necessary to the decision here's why the court went through the analysis of how many criminal history points the defendant had granted one objection initially the defendant had twelve points that put him down to eleven and the court says well that error was harmless because in ten correct correct obviously it's also distinguish briefing came down and the us attorney noticed these two paragraphs in talking to attorneys from other districts routinely the only time that it counted for criminal history scores the kind that is not suspended because that's what the guideline seems to  inconsistency among judgments about whether or not to apply it when to apply it some judges are limiting to it too it's fact other judges are applying williams routinely other judges are rejecting millions outright we certainly need some consistency on this issue i as so i think that's an important issue that the court should address now so i appreciate your alerting us to the problems that some of our decisions cause we don't often get that kind of feedback so that's a whole argument let me ask you a related question  why shouldn't we look to i guess it would be the threats statute in trying to determine whether the now like this conviction would be fear i think that goes to what do you look at and i don't think we look at what the person did or did not do if you read the pre sentence report there's two instances of altercations or confrontations there's a better way to put it  indications supported the verdict i think that reason you don't look at that what's wrong with the district court looking at the facts what the r c m p provision and saying you know it's a lot more like looking at the elements not the actual facts and looking at the elements i have trouble seeing why it's like disorderly conduct it seems more serious i think that if you take the government's approach that this is an offense against the public that it's a last seri offense because disorderly conduct can be committed by a person threatening fighting using abusive language towards another person the way within a disorderly conduct cases that i used to see all the time it was typically somebody who urinated in an alley or on the sidewalk or somebody yelled at a policeman or somebody didn't go away when a policeman told them to go away but it wasn't quite interfering with an arrest something like towards the computation of the score for this particular federal family and he's got three different incidents all of which seem to suggest that the client has sort of an sentencing purposes to view the seriousness of that time dark place either on the offensive convictions for the elements of the crime that was involved and  couldn't there was no mention made of an intent to depart upward but i think that sort of characterization when you look at the individual and his circumstances not the nature of the prior convictions then that sort of inquiry can be made but when it comes to what was this conviction for that to play ostrich with the record we really are asking that this record could put on blinders i think your relevant evidence that is pretty probative and reliable and you're saying we can't do that for opinion where talk about a rule eleven colloquy talk about what the lawyer says the client understood the lawyer made a representation in that case that the client understood the elements of the offense and this court said no that's not good enough the court has a duty to inquire and it was he had an interpreter who knows what head of interpretation was sent for him to be presumed to have understood that and agreed with it and agreed not just yes you can use that as a factual basis for the plea i'm pleading guilty i don't care but yes that's actually true i agree with court's decision in united states versus pena that i cite in my brief does talk about an attorney not being able to bind the defendant when it comes to such fundamental issues and in that case it was whether or not the defendant understood each and every element it was lives well then you have your record in washington state i think in most states they go through that level of the care and it wouldn't take that long but in california perhaps because the supreme court just lump them together and considers it all not a crime of violence it's all together because i know what i did made me guilty and if we go down this road well how many more facts can we look at in i talk about my brief can we look at if there is a twenty nine motion made at a jury trial and the only facts that made in support of the jury me ask you something about false imprisonment let's say that it is going through far field to look at the motion practice to determine what the facts are let's say that that takes taylor one step too far i think still backed up a little bit the california statute says false imprisonment is the an awful violation of the personal liberty of another and then i look at the punishment to accomplish the felony of false imprisonment entirely and solely by deceit with no violence i'm trying to put this in concrete terms in my mind that i'm having i'm not sure that i'm getting it right a period of time when that would never happen so i think that there is ways and the only way i can figure is the only way i can construct a realistic story in my mind is a hospital where they tell you you can't check out your insurance has been sleep because some sympathetic to your argument that looking through the motion practice is taking taylor a step too far taylor says keep it simple look at the official papers and see what they established him or also  it is three fourteen after eleven fifty two a two thousand and three case but i think also another important thing is i don't think the attorney you are also didn't say those fact actually true and so i think although i maintain that the attorney didn't make emission they have the client i don't think that with attorney did even if the attorney could make that kind of fundamental admission on behalf of a client as to what the client did or did not do please the court jane kirk on behalf of the united states i guess i would be ok ok i think that we all see these issues and yes i remember one facts the only facts that word minute at the sentencing at the change of play in sentencing hearing in california but we also have the uncontested p s r and i know the uncontested p s r by itself would not be sufficient but you have the i'm contesting p s r and the facts that occurred that were admitted at the california stephens inc and there i have problems with th a judge sentencing there's not have to peruse the entire record in numerous other cases as opposed to the case the sentencing that's very important  that's important for not only the labor saving reason but also a second reason and the second reason is that the sentencing becomes arbitrary if you go to the the perusing the entire record and prior cases and the reason it's arbitrary is that different jurisdictions have different practices of preserving records sometimes you'll be able to obtain the records sometimes you won't so it will be capricious whether a person's conduct in the prior case affects the sentence or not it will depend on record keeping practices rather than the nature of this misconduct and that's why i'm inclined to think that stretching the modified categorical approach another step is dubious here at you have to believe the opposite have to urge the opposite ye know i think that the ninth circuit has left that open and that and this came just even though the defendant did not stand up and say yes those are the facts that i'm pleading to if you look at those facts you cannot find a trial and went to a jury trial so what we do is we read the transcript of the lawyers opening statement in the jury trial in the previous criminal case and where the lawyer says we concede that my client did a b and d consider the charging documents in conjunction with the plea agreement the transcript of a please proceed or the judgment to determine whether the defendant pled guilty to the elements of the generic crime charging papers alone are never sufficient however charging papers may be considered in combination with a signed clear from and i guess what we're looking at here would be considered part of the transcript of  s r was written based upon their wasn't a crime i did it by fraud and deceit and he never did that he never came forward because then the other reason is that there's there's nothing in that factual basis thick coat that shows the crime could have been committed by crime it was a wobbler under california law and because he got five months in jail instead of being sent to prison they distinguish between being sent to jail and being sent to prison that makes it the point of it is so that the people in the house will know that it's police at the door but