[00:00:00] Speaker 03:
It's 23-2139, United States versus Martinez Espinosa.

[00:00:07] Speaker 03:
I'm sorry about that.

[00:00:08] Speaker 02:
No, thank you.

[00:00:09] Speaker 02:
Good morning, Your Honors.

[00:00:10] Speaker 02:
Amanda Skinner on behalf of Mr. Martinez Espinosa.

[00:00:13] Speaker 02:
We are on plain error review in both cases in this consolidated appeal, and we believe that we can meet the standard on these specific narrow facts.

[00:00:22] Speaker 02:
I'd like to start with the reentry case.

[00:00:24] Speaker 02:
The government concedes prongs one and two of plain error.

[00:00:28] Speaker 02:
And where we diverge is on prong three, whether we can show a reasonable probability that Mr. Martinez Espinosa would have elected to do something other than persist in that special binding 11C1C plea agreement.

[00:00:42] Speaker 03:
Well, it's not just that he would have proceeded in the 11C1C, because the court rejected that.

[00:00:52] Speaker 03:
It's whether he would have pled guilty.

[00:00:54] Speaker 02:
Yes, whether he would have done something different, which also could include going to trial or trying to negotiate a new deal.

[00:01:02] Speaker 04:
So we believe that we... So just because he would try to negotiate a new deal, I mean, that seems like an insufficient burden on your part.

[00:01:10] Speaker 04:
Your Honor, there's no plain air here because he would have tried to negotiate a better deal.

[00:01:17] Speaker 04:
I mean, the district court gave him a better deal by rejecting the plea.

[00:01:22] Speaker 02:
And your honor, clients do things for strange reasons.

[00:01:27] Speaker 02:
He had the right to reject this agreement for any reason, whether we thought it was a good one.

[00:01:33] Speaker 04:
I agree, and the government agrees with that.

[00:01:35] Speaker 04:
The government agrees that he could do it, and the government agrees that the district court erred by not telling him that he could withdraw.

[00:01:42] Speaker 02:
And the issue here was compounded because then the district court misstated to him his option upon rejection.

[00:01:50] Speaker 02:
The district court didn't just say, I'm rejecting your plea agreement, let's go forward to sentencing.

[00:01:55] Speaker 02:
I agree that would be a different situation.

[00:01:57] Speaker 02:
The district court told him, I'm rejecting your plea agreement, I'm trying to help you because I don't think this gives you any benefit.

[00:02:05] Speaker 02:
Kind of similar to the poor district court judge in the Cano Varela case, he was trying to help that defendant by making these comments about what his sentence would be in this court reversed and ordered assignment to a new district judge on

[00:02:19] Speaker 02:
remand because of the nature of the Rule 11 violation.

[00:02:22] Speaker 02:
And in this case, Mr. Martinez Espinosa, he didn't have just the right to appeal.

[00:02:29] Speaker 02:
He could withdraw his plea agreement.

[00:02:31] Speaker 02:
And the reason I think we have good grounds to argue that you should give him some credit for saying that he wanted to negotiate a new deal is because first, he had two cases.

[00:02:41] Speaker 02:
And second, he waived preliminary and detention hearing, two very important rights on the 1326 reentry charge in exchange for the government promising in writing to enter into good faith negotiations with him.

[00:02:55] Speaker 02:
And that- Well, they offered him a fast track.

[00:02:57] Speaker 02:
They offered him a fast track that according to the district court, offered him no benefit.

[00:03:01] Speaker 03:
And I searched- Well, and that was because of his criminal record.

[00:03:06] Speaker 03:
That's correct, Your Honor.

[00:03:08] Speaker 02:
Yes, and so I think that that comes into play because his criminal history was criminal history category six.

[00:03:16] Speaker 02:
We do not dispute that that made him ineligible for a portion of that binding plea agreement, the additional two levels under our district's fast track program.

[00:03:26] Speaker 02:
But he knew from the JSON data that was included in his PSR that everyone who was pleading guilty on these cases, the average or the middle was a below guideline sentence, 23 months.

[00:03:44] Speaker 03:
You know, you have to compare apples to apples.

[00:03:46] Speaker 03:
I mean, this particular defendant had already illegally re-entered, what, 10 times?

[00:03:53] Speaker 02:
And that's where his defense comes in, identity, your honor.

