good morning your honour's my name is myra sun and i appear for mr hernandez the appellant there are two issues and i'm going to address them in the order in which in this order i'm going to first discuss the issue of whether my client waived his right to appeal the denial of his person has waived his right to appeal the general rule is that if there's a waiver of appeal and the language covers it and the plea is voluntary and knowing then the waiver stands and this court would dismiss the appeal on the motion to withdraw even if the plea is withdrawn if the plea well we get to whether the plea is withdrawn next if if it's not backwards well we could i i'm happy to order i'm sorry go ahead your honor i your honour's i do believe my client made out a fair and just reason for the withdrawal of his plea he there are three exceptions there are three sort of categories of  circumstances in which this court has decided that a fair and just reason levin made out one is newly discovered evidence one is an intervening circumstance and the third which is a broad one is any other circumstance of which he was not a aware at the i don't think anybody disputed that my client discussed the plea agreement the written plea agreement with counsel answered questions counsel answered his questions and mr hernandez understood what was said and  discussed the confidential informant who is described in the search warrant affidavit that's what happened with the guilty plea hearing after that my client got a new attorney this guess and she discovered information about the possible confidential informant that my client did not know at the time he entered his plea and we believe that that is both an intervening circumstance and something he didn't know he knew there was those cases you could say that the newly discovered evidence or the intervening circumstance is information that really was out there for the defendant to have before he entered his plea and yet this court decided that the this information was sufficient to make out a fair and just reason for withdrawal of the plea v this circumstance in davis was i believe that a  there was a discovery of a witness and they submitted a declaration as part of the motion to withdraw and you could argue that that witness who could have been found before he entered his plea but he it wasn't found and so that still was newly discovered evidence and it was an intervening circumstance in davis you could argue that the defendant who was told that his sentence he said he was told his sentence would be probation and you could argue and indeed everybody said it was very unlikely that he would have gotten a probationary sentence you could have said that he would have known that before he entered his plea but it was clear after a full hearing that his lawyer had held out the circuit the possibility of a probation sentence and that was enough of an intervening circumstances and new information for the defendant and i think that's what we have here to my client learn more about the possible confidential informant after his guilty plea and i don't think that this was an unreasoned or a lark i think that's the term the the case is use this was not a motion to withdraw on a lark or a whim he thought it through and the government has pointed out that there is quite a bit of time before the motion to withdraw was filed and that to me indicates that it was not a lark and all of this goes back to the waiver of appeal i see that by the time or that i've got four minutes and something left i'm going to ask if i could now to preserve a couple for a bottle the waiver the appeal the general rules that an appeal waiver will cover if it covers the subject the exception that applies here and namely that there was a contemporaneous oral advisement to my client at the time he entered the plea in which the magistrate said that he could appeal  appeal and he also used the phrase when the case is over and to most defendants i believe it would be reasonable to say certainly a defender with an eleventh grade education like my client the case over after he sentenced to so i think that's a reasonable expectation and that's the standard the reasonable expectation engendered in him by that would be that he has reserved the right to appeal quote unquote whether he was effectively represented by counsel and we know from the other cases that from other cases including garcia davis that a defendant does not have to show prejudice under the strickland standard to make out his fair and just may please the court start vellum or for the united states i'll start by addressing the merits of the motion to withdraw the guilty plea as this court is held in and maner it's not enough to establish simply the existence of new post plea information we also need to show that it plausibly would have motivated a reasonable person in the defendant's position not to plead guilty this defendant pleaded guilty after receiving the search warrant affidavit in discovery and after receiving the criminal complaint which didn't just disclose the fact that there was an informant but disclosed the informant's criminal history and the benefits that he was receiving from cooperation this defend and in exchange he received a fourteen year reduction from the mandatory minimum term of imprisonment at the district court level he proffered that he didn't know the informants name or the specific amount of money  the informant and the dates of the informant convictions but this court has held that that type of information isn't new because it's still within the defendant's reach and even if we were to accept the proffer that which was submitted without any evidence or declarations that he never was made aware that he could have moved to compel that information the district court didn't commit clear error certainly didn't abuse its discretion in finding that that's additional information wouldn't have changed the mind of a reasonable person wouldn't have moved the needle we would submit that this is not like the garcia case or the davis case that we just heard about because those cases involved something novel that was different from the base of information that those defendants were working with at the time they pleaded guilty and i'd like to touch briefly on the request for an evidentiary hearing the first response we'd like to make that is that we've already had a hearing  district court at which the defendant had the