miss advised thing mr scribner what his guideline sentence was allowing him also to take that into consideration before he decided whether or not to go to trial in this case there is of course no dispute that trial counsel was deficient trial counsel had advised mr scribner that if he pled to the office that he would only receive thirty to thirty seven months as a guideline ran imprisonment and then if he took the case to trial and counts one in three that he would be facing thirty seven to forty six months about a seven to nine months difference mr scribner opted to go to trial he went to trial was convicted on count three found not guilty on count one and ultimately when the p s p are came back and trial counsel reviewed it that was the first time she noticed that mr scribner was enhanced based on the career offender and hansen as a result of that his guidelines sentence was two hundred and ten months to two hundred forty months had mr scribner been properly advised of his sentencing guideline calculations based on that career fender they want to vacate the instant conviction remain for new proceedings but why wouldn't if the district court erred in not deferring to the fact findings of the magistrate judge without conducting its own hearing why would instead the remit he be remain and for the district court to conduct its own hearing or else other proceedings might why wouldn't why do you automatically win total relief rather than just having allow the case to be remanded back to the court and allow the plea agreement that was offered to mr scribner allow him the opportunity to accept that plea agreement and then have the sentencing proceedings be based on on that so i think that's the remain back to the district court where he has that opportunity if the issue is the district court made a factual finding that it shouldn't have without its own evidence or hearing if that's the judge entered her findings and conclusions and recommendations to the district court judge neither side objected there were no objections to her or her recommendation that relief should be granted however the district court stuck with defending the district court susan wright and i think that that's that's what the district court decided to do the district court could have could it not have said i want to hear this for myself but just a court decided not to is just a court decided to accept the the plea offer and he made a legal decision no he would not because a man not accepted his responsibility is that correct i'm sorry that correct is that really a legal decision credibility found in your own words the fact anywhere is the fact is the fact issue in that regard is whether the court would have accepted it is is based on the facts as the court interpreted it through the the record is is my understanding your honor he went through mr scribner's testimony and said these facts that that were stated in the record i would not i cannot conclude based on these facts not reaching a legal factual error that he made that in fact his legal conclusion i would say that the factual areas that he made your honor is that he stated that mr scribner throughout the course of the testimony in the hearings in the record had this dog  insistence of his innocence and that's not correct and that is belied in the record because it's in the record on page one thirty nine the question is asked of mr scribner by the governor well then engage in all of  the magistrate judge found that he was credible that there was a reasonable probability that he would have accepted the plea agreement right and in the testimony that the magistrate judge found to be credible in truth is where this statement would have accepted it now here's what the interesting part is rather than the normal process of a plea is that counsel will advise the client of the elements of the off chance the facts of the case and the guidelines and where they fall the client agrees and accepts that what do they do they sign the plea agreement they signed the factual resume there's a rear arraignment hearing before the either the magistrate court the district court judge they go through that and they ask the client how deeply and they plead guilty then what happens there's a p s r in the sentencing hearing if a plea if a client has come into court and the ruhleben proceedings si that there is no element of contrition and accepting responsibility for the crime you've committed and i think the contrition comes when they enter their plea of guilty your honor and are willing to face the consequences of their he didn't think it was right is that your i think that if if you really read the transcript of the record and you see it in you from a defense attorney's perspective but also in the record you see what's going on prior to th prior to his error the defense attorney advises you know you are only in place and thirty to thirty seven months if you if you plead but if you go to trial that point thirty seven to forty six months and he's already been sitting in jail for seven months he doesn't see a big risk but it also is not explained to him the issue of aiding and abetting something that bothers me about the district court did and perhaps you have some comments on that is there the the  magistrate judge made squeaks a statement that it's not even in dispute this the court would have accepted that all the parties agree right that and the government doesn't object to that determination by the magistrate judge that all the parties agree would have been accepted and then all of a sudden without hearing new facts the district court says no he had a dog it insistence of innocence which i would say that is factual the seminal point on which the district court makes a different factual of or legal or mixed terminations right and i think the reason nobody objects to that is because everybody understands