[00:03:57] Speaker 02:
The concern, I think, with this case is that Fast Track already has it in the name.

[00:04:03] Speaker 02:
These cases, these reentry cases, are Fast Track, streamlined, quickly moved through our district because it is a volume practice.

[00:04:11] Speaker 02:
But there is still a due process requirement.

[00:04:14] Speaker 02:
There is still a requirement that these clients are understanding what they're admitting, that they're voluntarily pleading guilty.

[00:04:21] Speaker 02:
And it's important to note that Mr. Martinez Espinosa and his counsel knew he lost out on that minus two under the binding plea agreement when they filed their sentencing memo.

[00:04:31] Speaker 02:
That sentencing memo is our best evidence that Mr. Martinez-Espinoza, for whatever reason, wanted to plead guilty only pursuant to that special binding 11C1C plea agreement, whether we think it gave him a benefit or not.

[00:04:47] Speaker 02:
And that's because his counsel had the opportunity to ask to withdraw that agreement

[00:04:51] Speaker 02:
in the sentencing memo.

[00:04:53] Speaker 02:
Not only did he not do that, he also stated in the sentencing memo, I am bound by the Booker bar in this plea agreement.

[00:05:00] Speaker 02:
I want to ask you for less, Judge.

[00:05:02] Speaker 02:
I want to ask for below guideline.

[00:05:03] Speaker 02:
I think I have this great argument for Mr. Martinez-Espinosa, but I'm stuck with this plea agreement.

[00:05:09] Speaker 02:
So that's our best evidence.

[00:05:11] Speaker 02:
that, again, for whatever reason, Mr. Martinez-Espinosa wanted to plead guilty pursuant to an agreement.

[00:05:20] Speaker 04:
So let me ask you this.

[00:05:23] Speaker 04:
I mean, I'm just looking at what the language has been that we've used that is your burden.

[00:05:29] Speaker 04:
And it is that you have to show a reasonable probability that, but for the air, you would not have injured the plea.

[00:05:37] Speaker 04:
Yes.

[00:05:38] Speaker 04:
And you seem to change that.

[00:05:41] Speaker 04:
But for the heir, you would have attempted to renegotiate your plea.

[00:05:48] Speaker 04:
That seems a little bit different because ultimately, I mean, there are a lot of facts that suggest that maybe he would have entered the plea.

[00:05:57] Speaker 04:
This is a hard case to defend against on the merits.

[00:06:01] Speaker 04:
He had a lot of prior re-entries.

[00:06:05] Speaker 04:
I mean, the judge could have run up the score on him potentially with an upward variance with his wrap sheet of priors.

[00:06:16] Speaker 02:
So we are not afraid of the standard laid out in Dominguez Benitez.

[00:06:20] Speaker 02:
We agree that we have to show a reasonable probability that he would not have entered the guilty plea.

[00:06:27] Speaker 02:
And I think it's important to note that in Dominguez Benitez, the Supreme Court rejected that Ninth Circuit standard because it doesn't allow them to consider evidence tending to show that a misunderstanding was inconsequential to a defendant's decision.

[00:06:41] Speaker 02:
They want to get into reasonable probability so they can look at everything.

[00:06:45] Speaker 02:
We probably would not be here without the SR case, the supervised release case.

[00:06:50] Speaker 02:
That is where the error becomes crystal clear.

[00:06:55] Speaker 02:
The government identifies three reasons for why this court should doubt Mr. Martinez's, Espinosa's desire to potentially go forward with the trial if he can't negotiate a new deal.

[00:07:07] Speaker 02:
If it seemed like I was saying he did not wanna go to trial, I'm not making that argument.

[00:07:12] Speaker 02:
His first step would be the first step that the magistrate and his attorney and his plea agreement told him he could do.

[00:07:19] Speaker 02:
Withdraw my plea of guilty and try to negotiate a new deal.

[00:07:22] Speaker 02:
in as an officer of the court I represented in a footnote that he has not made a representation that he would not go to trial, unlike the defendant in Dominguez Benitez, unlike the defendant in the SR case Fay, where they were

[00:07:37] Speaker 02:
beating down the door saying they wanted to admit to these things.

[00:07:41] Speaker 02:
We don't have anything in this record.

[00:07:43] Speaker 02:
The government identifies three reasons why a trial would be, in their view, a terrible choice for him.

