plea deal waves the right to challenge the constitutionality of that crime. we'll hear an argument next in case 16424 class versus united states. eyre >> mr. chief justice and may it please the court. a department comes to the plea bargaining table with certain rights in hand, including the statute right to appeal a conviction. the government can see in his crin plea agreement, the petitioner did not wave his rating.an appeals and here is that right forfeited not by the plea itself but as this doctrine was mentioned a defendant who leads guilty can challenge his innings on any constitutional ground and would prevent the state from claiming against him. the second amendment and due process clause precludes the government from obtaining a valid conviction against him and falls well within the scope of the blackledge doctrine. the govern's many main contention is the petition was required to preserve his claim lieu a conditional plea but as the drafters of rule 11-8-2 noted to the advisory notes of that rule the supreme court held certain kinds of constitutional objections may be raised after a plea of guilty, rule 11-a-2 has no application to such situations and could not be interpreted as oad being or narrowing the blackledge doctrine whereas establishing procedures for the application. >> i should know this but don't, in the situation in blackledge, can the government specify that those claims are waived, in other words, spell it out, you're watching any double jeopardy? >> yes, double jeopardy and the prosecution claim is waveable. it's not that these claims cannot be waived. our contention is they were not ex-blessityly waved in the plea agreement and not forfeited by operation of the plea itself. t's good to look back at those when the defendant pleads guilty. first are the trial rights and the defendant is affirmatively waiving those rights saying they're not going to trial and affirmatively weighing the very right to a trial and the trial rights themselves. the second class of rights that are at stake are those procedural and evidentiary race that would go to the relate of the defendant's conviction. fourth amount rights, search nd seizure are against clflt discrimination and the court held in the brady trilogy those rights not be affirmatively waved but effectively foreclosed by the plea of guilty. because once a defendant pleads guilty we're no longer worried for example if whether the evidence against him was properly obtained. the third category of rights which are the rights that state here are those where the defendant is saying the government cannot obtain a valid conviction against me regardless of the procedures used, regardless of the evidence that is amassed. >> another situation when we ask whether a defendant is asserting the right not to be tried is in determining whether there's a right to an interlocutor appeal. would you say that if a right is one that can be protected through an interlocutor appeal it would fall been this doctrine? yes. >> that's one that can be appealed? >> it can but we think the category is broader. because the prosecutor vindictiveness claim is not something to be proved through the interlocutor deal. >> how about a speech or debate claim, that permits a interlocutor appeal. if a member of congress is charged with a crime and pleads guilty that member of congress may then argue on appeal the prosecution was blocked by the speech and debate process? >> if the speech or debate clause would preclude the government from obtaining a conviction against him, yes. if it would not require that defendant to otherwise contradict the admissions he makes in pleading guilty. that's the other important limitation on this right. >> that would be the same for the statute of limitations and -- think e thaut of that you can't raise it later. even though you're saying the statute of limitations runs before i was charged with this crime. so i shouldn't be subjected to prosecution. >> yes, your honor, i think it's hard to conceive of a statute of limitation situation that would not require the defendant to contradict the admissions, the factual admissions he makes in pleading guilty. those would be encompassed in the line of brady cases enclosed by the plea of guilty. >> how about the unconstitutional conviction of a grand jury? >> that is the case where the court held that was in fact foreclosed by the built plea. that category of rights are the category of procedural and evidentiary preventions a defendant would be entitled to if he went to trial but are foreclosed once the defendant pleads guilty. the blackledge category is a entirely separate category where the defendant is saying regardless of the procedures used and regardless of the evidence amassed, i cannot be validly convicted of this crime. >> what about the limit to your definition of what this doctrine would hold, you're the constitutional violation is not clear on the face ofed admission? >> that's right. if it's not clear on the face of the record at the time of pleading guilty, that's the part the court used in justice kennedy's opinion for the court where the court said this category of rights is where the formulation brose uses where the court has no power to impose -- to enter the conviction or impose the sentence. >> let's go to the standard charge which would be a crime , committed on 1991 substantive crime and continuing conspiracy crime. the defendant pleads guilty and aid yes i did the crime in 1991 and participated in the conspiracy. and that's all he or she says. why would this not be subject to the blackledge line of cases ? or would it be? >> i'm sorry, your honor, would the defendant then be saying that was unconstitutional on appeal? >> yes, the statute of limitations has sprung. >> the defendant would have in making the plea have to admit certain facts that would be -- that the defendant would have to be contradicting on appeal. we're accepting the limitations it has to be on the record at the time