waiver of a sentencing and handsome and during the during the plea proceeding is the course well aware eleven b one and requires the court to advise when there is a sense in waiver and i will concede at the outset that the plea court and the defendant at the time of the plea creates an ambiguity that could cause confusion and we are not again challenging that there's an ambiguity about the entry of the police we are challenging only whether there was an ambiguity  confusion created by the court's colloquy in relation to the defendant waiving the sentence enhanced and the court's comments at the time respectfully raise that issue  exceeded the maximum which would be in a legal sentence frankly or if there was an upward departure and at the time in this case there was although there was an agreement on play there was a dispute between the parties about the sentencing guidelines calculations in particular the leadership enhanced and the danger here is that the court's colloquy did not apprise the defendant he was waiving his right to challenge that decision from the  court just one question back about the plea agreement itself in the plea agreement itself was he ever given a spanish translation it sounds like from the transcript that it was just explained him orally by as attorneys but was he ever given a spanish translation of the plea agreement i don't think so i don't know in all candor i was not at the trial level my recollection from the transcript is the same as yours that it was he was given an interpreter that did the translation but not   so anyway the issue the issue becomes is when the court says the court never said to the defendant an illegal sentence would only be that which exceeds a statutory maximum of forty years and as the brown core pointed out we have to analyze these in the context of who is the defendant what is his background what is it reasonable to expect of him in the bronx or pointed out it's not reasonable to expect a defense to understand the legal argo and understand the nuances of knots among upward departure versus enhancement and that's why this case is here and that's why i suggest that there was not a valid waiver joining the colloquy there was confusion during the the spanish translator the words that trans letter was using not that i'm aware of and i sed sincerely doubt there would be and i think i would also probably be his lawyer that would probably be a privileged conversation but only talking about the plea hearing itself my experience is that the train's the well the court reporter doesn't speak spanish and isn't recording those conversations so i don't think that could have been you know normally what traditionally not not done so you know and i would assume that the translator and or the lawyer went through the plea agreement prior to the court room i mean that's certainly standard practice for a lawyer to review it and i don't know you know it was done with a with client but for the so called ambiguity in the meaning of it it would not have pled guilty no i don't think i don't think the issue is whether or not he would have pled guilty i think the issue is whether he would have waived errors that were alleging is that the waiver of these sentencing challenges what was not appropriately dunce so just so i understand under the plea agreement there were only two circumstances in which an appeal would be allowed if the sentence right one is if it if there was an upward departure from the a guideline range and two if it if the certain succeeded the statutory max as you or your interpretation of the of the of the written pleas remains correct ok and you are neither one of those circumstances is that is that mr zucker is a just statement that so if it was on lawful or involuntary or some other fundamental defect of a constitution and they sure you can appeal that is that the ambiguity is that it several of them and that it's also lines about what you could appeal to the sense exceeded the maximum without defining that the maximum statutory maximum rather than a guideline but a few to few pages earlier he did say the forgive me i don't have an i don't know print it out if you read all right well i'll read it to you again so if it was unlawful or involuntary or some other fundamental defect you can appeal that how can a sentence be involuntary  could anybody possibly understand that line can you think of a voluntary sentence that's really not the part i'm focusing on that created the confusion judge i would direct the courts on page seventy nine  what you can appeal the sentence exceeded the maximum which would be in a legal sentence frankly or if there was an upward departure that the court imposed but i thought you were making two different arguments in your briefing at least one was that you get some ambiguity out of the maximum part which is what you've been focusing on this morning but then another one was a you get the matter the ambiguity out of the sentence that judge randolph just read to you you're making two different ambiguity arguments and if we like the to one side for the moment the maximum argument i know you don't me but let's just assume for this purpose that maximum in statutory maximum and we just focus on the other sorts of ambiguity identified in your briefing which is a sentence that i'd read off identify and on that do you have a response to the question about the use of the word involuntary i guess i have a response to saying he certainly wasn't voluntarily conceding to the enhancement because that was being contested throughout now but i guess i guess the question is this that so the sentence just to refresh your memory is so if it was unlawful  involuntary or some other fundamental defect of a constitutional nature you can appeal that and it seemed like within the government are focused rightly focused on that sentence and it seems like there's common ground on the following that if if the word it was replaced by a plea that would be one thing if the word it was replaced by a sentence that would be another thing if it was sentence then it would favor you if it was plea it would favor the government and the question would be if it sentence it also uses involuntary in the same sentence so why why is not the inference from that that one would understand her to have been referring to the plead rather than to the sentence you may well have an answer to that i mean it's just curious about your friend's a plea but i think what i would focus on the i'm sorry what did you say i didn't i 'm not sure which the court was referring to and so that could be that's really part of the confusion ambiguity but the other portion of this was the confusion which we were departure and enhancement and the  would be unlawful to inhance a sentence and so you know to apply the leadership enhanced meant absent a factual predicate for it and i think that's where part of the ambiguity