attempted assault second statute fits into the career offender calculus and also very obviously i'm here to say that does not your honor and say a long time state practitioner i have been personally involved in many many many plea bargains and which and an assault case was plea bargained down to an attempted assault second specifically because it's a nonviolent felony that you also need then go here but i think the arguments are important it's not violent felony in new york law does decide whether it's a violent felony for the enhanced that's a matter of federal judge that is a matter of federal rights so the fact that new york doesn't c whether there's enhanced but that comes into play under federal sentencing guidelines yes or and i want looking also concede to you and i and many previous occasions in many other criminal cases i said to my own client just what you said to me if this is the way it is 't likely live with it ok and the other hand your honor i think that i think what i'm trying to say to the court is this is important to consider how we got here and mr pena entered into a plea specifically thinking that this is a nonviolent felony and then when we get to the federal level we take that apart but yeah you know and i'm sure some of my my colleagues on the prosecutorial side will say well just on violently federal crimes and you won't run into this problem ok and of appeals a number of years ago in the context of immigration consequences with regard to please a new york court but we're here federal court so whether it is a violent felony or not is is in the context of federal sentencing and it's a matter of federal play in a state court he's told not just by his attorney but the prosecutor actually tells him don't worry it's nonviolent that isn't the fundamental problem here that the court relied solely  categorical and if you don't apply a modified categorical then you have to apply the full categorical an odor of a full categorical the language of new york statute is identical why your argument i mean what you're saying now is that states in a nutshell i hesitate to bring in connecticut law because this is the the argument became convoluted enough as it was but yes you're correct don't ever has it that you bring in connecticut law with me or new york with you and i sometimes hesitate to walk up to this podium i don't mind telling you you are and as far as the also judge i well i was like to point out to the to the court that my argument is somewhat duplicate us because while i am saying that the federal sentencing guidelines have a problem in them as far as the attempted assault second is concerned i'm relying on the federal sentencing guidelines extremely heavily by saying that the two robbery convictions occurred at the same time and so please don't count them as to count them as one no the district court never decided that they suggested at sentencing that he was taking that into account yesterday but he didn't hold that they were one or two so if we were to buy your case we would have to remain and buy your case of the assault we would have remain and for the district court to decide the question of whether the two robberies were separate or one that is quite correct i think that's the way to go and i frankly judge on the robbery issue i think that's the most i can ask  the court i don't really think there's enough on the record for me to go any farther with it to be honest with the judge is there any doubt that he pled guilty on the salt second to either sub two or so  because i realize that in the p s r there's some confusion and and then the p s r refers to the d c g s records but is there any doubt that he pled guilty to least either sub two which is assaulting another person with a deadly weapon or dangerous instrument or in the old chair that he was in a correctional facility in the that he was involved in an assault ear i in my opinion i know i get i understand then and this is why we always get into trouble relying on state records well to discourage that new york does have a better record here but for some reason the district court latched on to one twenty zero five so to which is the assault with a saying that the only way that we know that it was either sub two or seventy seven is because of the p s r we don't know and we don't have any other shepherd charging documents i literally approached my own client and said what the heck happened but we don't have any records isn't going to start from the local criminal to show you that p s l are actually reliant on documents that would allow that to be but in the record as we have it before it's no use a vet isn't there it's not their job and i am i've had this case for a long time and i looked at a fairly extensively if there is some record of it i'm not aware of a judge well we'll see what a bunch of this guy might have some idea because you know if it was two or seven i don't know what difference it makes because i think they're both good morning your honour's may please the court michael good airing on behalf of the apple we the united states to try to direct my comments to some of the questions that the court was asking i think this comes down to a plain error question under the circumstances i'm not sure that reyes necessarily suggests there's plain error here because the district court didn't rely on the factual description of the conduct in selecting which of the alternatives of the assault second statute that it believed it should apply that we have case this is or is not sufficient unless the p s or and then it's an open question an open question in our circuit whether when p s or refers to shepherd factors it is ok but to rely on the p s or itself is under or cases clear or plain or so i think again your honor comes down to and maybe that is foreclosed in which case the government would request if this court's going to remain and that it be given an opportunity to supplement the record with the shepherd documents to show that it was two or seven the way that i read the race case don't know i think all you need is frankly i'm not speaking for the others but if you show it to warts you could show it's two or seven doesn't matter because may be permitted to make us a brief comment external to the record based on the court's questions i don't know i had a i can't say that there were separate documents that were the basis for the determination here does the enough to kind of talk about what's an appropriate sanction for the individual federal court that perhaps she doesn't work under so your honor and i agree that's probably run into this often i mean you're so tied to this sentencing guidelines are e they're absolutely right i mean if the court believes this is plain error and that the prejudice prodding is established although here the failure to object is in response to language in the p s r not just about the facts but also about  what the record rap sheet i guess or the records that are reflected there reflect where the two charges both of which would qualify as crimes of violence yes the government would tell you also agree that the question of whether it was won is something that we we can't really on the basis of what the district court i agree with that your honor i think there though i would know that it's not necessarily the case that shepherd documents would be required to resolve that but but some further discussion by the district court a fact finding to explain how it came to whatever conclusion it is that it came to clear it came to that conclusion because when he was doing the sentencing it just said that affects me but it isn't clear that the district court where was due i agree with you i think it the records not clear that the district court made that determination because the district court thought that one twenty five two was the assault second was a crime of violence at least one of the robberies is a crime of violence and so therefore i'm going to stop being this would have been much easier if you just had not you but if the if the court had just