of pleading guilty. the defendant would be coming back and saying no, actually, those are not the facts and in fact there was a continuing conspiracy. >> or there wasn't a continuing conspiracy but how about the substantive crime, the charges there. it's in -- the indictment was in 2017 but the substantive charge was 1991 with a five-year statute of limitations and that defendant comes back and says yes, i did that crime then. >> so, your honor, i think that is conceivable that could fall within the blackledge lineup of cases but the blackledge line of cases has been generally upheld for the amendment of the court to secure convictions. and of course the court may not decide the outer bound of the doctrine here because we're just arguing for the constitutionality of the statute of conviction we think falls well within the blackledge dock transcribe. >> the state -- blackledge doctrine. >> state your convictions. one it has to be clear on the face of the complaint, the constitutional -- >> a constitutional and that it goes to the very power of the government to ever obtain a valid conviction against the defendant. the other formulation judge friendly used was a plea of guilty operates as a forfeiture of all defenses except those once raised cannot be cured. >> where does the sufficiency of an indictment fall under that approach? you have a crime, the elements are one, two, plea -- three and four but four is left out and the defendant pleads guilty to the crime and you know, through the colloquy admits to one, two and three but four -- doesn't admit to four because it was left out? is that something that can be raised on appeal or is that covered by his guilty plea? >> i think because the defendant is pleading to a substantive crime as the court found, the defendant would not be able to raise on appeal because the defendant is saying in fact i did this substantive crime and met the elements of the crime as defined by the legislature so the defendant would then be trying to come back on appeal and contradict the admissions he made in pleading guilty and that would not be permissible under the tolla and brady category of cases. the minna and blackledge line of case is distinct and follows in many ways the line this urt has drawn in its retroactivity jurisprudence between substantive and procedural rules. >> to be clear suppose a state passes a statute a guilty plea waives any later right to challenge the constitutionality of the state statute, the federal constitutionality of and the statute defendant is fully advised of this and enters a plea. ater there's a serious contention the statute is constitutionally unvalid, may the defendant challenge under direct appeal? >> no, your honor, we're not claiming this is a constitutional rule finding on the states. that defendant would have to go through a 2255. >> so are we just talking about the meaning of rule 11? what is the basis -- the substantive basis of your argument if it's not constitutional? the best interpretation of rule 11? >> it's not only the best interpretation of rule 11, it's also that we have to take a step back for a moment and look at what each party is coming to a plea bargain with. the defendant comes with certain statutory rights including the appeal of the conviction and that right belongs to him unless affirmatively waived or somehow foreclosed. the government says it is foreclosed. we look to rule 11 and rule 11 says nowhere you have a blackledge-minna claim you don't have to waive it by way of conditional plea. the government doesn't dispute there is an exception to rule blackledge-minna doctrine but says only if the statute of conviction falls within that exception. their attempt to distinguish blackledge and minna fall short because they cannot explain blackledge themselves or explain the court's other relevant precedent and simply nworkable. this court says in the grose case, a plea and conviction under it com prehernandez all factual and legal elements necessary to sustain a binding final judgment. >> yes, your honor but if the court reads through to the end of the paragraph the court will see there are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence. we agree the defendant's plea can sustain the conviction to say yes, i committed this crime as defined by the court ure but as the recognizes which comes after the passage of rule 11, there are exceptions where on the face of the record the court had no power to enter the conviction. >> and the court had no power to enter the conviction here because? >> the petitioner claim says the second apartment and due process clause concludes the court ever obtaining a valid conviction. >> if the state had this law it could be valid? how can you say there's no wer to impose the conviction if there would be -- if the state would have that power? i don't under. >> i thought your honor's hypothetical was the state could pass a law saying a guilty plea forecloses the later challenge. >> yes. >> we are not contending this right is not waiveable, we're simply saying it was not waived here. >> you say that the government has no power to impose the sentence. why is that if there's no constitutional prohibition against it? >> i think the use of the word "power" and "jurisdiction" have een construed more broadly than they might otherwise be thought of, your honor. the defendant's claim is simply that -- >> excuse me for interrupting but you're saying in the federal system there's no pow tore do this. i don't understand. why your argument is that limited. and if it's not so limbed i see problems with it. >> your honor, we're saying that in the federal system the federal system has recognized this exception to -- it's essentially a federal forfeiture rule, what does a guilty plea actually do and here what the court said is that a guilty plea does -- you don't need to affirmatively waive everything. >> but that's circular. you're saying there's no power to enter into it because that's the federal