because attorney gold or failed to advise mr hanks that his state conviction did not support and eight hundred and fifty one dollars and handsome and and that he could have proceeded to trial without facing a twenty year mandatory minimum that mr hanks accepted a plea agreement without knowledge of an alternative course that was available to him and which rendered mr hanks decision to accept the to be unknowingly in voluntarily made secondly also london novo review this court should conclude that had attorney gold or advised mr hanks that he would not face a twenty year mandatory minimum a trial because he was not eight fifty one dollars eligible the record demonstrates a reasonable probability that mr hanks would have proceeded to trial rather than have accepted a plea agreement the longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant that's hill versus la carte it's indisputable that mr goldberg did not inform mr hanks of this alternative course of action go to trial and there will be no exposure to a twenty year mandatory minimum nevertheless the district court did not recognize that mr hanks decision to accept the plea agreement rather than to go to trial was unknowing and involuntary the district court mischaracterized the nature of mr hanks claim as being one where the defendant specific claim is that counsel has misled him as to the possible sentence which might result from a guilty plea this line of cases is called the mistaken prediction cases as discussed in the united states versus sweeney and discussed again in united states vs our tech in two thousand and five in our tech of the court held that a mistaken prediction case did not implicate whether a plea was voluntary and knowing what in contrast that vice about the applicable statutory maximum and mandatory minimum did citing two united states versus hill for united states ex rail hill versus journal there this court stated misinformation about a statutory minimum is no less demonstrative of counsel's incompetence nor necessarily less significant to a defendant's decision to plead guilty then satisfied the ineffectiveness claim that you're making i gather you still have to persuade us that the district court heard as a matter of law in weighing the chopra factors is that brief and i know why you think the chabra factors were not correctly weighed but how do we reach back conclusion given that a number of them were based on credibility findings by the district court that were adverse to your client  yes your honor the the credibility findings were made as the record demonstrates based upon the district court misapprehension of just state of the record for example the district court found that from april of two thousand and fourteen through august twenty one of this continuous threat that the district court felt that mr hanks credibility was undercut when in fact there was no continuing threat the record has possible that objected to the mandatory minimum right so whether i parted with that or whether it's the government's and what we could do this year but we're not going to if you choose to plea he would be on notice of that w t he but he would be on notice that that is part of the plea agreement but that is not what the court did here the court felt that every time the six times that he rejected plea agreements he did so with under this threat but the record is clear the government did not intend to file an eight hundred and fifteen that's an interesting you know why there well let me let me make get to my critical part of this that that what you're highlighting gets to a question of whether an inference and a threat could be could be drawn but the district court also said indicated that in the penultimate meeting with ford the pl then there was the specific threat that there was going to be the eight hundred and fifty one dollars charge and correct your client walked away from the deal and he offers the explanation that well it didn't sink in at that time and only found in when he actually pleaded but that's what the district court did not credit so given that there is a threat at a meeting before the  discredited mr hanks testimony what what the district court was concerned about was a lag of thirty five minutes on the morning of the st there was the from the very st time a threat of filing the eight hundred and fifty one information and that all arose from the conduct of the morning of august th where everybody expected that mr hanks was coming to court for a plea and so the the government expected it gold are expected at the court expected because it was a change of plea calendar and tanks did not please and that whole thing happened because mr hanks mother told goal juror that hanks was going to plead but he but that never that discussion with his mom didn't happen so what we're talking about here is the government being upset thinking that hanks had been jerking them around which was not true and but that's their perception and you know you're taking us very far afield from my and then further the district court said and then when he pleaded guilty he asked the court a number of questions about parts of the agreement that obviously troubled him none of them pertained to the eight hundred and fifty one dollars charge now i'm not suggesting you don't have arguments that your clients view it says he represented but the district court actually eyeballed him during all of this and was not persuaded as a reviewing court how do we not credit that the district court's decision not to credit hanks testimony given that the surete had open quote not sunk in yet close quote specifically says the the rig's did not crediting is in light of the evidence in the record that hanks was it had been on notice of this threat since is what the court relied on and that i could well i think there parsing the the district court's opinion in a way that may not be fair i mean the ultimate question was why did the district court think this is what influenced your client's pl the answer the district court gave us was no and then it went through chronology history everything i'm not sure it's only one thing that prompted that rejection that you're suggesting  there is illogical the judge says that hanks raised no questions about an eight hundred and fifty one enhancement based on count one that would have been relevant think to the extent the court found that mr hanks was reluctant to accept a plea to a lesser included offense which had a five year mandatory minimum and if fixed if exposed to  primary reason or no hanks has not shown a reasonable probability that but for his counsel alleged error he would not have pleaded guilty and would have proceeded to trial st there was no contemporaneous evidence at the  continue on that st point there was other evidence to point that he was not interested prior to the pre proceeding he had told his lawyer at least as a lawyer testified and the judge accredited the lawyers testimony that he was not concerned about the fifty one dollars because he believed he pled guilty to the offer doctored he also half an hour before pleading guilty as your honour's have already noted told his lawyer that he was not even after the lawyer said there