[00:07:49] Speaker 02:
He doesn't have a defense.

[00:07:50] Speaker 02:
ID is the defense to illegal reentry charge.

[00:07:53] Speaker 02:
Did he request an identity hearing?

[00:07:56] Speaker 02:
No, but in terms of the trial, we cited the jury instructions and he has 15 aliases.

[00:08:03] Speaker 02:
and two convictions in the PSR that aren't even the aliases.

[00:08:06] Speaker 02:
So from my view, he has 15 more things to argue about than most defendants in a reentry case.

[00:08:13] Speaker 03:
Well, if you drop out those two, he's still got a boatload of prior illegal reentry.

[00:08:19] Speaker 02:
He does, and there's nothing in the record about the fingerprints that

[00:08:24] Speaker 02:
underpin those, the documents that underpin those, these cases are fast-tracked because defendants are saying, for a benefit, I will admit to this without seeing full discovery from the government in many cases.

[00:08:39] Speaker 02:
And just anecdotally, I think the government would have to concede they have dismissed reentry cases where they don't have the proof.

[00:08:47] Speaker 02:
Everybody, quote, knows it.

[00:08:49] Speaker 02:
But they don't have the proof when the defendant pushes past and says, no, I won't take your deal, or I'm ineligible for a deal.

[00:08:55] Speaker 02:
Why would I plead?

[00:08:56] Speaker 02:
And I think the problem here is that I could not find any case law from any circuit that says we impose upon a defendant an assumption that they would plead guilty in exchange for nothing.

[00:09:09] Speaker 02:
And the record here is that we have him in the district court's view pleading guilty in exchange for nothing.

[00:09:16] Speaker 04:
He's getting something.

[00:09:17] Speaker 04:
He's getting his appellate rights back.

[00:09:19] Speaker 02:
Well, but he had more than that.

[00:09:21] Speaker 02:
And so I think I don't want to jump into prong four too quickly, but that's where the integrity of judicial proceedings comes in.

[00:09:29] Speaker 02:
If you took a regular person off the street and brought them into court and said, we gave this guy a special deal on a new reentry in exchange for these benefits and we told him he could withdraw the plea if the judge and go to trial.

[00:09:43] Speaker 02:
if the judge said, I'm not going to take this deal.

[00:09:46] Speaker 02:
And then that person watches the judge address him and say, this agreement gives you no benefit.

[00:09:51] Speaker 02:
So I'm withdrawing it.

[00:09:52] Speaker 02:
I'm refusing to accept it.

[00:09:55] Speaker 02:
You have your appeal rights back.

[00:09:56] Speaker 02:
And now I'm going to use the admission you made in connection with that deal to find you violated your supervised release.

[00:10:04] Speaker 02:
I'm going to sentence you

[00:10:06] Speaker 02:
and give you more time consecutive than concurrent.

[00:10:10] Speaker 02:
He got the wrong side of that math problem on 21 months, so he has something to fight for.

[00:10:14] Speaker 04:
Let me ask you this.

[00:10:17] Speaker 04:
On the supervisor lease violation, is the fact that in the reentry case that he pled guilty

[00:10:31] Speaker 04:
whether it was withdrawn later or not, or the district court rejected it later or not, but that he asserted in his plea that he was guilty.

[00:10:40] Speaker 04:
He admitted it.

[00:10:41] Speaker 04:
He had to admit the conduct.

[00:10:43] Speaker 04:
Is that sufficient evidence for the district court?

[00:10:45] Speaker 04:
Even if he later withdrew the plea, could the district court use that evidence to find that he violated?

[00:10:52] Speaker 02:
Under these facts, no, because that admission was solely to the new reentry charge.

[00:10:58] Speaker 02:
And he has an identity issue.

[00:11:00] Speaker 04:
But that's suggesting, I mean,

[00:11:02] Speaker 04:
He has to affirm in his plea that the admissions he's making in there are true.

[00:11:09] Speaker 04:
He doesn't get to say, I just admitted those because I wanted to get this thing over with.

[00:11:17] Speaker 04:
I mean, maybe he can say that and then maybe there's a contradictory evidence.

[00:11:22] Speaker 04:
But when he enters his plea, he's saying that those things happened, that they are true.

[00:11:29] Speaker 04:
This is me.

[00:11:30] Speaker 04:
It is true, I did it, sentence me under the C1C.