rule. but what's the substance, how do you determine whether there's no power? >> if i can go back again to judge friendly's formulation, it's where the claim is that the state would be precluded from obtaining a valid conviction against him. >> you're saying there is power. i'm confused. are you saying of course the federal government has the power to insist that you no longer can raise your constitutional claim, all they have to do is write into the plea agreement i forfeit my right to bring a constitutional claim and i assume hence forth after this somehow got away they'll write that into every claim and to every agreement and then the person will not be able to include his constitutional complame. the words are i plead guilty. do those words have the same effect as if they exercised their undoubted power to stop the individual from raising the claim by writing it out specifically, is that right? >> that's correct, your honor. >> what does the defendant concede by pleading guilty? >> that's the question. >> you can understand blackledge to say the defendant does not complicitly concede that my conviction is not marred by double jeopardy, for example, but you could understand the plea to implicitly concede i'm guilty of the offense for which i am charged. and would include law in the case we're discussing. if that is the proper understanding of blackledge and menna, where does your case stand? >> if the defendant is saying i'm guilty of the offense as charged but the constitution precludes my conviction of the double jeopardy clause or due process clause or because of here, the second amendment and due process clause, that's the category of blackledge and menna claims. so it is where on the face of the record the court had -- as the formulation is, no power to enter the conviction or impose the sentence but the easier way to think of it might be the formulation judge friendly used of things that are not curable. >> no power only because it was not expressly waived. >> that's correct, your honor. >> the only reason. so all we're talking about is how rule 11 is properly interpreted and how this plea agreement is interpreted. >> we're talking about a federal forfeiture rule. here the government concedes the plea agreement does not explicitly waive his rights and challenge the constitutionality of the sentence so the only question is whether by operation of the plea itself something is waived and blackledge and menna answer the question and say no, there is a category of cases -- a category of claims not quafed. >> the no power formulation doesn't seem to be helpful for the reasons pointed out by justice kennedy's question because justice kennedy waived, then there's pow tore do it. >> right. >> it has to be reformulated i think in another way. in here the formulation justice friendly's opinion where it would forever preclude the court from claiming -- >> it's not precluded it's persuasive. >> where the claim is it i -- this is basically what is reserved. so the brady line of cases say you don't have to affirmatively waive everything, you can implicitly concede something and those are your procedural and evidentiary objections like fourth amendment or fifth amendment. but you can still reserve after a plea of guilty, a class of claims that would go to whether the constitution would bar your conviction. >> would you tell me if your theory is different than or the same as the following theory, one way to look at this is just o say a plea substitutes for a trial and a verdict at that trial. so the line we should be drawing is any issue that would have been decided at trial is foreclosed unless there has been an ex-employsity statement in the plea agreement. any other is not foreclosed. is that the right line or are you drawing a different line and if so, why? >> i think that's generally the line, your honor. i would express that also what a defendant might at trial also raise emotion to dismiss their indictment on constitutional grounds and lose that motion and then try to renew that motion on appeal and is essentially what defendant here also is doing. just like the defendant in menna and the court's decision in hanes moved to dismiss his indictment on constitutional grounds, lost that motion and pled guilty is now trying to renew his constitutional challenge on appeal. >> i don't under your answer to that. a trial, a conviction after trial permits -- if a defendant's conviction -- if a defendant is convicted after a trial a defendant can raise on appeal any issue that was preserved. >> that's right, your honor. i took justice kagan's question to be is this about the sort of procedural and evidentiary rule you would have to overcan come at trial a motion to suppress, a contention that your confession was coerced and would be decided at trial when the received coming in against you, those are foreclosed but things that are sort of beyond what would be decided at trial are independent of any kind of procedural or evidentiary ruling that might be made at trial are still preserved. >> you're saying this rule is congruent with the plain error rule? >> i think -- well, your honor, we're not contending that you don't have to preserve this issue. so the defendant here, as i said just like in menna and hanes actually preserved his constitutional objections by raising a motion -- >> if he hadn't there would be a different result? >> if he hadn't there would be plain error on appeal. >> what about a question or statutory interpretation, suppose the defendant after a guilty plea says this statute cannot be interpreted to cover my conduct? >> i will say in the lower courts the doctrine has largely been limited to constitutional challenges to statutes. >> under your crew where should there be a difference? >> right. >> there's no power to impose a conviction because the statute properly interpreted doesn't cover my conduct? >> there are examples, your honor. >> what is the rule you propose -- that you would propose for us to