morning this our final day of oral argument this week we only have two appeals to hear this morning both racing a similar issue although that one of them raises an additional issue record that are relevant this morning in the limited time available to you should feel free to get straight to the heart of your argument we're probably going to ask questions if you're answering a question from the court when you when your time expires feel free to continue and finish your answer but do be mindful of the cox and our time we go again with united states versus innocent errors complained really affected mr innocence substantial rights more also constructs that in making that determination the court should look to the entire record not just what was presented to try so but before i get to the fact i just want to make sure just to go to the standard on that whether something affects a substantial right we bear the burden of demonstrating that there's a reasonable probability but for the error there would have been a different outcome  a reasonable probability is a probability sufficient to undermine confidence so i'll go with the facts and i think in this case the facts really have to start with the stipulation that was entered into between the united states and mr innocen and i'm mistaken about that you're partly correct your honor he had been sentenced twice and this is a paragraph thirty six paragraph thirty nine in the present court those were both magical thing about it he actually did serve prison time right he served time but it was not present time the magical thing about a state court with a clear if three hundred and sixty four days is your time in county detention to state prison i'm sorry and so so your point is that he had not been to a state prison he went to a county jail that's correct your honor and if you look at some of the other things he's about so those are the four felonies there were two when he was twenty and twenty one and then these two which are probably the most important ones paragraph thirty six and thirty nine thank you look at before you move on can i ask a question you said one hundred and sixty one credit for time and getting to the heart of the matter and recognizing that it's your burden to establish reasonable reasonable probability of a different outcome and you said you wanted to focus on the facts that you think u which were he was sentenced to a day shy of a year are those the two best facts you have in terms are are there any additional facts in terms of things have been previously convicted you know and i agree with you your taste is closer than a lot of the ones that we've dealt with its own earlier and and and and if this had been a preserved rest some of the other offenses that are scattered within there are messed meters traffic but if you look at the way that they were just and just look at at the one of the surrounding the paragraph thirty six and thirty nine you have paragraph thirty seven which so i think we have to put it into this equation and you can tell me if i'm wrong about this as you want to go you time a reasonable probability reason outcome this year and if the government's got the burden to of a different outcome if you go back and try this guy thing again affect your i think if you look at the record as a whole you have somebody with this very low i q somebody who for the record looks like he has a substance abuse issue is in and out of county jail pleads guilty but i don't think he needs to know that because you'd rather do all kinds of problems that well but one of the but point is terribly wrong what he did and i don't understand why not going to the prison service not time of the jail serious yes they were treated not very much differently than a misdemeanor or even the traffic offenses d he said he said in jail and county jail he comes up pleads no contest every single time it's a certain amount of time rights we're asking the court not to notice or correct the error in this case because the apollo waived the argument for the error the outcome of his trial would have been different he did raise the argument in his opening brief he didn't respond to it at all in his reply brief after i had raised in my answer brief he's raising it for the st time here this morning oral argument now up until now he had ignored the outcome test which is the law of this court under more reading mccloughan and he staked his claim on the th circuit smedley case which dispenses with the outcome case and says that the raper creates a non offense that automatically results in a forfeiture isn't it that we don't have anything on the record where he has intention evidence an intentional relinquishment of a no right i agree that he hasn't come out and said but it seems to me that he's made a strategic choice he's using the medley case to try to set because you see the circuits and he wants to preserve that oh i don't want to write yeah it's not but i just i don't see i don't see what what real difference it makes  oh no sir why not because he's talking about a different kind of plane air if you read both of his briefs he's only talking about plane air and the contacts that red tape has created what he calls and what the medley case calls a non offense has absolutely nothing to do with the fact that he tried it in a there's a difference between raising an issue and making an argument in support of that issue it seems to me that in so far as he raised a red tape issue and and the case law has developed in a way that has undercut some of his earlier arguments in support of that issue doesn't change the fact that the issue itself this proves our right i don't think the issue that he question for us is has he shown that there's anything and the records that would show a reasonable probability of a different outcome for him not not not that the record shows that there's not  probability of a different out right course he hasn't met his burden but i'm just going to tell you why he hasn't met the burden because if you look at the entire record you'll see that there is no way that he can satisfy his birth and that that it's obvious you have some or it seems to me the important thing about the stipulation is that it's circumstantial evidence that he knew that he was a convicted felon and rape says the knowledge can be  from certain law and the real question is is there any evidence circumstantial or direct yet he did not know he was and so that's that's the real issues and if that's the real issue then the answer is clear there is no evidence that that that's enough to undermine confidence and you know i don't think it's enough i mean it's true this case is an outlier because this is probably the only case i've seen where the defendant has not either been you're expressing some of the same disagreement but i want to make sure in my view it does matter whether to extend it knew whether it was a misdemeanor or felony because following rough ate the government has to prove that he knew it was a felt right i think that's true absolutely true on what i'm trying to concentrate on is the fact that circumstantial evidence is important to be able to show that you can draw a reasonable inference that he test that was in the record not only the stipulation that you made a trial but the record as a whole and when you talk about this low intelligence business you know you might have low intelligence because you didn't go to high school diploma maybe you got  but for half of this thirty six years he's been in and out of the criminal justice system he's got eight misdemeanors and four felonies and it seems to me that this court can draw a reasonable inference that someone with his experience in the criminal justice system is likely to know the difference between a felony and a misdemeanor especially when two of those felonies which were consolidated for sensing he got three hundred and sixty four dollars days and two of them which were also consolidated to the other two felonies which were consolidated for sensing he got eighteen months probation which obviously eighteen months is more than a year so when you look at it and this is not even speak of the fact that he has never objected to any of his felonies  i and he's never said that he didn't know he wasn't a convicted felon you take all that and what you're left with is the inference that he knew based on circumstantial evidence and we believe it's enough for you do you think when we look at mystic elation i'm not sure you get much from the fact that he said i am a convicted felon but you have a for the senate thing where his felony then three he says is why suppose us of our were ammunition had not been restored pursued florida law that's three parts of the stipulation and they're not neutral because when you take those three parts it makes it a he had been convicted felon it because it does not seem to meet any of those three parts of the stipulation go to his knowledge when he committed the offense i think anything about his knowledge earlier when he committed the offense today i think they do in an indirect way and i'll tell you why because he here saying ok admit i was convicted of a felony that doesn't really say a whole lot in and of itself about whether i knew i had been convicted of a felony but when you start adding these other facts about you know you've been you're missing that you've been convicted of a crime punish comment on it like the st question is when he stipulated that he was a problem whether which is an element of the think that's the end for us that you can draw from that well that maybe that's the only way the stipulation becomes relevant course in the law in our circuit was at the time this occurred was that he does not have to  goes to the mens rea and so just to kind of paraphrase it because there was an immigration case a defendant who does not know that he is and i would say at this point it convicted felon does not along with the families the way that they were disposed of the misdemeanors end of his they basically it is a charge he's in court is out of court he plays no contest every time he does some time in county jail and then he those cases that error is harmless when it is clear beyond a reasonable doubt that a rational jury would have found that that's constitutions and you're not a constitutional lawyer and that's and that's where the errors been preserved you don't have th