was going to be an a if he went he said the lawyer replied that he was that he was ready not pleading guilty and that he was proceeding to trial so half an hour earlier after being notified he did he was not concerned about the in fact at the start of the plea agreement he said he had reviewed the plea agreement and discussed it counsel but i have more questions your honor have already noted and he asked questions about the forfeiture pre provision whether that would be an admission of gun possession yes about aggregation of drug quantities and he asked about the dispute how disputes about the guidelines would be resolved all of these the half of the comment half an hour before they would not pleading guilty the question to the court shows it is this is him to plead guilty took place after he heard answers directly from the judge and not one of those range of twenty to twenty seven years right yes you're out of so so just at a more basic level doesn't make sense that the idea that he'd be exposed to a twenty year minimum if you went to trial would be something that would be shocking or unexpected i mean this is agreeing to a plea is going to get a minimum of twenty two years when you expect after a trial in a conviction to get at least twenty years twenty four dollars c possibility and i know for the record your honor that if one looks at all d the plea agreements that are in evidence if we look specifically at joint appendix four hundred and eighty five that was the st plea agreement that in satisfaction in the section labeled satisfaction of criminal liability if that included a weapons previous plea agreement only mention that it would include it would satisfy his live delivery for drug charges the final plea agreement which he charged said drug charges and weapons were his there was also the fact that the government would still have to prove at the sentencing hearing by a preponderance of the evidence the drug quantity these are all concerns he had about pleading guilty before because he didn't want to sign a plea agreement that would mean that he was responsible definitely for weapons that he was responsible for a drug quantity that the government would alleging in the in the clear agreement so i would respectfully suggest that his asking the court read his mind about whether he was not concerned about it as your honor noted the guidelines in the for the agreement were well above twenty years so he may not have been at that me and not have been as concerning to him as perhaps one hundred and twenty four dollars c charge which had nothing to do with the guidelines but would add five years to those guidelines whatever those were ended up being determined so i think the fact that he testified i think baby is hearing in which he stated that he change his mind the court was able the district court was able to see him but obviously i can't read his mind  is if mr hanks was looking at twenty two to twenty seven years if he pleaded guilty to the charges why would his hospital talking to him to discover that he might get twenty years if he went to trial and was convicted why would that make a difference because the twenty years is statutorily required and the guidelines are advisory and trial yes the did he knew as he testified that the court wasn't going to be able to impose a sentence on him below twenty years if you want with it with respect to the rule levon the plea agreement that he was pleading to said number one we're not going to file an existing one information and number two it's two the lesser included offense so the court made inquiry about the lesser included offense and the eight hundred and fifty one dollars in that context and that's what the court should have done logically what i've done and there's no reason for hanks to say i need to ask about an eight hundred and fifty want to trial on count one when he's the one that is the whole reason that he's pleading to this lesser plea agreement which by the way had been in a play since june th the district court said this quote revised plea agreement to just record can be read to say that occurred it on august twenty one and that is clearly erroneous if you have a really good teacher and i'm sorry the how i understood the government's arguments i want to give you an opportunity to respond is if he had really cared about the eight  one he might have said the district court is it right that they can bring these charges against me and that that would have been expected given his earlier statement to counsel that he didn't think they could now i'm not here again suggesting you don't have an answer to it in fact i'm asking the question so that you do have an opportunity to give your answer to why why that isn't a sound argument by the i understand your honor however the the record also shows that that conversation occurred in april of two thousand and fourteen and the district court found that  there was evidence that in the months leading up to august twenty one that hanks thought he was eight hundred and fifty one immune that is a that is clearly erroneous  only evidence was the only up because the old because it's not supported by any evidence gold years evidence was when i talked to him in april he told me that he pled guilty under alford and so he wasn't concerned about it but those are also said they never discussed it again till august twenty one so there's and there's a there is a letter in the record the government has agreed not to file an eight hundred and fifty one notice which could expose you to a mandatory twenty years gold or tells hanks that on june th in writing there's no way after getting that letter st of all it undercuts goal just testimony that that conversation never happened that way but in any event assuming it did that you know the court can find that it did  pents at that point certainly has no reason to think he's amusing when his lawyer just told him you could be exposed to a twenty year mandatory minimum raise i sulk and i may not have made my question clear i understand the government's argument to be with his initials you now undercut by what you are quoting us they claim it's surprising that a man who asked all these other questions at his plea colloquy did not ask about what he says now claiming was the determinative factor in his very reluctant decision to plead guilty and so i'm asking you is there some reason why the district court could not have drawn that inference why as a matter of law it would have been precluded determinative factor and i've tried to highlight for you what i understand the government's best argument to be and to ask you how in light of that you can still say the district court heard as a matter of law and reaching the conclusion it reached the plea agreement of august twenty one had removed the threat of an eight hundred and fifty one at trial count one that says what he was concerned with he knew the document that he was pleading to had removed that issue and think my recollection is that they had to do with sentencing more than trial fifty one came up during the rule him and the language the court used supported mr hanks understanding that we do we need just a broad question in order for you to prevail