[00:11:36] Speaker 02:
And the only way that those admissions could be used against him if the district court had gone through the Rule 11 colloquy and he had withdrawn his plea would be if there was a

[00:11:49] Speaker 02:
another proceeding.

[00:11:50] Speaker 02:
I mean, in the SR, it just doesn't make sense to assume that he would withdraw his plea and then proceed to sentencing on the SR when he admitted nothing.

[00:12:00] Speaker 02:
His initial appearance, show cause hearing, and detention hearing on the SR were all wrapped up into one hearing.

[00:12:06] Speaker 03:
It is common.

[00:12:07] Speaker 03:
Let me interrupt for a minute.

[00:12:08] Speaker 03:
He can waive a hearing on the supervised release, right?

[00:12:13] Speaker 03:
Absolutely.

[00:12:13] Speaker 03:
Isn't the transcript pretty clear that

[00:12:17] Speaker 03:
his attorney, in fact, waived.

[00:12:20] Speaker 03:
The court said, you know, to ask defense counsel, he said, the facts alleged in the revocation petition are the same facts that Mr. Martinez-Espinoza admitted when he pled guilty to reentry.

[00:12:34] Speaker 03:
And then he asked, defense counsel said, for that reason, is there any need to go forward with the colloquy on the petition?

[00:12:42] Speaker 03:
And defense counsel said, no, there's not.

[00:12:45] Speaker 02:
So this is where the volume practice comes in again and the court said something else in that discussion.

[00:12:50] Speaker 02:
Now similar to the earlier case, the facts alleged in the petition are the same as the facts admitted when he pledged to the reentry.

[00:12:57] Speaker 02:
This is happening over and over in our district where

[00:13:01] Speaker 02:
We are skipping colloquies.

[00:13:03] Speaker 02:
There is no definition for it.

[00:13:04] Speaker 04:
Well, that's on you, though.

[00:13:06] Speaker 04:
That's on your team.

[00:13:07] Speaker 04:
You should say, Judge, I want my hearing.

[00:13:09] Speaker 02:
Understood, Your Honor.

[00:13:10] Speaker 02:
And that's why on these facts, we are not afraid of plain error.

[00:13:15] Speaker 02:
We are not afraid of the standard laid out in Dominguez-Benitez, because it really, I don't know a better term than a bait and switch.

[00:13:22] Speaker 01:
I mean, maybe what you have here is the 2255.

[00:13:25] Speaker 02:
And I don't think we need to get into that because this court can remand based on the rule 11 violations and the defenses that he had at a trial, including going to trial because he wants to exercise his rights because he doesn't understand how this happened to him when a magistrate judge and his own attorney and the plea agreement told him, you could withdraw this deal and decide, I just want to fight it.

[00:13:49] Speaker 02:
I just want to fight it and give it a chance at trial.

[00:13:53] Speaker 03:
So he, he would have had the fact that all of these things told him that if the court rejects your 11 c three plea, you can withdraw.

[00:14:04] Speaker 03:
Doesn't that count against him in terms of, you know, I mean, he knew he was told repeatedly.

[00:14:11] Speaker 02:
In Dominguez Benitez, it was used against him in his non-binding plea agreement that he knew he couldn't withdraw.

[00:14:17] Speaker 02:
But here, we have it written into the plea agreement that he can withdraw.

[00:14:20] Speaker 02:
No one gives him the opportunity.

[00:14:22] Speaker 02:
I've never seen a defense.

[00:14:24] Speaker 03:
I mean, it cuts both ways.

[00:14:26] Speaker 03:
Because when he's being saying, do you want to waive your hearing, when they're moving forward, no, he's been told, I think, three times in different formats

[00:14:38] Speaker 03:
that if this is rejected, you can withdraw.

[00:14:40] Speaker 02:
Understood, Your Honor.

[00:14:41] Speaker 02:
And on this record, we think that there is ample evidence with his identity, defenses that he would have, the JSON data, that he would have withdrawn his plea.

[00:14:53] Speaker 02:
He would have had chances at trial.

[00:14:54] Speaker 02:
And I see my time is up.

[00:14:55] Speaker 02:
Thank you.

[00:14:56] Speaker 02:
Thank you.

[00:15:08] Speaker 00:
Good morning.

[00:15:09] Speaker 00:
May it please the court, Amo Keeney for the United States.