that if he accepts the p on that basis did the government raise that objection whenever they made whenever to get rid of it healed i guess what do you do when i would be there you know the recommendation after the recommendation was the counsel for both parties has fourteen days to file any written injections to that finding for the district court to consider upon review no objection for filed by either party to that point is the government require are to file district courts review it and that since i think it's it would be prudent to bring that to the court's attention of why they disagree with the magistrates finding in that regard but the district court can review that my name is tim pottle and represent the government in this matter for this court to reverse the district court mr scribner has to show that both of the district courts factual findings were clearly wrong others isn't that true in the district court m factual findings without an evidentiary hearing act if you so you must show that there factual findings are clearly wrong the district court's not in a position to make factional findings after the lewis case is it remanded to the district court to make factual findings in the more case i could make them but it didn't make factual findings they did magistrate judge did the lowest case says that if the court doesn't have its own hearing it can't make its o point to the more case where on the twenty to fifty five perceive things before the district court the there was no evidentiary hearing the district court made factual findings based upon the existing record and the twenty to fifty five pleadings that were sworn to by the defendant it came up to this court and this court said that there was no error in not conducting an evidentiary hearing and it found that the district court's factual findings were supported so  record to make factual findings and it's also true that it should defer to the magistrate on credibility findings in the absence of its own hearing in this particular case what the district court did is it  eferred to the magistrate judge on the single credibility finding that she made based upon the testimony it's in her in the magistrate judges written decision she made one isolated credibility finding and that only went to the first lap where criteria the magistrate judge did not make credibility findings with regard to the other two criteria that the court has indicated and those are findings of fact this court has indicated issue that the district court can make based upon the magistrate act that straight judge what it's allowed to do it's to novo review it's to follow on credibility findings and its examination of the existing record and also finding is inconsistent with the determinations that the magistrate judge made about the witness and the willingness to plead and it's also inconsistent with the position then that it would have been accepted but again i would disagree that the record before the magistrate judge so that the government somehow conceded or did not dispute the first to la our position is that our dispute was in the record already based upon our written opposition of the twenty to fifty five motion which is before this court and can be reviewed and also based upon our questioning an argument at the evidence hearing the district court corrected the magistrate judge on those points and that's an important aspect of the district judge's ruling is that he specifically goes back and says according to the magistrate judge this was not disputed by the government that is that is incorrect and then he actually quotes from the portions of the evident truth here and where we disputed it he quotes from our written response to the twenty two fifty five where we disputed it the only thing that was not in dispute was that there was deficient performance based upon the erroneous advice about the guideline range as here i mean on how or is it a finding of f not it's all built up on certain accepted facts and under these facts would he have accepted the plea right isn't that a legal question that on the basis of these facts i conclude the judge the judges entitle to do that your honor and he's entitled to do that based upon the entire record that has been developed before him on the twenty to fifty five hearing and respectfully counsel quoted from one line of the evidence  the district court didn't just look at one answer but this defendant if you want the district court's decision at pages eighty four not through eighty six of the record he meticulously goes through this defendant's testimony  and this defendant essentially did this at the twenty two fifty five hearing he says i'm not guilty of count three i didn't share the intent to aid in a bad i didn't show up there that day at that house with any such intent i did not distribute marijuana i did not manufacture marijuana i deny it factual guilt factual guilt and that's an important distinction and then he simultaneously says to the court essentially this but i'm a savvy guy and i would have done and said what i needed to do at a real arraignment hearing in order to not only plead guilty but have the district court accept my plea i would have done and said what i need to do i've been around the block i know that i didn't need in the morning or coaching to come to back the commission that's that that is what he's trying to tell the magistrate judge and the district court through his testimony up at the evident truth hearing and the district cour looks at that and says those are two diametrically opposed things here you are mr scruby you are at the twenty two fifty five hearing the very moment when you would want to accept responsibility factual responsibility because as this court has said previously you have her birth convictions on facts that were admitted by the defendant because these facts that he admitted