jermaine jackson district jackson is currently serving a three hundred and sixty five month term of in prison meant i had intended to  and should address the merits of the appeal and then i was also going to argue as to why i tempted sacked robber a is not a crime of violence under section one  appeal argues that mr jackson's plea was not entered voluntarily that that is not precluded by the appellate waiver so i don't think that merits any further discussion clear the district court and in this case the magistrate court was obligated to inform mr jackson of certain things to ensure that his plea was entered voluntarily among those things was to inform him of the elements of the crime to which he was pleading guilty and as we have noted the plea was entered ultimately saying that the court has an obligation not only to describe the charge to which he's pleading but then predicate charges actual arjen a predicate charge of the predicate charge which goes down back to several levels i mean why is that an obligation but we never said that there's that kind of complication the part of the court i don't know that the court has previously said that but it seems fairly clear from the facts presented here that the court was required to do held in johnson that the fact that was a wrong or a no charge doesn't really matter so long as that was so because then there was enough said about that crime during which this shooting took place that is the crime charged in count five which was charged as a hobbs act robbery and which not only did he have a defense to it was a crime of violence then he had no defense against something that was a crime of violence and he was informed of all that he needed to be informed and therefore  of violence unless he left his plea was entered to that charge i would assume if you don't you agree that our our review for that issue is under plain error  do agree with how how could he have been substantially prejudiced even if you ignore what the government said it would prove at the  attempted robbery how could he have been prejudiced if he thought if he thought that the only thing he could be convicted of was a completed robbery but actually he could be convicted if the government proved less how how could his decision of whether to go to trial have been affected by that particularly when the plea agreement saved him from a mandatory minimum term of sixty years well i actually don't agree that that's in fact it case however he was in the position based on a lot of prior cases including johnson including cases that talk about the categorical approach at that point to make the decision that i can go to trial here the government will not be able to prove that the shooting took place during a robbery therefore the most the government will be able to prove is that the shooting took place during an attempted robbery and attempted robbery will not qualify as they were just trying to clarify at the time at the time of the agreed agreements it was still the law in the circuit that conspiracy so you have to make both phone and i'm having a little trouble seeing how you're doing that well i mean i think we also the court should consider the role the government  and decide whether or not this appellate waiver should not be strictly construed against the government under the circumstances here st of all the government brought these charges against mr jackson charging him in count five with a robbery and not attempted robbery when the government knew it was an attempted robbery but attempted robbery is a lesser included offense of robbery so there's no argument in the case that the indictment was defective in some way for charging a hobbs act robbery when the judge would have to instruct the jury that attempted hobbs act robbery is a lesser included offense that's correct but the fact of the matter is the government didn't choose  attempted robbery well i don't know that that renders the indictment defective however what it does is it is sort of either as to which we are looking that or plain error should not be applied and the fundamental injustice that i'm having trouble revue well i understand i understand the court's hesitancy that in that respect but the government's responsibility for the area here goes beyond simply charging an offense which it knew it could it could not sustain but could only sustain a lesser included there was nothing that prevented the government of it that the government government said at the at the plea allocution what it's evidence would show and the evidence would show an attempted robbery could i ask you another question just to make sure i don't lose that you had argued that there was procedural error because the judge didn't calculate the guideline sentencing range you admitted that that wasn't quite right because the government because the court did submit a statement discomfort with the idea that a document that is not referenced anywhere that can be seen on appeal sort of varies that argument however i am aware that if i had made if i had responded to finding that out by saying well it's not part of the record the government could have simply made it part of the record so i think that  that argument is not going anywhere i would have to admit could i have ok just to be clear on that statement or reasons wasn't docketed even under seal there wasn't any reference to it in the public docket it wasn't attached to any document that was filed on the public document on the public docket in any event yes to the extent that the procedural reasonable reasonableness of the sentence relied on the court's failure to do that the fact that the court did it if i think i think i think we have we have that argument and are there any further questions from my bank robbery is a crime of violence for purposes of nine hundred and twenty four c doesn't that eliminate even your attempted hogback robbery claim not a crime of violence  no i don't believe it does although i hesitate to discuss the case in front of judge total something i know he was part of the panel on collier but ca you're involved a different statute violence obviously if the prior panel decides that attempted hasek robbery is about crime of violence then we're bound by that and any error in his plea was harmless because jackson would have pleaded guilty regardless of the air as he negotiat favorable disposition which as the court noted subjected him to significantly reduced statutory penalties both statutory mandatory minimum penalties that were applicable at the time of his plea as well as statutory maximum penalties and  and significantly reduced his guidelines range from the guidelines range of life twenty two million nine hundred and twenty two thousand three hundred and sixty five months and as a defendant just conceded in response to the court's question he had no defense to the attempted ha's act robbery so he's there's nothing in the record to suggest that