you for here this morning to you the term whether or not the district court use their discretion and not allowing my client to withdraw his plea at the time of the sentencing is our position that there was a fair and just reason for him to do so strongest argument believe was that at the time of taking the plea client was in this advised by the district court and the judge and applied that he would receive up to two years on count two of his claim was not stated that there was going to be a mandatory two years so between count one count two client received a total of three years the rest of the paragraph yes he did go on to state that you do understand that let me rephrase that if it's count one your get up to thirty years and with count to total thirty two years do you understand the cost of the mandatory consecutive sentence and count to correct judge did indicated that was mandatory however this my client part of  whether this you know slip of the tongue was even translated and i wasn't there at the time of taking plea he did have prior counsel so i can attest like yourselves i'm just also reading from what was state at the time i always get really nervous about nit picking words when you know that what the person that i'm that that it wasn't said to him in this language anyway agree medications at that time right so we don't have that it's just not here i believe it was indicated to p s r and it should have been in the report because he was that he was generally on medications but that he was on medications that day which could have had any counsel did understand the drug he had suffered numerous strokes it was under chancer and had a look if you had come in don't start with a debt with a declaration that said you know i knew what to tell you with the time that i was taking x y and z and i couldn't think and i was my mind was a mess that would be a different story and should have clearly indicated that was a mandatory two years in fact that his statement was caused into taking a deal that he was facing up to thirty years if he didn't take into client again he did of not knowing the legal system of not being a first time offender the language barrier has been recently emigrated to the united states have the time i think of taking all that as a total suggest that it was fair and just reason he hears the words from the judge telling him you will face up to two years you will count two you will face up to one year count one his attorney told me you're likely candidate for probation or just a few months good morning your honor may it please the court matthew morris i represent the united states i was one of two of the prosecutor the two prosecutors and a district court there was no abuse of discretion here your honor because that the district court and if i had the correct legal standard and didn't make a ruling that was illogical irrational or unsupported by the record i think it's important just burst on you think you hit the point here that the there was one momentary slip up where the district court said up to two years and in if i would say if it weren't for the fact that he'd already been told three different times that it was a many times for years this one did then all that lou said they were it wasn't the most clear your honor he did three things though after that initial up to two years he said because of the two year sentence and then he says because of the mandatory consecutive sentence on count two and then he gave this example if i give you thirty years on count one because of the mandatory consecutive se have to give you a total of thirty two years and that says do you understand that in a certain marion said yes mr rosenberg at the hearing on the motion to withdraw i characterized that as being completely clear and concise and got went beyond clearing it up and so given where the district court was on the motion to withdraw the plea being told by the defendants new counsel that this correction more than cleared up there is no abuse of discretion for the judge to have accepted that representation of the judge that after incorrectly saying that you can review receive a sentence of up to two years for our count to set didn't say let me correct that you are that was a mistake scratch that he said let me rephrase that that's right you're rephrasing means i'm saying the same thing in substance i'm just using different words to make it more clear when you agree the words to mean different things your honor i think this court a strata says that the court as reviewing this looks at the entirety of the plea colloquy and total it doesn't look at just one sentence and ignore the remainder and so under no stratus which the district court referenced in his in the motion to withdraw the as well let me rephrase that and why are you going to assume that x equals why i don't think in this context your honor given how clear it was where he says because of the mandatory consecutive if you get thirty you're going to get thirty two i think in the context of the entire paragraph it shows that it was certainly a public would have been better if judge burrell had said you know as you said scratch that let me correct myself but what he did do was clearly say the two year sentence which is mandatory  consecutive and then gave an example that showed thirty plus two equals thirty two and that's the sentence you'll receive now he didn't see that's that's not what he said he said if you are sentenced to thirty years for pleading guilty to count one because of the mandatory consecutive sensing count two you'll have to serve a sense of thirty two years now as lawyers we look at that and we can kind of figure out what the judge is saying but if you're a layperson and a defendant if the defendant could have taken that to say well if i give you thirty years on count one then i'm going to give you two years and count two and then it's going to be thirty two years he didn't say the judge didn't say under any conceivable set of circumstances the lowest s give you on count two is two years that's true he didn't use those words you're right but he didn't use those words but he didn't even convey that that concept well i can only rely on mr