of the next case on the calendar for argument is united states versus meets the requirement under rule eleven we are arguing in this case that it certainly did not and we are going to be asking the court to vacate the judgment of conviction here now when we're looking at the question of whether or not the guilty plea met the rule eleven standard we have no dispute with the government that in order to a value way that issue the entire record should be looked at to determine whether or not there was a factual basis for the plate and whether or not the defendant understood that and we say absolutely let's look at the entire record here and  our papers and in the appendix we've included numerous status conferences and arguments that were made by the defendant himself to the court and statements made by the defendant himself to the court indicating his maintaining that he was not part of a conspiracy in this case he maintained that he  aids spira c and that he was not guilty of the got drug trafficking and that's sort of the backdrop then what we have is the preparation of the case getting ready actually tried the case and days before the case was ready for a final conference the defendant mr mccutcheon moved to have his trial counsel relieved he could no longer communicate with this trial counsel and he indicated that to the court and a motion to vacate what happened next was i think startling there was a the district court brought in mr mccutcheon defense counsel brought in the u s attorney and they discussed this i understand there's problems between you and mr mccutcheon but this case has to go forward and mr mccutcheon so turned he said we have a breakdown of communication here and the district court said well you know what might happen he may have to go it alone at some point and at the end of that discussion without calling in the defendant without a journey to say well let's let's hear from mr mccutcheon the court said well i think what i'll do was perhaps all assign another attorney to to come with you with the next proceeding so they had a can was present and that way you had both the original attorney and a new attorney to consult with yes i think we know the background to this do you want to tell us where you think the errors are that yes yes i think i think the errors are in the out in the  think that there was absolutely no basis the court did not at all establish a basis for mr mccutcheon guilt of the crime when you look at the plea elocution yes yes i know now i understand that there was not an inquiry by the court of the defendant for the defendant to state the factual basis for the plea nor did the court have the government do that but the argument here is that because the four paragraphs of the plea agreement did state it and the defending confirmed that he read it signed it said it was accurate that this is not like coffin and that therefore there is no plain error why did you tell us why that's wrong i think that's wrong for a couple of reasons the first reason is when  nationally when the court asked the defendant to look at the documents the defendant said to the court yes i mean i didn't want that section so the court was referring to the  defendant said i didn't want that section the court didn't ask him what do you mean by that the court didn't say well mr mccutcheon if you didn't want that section you know you don't have to be you don't have to plead guilty the court never articulated any of the facts didn't have the defendant articulate any in fact in fact it was very vague the court stated that there was a conspiracy never stated the elements of the of the of the conspiracy mr mccutcheon never articulated what the elements of the conspiracy are i think this is very much like often in that the court again just referenced  with nothing more even when the court talked about the gun trafficking there was no there was no evidence in the court didn't state when it occurred so further on plain case is striking still if he had gone to trial the jury would have heard wiretaps of his phone conversations in which he co defendants discuss the distribution of crack cocaine they would have learned about the fruits of the warranted search of his home and cover drugs and drug paraphernalia and a gun or a firearm and also he was getting the benefit of the withdrawal of an eight fifty one information in light of these other circumstances i find it difficult to be persuaded that he would have in fact not pleaded guilty could you address that concern or only can the concern i think can be met by his own withdrawal of the plea motion that he made just a absolutely but in this case we would argue when you look when you look at the totality of the circumstances when you look at the fact that there was this breakdown in communications with his attorney when there was no elocution of the facts at all he did end up having the benefit of counsel both the new counsel and the former counsel well act i i would propose that the second counsel in a sense was almost double  teaming the defendant i think he felt to the adequate representation of that attorney there never has been right including in your brief on this appeal that is correct is are you now arguing to us that he was  not satisfy his obligations of representation whatever you're arguing they were well i'm arguing that his subjective his subjective  viewpoint at the time when he was taking that guilty plea he was feeling pressured and he stated that mr mccullough yes yes yes mr mccutcheon was feeling pressured and that that is one of the reasons why ultimately he did take the plea that day but in retrospect a couple of months later he moves to withdraw the plea and i think that the district court's failure to have at least hold a hearing in light of all that had transpired before was error and abuse of discretion i understand i understand that hearing doesn't have to be helped but i think in this case the facts warranted it thank you you should serve two minutes for rebuttal i will hear from  it please the court good morning my name is tiffany only and i represent the united states the issue here really is whether or not the district court abused its discretion when it did not mr m there is no evidence of that on the record and in addition mr mccutcheon and his papers and his own pro se submission to withdraw the guilty plea said nothing of a sort when previously he had no