adopt in that case? >> i think that could be encompassed within the blackledge-menna doctrine but as i indicated earlier you may say the blackledge him doctrine is about constitutional bars on the conviction and in the situation your honor is raising the constitutional bar is one step removed. in the blackledge and menna cases and the cases we have here the defendant is saying takes tional provision away my conviction and the defendant is saying i've been convicted of something, it's not that they're saying congress could not make it a crime but that congress has not made it a crime. so in our situation we're saying congress cannot actually criminalize this behavior. the formulation this court uses and retroactivity, urisprudence end the law making power to prescribe. >> i am confused by that reply. why would it be you would implicitly waive statutory but not constitutional claims by your guilty plea? you said we could go either way but i think the premise underlying your response to justice kagan a guilty plea waves a trial and doesn't necessarily waive other legal claims outside of trial and this might be one, the statute should be interpreted differently? >> the court need not decide is that today. >> ok, ok, but -- >> but the court could limit it consistent with the blackledge menna doctrine. >> how analytically would that work? >> because the constitution is the primary bar. >> more important than the statutes. >> than your built to ascribe criminal conduct. if i may reserve the balance of my time. >> thank you, counsel. mr. fagan. >> thank you, mr. chief justice and may it please the court. rule 11-8-2 helps a defendant wanting to plead guilty and confirm a statute to enter a plea -- >> how can the federal rules unto a constitutional rule, blackledge and menna were constitutional rules. those?rule 11 undo >> let me say a couple things. first of all mr. amunson conceded blackledge and menna are not constitutional rules and the federal rules could override them. second, i think what the drafting rule -- >> it's a vicious circle because the rules say we're not affecting that doctrine. >> i can cut through it by looking at it through the lens of 11-8-2. we're not trying to determine blackledge and menna but refracted by the drafters of the rule 11-8-2. to be quite honest, i think they're a little confused by blackledge and menna and weren't sure what to make of them and respected what the court had done in those particular situations and instructed the rule should not be interpreted to apply in the same situation they describe with some specificity. they didn't say it was the tip of the iceberg for what the petition is imposing which in theory would allow every criminal defendant pleading guilty and there are over 50,000 each year in theory to raise a substantive challenge to their conviction without having notified the government or court of their attempt to do so. >> it's hard to say the floodgates are every u.s. attorney to just write this into the plea agreement. >> so, your honor, if the court were to say that in its opinion and make that very clear, i think that would go a long way towards resolving a lot of the problems the petitioner's rule would otherwise create. but let me say a few things about appeal waivers. under current law, we have a couple of difficulties with appeal waivers. one is that some district judges believe that they have discretion not to accept a plea agreement that includes an appeal waiver and so as a practical matter, we can't get appeal waivers in those districts. number 2 is that several courts of appeals have created implicit exceptions to appeal waivers and some of which -- some of them apply when a defendant is challenging substantively the statute under which he is convicted. and so we can't get it enforced in those -- in those circuits. and even circuits that would otherwise dismiss the appeal, nevertheless, require the government to brief the issue on the merits. so we don't get the benefit -- we don't actually get the practical benefit of the appeal waiver. the other thing i'd say about appeal waivers -- >> mr. feigin, all you're saying is how much power you have and how much power to coerce you have. the other side is simply saying if a defendant wants to accept your power, let him do so expressly. you can worry about what courts are doing separately, but that shouldn't bind him or her to the whim of whether you will let them plead guilty based on an appeal waiver that's so broad that they can't challenge anything that's a constitutional violation. >> well, i think the considerations of what the default rules should be are the considerations that the drafters of rule 11(a)(2) took into account in the policy process that produced that rule. and they produced a broad rule that applies not only to claims like the ones we have in this case but to all the kinds of claims that a defendant might want to bring after pleading guilty, fourth amendment claims, fifth amendment claims. they concluded that the proper way to preserve those claims was to make clear to the government and to the court ahead of time that that was going to be something that was reserved in the defendant's plea. >> and clear to the defendant what he is giving up. and in this case, in the plea colloquy, the court informed mr. class you can appeal a conviction after a guilty plea if you believe that your guilty plea was somehow unlawful. in the defendant expressed some uncertainty about what that meant. it isn't that exactly what this defendant is doing? i believe that my guilty plea was unlawful because the statue under which i was charged is constitutionally flawed. it cannot be a crime. >> i have a factual response and then a legal response to that. if you read the remainder of the sentence which is on joined appendix six e3 the court says if you believe your plea was somehow unlawful or voluntary or -- in voluntary, then there is another defect in the guilty plea proceedings it is properly