since we were last on the court's docket mr hurley and i had apple opportunity to argue this case amongst ourselves but we still haven't raced an agreement so we decided we better come inside and let you take a shot at it the issue presented in this case is whether the district court's failure to advise mr rodriguez gonzales of the mandatory deportation consequences attendant to his convictions rendered his plea invalid and that it was not knowingly intelligently and voluntarily entered we have argued that the united states supreme court's decision and the dia versus kentucky has altered the landscape as far as what constitutes a penalty with regard to immigration law under rule of an the and mr hurley did cite additional authority yesterday indicating that a rule eleven has been modified and will go into effect on december the first basically saying district courts you need to advise not for this in the sun it's of the deportation consequences attendant to their beliefs so they're kind of helping me out here a little bit but were the rules not yet in effect so we're still operating under rule eleven as it existed at the time that mr rodriguez consolidators plea and my argument is that under the supreme court's rationale  and acted as his own counsel to an extent there were two motions as i recall filed by two different counsel seeking the withdrawal of the police and then mr rodriguez  i think one that was actually styled as a formal motion and one was pretty much just a letter to the judge saying hey look i would like to withdraw my plea and there were various reasons listed in one of the handwritten motions i think he attached like  a research page that summarizes little points of law that he rendered in support with never he never got a hearing on any of these motions and so therefore the record is not as much to say so i think a couple of other people went to trial and the problems with respect to the drug quantities kind of became apparent and i think mr rodriguez  of took that into consideration when fashioning his motions but that we don't know one of the motions filed by counsel did indicate that an invalid play process under rule eleven would be sufficient and i think that that was counsel jacobs who put that forth or if there are any amp dictation and that was no no there wasn't you know i got to admit that the record is pretty on that basis so you know there weren't always the same reasons offered as i recall in each of the motions some of the motions set forth other possible grounds for relief but no really desirous of getting the plea vacated and so whether it's a wise choice or not given everything only he could make that final decision and here i am our position is that idea has changed the landscape and it's made it pretty clear that deportation is a penalty and if it's a penalty then rule eleven requires that that be explained to a defendant before taking his or her plea but there's a sort of an compel this change in the rule correct it's just against that background maybe it's a good idea to eliminate future problems right and i made the argument in the brief that the you know there's practical reasons for adopting such a rule because you know only takes an allegation of ineffective are inadequate advice to establish the first prong of the i a c test and you know if you if you put the burden on the district courts to advise and defend it situated similarly situated to mr r consolidates and you're doing a lot too so it's clear that clear the deck so to speak of these great number of potential heaviest petitions will be filed on the basis of someone saying hey he never told me that i could be deported and then you get into the big litigation of the you know the second prong of the test and you know that's where most of the appeals come here on that basis so i think you know there's good reasons for such a rule you know and again you know the the rule has been changed it's going to be effective soon and the question is is this case a proper one to consider those changes and how they apply i don't think that the rule as amended was absolutely necessary because it's our position that it's a penalty anyway and so rule of them requires you to explain a maximum penalty or a mandatory minimum and we've argued in our brief that people are taken is at least a mandatory minimum penalty if not a maximum penalty court my name is dan hurley and i represent the united states obviously we disagree the reason for the amendment is the fact that the current version of ruhleben does not require any discussion of immigration consequences but i think this court can avoid that thorny issue of when the amendment takes effect and whether it's retroactive and things of that sort because mr nunnery explained there is no law at this point he cannot point to a single case that compels the result and that means there's no plane or there's nowhere it's certainly not plain if there is not a case that makes it clear and pretty is not such a case because pretty is all about the effective assistance of counsel and says nothing about the obligation of the district court it was in constru has to make a showing of a reasonable probability that but for the air he would not have entered this guilty plea this defendant has not even made that allegation if you do not allege that you would not have entered the guilt drug trafficking conviction that's in the present report at paragraph eighty four and so this is a defendant who cannot truthfully say i had no idea that i might be deported upon my conviction he'd been deported after a drug trafficking conviction he  disdained another drug trafficking conviction the interim when he was arrested in this case and immigration detention was placed on him and that's apparent from the first page of the present report and so this defendant hasn't made the allegation he can't make the allegation and so he can't possibly show well we don't know what the district court judge in the prior case told mr rodriguez gonzales maybe he said something similar to what the sentencing judge in this case he was not entirely fluent in english although as his written filing seem to suggest that he could read and write and understand english language but judge judge carr told m at the time of sentencing and i'm looking at sentencing transcript page id fifty three eighty two or he's pronouncing a sentence in open court and he had the last thing that he advises him is in addition to the other conditions you will be prohibited during the term of supervised release from ever returning to this country that's not quite right mr hurley points out that it's automatic itself executing you do you think once and you're convicted again you're going to get it again but what if he was told the same thing before you know so i don't know why we did what do we do with that so i don't think it's as clear cut and dry as as mr hurley would make it out we don't know what happened we know what happened here and we know what didn't happen here and we're we're asking that the court adopt the argument that