good morning i'm brandon bow i'll be representing john smith none of those facts ever supported the imposition of a mandatory minimum sentence even at the time of his sentencing this court had in numerous opinions the stoutest a bright time mr smith pled guilty because it was about a month or forty five days prior to the supreme court's decision to lean but it certainly was at the time he was sentenced so at the time he was sentenced it was an element of the crime he pled guilty correct and at that moment before entering judgment post something or at sentencing district court had an obligation to make sure there was a factual basis for each legal element and at that and said i'm not going into all that because i don't know all these things i don't know all these people they had to take a recess and they came back and they specifically identified the paragraphs and there are only three of them in the factual basis that mr smith would agree to the first one was paragraph two it was simply just a recitation repetition of indictments another one was that he thought cocaine from a person named site and that she sold one gram of cocaine or zero point nine grams of cocaine purposes so this is a distinction between what a defendant is liable for and of the guidelines and what they're liable for under the statute under the guidelines of persons liable for their own individual misdeeds and those that are reasonably foreseeable within their jointly undertaken activity as this court set out and united states versus ash the quantity is that the court can look to you for your sentencing on a conspiracy charge or narrower because the only quantities involved on that statutory sentencing are those that share the common distribution of jack to for instance the people involved all have to sad the same objective for the drug quantities so for instance while the p s r does a stablish that mr sikes sold in mr smith purchased cocaine it doesn't say anything about the intent of the parties for those sales whether mr sikes fronted or consigned those drugs quantities to mr smith and therefore would have had an intent or shared instead of giving a century the hundred eight month sentence that he would have gotten under the under the guidelines he was subject to the range started at two hundred forty months and then the five emotion brought that down twenty five his sentencing hearing he talks about that he's aware that he would have a twenty year sentence does that is that fair to had centrally incorrectly drilled into mr smith that the same thing here mr smith also says i know that i've never seen the drugs the amount of drugs that they're talking about and but now i understand that that doesn't matter which is incorrect and the basis for that incorrect legal belief came from trial held how could the district court even accept if he wasn't willing to agree that he was responsible for at are thirty five fifty three emotion which would get rid of that and they did or i did but we never sort of playing they were gambling a little bit with what might happen i mean because he also the government was also at least shouldn't white why didn't he speak to withdraw his plea i think that from the i mean isn't that because the danger would be if he did there and he's risking life you know i think that mr conspiracy of his and twenty one years forty one one b subsection sets out the penalty for for the quantity involved at the time he changed his pleading the penalties my drug quantities essentially irrelevant at the change of plea hearing because they could be found without a jury finding without anyone admitting to it during a change of plea hearing it didn't have to be found beyond a reasonable of yonder is i mean but everybody thought it was a made level because they were specifically contemplating a twenty year minimum that the government certainly seemed to do that the drugs attorney did also around again based on here's a guy i would see on reasonable reading of the new sentencing proceeding rather than withdraw fully gesture the very basis of this whole thing is there's no factual basis for the plea that that's the underlying know thank you we have a problem with the individualized drug quantities here don't we yes and now and if i could if i could preface my remarks with just a few comments before i go into that as far as  appearances go james brown if you're in for the united states your honor i'd like to just preface everything by saying that they don't want to withdraw the plea today they don't want that remedy today for the same reason that coun but even if counsel acted reasonably could the district court accept the plea when there was no nothing to support the individualized quantity that you would need for sentencing purposes ok you're out of the question we look at the question i'll answer the question but we look at the question differently the question is whether the decision not to object was reasonable given the downside ri exchange for that agreement we gave us something we gave up to things we did like number one our decision not to file a second date fifty one that was agreed upon consideration and number two we agreed to give him a five k which took him out of the twenty year mandatory minimum so he took two big bargaining chips off the table during his negotiations with the government he got a five k he got or so green not to file a second date fifty one and he got a sense below the twenty year mandatory to remain and slowly for the purpose of addressing whether or not the defendant wants to withdraw his plea and if so back to the indictment because indictment is the one that had five kilos right but the indictment didn't make any attempt to break out on this mr smith you have a simple subject verb object and we believe that under a lien when somebody admits that conduct that that's enough to trigger the statutory minimum sentence and we think that god is parental supports that very proposition now that being said we will acknowledge that he had a basis to argue that the plea colorfully was decision under rule of n b c three weeks knowledge that but that was preposition that's not what he wanted he did not want vacated the plea because that could potentially lead to a life sentence that's what my colleague is not advocating for that position now and he didn't argue for that position sentence or could have been so just because there were grounds to object counsel made a reasonable strategic decision not to object because the downside risks of objection or t prejudice issue if we could support it support doesn't have any more questions about the first issue on the defendant cannot show prejudice there's two different standards of prejudice years there's a different outcome seeders and there's the your the result of the proceeding would have been different or are you saying the district court got it right when it applied that he wouldn't enter he would have accepted a plea the first standard the court alluded to w plea that's that's what it comes down to what he what he put on paper is the is is the strickland standard the different outcome standard and we say that he cannot meet that standard because as this court stated in kieswetter the remedy fifty one and to give him a five k so just in the interest of fairness is it is it fair to just give him just reset and then after we've made all these concessions and got nothing for them and we got the benefit of our bargain at the the parties really have a