st advising his client that if convicted by a plea or at trial he would be sends a clear offender and then more importantly i not advising the client that he had found out differently as part of his investigation and all that's on dispute it and the district court said there was a deficient performance and the government doesn't even appeal the deficient performance finding i mean you don't appeal that the government an appeal correct so you know it isn't a deficient performance start to finish right correct so now we're talking that prejudice exactly help us with that all right well the again there was a full hearing on this and the this case was tried on the question of whether  t the problems with the unrebutted testimony well he found two things i found let me ask a couple of questions share the magistrate judge included in the record before  everything that happened in the case that included the priest report the interaction between counsel and and your and your client before sentencing and the sentencing hearing yes there is not one word in the sentencing transcript or anywhere else in the record in which medina said quick question this business about being sentenced as a career fender nothing as a matter of fact the dialog between the judge and medina and counsel at sentencing tied down the proposition that they had discussed all of this and had no objections and i understand completely i that's evidence that i disagree for a very simple reason is that we know at some point in time well a disgusting thing on appeal the case went up on direct appeal and a lot of time went by before this if you even arose but you've got a recall you've got a defendant who before trial believed he was going to be sent this is a clear offender after the trial is over he's told by his lawyer got good news for you you're not going to be sentenced as a career offender at that point he's incredibly relieved he didn't testify to that i got good news for it well that went over the paraphrasing they went over the pre sentence report and there wasn't a career offender provision in it but there's also the notation that the lawyer said that he said as expected you're not a career offender and the testimony came out or the judge found the magistrate judge found that this information was imparted to the defendant after the trial and at that point i was submit it would be very much against human nature for a defendant in his position not to be incredibly relieved that following a trial he's not going to be sentenced to twenty one years to life but instead is facing a general sentence and i certainly would not expect the defense lawyer or the defender to get up and say oh judge did you want to consider maybe that the document sixty four page document in which he said the lawyer should have introduced a lot of things before the jury to acquit him i don't believe he filed a document i know his sister filed  document and that handwritten and the sister filed the document which he testified at the hearing he never even saw until the time of sentencing which his lawyer got up and said we're not adopting it and which was basically pushed to the side so nobody ever considered in there also evidence yeah counsel had supplied quote misinformation to medina about the sentencing consequences of pleading guilty unquote well that was right there was there evidence been and so what they're talking about the sentencing consequences of pleading guilty was that whether he pleaded guilty or went to trial yesterday the sentence is a clear offender so my question for you than is if they're talking about that there would be sentencing consequences of pleading guilty doesn't that show that he is considering pleading guilty at the trial stage yes and in fact he testified about that that he said there were a couple of hearings a couple of meetings with his attorney at the st meeting he asked about a plea of guilty whether that and he was told i have to do more investigation looks like your career offender and then his attorney came back with these possibilities which was a three page document that ends evidence five and then there was an evidentiary hearing on the two thousand two hundred and fifty five dollars before the magistrate judge wright correct and your client testified correct and there's no doubt there were some dispute about whether he would of would not  a conditional play straight up plea open plea whatever and even if we take everything to show fries talking about sentencing transcript there was a disputed issue of fact your client testified he would have pled guilty right corr and the magistrate judge i'm saying this of the government can respond made a fact finding that he would have done a straight up plea if the lawyer had properly told him he was not a career defendant that was the fact finding what the district judge with this sort of accepts that finding and then says but he would have gotten acceptance of responsibility anyway without any evidentiary basis to support that other then you know citations the fact that he maintained his innocence let's go back to the magistrate judge found the lawyer told him he was a courier fandor before trial he found out was not a career offender and you never tell your client that's established yes so we got deficient performance yes so now we're on to prejudice and so the prejudice comes down to when he was sentenced even after a trial the district court didn't do any enhancements he just didn't give him the three reduction for acceptance correct so we're down to the sentence differential is the three level deduction for a guideline range i think is fifteen want thirty seven to thirty one purses what is i'm not sure the calculations but this conditional remain for him to enter a guilty plea and be an unconditional guilty plea in recent months that's what has to happen right a correct or unconditional guilty plea if he does that in a recent i mean we could we could just he's already he admits his guilt