the morning may please the court i'm philip brooks appearing for mr parrot morning after reviewing the briefing in this case your honour's i'd like to ask if the court has any questions that could direct my attention in particular issue in th case otherwise i just have one brief comment directed at the government's recent citation of additional authority why don't you do that and if some questions o ok i see this morning that although it hasn't arrived my mail counsel provided you with a copy of united states versus hernandez hernandez which it is cited to the court in a letter as august the t th dealing with the question of how sheperd applies to priors in a frenzy and so forth and i would just point out that we would distinguish hernandez hernandez from this where as in our case we didn't have a stipulated set of facts so i don't think that the context of hernandez hernandez is the same as ours and we would distinguish its holding from this case on that basis other than that i'd be prepared to try to answer any questions the court may have or otherwise i would reserve my additional time for rebuttal of the government's argument i don't see any and if something pops up in the government's argument you can fire away all right thank you thank you for conserving your time counsel california supreme court under california statutes has stated a general rule which is more precisely defined in various cases that the court can consider the entire record of the prior conviction and  pleas and i think at least a couple of minutes of jury trial convictions but in the ones that involve the guilty pleas the defendant basically said that i demanded money by showing the bite of the gun or or some similar language is supposed to have based on what done what he actually did in that case what we've argued in the in the court of appeal and actually throughout this case is that the probation report which was prepared for sentencing is properly considered as part of the entire record of conviction because it does the purpose of the probation report certainly in california and i understand in oregon is to show what the facts of the case are and it  you know certainly there's room for dispute as to whether the recitation of facts that information report is sufficient to show the facts that the convictions are based on and in fact we did not argue that the probation report itself was deficient we didn't for instance go into the probation report and take facts that were apparently gleaned in the probation report from police reports and other sources that might be of suspect reliability what we relied on was the defendant's personal admissions personal statements to the probation officer and these are statements that the defendant made in an attempt to gain leniency and his sentence because the statements were basically i committed the robberies in order to feed my family or because they had bills and i believe he made both of those statements and these were statements that the fed it relied on investigation it's not simply part of the re conviction they were admissions by the defendant and so we think it would certainly be analogous for the prosecution not to be able to rely on these statements where they are proven by by sufficient carlton issued a certificate of appeal ability referring to the issues stated in the petition and i may not have stressed that well enough in the brief and that's it your one forty three he referred back to the petition not to the application of and then the certificate of appeal ability then characterize the issue in terms of sufficiency of the evidence which of course was one of the issues that was squarely presented in the petition the argument is that the oblique references to blakely sufficient to create clearly established federal law reaching back to the time of the conviction which of course is before shepherd and and there actually is a question of effective justice thomas concurrence he  simulated or actually had a gun depending on your view of the facts only admitted a simulated gun i believe but anyway try to convince the victim i'm armed with a gun i'm going to shoot you and let you give me money there's a court of appeal in this case found that that was sufficient to infer an intent to permanently deprive and that's based pretty squarely on in one thousand i believe it's forty six or fifty six california supreme court case called for maybe it's not even necessary to say this but just so that our position is clear to the court it's our position that the california supreme court's framework for looking at these things that is express allowing reference to any document as a part of the quote record of conviction is in conflict with the united states supreme court's view of the matter as expressed in shepherd and that's been the basis for our the main argument in the briefing so under that argument we take the position that occurred in may to express lee retroactive to collateral of that not that i know of and it's our position that under shepherd it's permissible for the court considering that the trial court considering these things to look at the charging documents but not specific like the probation report efford resident i mean and that's a federal prosecution as you know that's right l even if you just filed a notice of appeal the district court with then take the responsibility of looking in the record to see what issues should be a fuel bill so i don't think mr para before closed by the fact that he didn't specify particular issue in the notice and rather the question would be whether the sheppard meyers conflict issue is fairly substantial maybe in the sufficiency of the evidence issue i think it would be because when you're going to consider sufficiency of the evidence first you have to ask what evidence and it's our position that under shepherd the courts below should have considered only the charging documents and the