three reasons why we believe a new trial is required but given the time restraints we'd like to focus first on hearsay and then move to sentencing otherwise we will rest on our briefs addressing the first issue your honour's montas was entitle to a fair trial with properly admitted evidence and he didn't receive that the transcripts of calls between montas and lean or essential to the count of conviction and although mont as raise the issue of hearsay time and time again before trial the district court continuously refuse to rule on the issue and when montezuma's finally given an opportunity to present his objection on the first day of trial as requested going so far as to put a specific transcript in front of the different corps the court refused to entertain the objection because it wasn't in the exact form that the court wanted i'm not sure that's a fair description of the dilemma of the district judge fixed the if i understand this correctly mr monti as his trial counsel was arguing became very clear that the objection to the blanket objection had utterly no merit and that's what provoked the district judge to say look you've got to show me specifics and show that you know what a statement is and why this is not reasonable that in essence is context show that it's actually being offered to prove the truth of the statement such as this is good stuff right and even if trial counsel did believe that every single statement was hearsay the trial judge did not give a reasonable opportunity to refile in this case so in effect there was no opportunity i didn't understand without this  material the the jury of the judge or whoever wouldn't have any idea what was was going on well your honor the even if some of the statements may have served as context that doesn't their nature of hearsay and we know that this is hearsay and i don't understand that if it's if it's proper if that's the kind of the text or a language is necessary to understand what's going on  truth to the trial well your honor q the question is is it offered this or that the context you don't have you don't have the defendant's revelations of his involvement in this drug t one your honor there's another thing that you don't have and that's why it's harmful here you don't have a moment is a statement alone don't get to possession with intent to distribute on the alleged deep but helene statements still back gap they speak directly to the question possession by indicating that cocaine actually existed and was in helene's hands so that it could be transferred to montana's so while they may serve context in other regards as well here they were necessarily i don't understand you at all people it makes perfectly clear that he's involved in this drug business and without those but without those because his comments are very terse you wouldn't know what what what he was talking about your honor and most mantissa statements speak towards maybe a desire to purchase but they don't indicate possession and that's what he was charged with here and the rest of the government's evidence likewise doesn't answer that question the government relies ana suppose a confession but there was no confession date not to mention the fact that gallas testimony was disastrous for the government's and see it it's a lying in this know what it would be how do you interpret his statement i'm going to grab one first because the other dude is not going to give me the tickets yet but i will need three yes well your honor he may have been requesting to purchase something here but that doesn't mean that he actually possessed the cocaine on the date the government alleges and that's the issue here this matters because i don't understand what you're saying we are is your honor it's a problem because he was charged with possession of cocaine with interest repute and his statements only speak to a desire to buy not the cocaine actually existed and the rest of the government's evidence doesn't speak to that question either past position i'm sorry i put the position in the past and always referring to how crummy it was bruce and whatever else you want to say  involved in past possession because he got acquitted on two counts to that correct your honor but i think that's what you're trying to do yes but for this count there wasn't anything specific enough for your narrow down to yes your honor specific how about how about the december fourteenth phone call two days later yes sure he's complaining about the quality yes again there's no temporal limitation in his comments and there's no significant there's no indication that he's actually talking about he says no it's just that those motherfuckers that don't want them like that and they think it's bad now he's obviously talking about the press is not talking about us yes sure but the question is what was he in possession of cocaine on december twelfth and those same in all his or there  they want now obviously he's talking about his customers yes your honor and he may have had intent to sell but again the government is represented there is customers why would he be talking about must emerge if he doesn't if he doesn't crimes of violence here there's only one that was acknowledged but the other aggravated battery was very much in question and the first reason is because nothing in the record supports a montage was convicted on the island problem what was the objection raised at sentencing to that that yes are you saying that the judge had to look at that and say gee what reasons might there be why this might not count your honor just by looking straight at the face of the p s r it's clear that at the had presumably i haven't seen any challenge to the voluntariness or any other nature of his waiver of counsel correct ok he presumably then was warned about the dangers of  accuracy of did he challenge it in the sentencing hearing no your honor but again by raising career offender that was enough to get the difficulties attention to what's your storage for that the that the district judge has to think of other potential objections you are of the district judge didn't have to think much in this case because it was clear on the face would you answer my question please i'm sorry can you be a question please what authority is there that the district judge had to you know response to one objection to the use of that predicate think of other potential objections the defendant might have raised well because your honor on one page while there is in some cases the way that we have on page that's what i'm asking you for yes we don't have any honor but i to impose that burden on district judges to say that you know for example i object on this frivolous ground about restoration of civil rights now i've got everything else under the sun that might be raised by creative the is first of all would you agree with me that all of the grounds that could have been raised for objecting to that were available at the time of sentencing and my point in particular is that justice kagan's opinion for the court in math  us told all of us this is nothing new this was all decided into camp well we believe that mathis was actually a new lawyer because it claims so the supreme court's opinion isn't candid about that it was actually much more innovative we believe that it was more innovative to this specific question and although you don't know what we recognize that lynn was just decided last week dealing with the question of batteries to disability we asked this court to apply the framework in mathis which although lynn cites to it doesn't actually engage in and we've done is whether the difference between applying this very rigid kind of almost metaphysical categorical approach to classifying prior crimes because he could have violated this in a nonviolent way for purposes of applying a non binding guy too impugns the integrity etc of the proceedings when the district judge is perfectly free to take into account what he actually did and what he has is a long record of murder violent crimes unlawful gun possession and drug trafficking the judge can