good morning can you hear me all right all right very well may it please the court my name is colin stevens i represent the appellant in this matter joseph birkdale uh the district court certified two questions for appeal and i raised a third uncertified question at the outset i would say it's largely self evident that if the trial counsel miscalculates the advisory guideline range in advising a defendant on whether to plead guilty or not and that miscalculation is approximately two hundred thirty six months off i think that counsel's performance certainly satisfies the strickland prong when the defendant then reliance is that in no context whatsoever or is it just a matter of math because this case arises in a very serious context and you want to make it a math problem i do and i don't mean to generalize i think in this particular case that that miscalculation given the fact that were available to trial counsel the n c i c report and the guidelines that that is definitely strickland air under the first prong well then why didn't the after the guideline range was determined there was no recommendation to would you draw the guilty plea that is a question your honor that i cannot answer which relates to my third which relates to the uncertified question regarding the district court's denial of discovery or an hearing at this stage the record before this court i have i cannot tell you what discussions occurred between mr byrd tail and sentencing counsel mr ruggiero has no recollection mr mr byrd til we would testify or present evidence that i mean he just he did if that if the court looks that excerpt of record i think forty seven forty eight in that area he supplied  mr byrd to you before the sentencing was given the pre sentence the p s r correct and it had the right calculation of the sentencing range he knew that he had an opportunity to withdraw his guilty plea he had separate and different counsel from one that committed the deficient performance which you claim and he didn't withdraw his guilty pl now how is that prejudicial well your honor if i could just i don't want to split hairs with you but i would say he didn't have the opportunity to withdraw his guilty plea he had the opportunity to move to withdraw his guilty  correct under all the circumstances here i don't think much of a showing would have been required to to withdraw the guilty i agree but there isn't literally no about the discussion that occurred between the mill and a look like nobody will get him to withdraw his guilty plea because he would have gotten stuck with the reinstatement of the first camp which would have reason he'd been convicted he would have faced what was jury when he sexually molested is own daughter when he was in control and custody of that daughter how can he will at how can a good defense lawyer let his client go to trial looking at a thirty year mandatory minimum and of course the other had a maximum wife i think i don't think there was any mandatory minimum correct both had maximums of life and i will i will be honest your honor it would not be my favorite case to take to trial but the reality of how the case shook out between the mandatory minimum on count one versus what the guideline range ended up to be the difference in time the difference in that amount of time for m tale from his perspective is negligible the sentence that he ended up receiving in light of the plea agreement versus the sentence he would have ended up receiving under the mandatory minimum from his perspective was one that what's a few extra years at my age well sensually what did you get what was it two forty three i don't remember he received a sentence of two hundred and it's four hundred sixty four months two hundred sixty four correct versus three six the correct  but i have i have motions for rule thirty five to reduce prisoners terms and they're very happy to get twelve months off i think that any prisoner robber encounter always happy to get any amount of time off of the sun i certainly am not going to dispute that i think what it comes down to though is what from mr bird tells perspective given his circumstances his age i mean what he would testify to is look i was i'm going to probably die in prison under two hundred sixty four months or three hundred sixty months i would like the opportunity to take a shot take a run at my motion to suppress and if that is successful my chances at trial increased significantly because without that confession his chances increase and i'm certainly not commenting on the validity of them or the inevitable success of  motion to suppress but he gave up that motion he gave up his right to trial to confront the witnesses based solely on this pile in the sky estimate that his trial counsel he went before the district court judge and said i'm consigns to losing nineteen years of my life sentencing counsel said your honor we've spoken he doesn't want to withdraw his guilty plea and we ask for a low end of the guideline sentence i have no idea why didn't ask for a variance i don't know what communications occurred between sentencing counsel and mr byrd tale there's the i think the misguided reliance on the elaine case i don't understand how how any reasonable counsel could have advised mr byrd tail that you have a shot at lowering your guideline range based on this based on a wayne so again i think that's the prejudice in this case for  struggle counsel and sentencing counsel and even if we move the strickland error that occurred in trial counsel's case this court and the district court had didn't have doesn't have the information and didn't have the information to decide this twenty two fifty five and again i believe the district court abused its discretion in not granting discovery when the district court appointed counsel it said based on the court my name is jessica badly and i represent the united states in this matter i would like to go first to the advisory guideline calculation that was just discussed as the court has before it mr bird tail pled guilty to the lesser offense your count two that did not carry the mandatory minimum term of imprisonment here and so following his guilty plea to count two he received his pre sentence report and he realized at that point as he indicated to the district court that his guideline range and was much higher than he had expected at the ex parte hearing that he had in his requests for new counsel he told the district court i thought i was going to get forty to fifty month what came back in his p s r was the fact that he faced approximately seventeen eighteen years higher two hundred thirty five to two hundred ninety three months that was a surprise to mr byrd tale but i'd like to emphasize though is that does not mean that his counsel was deficient first of all in the first prong to the strickland and hill analysis here a mere inaccurate sentencing prediction standing alone does not constitute ineffective what does constitute deficient performance is if you have a gross mischaracterization of the likely outcome of the case would that be a gross with character that's a significant amount of time in my book i agree your honor we do have a gross mischaracterization of  british outcome of the case here counsel did get that wrong by seventeen eighteen years some as good as you know sometimes it's at the police stage there's some discussion about you know what the possible guideline range and really are that the magistrate judge actually conducted this change of plea hearing when over with mr byrd tale that no one has made you any