very loud few minutes at the end of mr karr's sentencing and those loud few minutes were rather revealing in terms of my assertion that mr karr was misled in this matter mr karr was promised i should say promised mr karr was informed that the court would probably give him a thirty month sentence and of course he received an above the guideline sixty month sentence i was a surprised as anyone in the court room your honor i had this goes far enough so as to say that mr karr could not possibly have made a knowing and intelligent decision to waive his hearing simply because he was promised one thing and received another what was he promised again he was promised thirty months or but who promised him that well i think i'm sorry judge i don't want to i don't really mean that right he wasn't promised anything in fact he was told no guarantee that judge did not make a commitment sir and i said that myself in court nor did counsel make a commitment to him and i was trial counsel judge i did not make a commitment to him so nobody promised him anything and fact he was advised that the judge was not bound by the guidelines and was not bound by basically anything other than a maximum right i think if i were to pick a word sir and the words are very important in this case i grant you i think i would say i told my my client that the court was inclined at thirty months but i certainly told i certainly never said that hearing which he and you gave somewhat different accounts of what your converse the nature of your conversation about the thirty minutes you keep using the word promise here that's certainly what he heard yeah and our that's what his statements reflect but in terms of your own counsel to him you know it seems a little uncomfortable to resolve these factual understand how what you're thinking is about how you can represent him at this point mamet's even if it's even more uncomfortable around the side of the bench believe me ok i think i don't believe there's a conflict but i think my toes are right up to the line  i discussed this at length with my client mr karr had some concerns about the same matter and again of course as they speak about this ma'am i've got to be careful about what i say are there certain things i can't mention but well am i right in understanding your client has now filed an affidavit in which he says he's in agreement with the with the statements with the facts asserted in the brief dispatch and in the brief you say that the district court opined that it would probably  said in the defend it was advised that such a sentence was not guaranteed it was there was no question that it was not guaranteed however it was suggested by a federal district judge and i think your honor that is highly persuasive to a man  never finished high school now in terms of mike i'd like to return to the conflict problem because obviously that's a hot button with me ma'am mr karr actually said and it appears in the transcript i used the wrong word i did not mean to mislead the court i guess what i want to say to you was it was a situation in which mr carr found himself in hearing something that any defendant would want to hear into the circumstances and i personally think if it rose to a level of a break in violation he would reasonably believe that he was going to receive something in the neighborhood of thirty months not twice that and certainly above the that belief is is frustrated at senate saying that there was there was no false representation that's not a basis for saying that a plea was involuntary actually going to one of the things i would like to say is have a appeared in front the trial court judge for thirty years and i don't think he did anything that was to be faulted i'm certainly not trying to throw mud upon the court but i believe my client was misled i think that is reasonable when the when the when the change in sentence is that great and we're not even in the range dictated by the federal sentencing guidelines anymore your honor i think that constitutes a void in violation i truly do the only thing he's looking for your honor is your he will i don't want to anticipate the arguments of my opponent but i'm sure the court is going to hear that he was not a choir boy and absolutely that is true but the fault here is in not giving him his hearing that's the problem judge month term ma'am it appears to me that the court relied on certain matters that were that were covered under the sentencing guidelines by his criminal history calculus  and in going over the guidelines or relying on that appears to me that the court essentially double dipped i think the there's nothing new in what the court said this all of this all had to do with prior calculations about what he did in the past and quite frankly your honor i think that's that's somewhat unfair one of the things we have to consider though and in the over the guidelines sentence judge i don't think the law is perfectly clear on the notification requirement to someone out of the opi hearing about going over the guidelines i think the burns case i believe goes  to the prospect that the court under certain circumstances has to notify the defendant and as i recall the brandts case goes to things like if the judge is going to rely on something that's not in the p s r something like along those lines no i'm not suggesting that burns is a perfect fit judge but under these circumstances when you have the thirty months floating around out there and then we go over the guidelines i think that the defendant was entitle to some kind of notice and under those circumstances i don't think  requestion would have had a hearing in church and then we wouldn't be here one way or another we wouldn't be here in my room you help me under remember the recall the record that didn't a month pass after the in chambers conference  which the illusion was made probably thirty months in during that month period your client was getting ready for that hearing correct then we were we were getting ready for the hearing he was informed of all of this there was no surprise  then there's well actually judge those a couple of adjournments and i'm not sure that what juncture you're referring to there were adjournments that had nothing whatsoever to do with this case you just said to the courts business but my my client was informed of this and yes indeed we were getting ready for a hearing and i notified the court a couple of days in advance that he was willing to waive the hearing based upon the premise that there would be something in the neighborhood of thirty months supply but you inform t court that it was based on the fact that the sentence would be something in the neighborhood of thirty i did not inform the court of that i was relying on the porch representations and nothing more schoenberger for the united states if the court accepts the facts that mr karr lays out in his appeal brief then the district court's judgment should be affirmed there is certainly sufficient facts in the record for the district court to accept that mr karr voluntarily admitted to the violations of supervised relief to the extent he had some subjective belief as to what his sentence might be that's not enough to show that he made admissions in voluntarily even in the more stringent context of a guilty plea this court has found that that type of subjective belief is insufficient to show a lack of voluntariness and the case that the government sites in its brief is the united states versus or ex rail lefe on just that point the concern here of course is that the facts in mr karr's brief on appeal would not be accepted by this court because they differ somewhat from what is represented in the record before the district court in this court's order denying the government's  describes the relief that the government seeks somewhat more broadly than what the government is asking what the government is looking for here would be an inquiry into whether there is a conflict between the attorney and his client because the argument here about involuntary ness is based on the representation the the attorney made to his client that the government or that pardon me that the district court had suggested a certain sentence but did not guarantee it why should mr karr's affidavit enough to put that concern to rest the main concern is that he received counsel from the same attorney that represented him before the district court and it was submitted through that counsel if if there wasn't any concern about whether a conflict exists i agree that what mr karr says in his affidavit would be sufficient basically i see the facts as they're laid out in the brief and and i and i agree with them and if that's the case then all of the arguments in the government's brief would apply and again we would ask that the judgment  the central concern is that mr karr is in voluntariness argument would be much stronger if he were to say that his attorney had told him that in fact a sentence had been promised but if that were the case his attorney would be exposed to potential ineffectiveness claims regardless of whether the judge actually made the promise or not and so that is a conflict that doesn't appear to be resolved and again if if the affidavit is viewed as sufficient by the court in the then the government is is comfortable with that it would be entirely comfortable with it if that  t had been submitted through counsel who was clearly conflict free regarding the explanation that the district court gave for its sentence unless the panel has any questions about that then the government would rely on the arguments set forth in his brief and unless there are any further questions on  the merits of the voluntariness claim then the government will rest on the remaining arguments there as well thank you