good morning your honors may please the court my name is elizabeth johnson and i'm representing appellant heard ok i'm sue in this appeal mr kim sue is challenging his conviction on the grounds that there was an inadequate factual basis for his guilty plea and in talking about in inadequate factual basis for guilty pleas it is important that we remember that this isn't a technical violation the lack of an adequate factual basis is this court has repeatedly held export to iran without a license he says in his allocution he said clearly he knew he learned at some point that the products cobalt powder was going to be sent to iran he never says i but that's not enough the supreme court held almost one hundred years ago that merely knowing that what you're doing is going to assist in an illicit enterprise and doing it any way it's going to assist in the further is of an illicit conspiracy their legal conspiracy but until you agree to participate in that conspiracy and you intend to further it you're not guilty and in this case mr t m sued never said anything like that he knew it was happening he didn't stop it from happening he never agreement he knows it's happening and he can't stop it i think the no one ever the problem that we have here is that the record is so unclear exactly and it is the trial court's obligation to ensure that there is an adequate factual basis here and again the case is the was yes it does your honor but i think that it's important that when we're looking at the plain error that we know what the question is and the question isn't was mr pm sue probably guilty anyway the question is if he had known what he was saying didn't make out an adjective factual basis is there a reasonable probability that he would not have pleaded guilty and i would point out that there are i think no cases in these i have not found them in which playing in determining whether the error is playing the entirety of the record is to be considered yes your honor but the question again the important question is what does it tell us about what mr pm sue would have done had he been adequately advise in connection with terminating whether in the strict sense or rights i think again i think the court can consider anything in the record but again the important question is what would mr p record i think there's two things one of them is that he has out you should itself was very very limited in that he said very clearly i didn't stop it he doesn't talk about agreeing or joining in or intending the other thing is that from the further proceedings there are further complicated by the fact that the district court a few times seems to suggest that there's a question as to whether he's adequately it would be but that's not the question make me need to determine on the plain error of you it's not was he guilty or was he probably going to get convicted at trial it's what decision would he have made even if it's a stupid one the supreme court has said very clearly that even if it is a foolish decision it is the one that the defendant gets to make this is perhaps the most momentous decision that any criminal defendant makes in the entire case is whether to plead guilty or not and what we're saying what i'm saying here and the reason the adequate factual basis is so important is that we want defendants to know what they're doing and have a full and knowledge of what they are what their choices are when they make that decision even if they ultimately make one we think is bad they get to do that ago st of all counsel claim that there is nowhere in the record that shows that the defendant admitted that he not only was aware but intended to further the conspiracy that is not true i would point the court to the government think first of all in a conspiracy the agreement can be implicit nd of all i think the facts the factual allocution that supports the plea is exactly that it is facts from which the explain exactly why he continued the transaction after becoming aware that in fact what was going to iran he says if he were not to do that his supplier would have been less of a stock of cop out or he didn't need and so there's no ambiguity in the when you consider the record as a whole and even just on the record of the plea out you should that he became aware of the shipment to iran and then he continued the actual shipment there are actions that happen afterward nd the comparison the defense counsels making to the supreme court decisions i'll count is what happens it here in south cone that case involves conspiring to violate the revenue laws operation of illicit stills in other words the substantive object of the crime in that case was operation of illegal stills and the defendant was charged with conspiring with that operation because he supplied those stills the crime though with the operation of the still here the crime is agreeing to export the shipping itself constitutes the crime exporting goods through a rd country to iran is illegal and agreeing to do so is illegal and so the nature of the conspiracy and if it's different and selco has not happened the rd point i want to make your honor is the question of whether this effects the substantial rights of the defendant's counsel argues that if we consider the record of the whole it's not clear whether the defendant still would have pled guilty w submit that it is there's every indication the record that he still would have put guilty from the beginning of the plea allocution when the prosecutor follows up and asked the defendant to allocute with more clarity that he facilitated the sale at that time that he was in fact aware the ship was going to iran he could have said no at that point you could have backed out at that point because consulted with counsel at that point taken a break none of those things happened as the court is already noted he repeatedly admits in this p s r objection letter in the sentencing memorandum that he was knowingly knowing decisions and they make sense because the defendant strategy in this case was to admit to one transaction and then claim that that was the only one transaction which with which he was knowingly and intentionally involved and so if the defendant had had admitted to knowing from the beginning of that transaction versus the middle of that transaction it actually would have made no difference in his guidelines range and how and all the considerations of the district court would have to be taking into account at the sentencing and so there's no reason distinction that being suggested and deltona is an actual distinction you can supply drugs and you're part of the conspiracy to sell the drugs that the fact that this is a different object doesn't change the fact that the supreme court said pretty clearly knowing and to plead guilty well the question i think then would be can you ever be adequately advised and not provide an adequate factual basis and the answer is you can cope with this the problem s he agreed maybe because he doesn't think that he did a review just washes off got a ways what i'm suggesting to you again i think the real i think the problem is and this is been a strand that runs through the government's argument to some extent also is the problem is figuring is is that we're really limited to trying to understand what this defendant was thinking and i do think that it added if i if he were informed very clearly which he was that agreement was part of the crime and he did takes a while with the as a hard time with conspiracy to go over it for a while not unusual and then he does not say i agreed here i don't think so the problem is that it's very difficult to separate in our minds i think the factual elocution from the stuff that happened later and the fact is nothing in this allocution about this particular transaction talks about specifically agree with mr singh or dealing with mr senor what he does or any of that kind of stuff he has a very long preamble about things that he did in other transactions but there's only nothing about the actual transaction that is the basis for the