no one who gets a mere traffic ticket says they've just been arrested that's because the ordinary meaning of the word arrest does not include traffic stops an interpretation confirmed by consensus circuit courts here it's undisputed that there was no arrest district court are we limited to the record before the district court so that as a general matter as an appellate court this court is always limited to the record before the district court that is not but that gets around the very the very point the just mickey is making that we are limited to the record if we start pushing things into the record now you know that the district court never saw or never knew how are we still in a position of being a court of review well it's that this court can take judicial notice that that is that's that's again yes exactly that is a given this court can take additional notice and the documents was attached here and they've looked at the records of conviction and this court looks at records of conviction all the time to find plane air and in order to determine which you know which specific subsection of a statute and somebody was convicted and and let me interrupt if we if we disagree was here and we think that in terms of determining whether the court plainly erred here we're limited to what was before the court when making the sentencing decision or can you still there are dates in the column that says they arrest yes that much is true but i still don't think that the most logical in most reasonable interpretation when looking at the chart is that mister fact because there are four traffic citations that m criminal history it defies common sense to think that mister fyfield was arrested four times for a traffic offense as well i think if this is the such an easy thing to spot and defies common sense right but what was overlooked here was not the fact that he was arrested or rather he was cited as that what was most likely overlooked was that was the legal issue that i presented it for appeal is whether a intervening traffic citation counts as an intervening arrest for the purpose of the single sentence that's most likely what was overlooked and that not a factual matter which again is undisputed the mystery of how the field was in fact side in any event well even absent even if you're wrong even if you're right and all of these things should have been seen and we can look at them now and justice was not done before the district court doesn't matter in this case because it appears when you look at this district court sentencing decision that it was not time itself at all to the guidelines it said look at you are recommending at this level of sentence i don't think it's adequate he's not done well with the prior sentences that has been that i've been given him and i'm going to make my own decision based on his past history and everything else for me and and so august discussion and calculation at unless the district court makes clear that the guidelines are not a factor or even under any a correct fact elation of the guidelines it would still impose the same sentence at so so for example they say well there's some dispute as to whether this and hanson applies if the range is this or the range is this either way i'm imposing the sentence that's not happened here and in fact the district court expressly said to the guidelines are one factor he did not he said for the main reason that he didn't vary all the way down from the guideline range to the sentence that the parties at agreed upon which was sixteen months was because the last sentence of sixteen months was ineffective but that's not to say that therefore and he didn't impose a sentence of sixty one months you know if that were the case then then yes to be no more there's no harm to go impose a sentence of seventy two dollars so that's not to say that he is not a reasonable probability that had the even know that those were facts because the air well so it happens again regularly in the tag oracle approach context and in fact this court has said that you know in some cases the defendant has to come forward with shepherd documents to prove that there was a play now so you know if there's a lot of time there's no objection to a writer at conviction that's a controlled substance of tends to take for example united states versus can't there there is no objection that the defendants prior sentence for drug distribution out of oklahoma was a act controlled substance that's kind of the controls us and no objection on appeal the fence that in fact he was convicted under this pacific sub sub section that was overwrought that none of that are none of that legal argument none of that factual argument was presented to the district court yet the this court still said that there was plenty now because the question is not is the disk or at should the district court of act it's a response to have they to blame that's not the right question the question is when presented with law and evidence is this court in a position to say that there is an error here there is error we have to also conclude that it's plain meaning that it should have been trained to the district court now you know and that's that's it's not the right perspective of looking at it because the question isn't whether it should have been obvious to the district court and this court in the supreme court have made that clear for example when the law changes on appeal the the district court even when there is control in precedent setting to at the town and the district court consider th president that says the district court made the right decision at the time and then the law changes on appeal it's still considered plain and because it expressively the supreme court has expressly said the question is not whether the error was plain one of the appellate court's doctrines that a