolutely right you're  and so that puts you right into the teeth of of many a winter which in less you can get around may whether you simply don't have a case now in this case as i understand it the the trial judge and i read the record i hope i'm remembering correctly the trial judge said you may get thirty four you may get life  and we said in may whether even if counsels miss religion when the judge when you're in front of the judge and the judge says this is what's libel happen then those prior things don't matter at all so how do you distinguish m whether distinguished they whether through davis which is which said and davis was the case about probation and the fact that look he was told that he was going to get or tell him or give him any kind of hint or he has a different case this is a case because there is something here three times he heard from the judge three times he was warned and he went ahead with the plea three times he knew he could get my wife and he went ahead with the plea and we said mayweather no no even if you've been misled by the lawyer the judge has told you what's going to actually happen and it seems to me that you don't get around me with that with your discussions so far well right now i mean one of the distinguishing factors is first summaries and there was a different attorney and my client doesn't he always need an interpreter so you're going through an interpreter the judge said yes this or you might get thirty one or thirty four you may get life and that he was advised of the maximum there's no there's no doubt about being advised of the maximum he was advised of the maximum but that little bit by the judge you'll get a level thirty four had no effect on the defendant he doesn't know what a level thirty four is we want to weigh him and he's he's you feel of are good in your brief that he didn't know that he was told he was going to get fourteen and not thirty four he knew with thirty four was he knew what fourteen meant because his defense attorney explained to him and said that is basically three to six years so he was he was counsel on the on the time the timeframe i'm going to go for jail for three six year old maybe maybe you can argue that he didn't make a difference he didn't know how much thirty four and fourteen meant but he certainly knew what life imprisonment absolutely and he's he knew that that he could be sentenced to the maximum but you know in mcintyre they talked about i'm  yeah they talked about look everybody spoke in generalities that nobody specifically told this person of the motion to suppress we all spoke in generalities nobody sat there and said you have a right to suppress this this evidence and the court found that's enough to meet the very low standard that's what happened here we're all speaking in generalities what thirty four minute but that's why you have lawyers ask him find this out because i don't know what they're talking about he don't you have some problem with this record with the argument you're making if it had been the same counsel that had been his attorney of record mr baines at the change of plea when the judge said maybe it could be a thirty four at that time i'd have a big problem with that i'd have a very big yes if it's if it's if it's a an attorney who's not familiar with the facts and the case that's a big problem because he can't set there and say stop wait a second this is a problem let's fix this and that wasn't available to defend it wailin there was no interaction or really any indication that defendant wailin was understanding the callil equate that was going on he just said i understand i understand in fact in a lot of these cases the court takes note of you know takes note of the fact that the defendant is engaging in the court and asking clomping russians what do you expect from a rule eleven when the judge has him in front of him and he's explaining and as he goes along the d es i understand the judge is supposed to say he doesn't understand you know and if he understands then that's sufficient for the case i think that's why the standard is so low pre sentence of course it's low but would mayweather shows that it isn't that low if the judge has explained enough and he understands that in which he said he didn't prove yes then are a problem how do you get around me with this mayweather i mean if i remember correctly they didn't believe the defendant you know it's like you did what the court the court didn't believe the defended that he really had a fair and just reason here with that was afterwards when during the concrete he was careful about getting an a and an affirmative comment that he didn't understand i understand i understand yes and that sunk him visa v his argument later that said oh i didn't understand and i didn't you know i didn't understand about the motion to suppress but the court said yes you did because in your affidavit you said you did so that sunk him he was being disingenuous that is not here in this case this was pre sentence the f b i did an investigation the a usa was present they invest stop right there his lawyer told him after doing the lawyer early type guidelines analysis that i think this is you're going to end up with a base offense level fourteen and when we run through all the additions and subtractions that spits out a sentence testified right so you can see that his lawyer didn't give him that faulty advice i would say refute it so yes that is ok so we're on the same page there it turns out he gets what was it i'm just goes you say you got twenty years that's roughly what he got so your conversation but what i was saying was that did occur it was a taping trial so it occurred and you know it is then brought to court for the ruhleben hearing so the prior to plea what i'm saying is prior to entering his plea that's what's important and prior to entering his plea he got correct so he didn't know he didn't because in this advice here it's very different for example from the mayweather case that my colleague was just talking with you about their missing vise