if not a tragic life and i just want to touch upon the very briefly i think it's sufficient for our purposes today to state that during the time of her plea allocution in the district court on june twentieth two thousand and sixteen she was being treated with  medications that she could not identify for the court but she did know a change recently for a mood disorder and for bipolar disorder and she also was suffering from severe cognitive deficits and i'm going to quote from the osha worker melissa lange such that there were things that she needed to hear repeatedly and needed to be broken down in the most basic terms and repeated multiple times to make she under make sure she understood what was involved and to get to the testimony of ms lange i have to start with with my motion which was referred to this panel by order of the court dated february twenty seventh of this year and there are two parts to that motion neither of which have promising her that she would get probation as a sentence here yesterday she mentions the medications she was on at the time of a plea but she doesn't say in a those papers look at i don't know what was going on in my plea proceeding so how do we take that  when she had the opportunity to raise the issue of withdrawing her plea she only talks about this promise that she got from her lawyer that she was going to get probation and that she was surprised when she got the term of incarceration w you are in her original motion to withdraw her guilty pleas she did challenge she stated that her plea was not knowing and voluntary and i if that was because it was involuntary because i was promised something else i think she does say  of counsel because i did not get a promise of probation and it was not knowing involuntary because i did not get a sense of probation so the knowing and voluntariness of her plea per se was not the subject of the twenty fifty five but i was raised in not spelled out the basis for that but it was made when she was pro se and in terms of arguing about whether that's preserved or not i would submit that that did suffice to preserve that argument for the purpose of this appeal  court obviously can consider it under a plain error standard even if it were not preserved she had a hearing on the twenty two fifty five yes your honor earlier testified and the mitigation specialist yes you mentioned she testified as well there was language about how she needed to be spoken to slowly and clearly repeated but i didn't see anything about you know i didn't know what was going on at the time and my plea that's a basis for withdrawing plea you know if that's correct on if she did not make those arguments in a twenty fifty five but she can still make them here on her direct appeal notwithstanding the fact that she failed to raise them and her twenty fifty five application form it's eighty eight res i'm here i'm just saying it's kind of curious that the basis we have now is that she was on medication she know it was going on at the time or a plea but throughout this twenty two fifty five litigation clean challenging your lawyer it was all about i was promised probation and i didn't get it you wanted that is correct it is it is curious but it does not strip this court of the ability to consider this argument that i'm making today that her plea was not knowing and voluntary the twenty to fifty five is a you're saying first the twenty to fifty five is part of the record on this appeal no you can federal criminal procedure eleven eve preserves the right of defendant to challenge the knowing involuntary nature of her appeal her plea on direct appeal regardless of whether a motion is made before sentencing so again on the preservation issue this is i think an issue of first impression that may be in any court but i think with this chord is whether an out of time motion to withdraw guilty plea one that's made after a sentence but still in the district court is sufficient to preserve the issue for review on a harmless error standard and i have argued that it it is sufficient but just to touch on the merits we have a defendant ms brooks in a situation where it's going to be a medication but taken in combination of the testimony of the six osha worker ms lying about the specific types of disabilities that ms brooks offered in the types of explanations that she was required to get in order to understand complicated legal principles i believe shows clearly that she was not released there's good reason to believe that she did not understand  minimal there this allocution like most has typical references to legal complicated legal terms in summary i understand that compulsory process she has said in her responses other than her response a medication there is no there is nothing in the rule eleven that would indicate she did not understand for example compulsory process competent of events or what is stipulated guidelines ranges that's correct on a justice of the medication doesn't affect her ability to just very briefly on the merits so given those factional predicates which are her cognitive deficits or on medication that she does not understand and which she knows is new that puts us i think in the outer most bounds of what will evolve and what allowed to stand you was the fact that defense counsel had supposedly incorrectly advised to miss brock's that she was guaranteed a sentence of probation she never raised competency in the motion to withdraw the plea she never raised competency in this twenty two fifty five petition the first time this is ever been raised as is on this appeal so i didn't understand exactly counsel's argument are you saying that there isn't that that this cannot be raised before the before this court because of the absence of anything in the record of the district court we're not specifically saying that we're saying that this is reviewed under a plain error standard because it hasn't been preserved in the lower court is and under the plane there there is no way to get to play in error here given this record that's the government's position even if this record were supplemented i i i did not catch what is the rule your adversary was relying on in his argument as to the main point of