issue to complain about representation of counsel when he did feel that he was not being represented well by counsel mr mccutcheon his papers to withdraw the guilty plea were premised on  his his focus on the fact that he felt that he was being pressured by the court or pressured also by the system u s attorney and again the record reflects nothing of the sort the court plainly stated that proceeding in what she had an opportunity again with two weeks where there was a two week period when the trial was about to commence mr mccutcheon was again given the opportunity to consider the ultimate plea offer that had been proffered by the government and which he had reviewed with counsel for the last two months and had had not really made a decision of whether or not he wanted to take that plea off he did have the advice of two counsel not just his attorney mr o'rourke but again mr spitler was brought again to assist mr mcmahon with respect to going over what his issues  were ultimately this case rests on whether or not to just report abuse of discretion and the government believes that on this record there is no evidence that the government did abused its discretion would you agree that there were some  failures to comply with rule eleven in its strict application for example that eleven b one g requires the court to determine that the defendant understands the nature of each charge and the kind of incorporation by reference to the plea agreement we have frowned on the court acknowledge that he did so only in summary fashion and conspiracy charges in particular it seems to me porton for the district court to engage the defendant personally in a discussion about the nature of the charges would you agree that he did not do so here i would agree that the district court did not follow the better practice indication that the defendant had any confusion our misunderstanding with respect to the charges he was facing in addition the standard on plain reprotect the record when it presents the district court with a defendant who purportedly has agreed to a guilty plea you're also know this and can easily ask the district judge to make the record you know therefore avoid these trips to to our court room and certainly in our district we have you know we have basically counseled our assistant u s attorneys to go in with a rule eleven checklists to try and try and maintain that you know this was  this case not that it excuses it was pretty was pretty lloyd in addition to that we there are circumstances where for this case with a long litigation there's a familiarity between counsel the defendant and the district court so there's been this relationship and you know throughout the record there's been discussion as to the charges and everything along those lines i agree i agree with him it's most important for the government to protect the record because the district court because of this from our miliary he may assume everybody knows everything but then it doesn't wind up being manifested on the record and that is true your honor  so ultimately though coming back to lloyd the standard is whether or not you know when you're going to going to seat does that affect substantial rights is this is the failure to conduct are those rule eleven errors were they you know but for those errors would mr mccutcheon you know said no way i'm not taking these please there is absolutely no indication of that whatsoever on this record or just to infer from his the fact that he himself sought to withdraw the guilty plea after a period of time so correct but but at that it's not as if he said i didn't understand what i was pleading guilty to and in addition to that by that point he had already ratified some of his admissions are the factual basis in the fact that he did speak with probation didn't mean to all the facts that were in there and i would also note in sentencing his main challenges were again he was very troubled by the references to the control by his earlier in the case that were the i guess the probable cause basis for the the warrants and everything and so he was he just was really fixated on that but control references to that but ultimately with respect to the rest of the facts it's not as if he was contesting oh no that's not my voice that was on the wire and there's in the in the pre sentence report there's excerpts from conversations in those wires and he wasn't challenging no that's not my house i didn't you didn't find a crack paraphernalia you didn't find the firearm he wasn't contesting any of those things so ultimately those challenges which he raises in his pro s  and also mr mccutcheon as an individual defendant this is not the first time where he's been through the federal system his first conviction for possession i believe with intent to distribute again similarly he had also tried to withdraw his guilty plea per se if there aren't any questions the government rust on its papers thank you very much ms i have two minutes rethink you thank you i would like to comment on the fact that  government has stated that we that mr mccutcheon you know reviewed the plea of review to the facts with the probation office and as a acquiesced and i would just point to section forty nine which is a number forty nine which is the section in the p s r in the probation report where that's discussed that mr mccutcheon reviewed the factual basis were stated by the pit they should always been there to address so so that the court could rely on the fact that he was not disputing the facts i think i think in this case where you don't have an articulation in any sense of mr mccutcheon admission of a conspiracy that he participated in a conspiracy admission of the gun charges document like the plea agreement which  signed and it contains those paragraphs why isn't that be the equivalent for a practical basis if not under the strict requirements of rule eleven of his admission you know it's i somebody really thought about this if you compare the signature and the plea agreement to the signature that he wrote in his motion to vacat it's a very interesting analysis looking at the to where i was from the fact that it is not a neat signature that he didn't really mean it i think we could have so i would judge should take i think i think we could look at it and and say that was this was this plea actually voluntarily given in this case thank you thank you very much we'll take