opportunity to call witnesses and put in evidence and they chose to proceed by proffer instead the district court accepted that proffer and still five found that it didn't meet the burden and in any case there's no material factual dispute which is what this court requires in order to remain for a new evidentiary hearing i'd like to close briefly if the court has no questions on the merits by discussing the court's questions about the  waiver this court's decisions and rom on michelin and jarana mo all say that you reach the appellate waiver even before reaching the merits of the appeal and the reason is that the motion to withdraw the guilty plea is based on newly discovered information it doesn't challenge the validity of the plea agreement itself and so what those courts held is that a valid plea agreement with a plea waiver an appellate waiver in it for instance which didn't even address the merits of whether the police should have been withdrawn it said where there's a valid plea waiver that is knowingly and voluntarily entered into you enforce that even if there are intervening circumstances after the plea that caused the district court to abuse its discretion and i believe the defense counsel at the beginning of her argument conceded that fact in response to the court's question with the be true even if even if the plea agreement the police should have been withdrawn yes it would be true your honor what your best case that that we would point to rahman micheline and geronimo all of which never looked at the question of whether the police should judge started by saying there's a waiver of appeals from your guilt and then there's a waiver of appeals from your sentence he then proceeded to define the broad scope of the waiver and he closed by saying there are exceptions we actually read about the word exception in the reply brief and how that had significance to the defendant the word exception for it to have an exception requires a rule the rule was you've waived everything here some ways that you haven't waived it we'd know two things the first is the word appeal was used in reference to this discussion about the sentence the sentencing appeal that the magistrate judge referred the defendant to the part of the plea agreement that he was reading from which  and then third the magistrate judge limited that exception to effectiveness of legal representation which is something that they have disavowed at the district court level and aren't pursuing as a formal claim here on appeal if we were to treat for instance the magistr judge's syntax error as as significant and say well this is this falls within an effectiveness of legal representation jav then even correctly stated it would have open the door to all kinds of different collateral attacks that ordinarily wouldn't meet i believe it was in the united states versus are meant to lopez which i think that that's the case one of the cases that i cited that said that when the district court during the colloquy says something that's not right and i believe the magistrate here did not say the use the right term he didn't distinguish between an appeal and a collateral tack that the government would have something of a duty to speak up i think in our mental lopez the defendant tried to say the government had that duty and i think that this court's ruling was that because that discussion happened well after the plea it wasn't contemporaneous with the plea it didn't really matter on the issue of whether the court decides the merits first and then reaches whether the waiver of appeal you know one of the exceptions to whether there's been a valid waiver of appeal is if the sentence is illegal and it seems to me that in some of the cases about that this court has said and i can't remember any names off the top of my head but this court sometimes does is reach the issue of whether the sentences illegal first and then having found that it is not illegal it dismisses the appeal and so that is why often you'll find this court to decide its jurisdiction reaching the merits first the other note i have to make on that point is that in ruiz which is a case about whether the government has to turn over given discovery before plea the supreme court remarked in the beginning of that case that the ninth circuit was correct to reach the merits of the sentencing appeal the defense was trying to get acceptance of responsibility credit  even though she had pled open because she wasn't given certain discovery about the informant and i think the supreme court said that it was right for the ninth circuit to sort of reach the merits first on the issue of whether rahman or any of these other cases control again your honor i think that we that was i think roman is a waiver of appeal case and because we have the situation in which the colloquy told my client he would have a right to appeal and the word was effectiveness of counsel so that wasn't the sort of term of art of ineffective assistance of counsel it was sort of like were you happy with your lawyer getting all the information that he could have before he had vice you that's the circumstance here and that i think is a fair and just recent because he doesn't have to show that he definitely would never have pled he doesn't have to show it would have been exonerating evidence he just has to show a fair and just reason it's a fact because he want to know well this is one of the reasons i believe that there ought to be a hearing and i have only ten seconds basically what he said is i believe there was more impeaching information about that informant which would have warranted attack on the search warrant so he wouldn't have needed the identity of confidential informant to do yes which he didn't even have right and he might not have had it because he physically attacked the person with the confidential informant well that is not clear in this record i suppose it's possible and that's one of the reasons i think there ought to be a hearing on this subject that's why i think there should have been more of a hearing on what new counsel uncovered that's controverted it is as the government says not laid out in the record but i think if that's all the more reason there should have been and evidentiary hearing on that and also a hearing on whether the defense counsel the time of the plea had inadequate discussion with my client about it so that you could say he was informed or not thank you thank you counsel