dissatisfaction with his hire counsel his hired counsel had not seen him spoken to him responded to him in the two weeks between his arraignment on the superseding indictment replace his appointed trial coun prejudice inquiry is necessary at that point because the structural defect is such that it's it requires belief we know the court does have to stop a trollop in order to between or any suggestion that there wasn't some kind of negotiation going on spago then rejects the plea deal he is then stood and stands for arraignment on the superseding indictment and two weeks later  the trial begins in that two week period of time trial can also admits to the court and the court correctly identified this is you didn't say you didn't talk to your client you didn't see your client you didn't go over the case with your client prior to the start of trial he had the same appointed counsel it's counsel was initially appointed correct that is correct and there's been some lapse of time presumably between the appointment of counsel and the date on which mr pegg rejected the plea agreement correct that's correct as kids and so you're not saying that the appointed counsel never met with him goes position is this is his appointed counsel should have seen him in the two weeks prior to trial in essence shows given what i what we have argued with mr pegg oh what was the biggest concerns where is that his trial counsel was simply was was was not investigating was not communicating with him throughout the period of time between the and then this february twelfth cutoff date please cut off date that the communication during that time was sporadic that it was it was incomplete mr p inquiry had difficulty in understanding what is clearly in or fully articulated your question yesterday that the district court inquired specifically about the representation and the causes for m of discretion what sets this part of this case apart from the many other cases in which a defendant becomes dissatisfied with a point it cannot solve the court makes an inquiry and request the court said not going to deal with it has nothing to do with jury selection we're plowing ahead with jury selection don't worry mr pagel we'll let you it will let you have your chance at some point but at the at the immediate time which was it was it was at his earliest chance said at the start of what was jury selection the jury had not been seated the jury had not been fully circumstances but certainly it's reasonable to assume that mr pegg owes dissatisfaction with his trial counsel was evident enough for the court to hav indication or when there is even if the defendant looks and happy i mean have you ever said it brought a bit to look at have defendants look they're generally not a cheery lot i have not had seated in sworn the court then makes an inquiry the and this would be the second part of the second suggestion to your honor in response to your inquiry is that lee it wasn't not a motion which was a proper was properly structured the first three of those factors are then balanced against the fourth and the crowdedness of the docket there was no ring created whatsoever into the what the what made the public's interest in this case moving forward so compelling override the defendant's clear clear articulation that he wished to hire his own lawyer because he was dissatisfied without that balancing in all of the cases suggested the balancing exists and that's part of the that's part of the examination your honour's is that there must be a balance in absent that balancing the district or is abused his discretion because it's simply not considered what the law requires what the la only other issue that that i would that would require i would address the court's quote to the court's attention were certainly the the points raised in point number two where year you allege to articulate sufficiently thirty fat fifty three factors and second double canny in a number of respects in terms of the enhance may please the court entered debts for the united states the district court here did not abuse its discretion in denying the defendants motion to substitute counsel in the midst of jury selection under any of the four prongs that this court considers  first and most importantly this request was very untimely it was not as defense counsel now claims at the earliest possible time it was about two thirds of the way through jury selection page id to thirteen to fourteen where he first brings th to the district court's attention i was in the midst of jury selection the jurors are all seated in the courtroom the district properly says well this does not pertain to jury selection but on page two fourteen the district judge turns to the defendant and says that after jury selection he will address the defendant's claims in his complaints and notably the defendant was happy with that if you look on page eighty two fourteen the defendant response thank you your honor and then they finish no it does not actually your honor i'm not aware of any case where a judge has has done that it comes up because defense counsel tells the judge that something winds of i believe we have an issue and then he confers with his client and says tells the judge that the defendant wants to hire another attorney the judge says well we're in the midst of jury selection why don't we defer this until after jury selection and that's what happens a motion in the midst of jury selection is untimely under any definition of the word that's what we have here this court since moving him as one example in our brief as found that a request to hire a new attorney even earlier than this was still untimely we've cited several cases in our brief saying that even two second the district court did thoroughly inquire there are about twenty pages of transcript here where the district judge walks through the defendant's complaints asked follow up questions asked his attorney to respond gets input from the government and then concludes that there is no reason to for this defendant to replace his appointed attorney with i guess to retain one over the defendant isn't quite clear and the record support of the district court's decision the defense attorney explained that he had with the defendant and the defendant had given him a list of witnesses that the defendant claimed would exonerate him many of those witnesses were dead phone numbers or people that the attorney can locate one with one witness he did locate vicki sherry laughed at him and said that she had nothing to help all that she would be able to say a trial another witness that the defendant covering up with somebody cold big d he didn't actually have a name or a phone number or anything else to contact her and nobody had heard of her till the defendant brought her up it looks like it's the same theory the defendant was putting forward in his witness tampering letters to the victim where he's making up a possible female assailant who had committed these assaults instead of him but giving the name big d doesn't give an attorney a lot to no one for the defense counsel stated that he did have the transcripts that the defendant had raised he had one of those transcripts it was a transcript where the victim lied at the probation violation hearing the defendant's probation violation hearing and said that he wasn't the person who hit her the defense attorney had that and the defense attorney used it at trial here it was the thrust of his defense it was the thrust of mr pagan's defense that somebody else committed these assaults and the defense attorney used that transcript to suggest that the victim was lying and somebody else committed these assaults that doesn't show a lack of communication that shows communication that shows the attorney who