rosenberg told the judge at the motion to withdraw the police which was that it did in fact convey that that it more than cleared it up and that it was clear and concise what i suppose that he had not clear but he had already been told several different times otherwise this would still control all right and we would have a problem there be more of a problem your honor it certainly has the whole point of rule eleven is precisely to not have a passive person just hearing things another or insisting it's just say do you understand that right and you get a response back and so the fact that he was advised and other times but without a by very directly to what he knew in a sense that people to now mean you know until now you can say yes into and out joe but the reason we have ruled eleven is essentially to have this dialog she you know that the person is supposed to be listening and if he says yes you can hold them to it and so i there is something special about a rule eleven  and the plea agreement on the two arrangements in which he was clearly told about two years but that's not the that's true your honor it is not the question is that this court has said if you're looking at the rule eleven call it we destroyed us as look at all that and then going to some of the other surrounding information that the defendant pause that this i would not find this stamey what the correction terribly clear are standing by itself however he was told three other times at least that there was a two year by a judge twice by a judge and once the plea agreement which was regine that there was a two year magic choice and and what i'm asking you is to each take that into account but you do your honor just as for example the court can taken by the district court was able to take into account that this request was made on the eve of sentencing and that's the atmosphere of case so the court's allowed to look to the totality of what's going on in front of me what was this person advised of what's the course of dealing been to decide whether there's a fair and just the comes in on the eve of sentencing the judge can consider that as being evidence of a last minute change of heart and in fact this court the district court in this case did say i'm of the opinion that what's going on here is not that he didn't understand but that he has decided on the eve of sentencing that he doesn't like the fact that he might get what i had said he could get like was on the prior advisements goes to the question of whether or not in fact he knew and whether there was any kind of unclarity or  something wrong with this stumbling that the district court did so all of this together goes to the question of whether within the wide range of discretion that the district court has of whether or not he found a fair and just reasonable to withdraw  sorry you're on your way if i could just as hard that he should have been able to i'm not sure we would have argued that just as hard your honor i think part of it as we pointed out to the district court and we pointed out here part of this is the context of the four or five continuances of sentencing and then literally less than forty eight hours before sentencing from the motion asking to withdraw the plea a c m down to about a minute i'm happy to address the interpreter issue and or the criminal history issue or the with respect to the codefendant there was no dismissal of aggravated id theft as to the codefendant we never charged it we never dismissed it so that's an incorrect statement i don't want the court to to have a misperception about the record in this case there are any further questions coming from the vacuum of myself being an attorney understanding the process i don't feel speaking on my behalf when that clearing it up that is not also relying on my client as the way he interpreted it i still think that the issue with the trigger i'm sure was gladly and correctly translated to him i still just feel that when you're telling someone that you're facing up to two years you're facing up to thirty years and the prior notice of his knowledge of what was happening not happening with his codefendant the disparity in the sentence regarding that coconspirator was the more serious but he didn't he didn't do the identity theft was the problem right right but this guy was the guy who dressed up for made believe he was somebody else not the other guy that's true he was presented with a card that had his picture that obviously he relied on to secure the goods that were taken i wanted to bring up the fact that the trial court was aware that he was suffering from cancer in korea at the time was are you under any medications that can interfere with your present can anywhere with this when we do not now have any evidence that he was under medication there's just no way i just feel that there should have been a better he took that as an accusatory statement question whatever he did if he had come in now with a declaration saying that he took x y and z medication before that day and he and his mind was screwed up that would be one thing he hasn't done that and finally i'd like to indicate that i think we have to place a large burden on the fact of the district court i don't think his explanation helped my client asked earlier when between the plea agreement the arraignment and the like it was whether the two years mandatory was completely appreciated by my client i say no when he's sitting in an intimidating pressure like a district court and the judge telling him the man he sits before and has to be quite respectful to telling him you will be sentenced up to two years comes back with a formula rephrasing that that i can appreciate i understood i know the law what it meant but i don't think the way it was addressed to my client at the very end he says because  mandatory consecutive sentencing count to you would have to serve a sentence of thirty two years you understand what i just said yes it does state that correct however i don't think it was a clear phrasing by the judge when he told him that i mean of course your premise has to be that he was paying so i don't think that thank you very much we appreciate your arguments thank you