understood to go to the procedural claims that everyone understands you can bring after a guilty plea, such as that your plea was not knowing and intelligent. the court again -- and this is on page 76 -- tells the defendant that the plea agreement actually precludes him from challenging his conviction on appeal, which is not correct, but if he thought he had wanted to actually bring an appeal challenging his conviction, he might have spoken up at that point. but the broader legal point is that this court has made clear any number of times that a defendant need not be subjectively aware of everything that he is giving up in a plea in order for the plea to be a knowing and intelligent waiver of those rights. >> well, isn't the broader justice ginsburg: let me ask you the case -- let me put the case to you that seems to be strongly for the other side and it is loving against virginia. there are two people who pled guilty to violating virginia's miscegenation statute, pled guilty, didn't reserve anything out. yet, that plea did not block them from seeking to vacate their convictions on the ground that the statute under which they were convicted was unconstitutional. is that just a slip that the court didn't notice that they had pled guilty and, therefore, shouldn't be able to raise the constitutional question? >> so, your honor, that case, as the caption reflects, came up through the state courts. i think this court's been quite clear that states can craft their own procedures in these circumstances. and clearly no one raised it in loving against virginia. and whatever state procedures they may have had wouldn't -- apparently did not preclude the claim. but this was ag: case where this court, notwithstanding any state procedures, and i don't think that was any state procedure said that they that their plea reserved out this question. it was this court that said they could raise the question of the unconstitutionality of the statute under which they were convicted, not a state court. >> well, your honor, i don't believe this particular preclusion question was directly addressed in the circumstances of loving. and let me explain what would happen if that case came up through the federal system in rule 11(a)(2) today. first of all, the lovings could seek to enter a conditional plea, and the government frequently does agree to conditional pleas, although different u.s. attorney's offices have different policies. if the government for some reason did not agree to a conditional plea, the defendants could seek to have some kind of stipulated bench trial, and they agree to the facts, yes, we're married to each other, and they would preserve every single possible claim they could bring after a trial. --tice sotomayor mark: sotomayor: and in some jurisdictions, the judges use that to deny an acceptance of responsibility. mr. feigin: your honor, that is specifically addressed in the sentencing guidelines and the commentary to 3e1.1. and it says that a judge may give the acceptance of responsibility reduction to a defendant who insists on a trial solely for the purpose precisely of preserving a challenge to the statute. justice sotomayor: and "may" doesn't "should." and "may" is discretionary, because the sentencing reduction is discretionary. and i know of many prosecutors' offices who routinely tell judges if a defendant seeks to preserve an appeal right, they have not accepted responsibility. and many judges, just like many judges won't accept the appeal waiver for that reason, don't give the acceptance of responsibility. >> your honor, i think the points that you're raising are the kinds of things that are best considered through the kind of process that produced rule 11(a)(2). and i think if we're going to decide that their is going to be a particular exception to rule 11(a)(2) to -- a particular class of claims -- justice kagan: so, mr. feigin, can i go to your basic 11, rule 11 argument? because what rule 11 does, if you just look at the text of rule 11, it says here are the conditions in which you can enter a conditional guilty plea, you know, you have to get some consents, and then you can enter a conditional guilty plea. it doesn't say what happens if you don't do that. there's nothing in rule 11 that says and the consequence of not entering a conditional guilty plea is x, y, z. so you have to look outside the rule for the consequence of not entering a conditional guilty plea. and it seems to me that the place you look, the question you ask is, well, what's the inherent effect of that guilty plea? so rule 11 just tells you, you know, go try to figure out what the inherent effect of the guilty plea is, and what's covered by it, and, on the other hand, what's not. so i don't see how rule 11 really is the answer to this question. rule 11 just sets up the problem. >> i think everyone agrees, your honor, and petitioner hasn't contested there's a negative implication baked into rule 11. i think the first place i would look is the advisory committee notes which make clear that the drafters of the rule enacted it on the understanding that a traditional unconditional plea of guilty operates as a waiver of all non-jurisdictional claims. and there's no dispute that this is a non-jurisdictional claim. >> except for the blackledge-menna doctrine. it's obvious the key word is doctrine. it suggests to me that there's more covered by that than just blackledge and menna. >> i'm not sure that's right, your honor. i think, first of all, the drafters of the rule were quite well aware of the issue that's before the court here. and i think it says something that they did not actually identify it as one of the exceptions. i think they looked at blackledge and menna and sort of took them as they were and didn't want to interfere with the work that this court was doing. but i don't think there's any reason to believe that they silently intended to create another exception for the kinds of claims at issue in this case. >> there's logic. i