the government's opposition is this is certainly reviewed under under plainer and under plain error than they don't meet the plain error standard there was an argument in the reply brief that this had been preserved and the court shouldn't apply plainer and that's that's just not employment is not going to be much help if there was simply nothing if there was nothing in the record to support the position right but that's correct and just specifically walking through some of the things that are in the record obviously the guilty plea proceeding itself even when it comes to the medical first of all mr brooks said she understood under oath that the rights that she was waving in the maximum sentences stipulated guidelines range  and that her plea was voluntary or involuntary and of her own free will but with respect to the medication issue certainly judge buchwald did comply with rule eleven and the case law in this area she inquired with m brooks about the nature of the medication she confirmed that the medications didn't affect her ability to understand the proceedings and she advised mr brooks that if she had any difficulty understanding anything that was going on that she should alert the court which mr brooks never did going your honor certainly the government's not disagree that mr brooks had a very difficult life history that she had some serious psychiatric conditions a low i q score was also reference but none of that  creates any any suggestion that she was not competent to plead guilty and just took the competency standard that's been articulated by this court is whether the defendant has sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him and that's clear and even if this supplement the record with miss lang's testimony that only further demonstrates how clear that is because when miss lang testified to the stern of these aspects were included in the in the appellate brief some weren't is that miss brooks was concerned before she pled guilty about some of the effects of her guilty plea and including the fact she was going to have to register as a sex offender and then this lying spoke to her again after she had pled guilty and before sentencing and this brooks was concerned about what the term of imprisonment might be imposed upon or all of that suggests respectfully that she did understand when she pled guilty to whatever psychiatric conditions she was suffering from whatever medication she was on whatever other cognitive deficit she had that she did understand what was happening and the consequences and that she meets the standard for competency in this in and was absent for a while and that's one brooks kind of took over at least that's what she agreed to yes what are we going to him he was he was prosecuted and i don't remember his sentence off without my head but he received a very significant term of incarceration statutory minimum the error affected the substantial rights of the government because the outcome of the proceedings were affected in that mr brooks received a term of supervised release that was two years shorter than that authorized by law and then in addition because mandatory minimums are intended to apply to all defendants the failure to apply that congressional mandate here didn't affect the fairness integrity or public reputation of proceeding that provision correct you can't do it administratively by just fixing the judgement i think it has to be done in court the government's understanding was that a limited remand solely for the purpose of correcting the be when it goes back for reasons and what would be the scope of the proceedings and i take it's the government's position that they would be limited to the i supervised release question yes or if the court does not have any further questions i'm government's so i make sure i understand that so when we review the record on a direct appeal when the defendant had raised has raised the issue of whether her plea was voluntary intelligent do we review a plan or a basis or a harmless to withdraw the guilty plea after the sentence but i think it was before the judgement was answered so the district court still had jurisdiction over the case at the time that motion was made was there a gap between the sentence in the judgment after  i think i think it was very long we have the judgment court on that point and there is this statement within it to go to judge walker's point it is clear that my plea was not knowing intelligent and voluntary at the time it was entered and that's in the district court of documents sixty one i believe it was the same document that judge walker was referring to before and it isn't immediately followed by arguments but this she said because i was on medication don't understand it it does not so it's consistent with her later argument that it's because he told me i was going to program it is consistent and it is immediately followed by that argument but again giving the full benefit of the doubt to a defendant proceeding process i i would argue that that is preserved and that we are in a harmless in the district court either before or after sentence so i believe this is distinct from those part cases with regards to the government's argument about lang's testimony as to ms brooks understanding of the police proceedings and i'm sorry if i could just finish this one here go thinking she was concerned about the facts of the guilty plea and i don't think there's any question that that was the most important question in her mind when she was speaking with her lawyer mr du below and i also think the transcript could fairly said to be construed in such a way that she understood the plea in the form of a bargain before exchange in exchange for this plea i will get x but that's not a rule  requires not only understanding what the inputs and the outputs of the plea bargain are but all of the rights that are being given up in order to a fact that bargain and that is the point at which i think this rule eleven allocution is inadequate and if the court is going to remain and this case i would ask that the court remain on the case for involuntary in this hearing on this question thank you very much thank you both and we reserve decision