precluded from bringing a twenty two fifty five motion alleging ineffective assistance of counsel for failure to file the requested notice of appeal he's alleged aciphex facts which if true entitle him to relief under florence or tega which means the district court abused its discretion when its a night a hearing on the motion which means this court must reverse and remand understand of all lopez if you are on direct appeal i think i would agree with you tell me where in the plain language of the collateral attack waiver your claim is preserved yes your honor the collateral attack waiver is limited to conviction sentence and the manner in which the sentence was imposed as the supreme court said in florence or tega a claim were guarding the denial of assistance of counsel on direct appeal is separate and distinct from a claim involving ineffective assistance of representation involving conviction and sentencing failure to file a notice of appeal ineffective assistance of counsel on appeal or is it an effective assistance of counsel in the district court it's under floor it's well it's well into the district i understand that ineffect that right is a twenty to fifty five motion across the board in all of the cases that we look at that's the mechanism that a defendant has when the when counsel has failed to file a notice of appeal because as in floors or tega if if the  appeal of the collateral attack waiver you find an exception for this case the language is very clear the plain language only waved a collateral tacked challenge on the counsel the sixth amendment right to counsel on direct let me try this one more time because we're missing each other what relief do you see can be twenty to fifty five twenty to fifty five seeks his right to be able to have counsel on direct appeal so i know what you have you have a conviction in the sentence right that's correct your honor going to appeal what are you going to appeal that conviction of the sentence your honor that's not before this court the supreme court's very clear there's a distinction between per serving the defendant sixth amendment right to counsel on direct appeal as opposed to the merits of any appeal that he would bring now in the interest of substantial equality and fair process to all if the defendant requests that his counsel bring a notice of appeal counsel is required to do so and to defend that appeal if in the process of the representation counsel determines that the appeal is frivolous the supreme court has put in place a process for dealing with that that's anders the counsel would have to file the brief would have to identify the issues that would allow the defendant to respond with then go to this court to look at the tally of the proceedings make an assessment about what i understand how that works but this is not my first rodeo either but that's a quest to question i'm appeal he is he is entitled under washington v lampert to bring a claim alleging ineffective assistance of counsel with respect to the police agreement and the waiver that is contained within the plea agreement in do so under this plea agreement he has not waived his collateral attack to bring a twenty to fifty five motion alleging the denial of counsel on direct appeal he has not waived that this case is on all fours with sound of all waiver what i'm trying to figure out and we're not helping me is why they're called i understand why an appeals waiver would not bar what you see what i'm having difficulty figuring out is why the collateral attack waiver doesn't so help me with a lopez because he hasn't waived it and it's collateral talk over this is not a broad all encompassing so what you're telling me is that you rely on the language of the waiver but you don't have a case that's on point well there's a lot of cases that this has which says that the government doesn't get more than what it bargained for and that the plain language of the plea agreement controls and that if there's any ambiguity it's to be construed in the favor of the defendant i would note that you can compare the direct appeal direct waiver with the collateral attack waiver in plea agreement and in the direct appeal waiver it has very broad sweeping language that says or on any basis whatsoever that is noticeably missing from the collateral attack wafer here the government did not bargain for a broad all encompassing twenty two fifty five waiver and it is not entitled to get more than it bargained for so that makes this case on all fours with sound of all lopez because he has not waived his twenty two fifty five motion to please the court good morning your honors no one else worth appearing on behalf of the united states the district court did not err in this case when it summarily dismissed the defendant's twenty two fifty five motion and tonight an evidentiary hearing the basis for the court's decision was that the defendant did in fact  a knowing and voluntary plea in which he waived his right to a twenty to fifty five motion well can you deal with your colleagues argument she says he waived his twenty two fifty five rights with respect to everything that happened leading up to his conviction and his sentencing but not with respect to ineffective assistance of counsel in failing to file a notice of appeal yes your honor i believe when you look at the record as a whole the defendant is in fact challenging the senate's that he received in this which our cases send hollow per se survive say an appeal waiver so the appeal might get dismissed it might be frivolous but he's not he's not yet challenging his conviction and sentence he would just district court after that except him filing a twenty two fifty five which says i asked my counsel to file a notice of appeal and he didn't so i'm not true at what opportunity in the district court proceedings he was supposed to object to his counsel's failure to file a honor during the plea call if we he was advised of what the potential sentence could be he never expressed to the court that his attorney gave him a different senate seat range and i said no tyson i think you can demonstrate that the that the voluntary that's not i don't have any difficulty with that on this record my difficulty is that you said he should have objected at some time below if he wanted to say that he wanted to file a notice of appeal he did you expect a lawyer to do so not near enough to do so yourself so i want to try to get back to counsel's argument why does this collateral attack waiver cover effective assistance of counsel on appeal i believe it goes directly to what he's saying the appeal would have been about which is the nature of his senate and the senate is covered by the twenty two fifty five waiver he's saying that his counsel was ineffective and failing to follow direct appeal because he wanted to challenge the senate's in this matter additionally he says that his counsel and effectively and effectively advised him because the sentencing range that was provided was approximately thirty three months less than the senate's that he actually received therefore when you consider they were eventually got nine years and he thought he was yes yes and so therefore it's the government's position that he's actually challenging the senate and that is in come first within the twenty to fifty watt five waiver which is the court has already pointed out was are going liebling to really any additional questions thank you thank you we do not safeguard a defendant sixth amendment right to counsel on direct appeal by asking the defendant whose counsel has abandoned him to come up with meritorious issues that he would have raised on the appeal if he had counsel at the time he what else is there your honor under washington d lampard he has the right to claim that the plea agreement and the waiver they're in was the product of ineffective assistance of counsel i think that potentially there is a meritorious argument there if you look at the plea agreement it doesn't look like it's supported by any consideration and i think that certainly looks like a man meritorious argument on appeal but we don't get that right now all we know and all we're considering is his denial of his sixth amendment right to counsel on direct appeal he has alleged facts that if true and titled him to relief and he is entitled to a hearing on the motion so the district court abused his discretion i want to go back to because used your client says in the twenty to fifty five originally pro se but client says i was told by counsel i would only get seventy years right yes that is that is that's the claim of why that why there's a defect in the plan your honor and that is a pro se defendant responded to judge court that i think there may very well but you know that wasn't made you're now saying if we if we can bring in twenty to fifty five we might amended to be a different claim is that what you're saying you know the twenty to fifty five is simply limited to the failure of his attorney to file the notice of appeal that's it it's limited to that the supreme court's very clear we do not get to the merits at this point i know you don't get to the merits it's not what i'm asking and so and this is not an easy question so i need help rather than than than that his counsel that his his that the conviction be be reinstated which is what our case says when you get ineffective assistance of counsel an appeal to allow a fresh notice of appeal that's correct that's the remedy that's all you're asking that's all you can ask for under under our case involving appeal waivers are absolutely ok if a fresh notice of appeal were filed yes your sense would it what would it attack it i believe it would attack exactly what washington be lempert in titles and not tell me don't tell me what other cases say tell me what it would attack that but that is the claim that i don't know you don't tell me i've read the cases what would you attack on appeal his conviction sentence or both easy question  i'm sorry i think i'm answering it it's it's that he there's only two things that are possible to attack right which is the conviction of the sentence right do you do you intend to reserve your right to attack both of them only one of them and if so which one he  would first establish that plea agreement was the product of ineffective assistance of counsel at that point he would be entitled to attack both his conviction and his sentence there would be no waiver at that point so you're asking for more