there's any fundamental injustice here the defendant would have pleaded guilty regardless of whether he was advised of the attempted robbery  and as the as your honor noted is well this court's precedent is clear that so long as the th the underlying predicate crime of violence is remains a valid predicate crime of violence after johnson and his here as as the court noted on a number of occasions the records include sufficient language here that put the defendant on notice as to the underlying crime of violence you are saying that we have a direct  that says that if there was in this case a crime of violence because attempted robbery is a crime was saying that you hold we have a direct any kind of fundamental our justice cannot establish that but for whatever errors occurred during the plea allocution or during the plea hearing that he would not have pleaded guilty it's clear that he negotiated a very favorable disposition it's clear that he just noted that he had no defense to the charge crime that he was pleading guilty because not because anyone forced him but in fact he was guilty of this very serious offense in addition to the standard but he was making their decision he was making analysis it does not your honor what we should be looking at is whether defendant had intended to plead guilty he always intended to plead guilty this defendant actually went into so this was not just mere preparation to defend entered  this convenience store armed with firearms with a with a coconspirator he held patrons and innocent civilians at gunpoint while his coconspirator attempted to steal money from the cas register when one of those innocent civilians resisted and  saying it was resistance is overstating it it was very slight resistance that mr lopez had done and mr jackson shot him once and then as he was walking out of that convenience store he shot him repeatedly ultimately killing him so this was not a situation where this defendant wouldn't pleaded guilty otherwise and i would note that these three the points of acceptance of responsibility are significant in this case because as i noted the guidelines the applicable guidelines range was life in prison and given the offenses which the defendant committed you don't get much more serious than killing an innocent civilian who's just trying to support his teenage daughter and his wife in addition to that crime you also had committed an armed robbery approximately a week before that as well to defend it was looking to avail himself of that three point reduction on the guidelines to subject him to a significantly reduced guidelines range in addition to negotiating that and getting those three points of acceptance off the got the government to agree to dismiss the opened six counts with prejudice he also got the government to reduce the appellate waiver which was tied to the upper guidelines range after two points which was four hundred and five months he got the government to reduce that to three hundred and sixty five months which was the top of the guidelines after the rd point for acceptance in addition he got the government to agree not to seek an up or departure in this case which could have been warranted gary  given the serious nature of the offense and given the other crime for which he committed but was not required to plead guilty so there's just simply no fundamental injustice here there's nothing in the record to suggest that the defendant would have done mandatory twenty five year sentences that had to run consecutive to any other sentence so at the time of this plea that law hadn't changed it subsequently changed such that subsequent nine hundred and twenty four dollars c convictions only carry a  whatever it is that the offense carries a for example if it was a using a firearm during a crime of violence or a drug trafficking offense that carries a five year mandatory minimum which would be required to run consecutive to any other sentence imposed the five year consecutive sentence does not extend unless there was a prior conviction it can't be from the same indictment so if mr jackson unrelated to this case had previously been convicted of a nine  conviction then the subsequent nine hundred and twenty four c convictions in this case would carry the twenty five years that was the change in law but that change in law did not occur until after his plea was entered so that's why the sixty year mandatory minimum applies at the time of his guilty plea it doesn't apply anymore but it did apply at the time and i would note as well in addition to that the statutory maximum was significantly reduced as a result of his plea bargaining instead of having three potential life sentences clauss i think there was some additional time after that as well i don't know if a sixty years or eighty years he reduced that's one life sentence so there was some significant reductions to the statutory penalties as well as  guidelines as well and so for those reasons we asked the court to affirm the conviction and unless there's any other questions we d will rest on our papers thank you it's not like i don't have further questions thank  the gun charge in count seven and the gun charge and count six were actually the same gun so i would argue that even under the previous law he would have faced ve theory was another charge in the that was explicitly in the indictment which was the narcotics conspiracy so he could have been convicted of that  as an alternative and i think the court did a fact with some emphasis on that however here there was not a separate charge of an attempted robbery that was only is that the robbery conviction the government has argued previously that the conviction can stand because the facts were sufficient to establish the lesser included offense however while it's absolutely clear and we would not dispute that in the trial context the government would have been free to ask the court to try arge the lesser included it would have required that no it would have required the court to do that and none of the cases nor the rules but the government apply or look at whether or not the conviction can be sustained in the plea no the other hand and the question of whether there is fundamentally unjust allows us to look back to what it was before that is whether the error is there and clear applause in the last day that whether that robbery does not constitute a crime of violence for purposes of section nine hundred and twenty four dollars c there would be a fundamental in justice for mr jackson just you can make one final point but then we're going to right so in terms of what happened during the plea i would like to point out that the court made use of a standard plea for it which the government was asked to list the elements of the crime and listed the l and referred to in the listing of the elements to committing the causing the de right thank you very much mr siegel the case is permitted we're going to