the defendant was complaining about is that his lawyer said you because the miss advice was as to what the guidelines sentence would be not what the judge was also only going to impose but what the guideline sentence was going to be and all the judge halted is that this might turn out to be a thirty four but i think your point is r rely upon it is not binding upon the court there was twice as pleas granted and at ruhleben here so that happened in davis as well so the pre print knowledge that he was given was hey this sentence that you're putting on you were allegedly putting on your face then is that's not a good idea because it's not binding and most importantly you are agreeing to the risk of spending the rest of your life in jail are you willing to take that risk as i can sentence you to life do you take that risk yes i do and now we support that was true in davis as well but something that to me that you're right i'm not disputing anything that you just said but that was also true in davis but we nonetheless said if the lawyers advice turns out to be a gross mischaracterization of what the real facts are that can provide a fair and just reason for me to throw it ten doesn't have fair and just because you know but it's saying that the standard for assessing in this context whether there is a fair and just reason is whether the lawyer grossly mischaracterized the true state of facts and so it seems to me that's the legal standard that davi and our task here is to decide whether the spread between three to six versus twenty is that meet that standard because if it does then the judge here necessarily abused her discretion by not letting you yes i would disagree with that but ok let's say this so he  understood fourteen he understood fourteen equals three to six he's then told thirty four under simple math that's more than twice and now he should have been a fourteen times to twenty eight doesn't know because i don't think he says that i knew what fourteen meant in the larger scheme of the guidelines to be severe thirty four i think he says all i knew was that the lawyer told me three to six was what the guidelines was going to provide and he admits that the lawyer told me look that doesn't mean the judge is bound to give you three to six because she can go above should go below that but in my experience most of the time the judges stick within that so that's his mindset is that three to six is what the guidelines provide it turns out that no actually the guidelines provide twenty and the low end right and that seems to me that's a pretty significant difference in davis the difference was zero versus eight years right i agree it is a it's a significant difference that is definitely significant there what's the let me put it to you this way because i guess this is what bothers me about the government's position here what is the good reason why he should have been allowed to withdraw why don't you just say why did you even oppose this why don't you just say look ok sir we got the goods on you if you want to roll the dice and go to trial go ahead but why  that point early on in the case why not just one what's wrong what's the harm there well i might have to reference things that are part of the record but i did reference the e mail we sent to his defense attorney saying please advise him that we are proceeding as if we want to trial he might be getting life here you know he needs to know what he's getting into so that is one reason we took you know that we resisted this we've done everything in our power to get from the upper to right but then you learn after the plea that the defendant says and you're not refuting anything he says that you know what i was totally misled as to what the relevant scenting exposure was had i known that i was looking at a low end of twenty under the guidelines that was going to be the starting point for the judge i would not pleaded guilty and you don't have any basis to a long process we were offering a very favorable deal in the beginning to prevent the victim from having to testify so when he comes in in this this deal that's not so in this case though is it without your honor i'm sorry the victims were willi heavy penalties because somebody against their will is forced into prostitution on sex and that was the case is that a different thing that was the case where they were forced into prostitution he claims they work and that was where the benefit of the pleading and he got he got out from under the mandatory minimum he could've argued sensing hey they knew it and we could say no they were forcing the judge would pick the appropriate sentence but that was the benefit of the the plea agreement that this dependency if he got out from under me to a minimum which would have applied no matter what would have happened at sentencing if i i'm talking about the one it nine zero nine of second it's an older case and it deals specifically with this exact same context and i think it's actually your best case here but just that it's much older than this i think maybe whether is our best case  because it shows the importance of ruhleben outweighs statements made by defendants the non statements made by defendants when defense that silent when we're talking about his guidelines and he's putting all this faith into it that the court can consider the fact he stood silent in this case he established that i was i mean i pleaded guilty under a complete misconception of what was going to happen why when you just say you know what if that's what happened and we don't have any basis for refuting that then sure you should you shouldn't spend twenty years in prison quite incredibly long change here and the reason for that is because we have chamber conference with the judge on june first and we said judge we want to do everything in our power to prevent him from withdrawing later and then we so we continued it we moved one week and that's why we're sending this e mail saying please advise him please advise him of these things we do not want him to try to back out later and sure