espinosa suffered a critical error in his case the complete omission of the requisite knowledge of status element infected his proceedings requiring relief and at least four ways st the district court lacked jurisdiction over the prosecution nd effective indictment deprives mr espinosa of his th amendment right to indictment by a grand jury heard the defective indictment deprived mr  unknown unintelligently made guilty plea is constitutionally invalid requiring reversal most recently the th circuit and united states v gary addressed this constitutionally invalid plea in gary the court held that a guilty plea cannot be knowing or intelligent where the defendant did not understand all essential elements of the offense to which he pled guilty  two reasons your honor st i would submit to the court this is really a developing area of law a rapidly developing area of law following the supreme court's decision in raif i think if the court looks to the opening brief although we initially framed it as a plain error claim the underlying rationale and the supreme court cases that we later rely on in the reply brief to demonstrate that it's really structural error are there also in the opening hold that this constituted structure that this type of error constitutes structural error i believe this court may fairly address that argument today if we needed to address that issue do you think that we  are more bruising or you think we have all the information we need i do believe that this court has the requisite information in front of it but i am of course more than happy to submit supplemental briefing on the issue explicitly rejected that argument and in fact acknowledged this court's decision and then a more explaining that the two cases in the two arguments were distinguishable and he respects that is that a more had not the supreme court precedent an existing announcer think supreme court precedent to walk through its analysis thing was st impossibly the supreme court has held that a guilty plea can be constitutionally valid only to the extent that it is snowing and intelligently made and a guilty plea cannot be intelligently made unless the transit receives real notice of the charge against him therefore the supreme court has been careful to distinguish between purely ruhleben errors and convictions based on constitutional errors such as the one we have here in the supreme court has made clear and immediate need is a conviction based on an invalid guilty plea cannot espinosa had a right to make an informed choice and whether that choice was to either actually size his right to go to trial and put the government to its burden of proving every element beyond a reasonable doubt or to waive that valuable right and plead guilty whatever the choice was it was his alone to make and by accepting a guilty plea without accurately informing mr us the news of the full nature of the offense the district court deprived him of this r after someone pleads guilty if they want to challenge the cliff their burden to show that they wouldn't have pled guilty absent whatever the error is and it's not clear to me that your client could show that he would different issue that's not simply limited to with not simply limited to whether he could have withdrawn his plea but again it's more that overarching constitutional was his right what he's saying is that he if he's not informed of all the essential elements of the crime then he doesn't have an adequate bas sis it's a it's a he just was he never was put to the choice that the constitution requires him to be put to that's correct your honor and that is mr espinosa has argument probabilities of what the defendant may or may not have done i would briefly still just in the event the court disagrees i will just briefly address nd half of your question judge friedland which is why on this record how do we know and again i would i would urge that the court need not look to the record but even if it did i think we had an dishes here for example st of all it's just to know the didn't plead guilty with benefit of a plea agreement meaning he didn't negotiate any benefit that he was receiving from the government which counts against finding that he would have entered the plea anyway as far as the specific knowledge is unconscious i don't understand you need to explain to me why that would be i mean i would actually the reverse that what he would want to get is that in his chances winning going to trial are so small that even without a plea agreement  evidence that could perhaps support this missing element it seems that would be an incentive to nevertheless go ahead and enter the guilty plea but that's not what we have here and moreover your honour's when we do look at what we do have which in this case consists crime so even though it's i believe inappropriate for the court to look at this record in this case even if we do the knowledge of status alone isn't there did you make the argument in your bridge then you never continue if you're in prison  i don't believe i don't believe we did here are we rested on that in this case is simply inappropriate to look at the record and that the government the government and asking the court to look to the p s r is a quickly developing area of law and that case itself is still ongoing in this fact a petition for rehearing in bank has been set for may and as judge freeland mentioned if the court is inclined to go down this path and address this issue the government would certainly like to air and remanded the case back to the original circuit for to determine a promise of this and as your owners have already mentioned looking at the whole leavened portion of this this is a case where the defendant entered a plea of guilty and at the trial district court never level never brought up any objections based upon structural error and that point going letting that go according to u s ffion is not a plain error review which frankly puts us right back to where we are in the original briefs which is a plain narrow view of whether or not the four level test is met whether there was air plane air and whether that area affected a