[00:15:13] Speaker 00:
I'm going to address some of the points that my colleague for the defense raised.

[00:15:17] Speaker 00:
But of course, I'm happy to go wherever you want to go.

[00:15:20] Speaker 03:
Well, I guess one question I have.

[00:15:21] Speaker 03:
Wouldn't it be fairly simple to just go back and inform him correctly under Rule 11 of what his options were and see whether he'll take a plea or he wants to go to trial?

[00:15:37] Speaker 00:
Yeah, it would be very, very simple.

[00:15:38] Speaker 00:
I thought of that myself, and we considered doing that beforehand.

[00:15:42] Speaker 03:
It's probably cheaper than coming up here.

[00:15:43] Speaker 00:
Right.

[00:15:44] Speaker 00:
I think that part of the difficulty for us in doing that is it's longstanding DOJ policy to defend cases on appeal where we think we have a reasonable basis to ask for affirmance.

[00:15:58] Speaker 00:
So in this case, I looked at that before the briefing even occurred at Ms.

[00:16:05] Speaker 00:
Skinner's request.

[00:16:06] Speaker 00:
And the law is fairly clear that the defendant has to satisfy the third prong of plain error analysis.

[00:16:14] Speaker 00:
And I thought I had a good faith argument for why you could not.

[00:16:17] Speaker 00:
So yeah, there are some cases where you could say, well, wouldn't this be easier?

[00:16:23] Speaker 00:
But I think there's a lot of reasons.

[00:16:24] Speaker 00:
There's some good reasons for our policy to ensure that we treat equal cases alike all across the country and also encourage

[00:16:35] Speaker 00:
I think one reason for it is to encourage defendants to object to things when there's time to do something about it.

[00:16:41] Speaker 00:
So I think that's the inquiries is really the plain error inquire not necessarily what would be easier.

[00:16:48] Speaker 00:
And I think if it were that easy, it would be easy to articulate some reason why the third error problem was satisfied.

[00:16:55] Speaker 00:
I don't think defendant has done that, but I think you wanna ask me a question.

[00:16:58] Speaker 04:
You're right.

[00:16:59] Speaker 00:
Yes.

[00:17:00] Speaker 04:
Doesn't the fact that the district court

[00:17:04] Speaker 04:
sort of took the choices away from the defendant make a difference here.

[00:17:08] Speaker 04:
This isn't a case where maybe even nothing was said.

[00:17:12] Speaker 04:
Maybe where the court said, I'm not going to accept your plea, but do you still want to proceed to sentencing?

[00:17:21] Speaker 04:
And counsel says, yes.

[00:17:24] Speaker 04:
And so the court never says, hey, you have the right to withdraw.

[00:17:28] Speaker 04:
You have the right to a trial.

[00:17:29] Speaker 04:
You have the right to go back to Mr. Keeney.

[00:17:32] Speaker 04:
renegotiate your plea or whatever.

[00:17:36] Speaker 04:
But in this case, the district judge basically said, hey, man, I'm going to do you a favor.

[00:17:41] Speaker 04:
I'm not going to accept this.

[00:17:42] Speaker 04:
I'm going to do you a favor.

[00:17:43] Speaker 04:
I'm going to give you a better deal.

[00:17:45] Speaker 04:
I'm going to reject the plea.

[00:17:46] Speaker 04:
We're going to go to sentencing, and you'll have the right to appeal.

[00:17:49] Speaker 04:
Doesn't that take something away from the defendant to where we could never know if he was going to go to trial?

[00:18:01] Speaker 04:
if he was going to try to renegotiate, if he was going to want to withdraw his plea?

[00:18:05] Speaker 00:
Well, yeah, we've considered the first two prongs.

[00:18:09] Speaker 00:
That was taken away from him.

[00:18:11] Speaker 04:
I think in any... No, I know you agree with that, but I'm saying there's an aggravating step, and it's that the district court sort of not only didn't offer him the choice, but sort of made it seem like there wasn't a choice, and that he was actually doing something for him instead.

[00:18:29] Speaker 00:
Yeah, I didn't read the record that way.

[00:18:31] Speaker 00:
I thought that with the district court, he did think he was doing him a favor.

[00:18:35] Speaker 00:
And I think it was a simple oversight not to read him the warnings that Rule 11C5 requires.

