withdraw his guilty plea based on an undisputed fact that he was misinformed on the mandatory minimum sentences of supervised release and the issue goes to whether here it was harmless error or not harmless error mr freeman contends that it was not harmless error who or at least bruce's one is that we're talking about a mandatory minimum penalty in this court has repeatedly held that errors in the mandatory minimum penalty whether imprisonment or or supervised release is presumptively significant to yes i saw that in the oral argument i would say though that he went on i think that he went on to say that that was a difference here certainly in  mr freeman's affidavit also he covers multiple things in his affidavit one is about receiving ineffective assistance of counsel nd is what was said in the which he understood through their conversation that he would get the mandatory minimum sentences of twenty years imprisonment and five years supervised release but critically also if you look at the end  have an oral argument statement but it should be taken out of context it's you know if you look at the whole this is that he's mr harrington's affidavit is very clear about rule  to right you know we look at the case law here and we see that when we're talking about it and this is they're different for one thing i'd like to just in history to your question judge and his i think it's important as i looked hard at case law here i've been on the c j kind of who worked twenty five years and i as i looked at the case law here i had to go over and over to try to make sense of what it what it meant how do you articulate the standard that applies here and i think that the correct statement is comes out of westside and harrington as to what the tests and the test is that to look at any what is what is the fact and did it have an effect on the decision to plead guilty you know and then that's clear but then becomes clear need to look at what how did the court this court in different cases then make that determination of whether that test was met or not met and i think the best way to articulate it is to say that this court consider various factors and not all factors are present in each case some factors are more important than the than others and this court also has also looked at a combination of factors now i would say told at that in court all right there is an error here what you want to do and he came back three days later which is very fast and said i want to withdraw so the judge said well wait a minute  by air but i mean it seems that the nd circuit is a little bit all over the place on this and that there are some other cases that suggests it's the government's burden ribet it's harmless beyond reasonable doubt so what is the endurance part of your well we're dealing with undisputed facts so the question is what's the legal import of the particular facts that we have one fact dispute it is that we have incorrect statement misinformation as to the minutes are a minimum sentence by the way that factor if you in the case or across the case or is incredibly important i would say almost an independently stand as a basis for saying it is not honest are we look at harrington and he the cases where you have an harrington and it's a good example that case here because here in harrington it said that there was a two year delay in making the motion and yet this court said that's not this positive why because the factor of it's the m guilty that what what am i dealing with in this situation so we have that we're not talking about a minor error or we're talking about something that doubled the term a supervised release from five to ten years i was saying a one and i'm just speaking as an officer of the court here of things openly of i've looked at it looked at the case and said you know one thing that st us that popped out at me was there's also another factor that talks about is it is he worse or better off now let's that factories not present in all cases that's why it's it's not like you would say ok i'm going to look at all of these things so we do have that here but you have cases like ls harrison they did not rely on whether the senate was was worse or better off they relied on the mandatory minimum error so but in terms of worse or better off the question here and i think i think it's a question for suppression and that is what do you look at then to determine whether someone is worse or better off do you look at the time that the plea is entered and what is the view of the defendant to that time when they find out later what what it is if that's the view then here mr freeman is worse off worse or better off well here if you take that view then the government's argument is well no he's not better off he's neutral if you accept the government's argument is true and what happened here is that you have t first step act it came into play after the fact after the plea of guilty that reduces the the term of imprisonment minimal mentoring minimum term from twenty years to fifteen years so that what the court said was ok i'm going to look at the aggregate of the prison term and the supervised release or so initially if we look at the aggregate it was twenty years plus five years twenty five years now when he thing that i need to know to point out st off is that the no mention was made of the significant benefits of obtaining and entering us guilty plea so whether or not in part of that calculus whether or not to plead guilty or to withdraw the guilt what i didn't hear was the discussion regarding or any information regarding the significant other charges that could have been placed against mr freeman based on his conduct so here the benefit of the charges are really bad you can just ignore it rule at all now you say no not at all your honor just with regard to the discussion of whether or not he whatever wouldn't