substantial rights and that the air seriously affected the fairness integrity of the public record i think this court has dealt with this issue a number of times century hands came down but there is one critical fact sanction i would maybe not forgive me for interrupting they you said in your letter and also you just sort of again  was quote the government asks us to hold any are in the jury instructions in this case was harmless but the lower courts to not address that question we therefore leave the question for those courts  get my reading of behave as they do not take the opportunity to find a structural error but again going to rule eleven press in an issue when someone please guilty and then makes no structural or objections on the front end and then later tries to come back and claim structural error again in a twenty ha letter to the court you go back to our original standard in all the briefings which was the plane or  thank you if there is one point i want to make as distinct from some of the cases that this court has already reviewed on this issue is in many of the cases the they have a sense the conviction whether that be the a plea or guilty and sensing all half actually issue just to bleed a matter for days now i've been in my opinion systems not change the analysis that the court must engage in but if one thing it does of or against the defendant's assertion that this is some sort of new case law they did not see coming and then the saree hafe was uninformed the decision are sorry uninformed of the charges against them and had no opportunity to basically support his counsel says there's some now a new additional element of which they could have fought the fact raised by him to say oh you know i just read this case from the supreme court that came you know four days ago and i see now that i have to go back and reopen the guilty plea isn't that where the burden properly should lie essence court in this case the court was very as a change of plea was very particular with mr ricci case as far as what exactly it is he is pleading guilty to and this is addressed in the government's reply our government's brief during the change of plea the following exchange took place all right in october th two thousand and eighteen you had been previously convicted of a crime punishable by a term of in prison exceeding one year another words you were a fellow at the time and mistrust and those are responded yes ma'am you know based on that record at the core whatever possessing a firearm and the court even in that context looked at the underlying conduct in this case which is the stars the place attended to mistah mistrust knows that he took off running for no apparent reason other than the fact that he was in legal possession of a fire which he then withdrew and true to presumably to be for the police would not find it and even though the police saw him do this when asked by the firearm he denied having it which again would infer that mr espinosa had knowledge that he was legally prohibited from possessing that fire in your honor i did the one thing i did also want to address and the court has not asked me questions about it as of yet but another question raised is the question of whether or not mr spinoza's previously convicted as a crime of violence and that has taken extra steps and how does the fines burning or in a very recent supreme court case even how it defines an narrows what maliciously means makes it even narrower and narrower to a point that there's really no conceivable way a person could give it which was basically this idea of we're going to someone doesn't have to disinform anybody or probation or doesn't have this burden on them that consider a sex offender or person have child porn if they find themselves next to child they don't have to inform the person they could be a risk what happens it is essentially limited to what exactly condition twelve says and appears to be approved by evans which is the ration of par permission officer may require the defendant to inform a civic entity or person that the probation are on notice of the disses a thing that may come up and by doing so the probation for himself is going to be aware of what he signed up for his conditions and the fact that this may be an issue that may come up with his probation officer i contend if the probation officer did inform the defendant this was needed to happen the defendant would still have some recourse whether that be a motion to modify conditions of probation or to challenge the fact that this rich go to case was take place but i think the important factor  being the probation is going to know what exactly is expected of him vs probation officer he will have the opportunity to address it then and you know i know my time is up thank you we'll take you demonstrated that at the time he entered his clie he was making an informed knowing and voluntary choice in order to do so and it's because he lacked that knowing an intelligent ability to enter his plea at that time that's what renders it unconstitutional and again and again the inquiry here isn't to look to the strength of the government's case and i would direct the court again as the supreme court case which makes clear it specifically to trust it just more run of the mill rule eleven a or with a constitutional error of this magnitude when we're dealing with an reversal in this case and i would urge is court to look to its decision and united states the pain you know where this court specifically contrasted minor technical ruhleben errors from errors such as this one that implicates a court concern of rule eleven a cor concern being an error of such constitutional magnitude that it simply cannot stand whatever the past mistrust the news a could have taken and he had the right to make an informed choice here in that informed choice live with him alone because his plea was unquestionably uninformed his conviction cannot stand for those reasons we will ask the courts a vacated conviction vacated clee and remand to the district court for furthe proceedings thank your honor thank you both sides for the helpful arguments the cases