promises of the sense you were going to receive that the by the indictment you face a maximum penalty of life imprisonment on both of these charges and no one decides what you are going to receive except the sentencing judge that that is all the million left to the discretion of the judge and so going back to that deficient performance and the prejudice regarding the advisory guideline calculation mr byrd hill was very adequately advised of his maximum penalties but the gross mischaracterization alone is not enough to establish deficient performance it has to be combined with the erroneous advice of the possible effects of going on to trial and that's what i want to emphasize here is that all we have here is a gross mischaracterization that mr byrd tayla never alleges that he received erroneous advice on the possible effects of going to trial in any event even if you were to determine that there was deficient performance which the government here does not agree with that he suffered no prejudice because he was advised of the very harsh nature of the penalties here and the district court when mr byrd tale after his change of plea when he received his p s r and then going into sentencing when he realized wait this is so much higher than i thought was going to be the destroyer really put the brakes on  and conducted this ex parte hearing and had a very candid conversation with mr byrd tail and and said to him look what are you telling me here mr burt has said i thought my god line range was forty to fifty months now it's this i'm very unhappy with my counsel and the district court took a lot of time to say you face a maximum penalty of life no one and he's in the district specifically said mr byrd tale did your counsel promise you this that you were going to receive a sense of forty to fifty months approximately and mr burke tell replied no no one has promised me this this was just the estimate and it is record again said i could sentence you to life imprisonment here this is what both charges potentially face and so the district court in giving mr byrd tale that opportunity really cured any potential prejudice there he was sufficiently advised of the harsh penalties and the district court and very reason we took an abundance of caution pause the hearings and then gave him new counsel and what is also notable there is that at that point the sensing hearing was continued out three months mr byrd tail immediately receive new counsel at that time and the counsel by the record front of us discussed all of these options with mr byrd tail at that time even filed an additional motion to continue the sentencing for another month on the he was advised of the guideline range there obviously had a conversation with this counsel about the potential of draw a guilty plea and still proceeded to sentencing and what i'd like to touch on briefly about the sensing hearing is again the second counsel went before the court and wanted to make the record clear that second counsel told the court i'd like to raise some record now mr byrd tail was previously represented by counsel and if you had an issue with his previous counsel about the potential guideline range about potentially filing a motion to withdraw his guilty plea and i've discussed this with mr byrd tale what is our second counsel said and then notably he said to the court i've had an opportunity to meet with that he does not that he does wish to proceed to sentence sentencing today going to persist in these objections but he wants to go forward there is no more emphatic statement than that mr byrd tail stood next to his counsel and proceeded and so in regard to the advisory guideline range there is no prejudice there is no deficiency and there is no prejudice there briefly to go into the next point a motion to withdraw his guilty plea again mr byrd tale cannot establish prejudice there because counsel did what any reasonable counsel would do in regards to the claims and the charges that mr byrd tail faced negotiate negotiate an advantageous plea agreement and he proceeded on that and again he cannot show prejudice there and last regard to the evidentiary hearing the discovery was abundant the record was clear here and no discovery was necessary because the record provided an adequate basis for which the district court to resolve the original yes in the twenty two fifty five the amended twenty two fifty five that was filed by counsel isn't today he did ask for discovery did i ask to i believe depose previous counsel or at least get statements of some sort from previous counsel of what was what was discussed the district court though i did emphasize did not abuse its discretion in not conducting additional did that with that was within the district's discretion of whether to do that here obviously the district court did not do that i would like to know who could have done counsel could have done that but the district court had already ordered the response at that point mr birkhead did file an affidavit in his pro se twenty to fifty five obviously not from counsel but from him counsel requested it in the amended twenty to fifty five that was filed but the district court decided on the record before it i would like to close that in regards to the evidence or hearing discovery this case is very similar to the discovery that was available to the district  findings based on that record alone and that is ok here that a judge a district court may use its own recollections of the proceedings may use its own notes and can decide credibility and so here that is the court was adequately apprised of all the facts and record and appropriately denied the discovery an evidentiary hearing thank you thank you i'll just backtrack and start with the discovery process i was counsel for the amended twenty two fifty five and i did i believe in both my amended petition and my reply request discovery process i  spoke with both trial counsel and sentencing counsel i mean what they told me is and before the court i can certainly offer what what they said but from my perspective discovery was warranted in the case based on based on what was said and i think at minimum is me especially for sentencing counsel because if the court believes that the presence of sentencing counsel cures the prejudice that occurred with trial counsel the i believe i just discovery we have to hear from sentencing counsel about what was said the government says that you know the sentencing council discussed these issues with mr byrd tale what we don't know was how often they were discussed what whether the advice given to mr byrd tale about whether to withdraw his guilty plea was legally grounded i understand what reasonable counsel would have advised the particular defendant in this case but at the end of the day the decision to go to trial or to plead guilty is a utilitarian calculus calculus that's solely left to the defendant ok combined with the rhony of advice on the probable effect of going to trial and i haven't heard you say anything about the second category here and second element of that and i guess your honor that goes to my own certified question about i have i have no information about what trial counsel or sentencing counsel told mr byrd tell all i have is mr byrd tail and all the district court had was mr byrd tales affidavit in the twenty two fifty five proceedings and then what was said by sentencing counsel during the sentencing hearing if there's nothing else thank you thank you thank you counsel we appreciate your organs in this matter and it's submitted at this time