our th case for today is also being submitted on the briefs so we will move to united states against martin is smith and we have ms thompson and  main issues raised for argument was marto smith entitled to an evidentiary hearing and to have his motion to withdraw withdraw his guilty plea granted and did marto smith have the appropriate predicate offenses to sustain a classification as a career criminal under the u s sentencing guidelines given a limited time the argument presented today will focus on the st issue and rest on the briefs on the nd and addressing the st issue mr smith's guilty plea was the product of ineffective assistance of counsel in three main ways st mr smith's st counsel refused to investigate the credibility of the confidential source and refused to file any motions on the topic stating that his superior would not allow him to this c s was the underlying support for the count one charge of distribution of methamphetamine and also provided additional evidence of relevant conduct at the sentencing hearing which led to a guideline enhancement on count one at the sentencing hearing the sentencing court sustain mr smith's objections the amount of controlled substances for guideline purposes when the government was forced to concede that the c s had violated required protocols for c s cooperation and engaged in drug trafficking while actively working as a c s the government would have struggled to prevent this evidence at a trial and it would have undercut the viability of count one as this c s was the main factor in relation to that drug charge yet the district court gave no weight to this issue of c s credibility as a failure to investigate on the prior counsel's part failing to challenge the credibility unsuccessful that in fact he's pulled over you know he's there's probable cause to arrest him on the drug offense and so there's no not to mention actually probable at least reasonable suspicion on the tent which it which i sure it just has to be enforced by officers by their personal observations or they can check the amount of tent with the little gizmo they use for that  machine so the the trial court says you know maybe he didn't file a motion to suppress but there was it wasn't going to go anywhere your honor i am afraid i don't understand your question well that in other words that failure isn't a good reason to withdraw the guilty plea that doesn't really show that had he continued on the on the trial track and he better off once you've pleaded guilty under oath your answers are part of the record and you can withdraw but at this stage without good cause i understand your honor so the probable cause for that traffic stop  that was alleged by the government was based on his was based on the july th drug by this stop occurred on july th this is an eighteen day built a delay in which the government's trying to argue that this probable cause excuse me july  th on this traffic stop occurred on july th this eighteen day delay and just probable cause just dangling out there is a dangerous interpretation of the th amendment well i mean i understand your argument basically stale you know big just because he had drugs before but this isn't forevers a few weeks ago and saying three years later you can stop him on that of course your honor however for eighteen days two and a half weeks is plenty of time to meet with a magistrate an impartial determined determiner of the facts and get a search warrant get an arrest warrant get some sort of impartial determination of whether or not there was there would have been probable cause to access execute an arrest the fact that this traffic stop occurred based on tinted windows which is a petty offense in illinois punishable by fine only not an arrestable offense and then with the i'll fortunately maybe for all of us but the supreme court has made it very clear that they don't think that the pettiness of the fence makes any difference if the officers identify something however minor that you're doing that's wrong they get to pull you over for it so windows and that really petty area pick all sorts of cases where the court has said we really don't care of course your honor however it's not just the pettiness of the offense but also the delay in time and the course of nature in which the alleged consent to search mr smith vehicle was obtained if we had been able to have an evidentiary hearing evidence would have been presented including a body cam footage which showed that at the time that this officer asked her consent to search the vehicle mr smith was on the phone with his mother getting insurance information on the vehicle there is an affidavit that was submitted with the defendant's reply to his motion to withdraw guilty plea in which his mother stated in this affidavit that she had heard mr smith deny consent to search that vehicle error if mr smith had been allowed to present his motions if his attorney had fully investigated these motions this would have led to either a trial or potentially more pressure on the government to come to some sort of plea agreement this would have led to the plea agreement that was excuse me to the plea that mr smith took he had other options and his case should have been subject to a more adversarial approach by his attorney however because his attorney misled him about the fact the case including lying to the defendant about who was responsible for this lesser included a plea that he took the fund it was unaware at the time that he took his plea that he had these options this is no different than a case where a defendant is not  entrapment defense or where he's incorrectly advised of his guidelines so can i just go with your position that because there was no evidentiary hearing we need to approach this case as though his prior record however there is sufficient facts on the record that would support these conclusions and clued in october th motion that the that mr smith filed when he requested new counsel and laid out these arguments long before he took his plea the only reason he withdrew this motion was because his attorney told him that he was doing so much work on his case that it was ringback his actions that led to the lesser included offense pleading  in short the court found that this probable cause for the july th traffic stop was probable cause and therefore they she didn't he did not she did not need to confide in evidentiary hearing states mr smith here as counsel noted as challenging the district court's denial of his motion to withdraw is guilty plea as well as its calculation of this advisory kind of lines both of these claims fail in the light of the facts in this court's prior of case  i'll turn st to the attempt to withdraw the guilty plea the district court did not abuse its discretion in denying mr smith's motion to withdraw his guilty plea which he bases on his claim that the plea was i knowing and involuntary because he received ineffective assistance of counsel frankly he did not mr smith is unable to show that his attorneys actions were object only unreasonable or that but for his attorney's actions the result of his case would have been different first mr smith has not shown that any motion to suppress would have been meritorious and on that note i just want to briefly address some of the defense counsel's focus on the claims involving the confidential sources reliability while that was discussed in district court it was not discussed in the opening less important when you have a recorded controlled by that was surveilled by law enforcement and plenty of