lies here or the central part we also have a due process argument right  of your argument was that there was a due process problem with relying on the proffer statements when that your client was not when the defendant was not allowed access to the proffer statements yes i mean certainly that was the that is the due process and those proffer statements were incorporated into i mean the government's claims that it was a trial transcript but much of what they're relying on doesn't occur in the trial transcript we've gone through the facts on that but the proffer statements  incorporated into the pretrial services report i mean that's where they get their facts from is what the government disclosed in the in the their interpretations or their summaries of the prop so but you know one of the the other things that that strikes me is that the plea agreement itself said the manner in which the judge imposes the sentence cannot be challenged on appeal well alone sentencing guidelines and the sanction between an upward departure versus an enhancement you know your argument reminds me of something that the philosopher karl popper used to talk about that and he had one of his principles was that if if you have to define your terms before you can speak nobody could speak because more definition doesn't lead to greater greater clarity that leads to infinite regression and if every time the word it is used in a you but i i think with all due respect to the trial court it created confusion rather than clarity you and i think how they summarized to say as you said ok it's it's unfair to expect him to understand the nuances and differences between them based on the colloquy that was get his lawyers said that he did understand them is a lawyer with the lawyer under oath well i mean the lawyer to give his understanding that i don't and the lawyers i think it only comments on what occurred in terms of interpret in the police criminal but it was when the court tried to file try to clarify or  summarize i guess during the please follow who that i think the confusion was created if you said you can appeal these issues and these issues is this constitutional the fact well there's an upwards of parcher and and so this person to expect him to understand the know that they didn't give you information about the folks whose testimony was being used but it wasn't clear from your brief if you were there was a factual interpreter there was just an interpretation let me try and phrase that better the leadership enhanced men should not apply based on the sas that were presented because lawrence in a lima didn't have control over anybody he had control the start of the plea colloquy the district poor asked him to let him know if anything that he said contradicted what he understood from his attorneys prior to the start of the plea colloquy and when he when he signed a plea agreement he said that he about earlier she this of course are said by saying there's two kinds of appeals there's an appeal based on the statute and we're giving up those rights and i'll go over those in a moment and then it seems like she thought she switches to the nd kind of appeal because she laid out the it's going to be to kind of appeal the nd kind of appeal as your right to appeal any constitutional defects you're not giving up so it's why isn't the right way to understand that or at least a reasonable way to understand that that there statutory defects you could be appealing about and then there's constitutional defects you could be appealing about and then the cost issue of the facts you're not giving those up the statutory ones you did give those up and and he is making a constitutionally grounded sentencing appeal here and that he's saying that there's a due process problem with relying on proffer statements that were never given to me almost immediately after that sent in from the district court she goes on to explain the statutory challenges nd was just about what is the difference between the constitutionality of sentencing guidelines and a constitutional question relating to the sentence to the administration of the sentence right and so i even if that's true even if even a subsequent statements it would be one thing if a judge said and i'm not saying that any judge could be expected to do this on the fly i think this is a really difficult thing to do i don't mean to slight what a district judge faces here but if you want to have a judge said let me just scratch what i just said let me start over here's a clarified understanding and it would be another thing to go on and elaborate in a way that doesn't necessarily in the defendant's clarify what had been said before and so even if later on there's a reference to constitutional challenges to the sentencing guideline that wouldn't necessarily ameliorate an indication from prior comments that you can raise constitutional defects well or what i think it looking at everything in context i mean starting with the defendant would have been when he hears you know if there's any concern or question at that point time about oh maybe i could bring our constitution chimes to mesa and she goes on to clarify that saying you know this is not just you know a constitutional challenges and b statutory challenges we're really talking about appealing to conviction versus appealing the sentence with her later clarification which comes almost immediately after and if you have any saying because of this question then and they'll stop this line of questioning which is if if the stopped after your right to appeal any constitutional the fact you're not giving up you're not waiving that so if it was on lawful or involuntary or some other fundamental defect of a cause to tional nature you can appeal that and if it just stopped there then at that point you agree that there was ambiguity but then what your ally as a writer am i wrong and what your ally a lot of subsequent statements that that clarified what she was saying i think the subsequent statements are really helpful and really important that because we do have to immediately thereafter clarifying statements the same thing with the nd state my follow up on not just a follow up because that that sentence that your reference now referencing the unlawful involuntary is proceeded by your giving up all your rights to appeal and i soon that language includes both challenging the plea and the sentence yes you are reaching rights and then you said there's two kinds for all your rights there statutory and constitutional she has a narrow to get from all your rights so the constitutional defects must refer back to including constitutional the facts right in the sentencing and that's when she says you're not giving it up or waving those and then we have the so if it was unlawful and i had asked is it is it your understanding too that there is no recording of the translation that's done by the spanish