mean, it's logical. justice kagan brought this out before. i'll assume with you that if the government wants to make the defendant waive his constitutional claims, you said they simply write into the plea agreement. and maybe there's some you cannot, i do not know of any you could not, but there might be, then that's a different case. so i'll assume that you could do that, and here somehow you forgot to do it. in a lot of cases, you don't forget, but here you forgot. ok. so then we have to face the problem of whether, by saying guilty, that's a waiver. and i thought, having looked at blackledge and menna, the rule is simply this: when you say guilty, you have admitted you did what the statute forbids. ok? so let's go look at the statute. see what it forbids. and you admit you did it. him him now, that means you're him waiving all the claims that the evidence wasn't good enough, that they should have excluded something under the fifth amendment, that somebody shouldn't have testified under the -- the fourth amendment, under the fifth. there are a whole lot of things -- a jury trial. naturally, you admit you did what the statute forbids. but what you haven't admitted is that the statute, for example, is a valid statute. you haven't admitted that. and another thing you haven't admitted, you haven't admitted vindictive prosecution because i did it, i did it, but they're prosecuting me for a bad reason, and they can't do that. ok? that's vindictive. two, you didn't admit double jeopardy. i did it, i did it. ha, ha, you still can't prosecute me because you did once before. i did it, i did it, but you cannot take away from me the right to claim that the statute's unconstitutional because my guilty plea has nothing to do with that. so, when we fall into that category, the guilty plea by itself does not waive the claim. now, all we have to say here is, and, moreover, where it's important, like constitution. but i don't know if you need the last part. >> your honor, let me be -- respond in a couple of ways. >> the rule does not take into account failure in the indictment. and a failure in the indictment, you could not bring up later because what you've admitted to is you did what the statute forbids. >> your honor, it does even more than that because, for example, it's clear, under tollett against henderson, you cannot challenge the composition of the grand jury, but if you went to trial, you would have a right to challenge the composition of the grand jury even following conviction. in fact, the court said in -- >> it does not matter. because when you say you did it, you are admitting that you did what the statute forbids and they can convict you for it. ok? you are admitting you did what the statute forbids, so you can't -- you can't challenge the composition of a grand jury, of course not. you cannot challenge any of the stuff that would take away that you did the things that the statute forbids. mr. feigin: your honor, the grand jury is somewhat unrelated to that factual admission of guilt, but let me -- let me add a couple more points. first of all, you're exactly right, you are admitting that you can be convicted for it. and the court was clear in broce, just as it was clear in brady, just as it was clear in alabama against boykin, just as it was clear in florida against nixon, that that admits legal guilt as well as factual. justice breyer: no. that cannot be right because if you are admitting they can convict you and put you in prison we would not have blackledge and menna, because in blackledge and menna, they admitted they did what the statute forbids, but still they could claim that it's double jeopardy or vindictive prosecution. mr. fagan: your honor, let me give you one more counter-example. and then let me please address blackledge against menna and why i don't think they stand for what you say. but i think actually the closest analogue we have to this case is brady against united states, which, unlike blackledge and menna, was a challenge to the act of the legislature, not the act of bringing the prosecution. in brady against united states, you had a statute where a defendant was only exposed to the death penalty if the jury recommended the death penalty. and the court held in brady, as explained by tollett, that once a defendant pleads guilty, he cannot claim that his conviction is invalid because of structural defect in that statute, that structural defect being that it unconstitutionally burdened his right to choose a jury trial. >> i look to history on that. you could challenge the history of the statute. he cited a second circuit case and we traced it back. just this in massachusetts indicating quite clearly, almost exactly what does this brady breyer --what justice you are not admitting even with the statute says. that is not maybe the most factual and consistent understanding. i plead guilty to that which i am charged. indictment. most leaveor, i'll there is an aspect of it that means the court can inflict -- >> what do i do about this 150 years of history? 1982, before the enactment. >> i have some of the same difficulties but i am stating means.guilty plea mr. fagan: your honor, i do not think haynes goes to what a guilty plea means. first of all, it was unconnected. >> the justice did not mean what he wrote? mr. fagan: we don't say otherwise, this is not a jurisdictional role, it is more a different type of role. if it does not raise it, they can proceed to make it claim. i don't think it necessarily the indication of a sentence because it is exactly what accord goes and does following a guilty plea. facts indmitting the the complaint, it would follow a court could enter a judgment absent some other i would think but i don't see how it underarily died concludes statutory grounds. >> earlier this court said, more recently, a guilty plea encompasses all of the factual and legal admissions necessary for the conviction and imposition. just mean the defendant admits to all of the elements of