to at the twenty two fifty five hearing supposedly supporting his guilt were legally insufficient to establish guilt a defendant at a rule eleven hearing about a real arraignment not it obviously we're talking about divided responsibilities of the rule i've been hearing we have a defendant who says i'm going to accept a plea and he goes in and he swears to tell the truth and answer the judge's questions and we have a whole set of questions that are designed to make sure that the defendant is doing so knowingly and voluntarily we also have an obligation on the judge and the judge in accepting that plea hasta here enough stipulated facts to actually find that the commission of the offense occurred if the defendant doesn't at mit enough fac then the judge doesn't have enough facts before him or to say i can to judge you guilty and as this court has said previously factual guilt is different than legal guilt so mr scribner getting up to t wenty to fifty five hearing and saying in one instance one isolated instance i would have admitted my guilt well that's that's meaningless that is a legal conclusion the question mr scribner is would you have admitted you guilt and he could not even bite his lip and bring himself to do that at the twenty two fifty five hearing and that's what the district court very appropriately said if you can't do it now how in the world can i conclude that you would have done it back then but in the question not for the somewhere in there is an element of contrition absolutely and that goes to the third factor under laflamme another finding that the district court made that mr scribner did not satisfy his burden because as counsel  throughout and twenty to fifty five hearing and not this particular counsel but counsel of the twenty to fifty five hearing and on appeal has almost assume that the hearing would have gone twenty five million why didn't you file an objection saying that we don't agree that that element has been satisfied well again we are filing objections is not required the fourth circuit says it is we haven't answered the question i went back and looked for that there's not a we haven't gone one way or the other in this circumstance but the some at least one circuit says that a junction would be required if you're contesting of a finding that the magistrate judg point that there wasn't a concession or agreement on the point but it's our position that it was already clear in the record right but normally you would bring something to the district court's attention right  because if if there's something that's not contested you don't put on as much evidence about it at the hearing you just make a bare bones thing and if it's not contested whereas if something is hotly contested then you put on all r that the defense had submitted its briefs the government had submitted its response its written response the twenty to fifty five we laid out all of our facts and alice says our disputes and the only portion of this that was agreed to was deficient performance based upon the advice everything else was in dispute so the defense was on notice going into the twenty fifty five hearing about the government because it was made an error just made an error on that assuming that it was not contested yes your honor and i'm not the only one who thinks that the district court said that they did and that the district court's decision here is is the one that is in question really not the magistrate judge's decision again as a as i indicated before the magistrate judge made one credibility finding that said the only credibility finding is that mr scribner would have accepted the plea agreement well that doesn't answer the next two questions under the laugh  because if it did we wouldn't need those other two questions this is an interesting example of the case that the dissent in lashmar would have would have could have used they said that there's going to be an issue about whether the court in the factual issue and how do you prove a true factual issues of whether the court would take the take the plea if one statement went down this path so it's a very fascinating example and it is and the supreme court in the last floor was careful to distinguish between what the defendant would want to do in terms of accepting the offer and the district court's acceptance of the offers terms and as this court has before implicit in the  court's decision whether to accept a guilty plea is that there is enough factual guilt that is admitted and again segue to the acceptance of responsibility which is something that your  honor judge jolly has has brought up is that there has to be clear acceptance of responsibility and the district court here didn't just say that mr skirvin the scale to meet his burden that he would have clearly accepted responsibility he said that the evidence is to the contrary and all you need to do is look at what the district court recites from the entire twenty to fifty five hearing where m repeatedly so i didn't i went over there to throw away the trash and that marijuana was trashed i didn't intend to distribute it i didn't aid and abet i didn't share the intent and don't five of the district court's decision it talks about hating and abetting liability and how to this day the district court no it's mr scribner so i didn't share the necessary intent to aid and a difference of opinion on what the law requires and i have a question regarding that that you said the contrition is part of what he needed to show although they're not recommended in the manual that you can sometimes even taken a use continue to maintain your an innocence while you value in good still get the acceptance of responsibility if you can take an alford plea and get acceptance of responsibility then how can contrition be part of it well the way that the guideline reads of course is that you have to clearly