translator johnson's mind shooting as well but i am not positive to say what just because we all talk about it but you know in spanish there's different words for it depending on the the  n that that pronoun is referring to and they could very well there's a least if it's on some translations it's different whether it's talking about an agreement or a sentence r so i think it's a little hard to rely on the singular in english morning meaning of this it that we are thinking about we have to understand that in spain we have to look at this from the perspective of the defendant with a nd grade education  that there's not a single in spanish and and having just and of all the language up to that sentence was about waving all appeal rights except constitutional defects which were both  one where they seem to describe a sentence and one that could describe the plea i don't understand the argument that we suddenly know because of it that everything in that sense was only talking about the plea when nothing before it was narrowed down to a super high level just understand you're giving up these that you tory rights and she said i agree with that so you've got to if you want to look at the whole transcript which i agree we should we got to look at the before and the after  and then this is i think we have to look all the way to one his lawyers say look this isn't very difficult he said he just wants a plea and he'll sign anything we put in front of him i mean there's a lot of this is one of the most extraordinary plea transcripts i have ever  read deeply troubling honestly on you know through the efforts to just find some magic formulation of words that he would agree to so i just i don't think we see other clarifications you're talking about come they're not right next to it facts they were talking about his state of mind and how he was approaching this whole process yes although i don't read from the transcript any reservation on his car in terms of the rights he was waiving but only in terms of what responsibility he to go to the merits for a nd so on the merits on the part of the argument that's made by the defendant to the effect that the both the government of the district court relied on len r owns indication that learns on a limit was the leader and largely and was largely deferred to and as i read your brief your argument on that is how much there because it doesn't sound like you really take issue with the notion that there wasn't trial testimony that supported that proposition it would have had to come from the proffer statement and if it came at all and so you're not disputing for our purposes the notion that those came from that part of it came from the proper state and the only question is whether even if its way into the decision in a few places and the question because if that's true then how is it harmless beyond a reasonable doubt assuming that that's the right standard yes i think the evidence is overwhelming that the district  specifically says she went back and checked the transcripts and it is they are cracked and there's no reference to linearize courtroom and his deference and at sentencing and just looking at the evidence based on herrera r terms of the way she characterized her finding that the leadership has what was met there's multiple places in her written rendition of it that referenced the exact thing that we have to assume for our purposes came her except for one small reference of linear support on in terms of the scope of the conspiracy for which she was inappropriate witness and when you look at what she says it sensing there is no mention of lanier's court on and she sets out the evidence there as well  that's not language the least i'm used to seeing in these types of in happy pants ment's if i'm meeting with my law clerks on how to deal with a case and they make suggestions to me and have concerns that are expressed about a certain course of actions and provide me with some advice and i follow that are they leaders in this chambers no your honor very often to that to make them leaders to me and makes them peers right direction where the language here seems to be one of at best maybe appear someone who you know whose property they are going to hear him out and every now and then he sa orders from this farmer just because he had concerns or advice about avoiding local police and just strikes me is very odd way to think about things i  the evidence and curious how you wrap your head around this that concept of leadership rather than how can we tell that he wasn't simply just probably piers probably too much or but simply another person that he was would listen to  leymah said i'm concerned about these really large trucks coming into this small town maybe we should try another location that was in or reversing interpreted that as an order that he say anywhere  vs every single time that i would have thought this was a massive conspiracy and if this guy was a leader i certainly would have thought there'd be more evidence on the record of him somewhere ordering some some someone subordinate to him i guess you organizer even support doesn't believe that her lawrence i mean who provides the construction he ordered his personnel to renovate the warehouse which is he only has to have control over one person and under th understand that part of the waiver or i don't understand and then there was a real instruction was really just a repetition and then there was that pause where he takes a break he's the court the counsel says can you take a break and i think all of that kind of indicates some of the completion some of the stress and cause it should cause some concern about the defendant's appreciation and understanding of exactly what the nuances work here i think you point make a good point you talk about there was i'm not sure where it fits in exactly terms of the waiver but this whole plea colloquy was was troubling in the sense number one the lawyers didn't work most of the funding entering the play and it was like everybody was kind of struggling to make it go down at one point judge the judge trial just says well it's bare bones but i guess it'll do i guess we've we've met the elements there was the whole issue about whether or not the defendant was part of a conspiracy to distribute the united states when he had no involvement with the united states and they said well ok but he was paid in dollars something that he could have inferred that the drugs were going to the united states the only other point i'd like to make in terms of the leadership is i saying he didn't control anybody he controlled the property he didn't set the prices into the negotiations he didn't tell anybody what they could or could do it just gave them permission to use his premises that's not enough for leadership and that is the regular analogous to what  you for your assistance will take this case under submission