have when the court started its questioning was asking whether or not this was a matter of having nd thoughts or whether or not he would have not pled guilty but for this error in the supervised release term i didn't hear anything   capsulated the entirety of his so question he was facing was if i withdraw the guilty plea if the guilty plea is off the table and that's not just then it's not just a matter of fixing the supervised release term and deciding whether or not to enter the government has choices to make  and that's whether or not to continue down the road with other charges that could be brought here this was an early resolution everybody pled guilty all of us co defendants and it saves the government time and effort and that's something that's recognized and part of the proper is that then we can i guess that is that the operative question here i believe so ok which i do want to enter and that equally i was surprised to see that that issue didn't seem to be addressed at all in the government's brief it was  different issue this notion of mutual mistake which didn't seem to be the issue that was briefed in the blue brief were addressed by the district court but that's another issue but if we're talking about rule eleven  whose burden was it in the district court in the st instance to deal with that issue was it the government's burden once the error was raised and the defendant made his motion to withdraw the plea to prove that it did not effect that it's having substantial rights so i would mean the government's burden to show by whatever sed entered that the defendant would have pled guilty anyway or was it the defendant's burden to prove that he would not have pled guilty so who bore the burden that before the district court th who has the burden of showing either the defendant does he need to prove to the district court i would not have pled guilty or at that point with a violation and hands was it the government's burden to show rosen i'm looking at the abuse of discretion standard that's put in place that's in play and rosen we have been abused just i'm not talking about the appellate standard of review i'm talking about what was the standard that the district court was supposed to apply because whatever standard of review we have on appeal is going to be an overlay or rank fairly so i'm just asking at the district court level do you do you have a case was not clear to me from the briefs who bore the burden at that point because it seems to me that's the decision that we're going to be review whether there's an overlay of deference on top of that with that we have to defer to how the district resolve that or not is is a secondary question but what's what's what's the initial scheme cooked there i'm afraid based on your honor's initial statement that it's not adequate just in the government's brief the question you have to pay does eleven and twelve of my but in doing so that undermines confidence integrity just procedures and there's the line of cases that that stem from that so that reevaluation of the government's case against him or the penalty that might be imposed is not a sufficient reason made the mistake was then brought to the court's attention and the parties and the p s r so i think this isn't as clear as a mistake of fact or trying to think of what the more typical cases but where the mistake i mean to call it a mistake i think i'd like to just backtrack just half a step to say here there was no mistake with regard to the ultimate term that could have been imposed it was the maximum term of life was always on the table if you have doesn't get things out right you can't say i mean if somebody faces a maximum life sentence of imprisonment or a let whatever the charge may be i don't think we would have a case say and therefore because you could potentially go to prison for life any mistake with respect to a misstatement of supervised release is always and everywhere immaterial because that would be the implication of i don't know how to call it a cross it's not i agree with the court that there was a i know that there was a problem i understand the problem it was the mandatory minimum but to call it a the type of mistake that renders the entire process improper and unfair isn't right the dent the demonstration at that point of i'm sorry the demonstration that it was unfair is up to the defendant to me and that's why in this instance where it's not one that wasn't outside it wasn't something it was well outside the realm of possibilities for what could happen here that then the stakes as i continue caught of course but the mistake wasn't one that rendered the entirety  proceedings unfair now it's oh it's a weird one my understanding here is that we were eventually trying to get to is this the kind of mistake that would have led this defendant to make a different think we're in agreement well you tell me is that the question that we should be asking is would the defendant based on this error have made a different decision and opted not to plead guilty on the daves plea had he been properly informed about the supervised release is that the government's that's the operative question here yes and that's what the district court addressed in its decision yes so right so that just comes back to me to say is it then your position that the defendant even when we have an th ryland violation it's his burden to convince the court that he would not have pled guilty had he known that or is it the government's burden because this is properly preserved and it was raised in a timely manner is it the government's burden to show that he would have pled guilty and i don't know how you answer either one of those questions sort of but i guess i still want to get at who had the burden and why when we know that there isn't but who has the burden of showing whether the defendant would