which he has done at this hearing i don't even know if you need to do a guilty plea at this point just have re sentencing proceeding he would obviously submit a acceptance or responsibility statement he had pled guilty to show exactly i mean cut things cut unnecessary time and expense and get to the meat of it i don't know if you have a guilty plea seems like you've got to have you got to ask some questions the district where you can't just say if the court feels that the proper procedure is to vacate the conviction contingent on him entering the plea of guilty that's fine i've done those i have done that in the past where the court reversed and sent it back for a new judge judge hall said that the the defendant was advised by his counsel that he might be a career offender he did not say that he would absolutely be a he said that based on the testimony of mr speed back he initially told him that he might be a career offender the district court judge accepted that finding that he might be a career offender the judge also found no i told him at some point i can't remember when judge blum declined to make any credibility finding as to that because it didn't matter because she ultimately determined that because as the fact of the st place had found that the testimony of medina was on reba did the one being that point as to whether he was ever told by his counsel and the nd time being as to the prejudice appeal the performance finding your honor i'm so i was just trying to are not even in your brit reply brief phrase that district court or the magistrate judge erred in saying there was deficient performance is that correct that's correct i was trying to hide th district court's certificate of appeal ability she clarifies the fact that she never actually made any credibility findings as to whether or not the defendant would have accepted the what the magistrate judge found was an rebut it and i think said start interrupt but there are some things struck me as a little bit i didn't quite understand because there's this part where she says well he would have pled guilty conditional and that seems like it is a new factual finding because i thought the magistrate judge had determined that he would have pled guilty to an open you know he would have made an open guilty plea so at st of all by understanding that correctly and nd of all if i am isn't that also a problem because it's a new factual determination without an evidentiary hearing your honor as the government noted in the brief there's certainly a tension between the matter that accused me the district court order in saying both that she was accepting the magistrate judges finding that it was on rebut it the testimony that medina would have pled straight up an open plea but she also looked very strongly at the part of the sworn twenty dollars to fifty five dollars motion of medina that said i would have pled conditionally the government's position and talking about the fact going to cooperation when you have to look at the contemporaneous statements at the time and not just the testimony of mr bad straight judge disregarded what was in the petition yes your hon more the way it was phrased by counsel and the district court judge rejected the phrasing because he said phrased that way the judge found that it implied that the district court had made credibility finding which the district court can reverse basically correct my interpretation having read the order and they are now are many times is i think what magistrate or scuse me what the district court  saying is look i don't have to make these credibility findings that the government objects to and wants me to hold a hearing and the reason i don't need to hold a hearing because even if you accept the fact that he received ineffective assistance of counsel and that he would have more importantly on the prejudice that he would have made an open plea i find that he has not legally shown prejudice because i would have given him the same sentence and i think part of that all over she says that because he because of because he took the position that he was not guilty and went to trial and after trial when he was found guilty and he was still trying to appeal he continued to say he was not guilty but none of those things would have happened had he pled guilty in the st place right i mean all of that stems from the fact if we accept that he was given poor advice that all of that stems from the deficient performance right because if he had pled guilty originally there would have been no reason for him to say i wasn't guilty the guilty plea one of been accepted and and he wouldn't have had to insist that he wasn't guilty but because he wanted to go to because he wanted to go on appeal on some of these issues he had to continue to insist that he was not guilty i mean so it seems like she was considering it the fact that there was no prejudice based on the alternative not based on the alternative universe right but based on what actually happened and that seems to me like it might be problematic maybe it's not me and if you think so them you can tell me why were you on i think is part of the problem we have of waffler on one hand you have as this case the court has said times you can't unring the bell but on the other hand i agree that inherent in a situation where you're talking about deficient advice regarding a plea and whether or not the defendant would have s plea you really are trying to go back in time in that sense but i think it's also a very important here and i think the conditional plea aspect is important if i can phrase this in a way to make it clear you have the defendant and he admitted throughout from the moment he was talking to his attorney in private always saying that he would have pled guilty or excuse me got that wrong that he was innocent and demanded to go to trial he said that even after sentencing i think that the district court judge could consider that in the sense of looking at it in terms of