attack waivers are not enforceable where there's a violation of fundamental rights and also the gomez pereira's case and then later the read he case listed four specific rights that this court deemed to be fundamental those were not exclusive to this court use words like such as and for example so it was never the case that those four rights with the only ones that were f case the conduct to which he allocute it was not a federal crime and i would submit it does not get much more fundamental than nat we have cited in the case which has differentiated claims involving the facts in a sentence from claims involving the underlying conviction i would all there are many crimes that involve or incorporate in some way other crimes such as felony murder you know felony murder is a separate crime from the on the lying felony which requires proof of an additional element twenty four c is it issue making some use of a firearm in connection with a crime of violence and one of the elements is indeed the underlying crime of violence but then it's the use of the firearm makes this into a separate and additional crime and the statute requires that it be sentenced separately from the on the line crime that there is a sentence to be imposed for the use of a firearm which has to be consecutive to the sentence with the underlying crime so i would submit for that reason nine hundred and twenty four dollars she cannot be considered part of the same crime or just the mere sentencing and handsome and to the underlying crime i mean there's already sentencing guideline and antonyms for use of a firearm which had been at issue in other other cases than davis so this is something different from that this is a mind twenty four dollars c provision does not require the defendant to be convicted of or even to just be charged with the predicate crime so long as there's legally one of the risks you take in a plea agreement is that there may be a subsequent favorable change in the law but that again doesn't apply to everything where there has been a change in the substantive criminal law that the you know that the that this doctrine of accepting or assuming the risk does not apply that it has to yield to the fact that someone can't be held in prison and continued to be incarcerated for conduct that the courts the highest court in the country have determined not to be not to be criminal and that's where in the reply brief we made the point in response to to an argument by the government that this would not even a cut in compas every challenge to a conviction for instance if some if there is a change in recent pression law or a change in evidentiary law that might cast doubt on whether a plea was really knowing and voluntary for instance if there's a decision that says that the defendant would have had a viable suppression motion if he had pled guilty that's some things that i think this court can reasonably say that the defendant assume the reason the risk but where but where a defendant makes an argument that if accepted by the court would result in a finding that he didn't commit a or do you disagree with that standard i disagree that there would be that standard of play in our review where there's been a subsequent change in the law you know this is this is not something that could have been anticipated and i would i would think it's also self evident that if a plea is to conduct that's not actually a federal crime that doesn't actually support a federal prison sentence there's certainly a reasonable  backwards until the government decided to charge differently so in this case judge cures here in this case the government did charge not only conspiracy hubs a conspiracy but ob and that robbery charge remained in the case until after after sentence and then the count four count four was dismissed but under  june and johnson if there's evidence in the record sufficient legally sufficient proof for the record that hobbs act robbery attempted robbery was committed that's sufficient and when it came to the nine hundred and twenty four she allocution he didn't plead guilty to count five as pled in the indictment to a lesser included and then the court allocute it handy using and carrying a gun in connection this at sixty four dollars of the appendix using or carrying a gun in connection with the conspiracy to commit that robbery of a drug trafficker all he admitted to when all he was asked to admit to was using or carrying a the help of mr hall and hall acknowledges that he was an active participant in the offense content with that would that be sufficient how this is going is that if mr whole attempt admitted that that there was a robbery that these co defendants carried out and he was an active participant in it that still doesn't amount to one admission that h and carrying of the gun was in connection with the attempt stage rather than the conspiracy stage of this crime not even if he talked about the attempted robbery in which he participate yes i mean if he were to admit that yes i use or carry a gun in connection with an attempted robbery that i participated in that he doesn't have to be the one who is actually carrying the gun though does he good morning i mean please the court my name is alexander smith and i represent the united states i'd like to start with the nd issue that your honors were just discussing with respect to the  superseding indictment itself and so the idea that if there was a lesser included and that somehow that impacts whether it was predicated on two counts versus one count is incorrect that merely goes to the nature of the way not only of the elements of count three which was the conspiracy that he was pleading to but then said he was going to be pleading to count five which meant using or carrying a firearm quote during and in relation to one or more judge of actually explaining the charges and the again the defendant said he understood it he talked with the discuss it with his counsel and then as you know there's a whole back and forth about the gone because in connection with the  that the a friend it understood at the time that he was pleading and and he has not been showing here that there's any evidence that he would have not but the win that you just read was there any other mention of c that is the one place where the got but it makes sense because that's the one place where the elements of the count five are actually go until many counterfactuals about what would have happened had we sort of understood the law at that as it is now at that time i think there's no question that we either would have put it differently or we would have insisted on a different query which sort of goes to the are and confirm that he is the defendant understand those charges and read the indictment and discuss it with his attorney he then in actually taking elocution does refer to count five sort of by shorthand  says you know you're going to plead to be charges which again he described like and referred to the conspiracy to commit robbery which would count three and then the god charged in connection with that robbery charge which i think it's sort of what the defense focuses on the package was those two crimes one of which was then invalidated so we're kind of looking to the record to see if yeah looking to facts which would have supported a conviction on something but he didn't actually  know i understand what you're saying i think again that the the cowardly was will get on the air the one that said again it was the exact same crime and so the fact that he allocated that my opposing counsel has characterized shorthand is the part where the district judge was asking mr whole what he actually admitted to and what his conduct actually was that's the very heart of the plea that's the admissions that are made in the record by the defendant i don't think that we can just dismiss the questions that need to concerning the defendant's admissions as shorthand that's not shorthand that's what he admitted to that's what he pled guilty to there may have been preliminary discussion before that regarding the nature of the charges in the indictment but he didn't plead guilty to the indictment he pled guilty to a lesser included and the nature of that offense as  adams and mark which is cited in the reply brief is determined by the parameters of the defendant's admission that when the court asks did you together with steel and ringo dealt use or carry a gun correctly pointed out that there was not a waiver at issue in dallas because he was sentenced above the waiver but what that means is that once the waiver engulfs it was overcome this court determined that his plea did not in fact  was not in fact valid on the day that if the waiver is overcome in miss case which we've argued it should be and that wasn't really addressed in the government's argument so i won't really rebut on that but if the waiver is overcome an escape then the result here should be the same as it was and else that once the merits are reached this plea is not a valid plea if the court