good morning your honour's counsel may it please the court my name is christa hart i represent tobias vigil appellant in this case my goal here is to reserve three minutes for rebuttal in your order last week you asked us to consider and address the standard of review that should be applied when the allegation in the appeal is that the waiver was not knowing and not intelligent but i would like to pr that and remind the court that as to charge one in this case mr vigil did not actually waive his right to a hearing he actually within the stipulation that the government counsel and defense counsel to give you the satisfaction of confessing here because it'll have collateral consequences in the state proceedings in a way he acquiesced to what his defense attorney proffered so an elephant plea though it's not strictly an alford plea but it's for it's the closest equivalent it's the closest analogy i can come to what you did certainly and i agree with that but the problem here is that even an alford plea i think the district court would engage in a  the defendant to ensure that the defendant knew what rights he or she was giving up by entering the alford plea so simply because it's an alford plea doesn't mean that those rights go away or aren't necessary has the right to certain procedures unless not waived but but but things but people have defendants have cause of constitutional rights for all kinds of things constitutional rights not just not just rule based rights so for example your client a in a trial would have the right to cross examine a witness but his lawyer can stand up and say i have no questions of this witness and we don't have to stop the proceedings to ask whether the client knows that he has voluntarily and and his intelligently and knowingly and voluntarily waiving his right to cross examination granted under the under the constitution and i would submit if that's what happened in this case we would be in a different situation but that's not what happened in this case in this case government i'm sorry defense counsel entered into a quote unquote stipulation that the government could meet its burden of proof at a hearing instead of forcing the government to put that evidence on before the district judge happens  that why should that be cause for concern because lawyers stipulate on behalf of their clients all the time sure they stipulate to specific or discreet issues typically within a trial you know can this evidence come in can the government lay the foundation for this business record to come in and yes will stipulate they can sure but this is an individual giving up their own personal rights this is not simply a procedure a do and the defendant signs a plea agreement that says that so then your client was present at all of these hearings certainly you standing right there certainly and nobody says what nobody says a peep doesn't change his mind later on counsel doesn't come back and say  oh i may have overstepped my bounds here my clients unhappy he doesn't come back later on and say you know my client has had second thoughts about this and i've spoken with him and now i think that maybe maybe i i failed to to explain this adequately but it was not a knowing and voluntary him of his thirty two point one right never happens you know it doesn't happen in this case but that's placing the burden on a defendant to understand the criminal rules of procedure this one wasn't just wasn't that hard because the only thing that was at issue there were two well there were two things that issue one was he drinking two was you know was he guilty of driving under the influence a to the drinking which is the one that he can but he concedes fully just wasn't that hard to prove and all he's done to save himself and the government some trouble in improving that one but this is this wasn't much of a waiver rule thirty two point one says unless waived by the person right it doesn't say you must wait by his attorney it doesn't say correct was it is waived in the passive voice and was waived by the person correct or whether it's a due process right or rule right the rules literal reading of the rules suggests that the person has to be addressed and has to answer for himself not the lawyer indeed indeed and that was the point i was making when the judge enters into a colloquy for example in the context of an appeal waiver the judge the court will typically engage with the defendant defendant finds a plea agreement acknowledges and then in the context of an appeal waiver even at the end of the sentencing hearing if the court says you have the right to personally engage with the defendant is that subject to plain i would say it is not and the court directed us to consider certain cases and if for example the only case that actually specifically says anything on that is stocks and stocks it says the waiver the review is for clear error but then that case cites to the case of us vidoe which considers waiver in the context timely manner and that's not something that is really obvious to the court the trial continues and then of course at the end of trial on appeal raising that as an error sure the district court didn't have an opportunity to consider it in this context though it is the district court who is administering the colloquy who is discussing this it is the district courts obligation to do this are you arguing that this is a structure or because that's the only way you get around the plane argument no i don't think that's necessarily true because it like in the context of rule eleven if it's an if it's a non tech if it's a technical violation that it has been brought to the attention of the court not necessarily in the context of rule eleven violation on appeal in the context of a rule eleven violation if it's a technical error and it doesn't a impact substantial rights then it's for what what what are we supposed to it's not it's not a knowing and intelligent waiver of his right to a hearing as to charges one and two in this revocation and they should be set aside remanded back to the district court to a different judge to allow them to start a fresh and if indeed he does want to waive his right to a revocation hearing a full revocation hearing he can do that with counsel and if he does that then the court can ask him questions and engage in the appropriate colloquy and i have thirty seconds good morning and may it please the court matthew levitt for the united states i'd like to start with some of the questions that the court just raised first of all judge friedman you asked about the text of the rule and the text of the rule doesn't need say unless waived by the person however every circuit to have looked at rule thirty two point one proceedings has held that a defense attorney can actually enter an admission on behalf of the  individual the defendant and so if that's the case if a defense attorney can enter an admission thereby waiving the right to the revocation hearing then what happened here which was short of that would also be included in  what the defense attorney can do going back to what judge by be raised the proceedings do not stop every time a defense attorney makes a strategic decision on his his or her client's behalf in order to determine whether the client agrees and knowingly and voluntarily wishes to proceed as counsel has directed instead at that's a sixth amendment claim that should be brought collaterally if indeed this attorney was acting not at the behest of her client but there are certain things that are not strategic there's certain things that the laws must be done by the person him or herself lawyer can can't make the decision to plead versus going to trial for things so to call it a strategic things sort of sort of begs a question or assumes a predicate to the question of is this strategic or is it more than strategic when when the lawyer says we don't need a hearing and will stipulate to this that's correct your honor well outside of the rule eleven context this and other circuits have held that attorneys can indeed away various rights on behalf of four thirty three f third eleven forty eight the specific site would be at page eleven fifty four no two in that case the ninth circuit it was faced with the question of whether