the fact that acceptance is just not automatic and i think that was a big part of the district court order when she was saying that and i think part of the reason the judge show while she phrased it in terms of  rejecting that the magistrate judge is legal finding on prejudice is because the magistrate judge doesn't really talk about acceptance at all i believe the r n r uses a term that if he had entered an open plea and it had been accepted then there would have had the option of having the reduction for acceptance i think another critical aspect of this is there's nothing in the record talking about it some sort of stop you but let's just assume that  it happened right then he would have had no reason to say he wasn't guilty i mean it is inconsistent he would have been able to enter the guilty plea and still insists he was innocent right is that fair to say i'm sorry could you phrase that for me one more to our sure if he had pled guilty originally then it never would have happened that he would have insisted that he was innocent to the court because the the court could not have accepted the guilty plea if he continued to insist he was innocent right correct ok so that being the case there is no other conduct which that the judge points to that caused her to conclude that he would not have been eligible for the two or three points whichever it is right because it could have been two points also for acceptance of responsibility there's nothing else that she points to in the record to say i would not have awarded acceptance of responsibility and so so the question is can she consider that conduct when we are going back to sort of unring the bell right and figure out what the prejudices i think she can consider it in this context the judge's order talks not just about whether he would be unable to get through the the we call it that's accepted but also the aspect of relevant conduct and i think it's fair for the district court to have looked at the full record in this regard you have a defendant the drina not only said i'm i'm innocent and said it from every step of the way even after sentencing and always with this warrior even in private conversations of the court noted he also affirmatively one had to testify he wanted to take the stand and he didn't he didn't but i think when the judge is looking at it because his theory of defense as the court knows is hey not my drugs not my gun it's all the owner of the house israel and i think that's very important and an appropriate thing for the judge to look at because when you're talking about acceptance and not treating this as an automatic ok you plead guilty you get acceptance here's someone who would have to also have shown that he was not going to minimize his conduct and would also accept and admit all of the relevant conduct but but we don't know what he would have done let's say he had pled guilty right and we get to the sentencing hearing and  we don't know what he would have said maybe would have decide not to allocute who knows but maybe he would have said you know i did it i feel terrible about it you know maybe what and how i don't know but that's the whole point we don't know what would have happened so how can we make a determination about whether there was about whether he would or would not have gotten acceptance of responsibility if we could unwind everything and go back to that point in time that's kind of the problem  it is it's difficult and i think that's one of the reasons when talking about the remedy aspect of laugh learn and that aspect the supreme court said will let the lower courts figure a lot of this out and it's difficult because on the one hand again you how do you unring the bell but on the other hand the courts tries and i think in this situation where you have a defendant who proclaims is innocent was always willing and not only willing eager from what mr speed x testimony was and that testimony was he was found to be a forthright and candid witness that you have someone who the district court and looking at the total picture could say you know what even at the hearing he didn't go into saying anything more than i would have pled guilty because i wanted a lower sentence if i had known that i could get a little over believe it's eight years then i would have pled guilty he never talked about in terms of yes i am guilty you know i would have fully admitted all of the conduct i would have said no when i tried to have testimony to blame others when i tried to get israel to testify those things i wouldn't have done we don't have anything in the record of that all we have is basically the defendant saying if i would have pled guilty i was automatically entitled to an acceptance of responsibility and that's the legal point that the district court rejected the problem with this case the district judge says i would have done such as that right would have made any difference then because he was in effect i'm not going to impose the same sentence and this is just bizarre because a district judge is adding facts to the evidentiary hearing th it conducted before the in your honor again that's why one of the reasons why the government also said that if the court found that the district court erred in saying that that there is prejudice hadn't been established that this really should go back down because when you look at the c e o way to the court you know as bizarre i've never seen one like it and we can expand the cia to whatever you want to say you all have briefed it on rather this prejudice you've briefed it to have him call three charges in the indictment and then get sentenced on them yes i would point to the judge head under the sentencing and implying the appropriate remedy can  exactly the court would have to done that the law permits the district judge to reconsider but she's got to hold another hearing but i will say that the new sentencing the judge under under the case law it's very clear the judge doesn't new sentencing almost