additional evidence showing that this was a reliable confidential source you have additional communication showing that the source and smith had had prior drug transactions and then you have additional communications again on the day of the stop showing that a drug i was planned so any any motion to suppress on the grounds that the traffic stop was pretextual in prolog or that mr smith would not consented to a search of this car wouldn't have been successful in any case because the officer had probable cause to stop and search the car as the district court stated there was probable cause to arrest mr smith on the drug offense based on the prior control and that wasn't all we also have a situation here where law enforcement had arranged and reviewed communications with mr smith about a three ounces of methamphetamine for the same day mr smith was allegedly seen driving around as though he were trying to avoid detection and even if as mr smith has alleged he had not consented to the search and he subsequent search of the car would fall within an exception to the warrant requirement for vehicle searches for probable cause of criminal activity because the motion to suppress would have been successful and mr smith didn't face prejudice from any alleged refusal to file particular because there was no indication here that he would have gone to trial instead of pleading guilty and any case we think the record is sufficient that the law enforcement officer had recreative well your honor we think that that is a reasonable length of time obviously it can be difficult in these cases to pick an exact number but that's actually incredibly quick if you think about it the ops or stops the individual with t windows which also sometimes are years and drug activity and within ten minutes even though his advice is not function he has another device on the scene that doesn't seem to provide and i think it's within the within the purposes of the stop  additionally there's just no indication in the record that the officer coerced mr smith's consent to search and then also went to not that the record is really shifting on whether i'm mr smith's own claims regarding this alleged consent to search that she at the change of plea hearing  he bring takes no issue with the government's factual basis and he had consented to a search of the car he later says he consented to search but it was involuntary in another pleading he says that he had to climb permission to search and then there's also the fact that he did th he there is a signed permission to search that he signed with the mansion police department indicating that his consent was alet and in light of all these facts it it certainly was not objectively unreasonable for mr smith's attorney to decline to file a motion to suppress and there was no reasonable probability that but for his action the result would have been different and mr smith's allegations that his attorney wanted him to plead guilty quickly to avoid nine hundred and twenty four c charges and was unfamiliar with his case are conclusory and i'm supported by the record i just find it the record have been allowed to be expanded though even if you're right one of his primary arguments here is that the district court should have looked into this through the vehicle of an  her counsel could have been called these questions could have been explored we just wouldn't know what was happening yes your honor well the defendant just the district court judge's decision whether to hold an evidentiary hearing in these type of introduction of evidence trial process to me well you're on the case law is not perfectly clear and it is the district court's decision to deny the withdrawal of the motion  the motion to withdraw the guilty plea is certainly reviewed for abuse of discretion but there is some indication in the case on that the decision as to whether to hold the sort of evidentiary hearing should be reviewed for clear air but under either standard we don't believe the court clearly erred or abused  yer and i would hope that in an affidavit defense counsel would would be honest about the prior proceedings of the case i also think that in any case the defendant can make any number of allegations as to why defense counsel did or didn't do it when there is nothing in the record to show that these allegations are more than conclusory and nothing to support and in fact in many cases here there is an indication that the allegations are wrong if you look at the allegation that the attorney was not familiar with the case the defense attorney admitted as did mr smith at the changeability hearing that mr smith had met the elements of his crime of his future crimes of conviction but the defense attorney now seem to note the same potential for actual discrepancy mr smith did about whether his mask and gloves were found in his apartment or in his car and that to me shows that events tyranny that has reviewed the discovery and has not potential discrepancies but realizes that the government's factual basis nevertheless outlines that mr smith has committed the elements of each of the crimes and for the purposes of the change of pleas hearing realizes that this minor discrepancy is not worth  blowing up but will have to play over frankly so i think here not only do we have allegations that are not supported by the record we have allegations that are contradicted by the record and that's true at the time pressure is  well mr smith stated that he had time to discuss the case of his attorney he was satisfied with his representation and there's no indication here again that his attorney acted in an objective way and reasonable manner or that the attorney acted differently the outcome of this case would have been different turn briefly at to the guidelines issue mr smith's two thousand and nine federal convention conspiracy to traffic in cocaine is a controlled substance offense as defined in section conflict on that question in our circuit is spoken to but others see this differently and think the application of went too far yes your honor that's correct but i believe this court's decision in adam's controls  guidelines and in fact really was more of just a matter of showing what the wise policy would be as as opposed to adding anything that would contradict being taken hundreds constructionist don't care at all about wise policy they care about the words that are written down in the guidelines which don't to include conspiracy but yes yes your honor although this court did focus on whether there was a conflict and determined that there was not not a conflict as opposed to  further thompson colloquy sort of you know heals all issues that mr smith said the correct words therefore it doesn't matter that he didn't get in that he didn't get effective assistance of counsel however in a lot of these cases mr smith realize that he had been misled lied and lied to by his attorney and so after the plea he couldn't have knowingly entered a plea when he didn't even know the full extent to which he wasn't receiving the at the advocacy he needed further support of  this misleading conduct can be found in the docket entries in the pro se motions that mr smith has filed and a motion to withdraw his guilty plea properly raise these claims but he never received the opportunity to have a hearing on those merits i would also like to address bri ms thompson yes your honor we appreciate your efforts on behalf of the client and also for the court so thanks as thanks everybody this case is taking under advisement and the court will be in