what had occurred was a waiver or a forfeit e below and the court looked specifically what the a ten defense attorney intended to do not what the defendant intended to do now that was not granted in a rule thirty two point one context but various other circuits have held in  context outside of rule eleven defense attorneys act on behalf of their clients in weaving various rights that happened as well in the second circuit united states versus sproule and in the seventh circuit as well in the united states versus richardson and the courts have have reasoned that the safety valve on the attorney doing something without their client's knowledge or permission would be collateral proceeding as a six amendment claim  council what's your response to it posing counsel's position that plane air review does not there's simply no authority for that position your honor and in united states versus menai which is a case cited in the government it's brief it's an unpublished decision of this court the court looked at whether you have a published decision i don't have a published decision for the proposition that plainer would not apply to this circumstance ment of a known right then there is no further appellate review but even assuming that what happened below was simply a lapse and not asserting that right then that would be a forfeiture under a law which would subject what happened to planar review we have also discuss waiver of waiver that is the jew could waive or you can forfeit waiver that's correct your honor and if and if this is if the if the waiver question it goes to what this knowing and voluntary doesn't then there's the you mitchell may have forfeited his right to raise the waiver if he hasn't if you haven't disclosed to the district court before he gets here that's correct your honor and united states versus stocks and in the united states versus pres the two cases two of the four cases that are cited in the court's order from last week in those cases the the appellant had litigated the claim below so the appellant here is relying on stocks but in stocks the issue had been raised in the district court whereas as as your honor points out that it was raised in the context of a lawyer saying i don't think this was a full and complete colloquy or i don't think this was knowing an intelligent way of there's some record of a colloquy or discussion with the defendant in the question is you have an fact specifically advised him to he would also quote also have a right to a hearing as the charge to in addition to the rights he was giving up as the charge won and asked the defendant's attorney in front of the defendant whether that attorney had discussed with him the stipulation knew what he was getting into by entering it and whether the defendant wished for the court to accept that stipulation and this all occurred again in front of the defendant the court then accepted the stipulation upon being assured by defense counsel about is indeed what the defendant wished to happen and so on that record particularly given the colloquy of the district court with the defendant on the right to a hearing and on your honor i'd there's just no authority for the proposition that that and an objected to error could be reviewed to novo on appeal unless it's a square again if the defendant had objected below it would be subject to harmless the government's position is given the court's order from last week in a review of those cases that this was an intentional relinquishment of a known right to a hearing that's what the stipulation was and so there would be no review at all of that decision even if it was not relinquishment even if it was merely so in other words decide the merits whether it was intentional relinquishment before you decide the standard view in other words that there's an argument here that your opponent is making that it wasn't in an intentional relinquishment of a known right so if she's right then what's the standard or if she's because normally courts decide standards of review before they get to the merits that's correct your honor when  courts particularly in one circuit have faced the question of whether there is an intentional relinquishment of a known right or whether it was a mere forfeiture that decision actually comes first and then based on the outcome of that decision either no to proceed based on not playing error then presumably the error below would be subject to harmless error of you but what the government advocating is that initial step of deciding whether what in fact happened was an intentional relinquish ment under a law or merely a waiver court's appear to engage in that step to novo and then based on what happens at that step either no further review applies or it's plain error and there isn't an unpublished decision in this with what the potential sentences and was struck me in reading that was justice alito as concurring opinion and versus talkee where he said you know there may not be an obligation to advise on the immigration consequences but if the context that makes sense that you knew if the court affirmatively mis advises someone as to immigration consequences supreme court has held then that plea is not knowing involuntary but in the rule thirty two point one context advisements are not necessary at all under united states versus siegel and i know that unpublished decisions are not persuasive but this court faced the exact same scenario in the united states versus and i where a defendant was advised that his maximum penalty was two years in fact it was five he was given a five year sentence by the district court and this court said that no plain error had occurred and reviewed the at the center of our view was plain error in that case as well just responding to a couple questions the prez case that this court asked us to consider actually does indeed say that due process violation in a revocation hearing is subject to did novo review and that's a published case that was  it was objected to there why would the court draw that distinction i'm just playing your honor know what perez says all right and the second thing that i would like to bring up which the government argued so that defense counsel can enter into an admission on behalf of a client that the client and the teams to argue that the client need not even be present that counsel has the right to do this and then that the if the court asks the attorney did you review these with your client and the attorney says yes that's enough we don't know what the attorney discussed with the client we don't know what the attorney advised the client basis seemed to imply that if they found it standing right here while the attorney makes the representation it's so good that the  client agrees with the representations that have be made and here the representation being made was that mr vigil did not admit to charge one they went through this sort of unique procedure that i've never seen before where they enter into a stipulation that the government could meet its burden but we're not admitting it which is something i've never seen before also there's a reason for that because he was facing the prosecution and the state and  front of him and that the judge actually has a colloquy with digital and says you understand you're stipulating to charge to yes yes so what's the problem well the problem there again is is it's a waiver that's not knowing or intelligent just because you thought because what didn't mr vigil know that he needed to know didn't know that he could have a full hearing he didn't know that he could present witnesses he didn't know that he could confront and cross examine witnesses he didn't know that he could present evidence in mitigation none of that i guess whether whether he knew there now i don't know what why why isn't the remedy for this what the government suggests the collateral proceeding when she violated us why it wasn't for him because we don't know what we have we have no evidence from the from the attorney we have no declaration from mr vigil him self because on this record we do indeed know that the district court did not engage in the requisite colloquy to ensure that the rights were personally waived by mr vigil doesn't doesn't that get you back to structural to