[00:18:42] Speaker 00:
I don't think he was trying to mislead the defendant or say anything like that.

[00:18:46] Speaker 00:
I agree.

[00:18:47] Speaker 04:
I don't think he was either.

[00:18:48] Speaker 04:
But we've got to look at it from what the defendant might have thought.

[00:18:51] Speaker 00:
Right.

[00:18:53] Speaker 00:
He might have thought, well, I think, though, that he still needs to prove

[00:18:57] Speaker 00:
He needs to at least articulate some reason why the third prong is satisfied.

[00:19:02] Speaker 04:
He said, I've got 11 aliases.

[00:19:05] Speaker 04:
They probably couldn't even prove it was me.

[00:19:09] Speaker 04:
So if I did decide to go to trial, I could probably prevail by claiming I was someone else.

[00:19:17] Speaker 00:
I don't think that would work for this reason.

[00:19:19] Speaker 00:
The information only charged, we charged with illegal entry after removal.

[00:19:27] Speaker 00:
The charged removal in the information is the December 2021 removal.

[00:19:35] Speaker 00:
That he was removed in 2021 after being released from Arizona, from custody from his Arizona 2020 illegal reentry conviction.

[00:19:47] Speaker 00:
He was convicted in Arizona under his real name.

[00:19:52] Speaker 00:
It seems pretty unlikely that there would be

[00:19:56] Speaker 00:
that once he's released from prison to the custody of ICE to be removed, that they would do so under some different name from the one that he was convicted.

[00:20:10] Speaker 00:
I don't really see any possibility of an identity defense there.

[00:20:14] Speaker 00:
Yes, ma'am?

[00:20:14] Speaker 03:
So you're saying that whether you got all the aliases or even the fact of the aliases is irrelevant to the charged crime?

[00:20:22] Speaker 00:
That's correct.

[00:20:24] Speaker 00:
I think it could be relevant in other situations if we had charged him with, say, illegal reentry after a previous conviction of a felony, say.

[00:20:35] Speaker 00:
And if the charged felony was one of those where he had been convicted under an alias, as there were two of them in this case, that would be a stronger case, I would think.

[00:20:52] Speaker 00:
The other defenses he's raised as well, I would have, the supervised release proceeding is what really would have made me go to trial or choose something different.

[00:21:06] Speaker 00:
But even then he would still have to have a defense to the charge, the underlying charge, because that's the same basis for a supervised release violation.

[00:21:15] Speaker 00:
So I think we're just back at the start.

[00:21:17] Speaker 03:
What do we do with the confession that was made

[00:21:22] Speaker 03:
in connection with the plea that was rejected?

[00:21:27] Speaker 03:
Can we rely, can the district court rely on the facts that he admitted in connection with the rejected plea for purposes of finding him guilty on the supervised release charge?

[00:21:43] Speaker 00:
Right.

[00:21:43] Speaker 00:
I think so.

[00:21:44] Speaker 00:
I mean, he was advised that his plea... Well, do we have case law?

[00:21:47] Speaker 03:
I mean, you think so.

[00:21:48] Speaker 03:
What support?

[00:21:51] Speaker 03:
do you have for that?

[00:21:54] Speaker 00:
Well, I'm not sure that I have a case that specifically addresses that scenario.

[00:22:01] Speaker 00:
So it's not that I'm relying on a case.

[00:22:03] Speaker 00:
I mean, you do have Fay, which considers a guilty plea.

[00:22:07] Speaker 00:
But in Fay, it was a prior state conviction as well.

[00:22:10] Speaker 00:
So there's not only a plea, but a conviction.

[00:22:12] Speaker 00:
So that is a little bit different.

[00:22:14] Speaker 00:
But it is consistent with what we're saying.

[00:22:16] Speaker 00:
I think he was also advised at his plea hearing that

[00:22:21] Speaker 00:
and that's at page 30 of volume three of the record in the illegal reentry case, that he was told that if he pleas, this will be part of his criminal history and can be used against him in the future.

[00:22:38] Speaker 00:
I also think since we're on plain error.

[00:22:39] Speaker 03:
But it's if he pleas, right?

[00:22:42] Speaker 00:
Right.

[00:22:43] Speaker 03:
And his plea was rejected.

[00:22:44] Speaker 00:
No, his plea agreement was rejected, Your Honor.