the crime. all of the factual legal not thatof the crime, the crime then becomes insulated from substitutional challenge. >> we know it means more than that from brady. let me give you a concrete example of why that will would impractical. consider a circumstance in which the government charge as someone with the distribution of child pornography and during that, the defendant engages in witness tampering and there is a plea agreement for the defendant to plead guilty and the government agrees not to bring the witness tampering charges. no mention is made on behalf of the defendant that he wants to preserve some right to appeal and then he turns round and challenges the constitutionality of the child pornography on say, first amendment grounds. unless the justice makes clear, the government has already lost the benefit of its plea agreement depending on how the appellate proceedings go and what might happen if some kind of re-manned is ordered. i think another problem is -- >> you have created a case where you have special circumstances where under those circumstances you would argue that might be the equivalent of your having written into the plea agreement, and i promise i will not bring the constitutional claim either and you are saying the reason you should read that in there is because otherwise we would lose the benefit of dropping the witness charge but this is not some special circumstance. and is an ordinary case should we read that nonexistent and i promise not to bring constitutional claims into this opinion. is be, i promise. because i want to hear from istice gorsuch and i think want to be sure i hear your answer to that whole range of whatever you want to say. mr. fagan: i did not invent that case. invent thatnot case. basick there are two reasons that should be the default rule. there is a serious information imbalance here. only the defendant knows what kind of claims he might want to andg after eight guilty lee in what respect he does not intend his guilty plea to be final. the defendant here raised sums 36 claims in the district court which he had every right to do it. we can't be sure if they've been properly litigated -- >> i think he could not make this claim unless in the he did --ourt unconstitutionality of the statute. >> he mentioned the claim in the district court but that has to themuch more appeals point it might've been useful if the government would've been able to submit evidence. there is a second claim of -- >> evidence involved, he said, i wast all of the facts i charged with but you cannot prosecute me because i have a second amendment right to bear arms. >> your honor, he raised the second amendment and is now challenging whether the statute under which he was convicted was constitutional as applied. it was not clear district court, it was an as applied challenge. mr. fagan is the symmetry problem a suggestion the government lacks sufficient arguing in the process? thisd no, your honor but is a particular instance where the only person who knows the contours of this particular aspect of the plea agreement or what the defendant even intended the plea to be is going to be the defendant. >> that is not accurate. he may not know. if he issues that in the next day, you would still hold him to the plea agreement. he did not necessarily know he was giving up that claim. >> we should be able to get relief under that in a .ostconviction motion >> a bunch of different cases, where wenment in many found retroactive, the government has relied on plea waivers and most circuits have thrown out those cases by a defendant. >> we would not seek to enforce waivers for example of release waivers in circumstances where the court has held a statute to me unconstitutional. : baby not youyor personally, but there are cases, u.s. attorneys across the countryside. the court said on the basis of plea waivers, not apply retroactively. >> your honor, in particular particularng on facts. there is currently litigation about the effect of the court decision in johnson versus the united states. in some cases we resisted the application of particular defenses because we think they're trying to use johnson to make claims that are actually statutory and are barred. we have been somewhat successful just i want to get to the reason i believe the default rule which i believe it does with the default rule is supposed to be and it reflects the efficient result i think the parties would expect. defendants have constitutional challenges under the statute they were convicted two have reasonable -- succeed on appeal. if the defendant believes yes a in which that it's kind of thing he wants to preserve, he is the only person who could potentially know it. you how the rule fits with the language we have ?sed in blackledge and menna because when i look at those cases, the language we use is totally consistent with the theory that justice gorsuch and justice breyer raised and not consistent with yours. so when they were talking about what is not precluded by a guilty plea, they say where you have a right not to be held into court at all. they say were the charges that the state cannot constitutionally prosecute. they say were the court has no conviction,er the and in all three of those cases the language used is where you know, in the end you find that the facts,have done you have satisfied the elements, but still the state cannot prosecute you constitutionally or properly and that is exactly what fits with justice gorsuch and justice breyer's theory. three times we have said it. >> first of all, i think the colloquy the opposing counsel demonstrates does not produce a clear rule. second, do not even think the author of blackledge, justice stewart, viewed it that way if dissent he the briefed in ellis versus dyson. third, i do not believe anything this court said in blackledge versus mena is the tip of the iceberg. by anyuld allow defense sort of defendant. asking whether there is any recourse for the defendant who