morning may please the court i'm peter henderson they represent kevin shaw i guess i wanted to start with what i think is probably the hardest part of the case for us which is we are on plan or review we have the burden to show in effect on substantial rights and the thing that stuck out to me you know the court often talks about this reasonable probability standard and often the language it uses when it does find that reasonable probability is that it lacks confidence in the his appeal bond and he lays out really i think what he means to say is he feels like he was due and he says look there were mistakes no doubt i knew that these things weren't going out properly i know that there were  what i think they do is if it makes clear that it is important that nobody at any point inform mr shaw all of the correct men's rights for the on thirty two dollars guilty which involves an intent to defraud the thing that right at it you know if you noticed was i do submitted false and fraudulent medical claims so you know i don't i don't know i mean my impression of this mr henderson so much is it's a bit of buyer's remorse he probably expected a much lesser sentence sentence didn't land where he wanted it to he was free to litigate sentencing issues under the carve out plea agreement he didn't get litigated to his content and you know as focused as he is he would hoped and he's you know he's trying to shoehorn this into this mental state requirement in the i think it made a day or in the way it was charged but the plea allocution is i think is that that's the issue for me that's really hard for him to overcome right well and he certainly admitted i mean he admitted he was in the wrong right he admitted that there were mistakes he admitted that he knew the billings were false or fraudulent you know false and fraudulent maybe a different me an the complexity of what fraud is to a lay person does that mitigate against a finding where if it's not explained to you eight you need to have the intent of fraud and here's what that is can we have you know one hundred percent confidence that he actually  think it it's important to think about guilty pleas as as many trials before trial right the government looks at the elements and they say we have to meet this this this the defendant looks to be on the fed's work and i chip away at the judge thinks about jury instructions how do i make sure the jury understands we don't have what happens in guilty pleas where we have this sort of sloppy amalgamation of terms we'll think about well this is what mail fraud is what wire fraud is and we're not getting f b i and so i think that you know that's that's one of the main concerns here is because the elements are basic due process the supreme court's made that clear several times the plain error standard and under that standard this court has held the defendant has to show among other things a reasonable probability that he would not have pleaded guilty but  willfully means in this context is with intent to defraud and the government's evidence what shall i like to summarize briefly the government's evidence indeed the facts that shaw admitted looking at the details of the scheme and finding that the scheme was reasonably calculated to deceive persons of ordinary prudence and caution and so just to run quickly through the evidence and these go to whether he understood the charges and to whether he had that intent to defraud scholl had the same retained attorney for them nor the two members of the district court perceive they the district judge three times that he had had sufficient time just a case of his attorney he assured the court twice that he was satisfied with this attorney's representation and he told the court he understood the charge he already had worked in the medical supply field for about thirteen years and for at least nine of those thirteen years he was running his own medical supply business so he was obviously very familiar with the business presumably very familiar with how one could operate as schemes and he admitted to carrying out his scheme for four years i think that says a lot another way to say that is he got away with this for four years and that says a lot in relation to i'm just very briefly the government contends there is nowhere mr shaw wasn't informed of an essential element of the that's that's and there there are other considerations in this case but the government failed to inform the judge failed to inform probably his lawyer who signed on to this plea agreement failed to inform mr shaul that dementor a here is knowingly and willfully not just know or willfully so that's an error but apart from