had met with the defendant understood theory had investigated it had prepared for cross examination using the materials he could and had presented this defendant's defense the defense attorney claims that they had met at all that's just not true the defense attorney conceded that they had not met in the two weeks between the final pretrial conference where the defendant said he had rejected the government's plea offer and wished to go to trial in the date of the trial but there are a least a couple of other examples in there suggesting they had met before notably at the arraignment the attorney appeared for this defendant was six months earlier he had been representing him for six months they had discussed the plea agreement that's clear in the final pretrial transcript final pretrial conference transcript and the  even claimed he had reviewed some filings from his attorney so even if even a limited record we have here it's clear they met several times in that the defense attorney took his concerns seriously investigated them and presented them a trial finally on the final prong the balancing of the defendant's request with the prompt and efficient administration of justice yes this was a short trial but in other circumstances where there's a short trial this court has likewise held that that balancing favors the district court's decision particularly under an abuse of discretion standard trujillo one of the cases we cited in our brief that was a two day trial as well and yet this court still held that the balance favors the district court's decision and that's true for a number of reasons they would have had to do a whole new panel of jurors they would have to coordinate a lot of different witnesses schedules attorneys schedules the courts calendars they would have had to do all that to grant the defendant's request in the it was a very severe breakdown that would outweigh the digital inconvenience and that's why it's a balance so you look at the nature of the breakdown and versus the inconvenience to the court and that's why that the nature of the breakdown here is important because it just does not rise to the total lack that with communication presenting preventing an adequate defense that's the standard here and this doesn't show a total lack of communication chills quite the opposite that this defen attorney did take into account the defendant's concerns research those witnesses presented the defense that the defendant wanted to raise at trial and just wasn't successful because the evidence was overwhelming so yes you are correct that if it a factors in support of the sentence i'm not sure you specified it was consecutive versus concurrent but in any event this court is we're doing that under a plain error standard because there was a boss to question asked and the defendant didn't object and it would be plain er stack the sentences consecutively to make a within a guideline sentence which is what happened here is a guideline range was three sixty to life and the district judge post gave him a sentence of what's effectively life seven hundred eighty months so it's within the guidelines range and to do that the judge had to step several the sentences consecutively and he did that by explaining that although this defendant had some good qualities he had a ged he was intelligent he ha at thirteen and that doesn't even include his travel convictions which don't count under the guidelines and this defendant had of very poor criminal history this crime in particular was very very heinous he hit the victim in the face with a fireplace poker trapped her in a room beat her repeatedly over two days broke several bones in her face knocked out seven of her teeth and then didn't show any remorse he tried to tamper with her testimony while in prison sending her letters and phone calls to try to get her couple tori story so the district or didn't mention many of those things that the sense of hearing and it certainly does not rise to the plane air on that record why don't the tribal convictions come into play for the guidelines i don't know i think the guidelines themselves say not to count them i believe but i'm not sure what the reason is for that but the guidelines do not count them but they certainly could be considered so even if they're not of the guy absolutely absolutely they can offense i mean i don't i don't know if any of his priors were this heinous but he had a lot of domestic violence convictions in a small collection but i think some of those were among the troublemakers but i don't i don't know offhand i'd be happy to follow up with if you're in a way we can  case proves the rule rather than being the exception one thing i'd like to know he claims in his brief that there was a warrantless search for the knife that's just not true there was a search warrant that search warrant isn't in the record because there was no motion to suppress it would be in the record in a twenty to fifty five proceeding and it just shows why this portion out of address those claims under oath to peel and even mention in the record briefly the search warrant a page id thirty six and the government's discovery notice in the midst of that page there's a search warrant listed so it's just for the reason not to decide these types of claims and direct appeal there just isn't right for these reasons unless the court has any further questions the district court's judgment should be affirm representation by the government of all of this inconvenience none of it was discussed because was never inquired of the trial court never made the inquiry what is it balanced against what evidence what record is there even even if the aircrew is taken out of at the point where the trial court said all right now i'll hear you but even if i decide to let you do it it's too late because we are sat the jury will guess what it does the judge created that issue when the judge said look at doesn't have anything to do with jury selection would deal with it later there was too much interest in rushing this case to a juror in a two week period of time to to allow for the first opportunity that the quick must affirmatively inquire the first opportunity  the government in its in its answer initially said initially proffer to the court that the first opportunity was the inquiry that the court created the court made after the jury was was seated that that record that record offer was inaccurate weapons conceded now that the inquiry was made prior to that point the court did not take it up it's an affirmative duty on the court to examine the serious about consecutive sentences and i want to make sure i understand how that comes up in your brief and in your position i didn't include that among the issues i ask you whether about but i your stand in the that's a part of the argument they can't three in five are duplicative and that requires an analysis of whether one requires proof a fact that another one that and that the other does not and then you make the point in your brain that on campus three in fat mr pegg received consecutive sentences which  e as a comment on the degree of harm you believe resulted from his being sentence if you can't reading your argument correctly i think in part you is the other part the other is that the the the consecutive sentences the fact that there were two sentences there was a sentence on each of those counts in and of itself count it which which we've which we suggested to to the severity certainly although it's not that's not the sara lee an issue that i respectfully suggest is a concern it's properly before the court in on this in this venue certainly that that might be a claim that would certainly be raised in a twenty to fifty five proceeding but certainly not on a direct appeal here