consider all of that we have any indication particularly since the judge said that he it is he is appropriately not just technically but appropriately considered a career offender here that this made any difference to the judge we are what this cornerstone is hello is that there needs to be a yes and we know from molina martinez that there is prejudice when a different guideline range would have been applied your honour's just you read that case is imposing an automatic bursal rule and you need to anytime there's a guideline or your good morning enters starting with the sentencing issue first plane air standard of review does apply and before i get to that i just want to make clear at the time of the p s i was prepared the defendant was represented by counsel who did file objections to p s r and in his objections he did not challenge the lawyer representing the defendant did not challenge the career offender finding instead he argued the court should feel free to deviate from those based on various mitigating circumstances and not stay within the advisory guideline range prior to sentencing which happened substantially later the defendant did dismiss his counsel against the advice of the court and against the advice of his standby counsel there were proceedings before the district court regarding that the defendant was represented or not represented but had standby counsel at sentencing that is clear that is on the record so he did have same by counsel at period that was it so there you excuse me ana he was only what he was his only objection to the career offender guideline applying it to him was that as to one of those underlying convictions the murder or the aggravated battery he wasn't clear as to which or at least i'm not clear as to which he claimed his rights had been restored which the district the government argued in the district court found was irrelevant to the finding of career offender and that's not raised as an issue on appeal so as to the argument he brings for the very end the issue you raise is for the very first time on appeal that it didn't qualify under the elements or the forced clause as a crime of violence for purposes of career offenders guideline that's raised the court at this point the burden falls to the defendant to show that a to prove both plain error and prejudice from a plate error the record before we would argue that there is neither and they carry their burden is to neither under battery element of the harmful bodily harm element the defendant did not contest any of the facts in the p s are specifically the fact that the police officer claimed he was hit in the chest and kicked in the chest and that the defense judge offered him lead and see if he pled guilty those are the defendant's admissions in the p s r that was before the court that supports the finding made you know that's totally supports that the district court found you know or incorporated in its finding that it was a correct finding that this was a qualifying career offender underlying fence and he certainly shown no prejudice from that finding because he's not made a showing that that finding was even possibly erroneous there's been no the person who knows right now what he was convicted of is the defendant and the defendant and his lawyers are not claiming in any way shape or form that he wasn't convicted of bodily harm version of battery and there's just no even proper to that to that to that basis and everything in the record before this court indicates that unless the court has any other questions on that just briefly on the issue of hearsay the only point i would i would make is just we have set forth clearly in our brief and in defense of the district court's handling of this matter we have set forth clearly the brief the methodology methodology followed by the district court you gave us every gave the defendant every reasonable opportunity to to present his arguments even though they came to his attention in a far mor extensive way than what could have imagined given what had been stated on prior occasions he gave them full opportunity to argue it even on the morning of trial they had an opportunity overnight to file something in writing or to at least come in prepared the next day to argue specific statements and instead they increased the volume of statements that they now wanted to keep out and still didn't present an argument is remote the volume ok but i would also point out that i believe the defendant is incorrect when he says that the defendant's own statements were to what was it assets here that offended use code words like stabbing tickets this is on the december twelfth conversations as well he talked about ordering first picky customers on december twelfth and then the december fourteenth conversation he is clearly stating that he's complaining about the quality of cocaine that had been the defendant here with that felt yes so yes your honor and then in addition though there was also lots of other evidence which we cite in our brief that shows this is for distribution purpose i didn't like the testimony that the police agreed except that you know yes by this it has no relevance but it injects the term gang into the into the proceedings it happened in response to a question of what in passing as to what unit he was gratuitous question for what it's worth and agree with ok well and i and i understand that in this particular case the issue was waged for appeal because that when the defendant did object i know that what i think this brief as the district court noted it was waived to the just record immediately asked do you have signed no that has nothing to do with what i'm saying you know i hear what you're saying and i will it's what i've  i understand that and i know there are budget pressures but years of imprisonment can turn on these records from the state courts i don't understand how worrying about copying costs that we're talking about here i don't know what expenses are involved could you all find out and this is it to me it just seems crazy i can pass that on to a we don't control the probation office either but i can know that the district judges  and maybe it's worth raising with the district judges but this notion that district judges are supposed to be making sense in decisions to the effect years in a prison at roughly the cost of a college education per year per prisoner because we're trying to save copying costs in the probation office just sounds pretty loony ok right i don't understand but i i will pass that back on to my may please the court three quick points related to sentencing your honour's even here on plane air the government's arguing for an enhancement they cannot support the p s r on page fifteen infers the elements of the aggravated battery conviction from facts in the police reports sheppard squarely prohibits this and that's precisely one of the reasons why we have sheppard from there sheppard was unarmed career criminal case all right it was a statutory case yes there are no limits your honor but this court's precedent has interpreted the guideline and interchangeably and much of shepheard's rationale even in the uk a context still applies to the guideline even if only to avoid many trials like what we have here over what exactly happened but there is there was no objection there was no objection but on page sixteen of the p s r mr monti has in his interview with probation takes issue with the facts reported in the police report none of this you needed to have happened if the government had just met its burden of producing the shepherd documents here and if anyone had taken a look page fifteen the first line says the arrest report we've interviewed with mr montell is and mr monteith contests the police reports version he says he suffers serious but this is and this is exactly why i had an indictment a the underlying documents been put into the record at the district court then we wouldn't be here arguing over this and the lack of these documents that's plainer and it impugns the judicial system not to have them so we'd ask that