except and while going to trial while maintaining innocence at trial isn't necessarily a precursor of other things can show that you lack acceptance of responsibility and here mr scribner through his statements both in his twenty two fifty five pleadings and his testimony as the district courts and that is fair game evidence for the district court to consider that there is there is an insufficient bear on the record that he clearly accepted responsibility and also when offered actually contrition is not always required for acceptance of responsibility correct admission of i have responsibility for the for the incident but not necessarily contrition yes that's i wouldn't want to make that distinction i would agree with the crime or that it has because if you can take a plea from someone who stands there and point right and so that would undercut the idea of what the offer was because that clearly was not the offer but then we also have a defendant who is affirmatively denying the underlying conduct for the offense of conviction recall he was not convicted of count one conspiracy he was only convicted of count three and he was not being held accountable under the guideline calculations for anything other than the drugs that were quantified based upon that house that he was found and there were other homes involved so it's not as if he is being held to the on a reasonable standard by the district court you didn't admit to relevant conduct you didn't admit to the other conduct from the other homes the district court would have erred if it had done that it didn't do that here and it didn't need to do that here because his relevant conduct was cabin soley to the same offense of conviction that he refused to accept responsibility for he refused to admit factual guilt i would respectfully ask the court to affirm the this record thank you  what did mr scribner admit to and this is what it says further scribner acknowledged that he had been hired to dismantle the gro house and move the contents of the a u haul truck to another location he further acknowledged to dismantling another grow house belonging to the same organization days before to knowing that the organization was involved in the distribution of marijuana and that it consisted of several crow houses as this test and that's what he admitted to which fits the office that aiding and abetting if you look at the office of aiding and abetting the elements of aiding and abetting to convict under the aiding abetting theory that government had to prove the underlying said steve often said occurred and that scribner associated with the criminal venture which he did two that he participated in the venture by dismantling the group house he participated and three he sought by action to make the venture successful his actions of dismantling the grow house and trying to cover  up dispose of that helped that the venture would be successful if the police didn't find out and he possessed a key to the house those facts are on or are consistent and his testimony and what he had stated and what court found here is consistent with guilt is consistent with factual guilt and legal guilt the problem is and it's an unfortunate if you go back to the very beginning when mr counseled by his trial counsel these facts support a guilty verdict on count three for aiding and abetting and so he has now unfortunately maybe he didn't was just just dismantling when they grow house the equipment for the hydroponic marijuana not not the house but just the equipment in the house to dismantle it he did and i think what's unfortunate in this case is is the iranians and vice that he likely received it from the very beginning of what the law is what the law requires and how you're factually guilty of that office of count three now he was only facing according to trial counsel thirty to thirty seven months that he pled with thirty seven to forty six months if he went to trial not a big risk but he admitted to his factual guilt the aiding and abetting in but when you have such a gross disparity if somebody says oh you know what if you're going to go to trial in this case you're actually going to be facing two hundred ten to two hundred forty four months if convicted then you start thinking a little bit more mr madoff criminal record significant criminal record that's why he was a career offender which enhanced for sure it has the disparity of with the trial counsel missed in counseling you know it's a it's it's such an in store situation when trial counsel it from the very  beginning and in the defend it when the defendant receives ineffective assistance of counsel in the counsel's performance is deficient if we could go back and ring the bell unring the bell i would i would really couch it in terms of this suit that magistrate judge found that mr scribner was credible in that he would have accepted the plea agreement based on the full of the record if that's true then let's take it back and put him in that place what happens to the district court judge is not privy to all the internal attorney client communications that came out at the at the trial the district court judge is not privy to he was doggedly insistent on his court judge is good a position as anybody to read the record and determine whether or not he would accept he would give find acceptance of responsibility but that's the interesting question i mean if you go back to how the procedure would have taken place if if he would have accepted if the if in the district judge did accept that that mr scribner would have accepted the plea agreement then what necessarily follows a factual resume and admission of guilt and then it goes to the p s r then it goes to sentencing and then it goes to acceptance that's the natural progression of how it should have occurred and would have occurred and if that's the case then mr scribner has shown