have done something differently given that given correct information right given the nature of error here your honor i don't want to parse i know that this could lead to a lot of different what ifs if that ends but given the nature of the violation here where it was something that was known to the defendant and the question of voluntariness as on the table whether or not he knew he could have been sentenced to a surprise release term up to a specific term and that term necessarily included the ten year term that was required statute then i think the burden remains on the defendant to show that he wouldn't as the court properly analyzed whether or not he would have entered did guilty plea absent a mistake and here again as i started off with what's missing from the calculus as was discussed during my my colleague's argument is all the benefits that he obtained by pleading guilty and that's serious and significant so from the ground up the government has met even if the court finds it's the government's burden the government's met that burden you're saying whatever the burden  longer mandatory minimum terms of well that's the voluntariness bit that was addressed in the district court's decision so whether or not he knew but also given the significant benefits obtained that was known to the parties and that was stated in the information here not an indictment if i'm wrong i'm sorry but either way the points made that it was something that did not in capsulated entirety the charges that he could have faced without the plea i mean pick up and look at now i don't like this case for that reason but i do believe that when the parties went through it when it was brought to the court's attention before sentencing which is good to the benefit of the entirety of the process here it was brought to the i'm not suggesting that there was a long time that it lapsed i'm not suggesting that i understand my colleagues point with regard to it having been made but it certainly was not made upon receipt there were no objection lankford the guy pretty quickly says he wants to withdraw it seems to me that the bigger problem for him is that when his lawyer is asked why what would he have done he says well i don't know what he would have done i have no idea what he would have done and that seems like that's the harder problem for the defendant is that statement on the record like well who knows if it's material he just wants and just see but not because he purely wants to go to trial he just he just wants to because and that's sort of is i think a difficulty for the defendant because it seems like the state of the record now is that you have an affirmative statement of a lack of any reason it would be different though it strikes me if the defendant said well look i've got a long history of recidivism every time i get out of jail i get arrested and you know what i'd rather just get a prison term and be done with it and i don't want to be on the hook for supervised release because i just know i'm going to fall into bad habits and i'm going to get arrested over and over and over again i mean you see there are some defendants who are like they're like you know what just give me the time i don't want probation hanging over my head i don't want supervised release i mean the time to get out i mean it seems to me that he may have a problem because he didn't say anything like that you didn't give any reason why supervised release would have mattered to him but it seems like in the abstract it's it could be a problem brian you've got you know i think you're muted mr right i was saying good question i was thinking about how do i yes or no i was well what i would say is and think about it the the standard the test articulated i believe is an objective standard not a subjective standard so if we look at west the words that are use is what would reasonably a fact a defendant's decision to plead guilty so we're looking at objective facts not his subjective what would he have done or not done subjectively and and that's consistent with this court's case law where it's looking at objective facts now saying ok if it's a mandatory minimum sentence we don't have to say you have any evidence of him saying well that affected me that affects everybody that that is a highly significant fact what he would have done and so again that's not what the test would be the task would be what are we dealing with objectively we're dealing with an error in the middle manager for a minimum penalty we're guaranteed the only objective really with a motion withdraw we do know on the record we don't need to get behind why mr freeman said he wanted to move to withdraw the fact of moving to withdraw soon after learning of the of the  saying piggybacking on what his lawyer said and that's in his affidavit saying i am doing this for this reason reason so he said for example the language was in part it's because what he told me while there were other things as reasons why he was going to withdraw so in total i would say that he's he's you know that he has set for sufficient facts now by the way turning to your question about what's the burden of proof and i would submit in thinking about it that really the burden is st is there an ever i mean it would become an across the board when you dealing with any not recalling it exactly your honor and i as i think about it as we're talking about i don't i don't think that that would be the case in terms of of whether it's harmless error or not it certainly west as to what those cases say or don't say about who has the burden of proof i think in the in the harmless error context i believe it makes sense that once there an error the burden shifts because it's the other party and then it's same to the court it doesn't matter and this is why so they would they should have the burden to be saying you know what if it's if it's