enough what did he do he tried to back out later so that's one reason we opposed it but the reason at that the reason the change plea hearing it took ninety minutes the judge gave him the yes that is what it doesn't jibe with reality doesn't drive a conversation that doesn't jibe with the violence that the court gave him my conversations with defense counsel you know it when we said when we said we are objections to the third fortune calculation the defense attorney objected that day actually within hours saying the defense defendant will likely would draw if this is true i'm saying it's a virtual possibility that he went and spoke with his client enough time to then come back and say that that is the objection of the defend it that's the gist of the defense attorney not the defendant ok you're over your time unless my colleagues have questions i guess i would just the piece of advice i mean obviously every one of these cases of all is a learning experience but when you know the gap between your position and the definite sense the position is this great between forty and three for you should have stood up a plea called me and said your daughter that's exactly right thirty four is what we're going to argue for and that translates into a sense the range of actually if you had done that we would even be here i think is imposing a burdens and obligations on me that are not supported by the case law in a problematic are problematic if that is i'm just saying you could have avoided having to stand here and ask answer these questions i'm not saying that you necessarily lose the case i'm not saying that's what the law requires i'm just saying as an a usa do i do all of us a favor next time if you're so no we're not that's from the chamber conference where i opened up the sensor guidelines and said we have a problem here thirty four fourteen we don't know which one it's going to be the case law there's no case ever addressing it here's an issue thirty four fourteen for some reason though the evidence shows that conversation was not relayed to the defendant but i think it's safe it's reasonable for me to assume that it would be because i brought it up we then a week later go to the change of plea hearing that's where we get right into it from me having brought it up so i didn't bring it up it just wasn't on the thank you the bottom line is if he's not gaming the system this is a bonafide gross mischaracterization of his attorney's advice to him regarding the person a matter of sentencing the i interviewed all the a chair of the to the attorneys the translators they found nothing because if they had found something it be in the government's answering brief he's not gaming the system in rebuttal to that the government well knew well that this was likely of a rule thirty five rule i'm sorry office level thirty four they there's no evidence that they told mr baines that why not put that in the plea make it easy we wouldn't be here because then we would have gone to trial what in the plea agreement i'm something what it what it what result do you expect from this hearing to vacate the  and to remand it back to the district court or in the alternative remained for new sentencing but i think there are two very different things i think yes they are your honor and that's why i'm asking you what do you expect solution but in the alternative go back and find under the rule of lenity which is a perfect solution withdrawing fully and that's all or at least the third quarter as he was advised he knew what he knew everything except he didn't know the difference between fourteen and thirty four that's right no and he ever the police of guilty i am guilty but he didn't know it using your best argument the difference between fourteen thirty four in other words that he was facing twenty years nineteen plus or whatever his lawyer told him so when we when we remained if we would it seemed on this record the best you could ask us to do is remain for reasons not fall within it seems to me the issue you still haven't answered you say he didn't understand but under oath in front of an article three article one lawyer said doesn't make any difference and that's exactly what happened in this case now if they hadn't done that i understand the argument that there's a big spread in the rest of that but that was true in may whether to remain with or by means of switch just plain probably have to follow the other panels in the panel says that when the district judge under oath explains the things that were unfortunately miss explained by the lawyer that that solves that and even here there's a step further than mayweather because the the judge goes to make sure he understands and he says he doesn't understand under oath so what's your response and here's how you do that you're on is mayweather the court found that his excuse to withdraw the plea was basically just part the issue that he brought forward that may or may whether brought forward was not fair and just because it was false it showed that the judge told him sixty sixty sixty months was i believe the minimum and there was another issue that i think there was a motion to suppress issue as well and in his affidavit it showed that he actually had a discussion with his attorney about that of course th mayweather is about mayweather says no matter what the lawyer tells you when the judge told you was the real fact then that again is that and you don't get the benefit of what happened before and what your lawyer told it which takes away all of the issues we've been talking about if we follow ma work but i disagree with that because i'm not sure you disagree with that but why do you disagree that mayweather doesn't control because that was pro proven to be false his reason was not fair he cannot meet that that is what sentences right and mayweather says regardless of what lawyers say before and that time that trumps on the site here but it's either in davis or in in may whether itself where the ninth circuit says even a perfect rule eleven clip we is not that does not shield