plain error is a quote error that is so clear cut so obvious a competent district court should be able to avoid it without the benefit of gentian that's the standard that they rejected because that's not the correct way to look at jet we don't expect district courts to be clairvoyant that's that's not the point be question isn't were they right or wrong at the time at the time the district court decided it's not from their guidelines and that's in volume four on page thirty two dollars where the district court talks about how after the last sentence of sixty months didn't work seems to me about the sixty month sentence would be a mistake i don't disagree that the court talked about how the guidelines are a factor and they are the court has to consider the guidelines but that doesn't mean that this particular sentence was tethered to the guidelines and that's the key here put another way the just the defendant asked the district court to put aside the guidelines because under the p s r his guidelines range was much higher than the mandatory minimum so the defendant asked the court to impose a non guideline sentence and use that as its lodestar instead of the sentencing guidelines mean is that it was before the district court that this was an irascible or to arrest for failure to provide proof of insurance and knowing that fact it should have been plain to the district court to there was no intervening or arrests i think that's the argument certainly around her i don't think that is supported in the p s r i disagree when any crimes being committed there is probable cause so i don't think that the p s r on its face would have triggered the so wildly implausible conclusion that the district court should have been on notice for  gardening i think that really for the obvious next question there is two components of it right the st is factual what did the district court know at the time and again that's where we focus on that sentencing records the judicial notice is really beside the point and the  portion is the legal analysis whether the error in the application for a one point two eight two was obvious based on the law so i do want to talk about that legal analysis for a moment again this court has not plausible reading in the absence of th circuit or supreme court precedent is just not enough to get you to plain error and i think that this those circumstances certainly apply in this scenario and i've also uncovered no ten circuit case finding a consensus for purposes of the nd prong of plain error where a few circuits adopt one position and one or a couple others a smaller number adopt a different position so i guess i don't know if i don't agree with opposing counsel that there was a consensus in the circumstance of opposing or of other sister circuits aligning on the meaning because i haven't found a case that found a consensus under these facts in the chase i don't think that this cases super helpful in this regard because the government had expressly disavowed the reasoning involved in that case and that sort of went into the obviousness of the air and that regard so again defendants raise reading of arrest of course it's possible but it doesn't mean that it's come out and i think that considering the purposes of the guidelines to capture or culpability and to put an accurate number on that criminal history chata corey i don't think that discounting citations and some of summonses necessarily furthers that conclusion after all a police officer  someone for reasons that have nothing to do with culpability for instance if they're called out on another call if there is a shooting or something more serious or extenuating so i don't think the purposes of the guidelines are further in that regard and i think that that just adds more uncertainty and that pertains to the nd prong of plane air thanks again well this court hasn't really i haven't found any case of sort of analyze against the case that i filed in a twenty eight or last week again reiterate this point that when we're talking about these fact based claims which this case is the record before the sentencing court is really important for the district court however maybe and in this case the district court saw in the p s r that the defendant there was a date of arrest and there was a date included in that column but the implicit conclusion that the defendant was arrested in the circumstance it just wasn't obvious or clear to the court to intercede and question especially the fact that under ten circuit lot this question is a clearer if i can answer any further questions from the court tens of supreme court precedent says that the guidelines are the lodestar the beginning point of every sentencing decision and the government has just now said that well that's actually when the parties and reach a different it's all of a sudden that that that agreement among already has it within that out here because your your initial issue is the court heard in computing the sentence and so we then are in the world of sentencing guidelines and the range there was ninety two to one hundred and fifteen months and that is not where the district court started or the party started for that matter t law and procedure and supreme court has made this so clear that the the guideline range has to be the starting point of every sensing decision and then a court is permitted to vary from the guideline range based on the three thousand five hundred and fifty three dollars a factors there's no there's no rule that says that well the guidelines don't matter when there's an agreed upon sentence in the plea agreement then we forget the guidelines and we start now with the with the re semi asking that question otherwise it wouldn't be a better case for you if the court sentenced your client for a term with in that range because you are challenging