[00:22:48] Speaker 00:
the hearing they were talking about, at the plea hearing, when he was pleading guilty, they were talking about his, that passage talks about his actual guilty plea as opposed to the agreement.

[00:22:58] Speaker 04:
So at his plea hearing, where he entered the plea agreement, where the plea agreement was, I'm assuming he signed the plea agreement, it was presented to the MJ, all that good stuff, was he sworn

[00:23:15] Speaker 04:
in the discussion at the plea agreement, do you know?

[00:23:19] Speaker 04:
I mean, that's standard protocol, isn't it?

[00:23:23] Speaker 00:
It's standard practice, and the defense hasn't raised that as an argument.

[00:23:29] Speaker 00:
But also, I'm sorry, did you have another part of the question?

[00:23:32] Speaker 00:
No.

[00:23:33] Speaker 01:
Okay.

[00:23:33] Speaker 01:
Is there a record of that hearing?

[00:23:35] Speaker 00:
Yes, there is.

[00:23:36] Speaker 01:
I have it.

[00:23:37] Speaker 01:
Is it in our record?

[00:23:39] Speaker 00:
It is.

[00:23:40] Speaker 00:
It's in volume three.

[00:23:41] Speaker 00:
I'm not sure that the hearings are in the right order.

[00:23:44] Speaker 00:
I think maybe the sentencing hearing is placed before the plea hearing in the transcript, but you'll be able to find it there, for sure.

[00:23:51] Speaker 00:
I think that the lack of any... This is the magistrate walking through the colloquy.

[00:23:57] Speaker 00:
That was the magistrate walking through the colloquy.

[00:23:59] Speaker 00:
Yes, sir.

[00:24:00] Speaker 00:
So I think the lack, going back to your point about the lack of any specific case law about whether the district court could use that plea, I think that weighs against the defendant here, because we're on plain error review.

[00:24:14] Speaker 00:
plain authority saying that's improper, then I think that's a failure to establish the second prong on that point.

[00:24:26] Speaker 00:
I'm sorry.

[00:24:27] Speaker 00:
I lost my train of thought.

[00:24:29] Speaker 00:
But I also think that the district court was correct, or at least on plain error review, I should say, because the district court didn't specifically consider it.

[00:24:42] Speaker 00:
the totality of the circumstances shows that he did admit the plea, that he did admit the supervised release violation.

[00:24:51] Speaker 00:
I mean, you don't just have the guilty plea, you also have the concrete that Judge McHugh referred to at the beginning where, and you could even go back a few lines earlier, the district court specifically prefaces his remarks by saying he did admit these allegations, right?

[00:25:09] Speaker 00:
and defense counsel says no, and then he goes into talking about the fact that he had already pleaded guilty to the offense, which is the basis for the supervised release charge.

[00:25:24] Speaker 00:
So the idea that the colloquy he's talking about doesn't have to do with admission of the supervised release violation and that defense counsel didn't understand that to be the case, I don't think that's supported by the record.

[00:25:37] Speaker 00:
You also have other indications in the record.

[00:25:41] Speaker 00:
Later on in the hearing, the defendant, he apologizes for his conduct.

[00:25:46] Speaker 00:
That's one of the factors that Fay relied on.

[00:25:49] Speaker 00:
And then the district court specifically says at page 22 of the hearing, that's in volume three, you've admitted to your here, we're going to talk about the supervised release violation now, and he says, to your credit, you admitted the violation.

[00:26:04] Speaker 00:
Well, that's the strongest signal as any

[00:26:07] Speaker 00:
to defense counsel, maybe even the defendant himself, but certainly to defense counsel.

[00:26:11] Speaker 00:
If you didn't think there was admission to the supervised release violation, that would be the time to say, whoa, what are you talking about, Your Honor?

[00:26:19] Speaker 00:
So in sum, I don't think they can satisfy the third prong on either of these claims.

[00:26:26] Speaker 00:
We would ask to affirm.

[00:26:27] Speaker 00:
I'll see you the rest of my time unless you have other questions.

[00:26:31] Speaker 03:
It doesn't appear so.

[00:26:33] Speaker 00:
Okay, thank you very much.

[00:26:34] Speaker 03:
Thank you.

[00:26:39] Speaker 03:
And did she have any time?

[00:26:42] Speaker 03:
No.

[00:26:42] Speaker 03:
Okay, we will take this matter under advisement.