wanted on the one hand to plead guilty and on the other hand to preserve a claim that -- he was charged for dimeric conduct for which he had already been and thed and charged court allowed the defendant to do that and preserve those claims but as the brady example illustrates it traded legislative claims differently. i would like to make one more point. i believe i heard opposing counsel to say under their role as they interpret blackledge and menna, it is not clear and i caution. but under their rule, the air or has to be clear on the face of the indictment. i think of the court looks at the face of the court is not going to find anything that relates to the -- as applied second amendment challenge. the claim simply says the petitioner possessed weapons on full stop.unds i don't really understand how that claim could be properly preserved under their role, so even under their role i think the government would win this case. it may be run on the law by saying the statute they cannot bring guns on the capital grounds is unconstitutional, period. says and infringes on the rights of a citizen because he was in the parking lot. if you look at the amicus brief, he makes much out of exactly where he was and the fact that he possessed weapons only and has car. i want to make another point to get back to justin kagan's point earlier. to sit downwant without informing the court that notof the court does involve plea agreements. when the defendant enters without a plea agreement, they have every expectation that ends the case. the defendant should not be able to silently reserve a challenge to the substance of the conviction that the defendant has consented to the court entering. >> what you mean, the court can plea? >> that is a plea without a plea agreement. the defendant decides to plead guilty so without a plea agreement he gets acceptance of responsibility for that and in those circumstances the government and district court have every reason to believe the case is over because it was knowingly voluntary. >> why? >> because that is the nature of a plane. rides the nature of a plea should not need to automatically all rights. lost that is your position. >> may answer? you do not lose all rights. there was a -- does not believe a case was ended by his play. it is incumbent upon him to tell the district court in government that is what he means when he plays. thank you. >> thank you, counsel. four minutes. of mr.ll begin with one fagan's last points which was mr.ther the error -- feigins. in fact, the claim must be clear on the record. if i could address the rule 11 claim that the government is making here about the drafters of rule 11. as the chief justice pointed out, those directors used the erm "doctrine." and the court need look no further than justice friendly's to look to the definition of that doctrine. sources that are cited in the rule 11 advisory notes, that doctrine was understood at the time to include constitutional challenges to the statute of conviction as it was an active against the background as just ice research pointed out -- gorsuch pointed out. it did not preclude his later constitutional challenge. just to address the colloquy, the color quite cannot waive the because first of all it is a third-party the defendant would be effectively contracting with when there is no plea waiver or appeal waiver in his plea agreement and the plea agreement itself has an integration closet says it comprises the totality of the agreement between the government signed a further would be entered into in writing. as to the point about potential information and balance and the government not getting the information it needs and pleading guilty, as this court has recognized, it takes practicalities into account and here if there is any imbalance it is on the defendants. they entered the plea bargaining to appealth the right and if the government wants the defendant to waiver that write the government should ask for an right.ve waiver of that the government did not do so here and we asked the court to reverse the judgment and allow the addition hours pleased to proceed. thank you your honors. >> thank you. is submitted. announcer: this morning on capitol hill, a look at the proposals to update the nation's infrastructure. we are live at 10:00 a.m. on c-span. three hearings on the opioid epidemic. toward lebanon live on c-span3 at 2:00 p.m.. live coverage of both of those hearings start at 2:00 p.m. eastern. >> american history tv on c-span3 is an prime time this week starting at 8:00 p.m. eastern. tonight, the 60th anniversary of little rock central high school's integration with former president bill clinton. thursday night, a discussion on the lead up in response of the 1967 forced desegregation of school.ock central high in from a oral history series, interviews with prominent photojournalists who have documented events throughout history. watch american history tv this week on prime time on c-span3. >> all this week, booktv is on prime time on c-span2. tonight at 8:00, a look at the 2016 election with hillary clinton and her book "what ." pened movies withde into the author of "hidden figures." night, highlights from book fairs and festivals with author david mcauliffe at the national book festival. and mississippi book festival and freedom fest. watch booktv on prime c-span2. cried yesterday, counterterrorism officials announced a million-dollar reward program for any information leading to the capture of two known terrorist leaders associated with hezbollah. they made the announcement at the state department daily press briefing. >> hi, everybody. how are you today? i hope you all had a very nice long weekend. i discovered something incredible about working for the federal government. the last time i had columbus day off was when i was in junior high school. so way to go working for the federal government. first i want to welcome a group of students from tampa, florida, from st. john's episcopal school.