failed to engage in the requisite personal colloquy under age fifty one b and therefore based on this court's recent decision in rodriguez as well as prior precedent mr ocampo cannot be held to hav challenge to the fifty one enhanced meant second is undisputed and cannot be disputed that the conviction document that a conviction documents upon which the government relied undisputed they did not identify the substance therefore the government failed to meet its burden to prove beyond a reasonable doubt that the conviction involved in narcotic drug marijuana anabolic steroids or a depressant or stimulant marijuana is i believe so between the fact that you were on notice of the indictment being marijuana if i'm wrong about that you can correct me but that was my recollection there's no stare are no in the conviction documents for the documents themselves and those eight fifty one what documents did the government give us so in the eight fifty one enhanced meant the government is it's at e r ten through fifteen and if we go to the first thing we see is exhibit one we see the superior court probation hearing sentencing document i just want to make sure i have the documents well in mind you're talking about counsel so we have the sentencing document whether the document so at page eleven is the sentencing document and then at page fourteen of the record is the abstract of judgment and that is and they are the only dark they are the only documents  understand yes and those don't establish the substance i mean it's relatively in our destroying at that point if we have those documents and we're really looking at it you're saying send it back to the district court to determine what to do yes your honor it's as simple as that because the california statute could be divisible it's not necessarily a categorical approach because it's conduct relating to it's because this california drug schedules are overbroad i agree with that and there's a second part the government visible is the california statute divisible punishes a person who possesses for sale of a controlled substance any of the criteria then there are five alternative criteria correct correct though that are all of these punishments the same for these criteria yes if all punishments are the same for those criteria why is that why is it we need to send it back ok i understand your honour's question because it's the visible or overbroad as substance not conduct and there's a second part so is this your vagueness argument you know no no this is it's one step before the modified categor approach so i don't think the court gets there i think what the court does this court does is the court says very simply under fifty one you have to prove it's one of several substances a narcotic under fifty under the felony drug under eight o two forty four you have to prove it's one of the five specific substances or categories a narcotic drug now on a anabolic steroid depressant or stop a stimulant substance these conviction documents don't do that b and send it back government if you want to prove what substance and you want to get a ten year jump you can go ahead and do that and this actually reminds me of one of your honest questions in can tara when you said does can terrorize the district court have to grant min role and i said no your honor the district court wound up granting minor role as an aside but i understand that's why legit down that path i just want to make sure i understood your argument that and that's sorry i didn't mean to cut your honor off so that's ok let me turn back to the enhancement thing that worries me about this is and i realize the case you've cited me but the state files an eight fifty one information information says that it will be enhanced based on the one nine hundred ninety eight and sentence you don't argue that the nine hundred ninety eight conviction was not for a man why is why have i got to follow on that record that case you now put before me that is virtu the concession of math i think that i mean i think the government my friend mr zip does a good job in the brief but it's not exactly accurate because the concession of math is in response to the p s r saying it's math and what the would be no point in making a judicial admission out of thin air hey it's math he's objecting he being the tribal councils objecting to the p s r but let's focus on rodriguez which is really the core well i guess the real problem is that as i went through it based on what council did and i only put said you because you're representing him it didn't seem to me that he did anything to preserve this objection and in fact by not filing any objection in the bit to the b s are relating to the man it seems to me i could find president say he concedes that and so at that yes i think rodriguez is a little bit different because in rodriguez defense counsel concedes on questioning from the court defense counsel it's exact same thing happens court says aren't these his convictions and this is why i don't want to or answer and courts as you answer and he says yeah i think there's convictions so there's an actual concession there let me answer your with your time the you i do but i would if if the court would allow me to answer yes i think your honor this is what rodriguez said under the statute rodriguez was not required to affirm or deny the conviction or file a written response until addressed personally by the district court and advised of his obligation to do so and importantly that any failure to do so waived any objection that the defense here's the key that the defendant ultimately did file a written response that didn't raise those issues does not negate the importance of a proper advise all it starts stops with the lack of advise all and the failure of the conviction documents to prove a specific substance now the government interestingly in its brief doesn't challenge that point it doesn't come back and say yes we prove the substance they just say waiver so now if anybody's waive the merits it's certainly not us but finally  i think an important point is that if it does go back and as judge smith you are indicating then the district court could take another look at it and follow the proper follow the proper course then i think under the doctrine of constitutional avoidance we don't get to the the analysis not whether in fact your client used was convicted of a particular drug that satisfies the enhancement but rather categorically whether the california statute same as the enhancement i mean why do we even really care what your individual conviction is the question is rights and comparative test between the whole statute in california and  hundred percent agree on my only point all this other stuff about concessions that's that's not on that that's not the issue we need to decide i don't just take your honor's point alan remained the government would have the opportunity to try and prove without the note from rodriguez that considering that a ten year sensing enhancement turns on the outcome of the eight fifty one procedure the failure to comply fully with the statutes procedural requirements should not casually be deemed harmless error we ask that it not be determined t i please the court daniels up on behalf united states let's talk about that last point yes do you agree or disagree that the question is a categorical comparison between the california statute and the enhance ment no your honor i think i think the defense point as i understand it is that there are certain drugs under california law i think he gives the example of geometric isomers or morphine that those drugs are illegal under california law but do not meet the definition under federal law and so if that's the case and it's not categorical why is that fatal to your your appeal  sure the defense in this case conceded that the conviction under eleven three seventy eight was for the sale of methamphetamine that is enough to qualify as a felony drug  slightly different question in rodriguez ceded armless that's our position that it's harmless both it's harmless for the district court to have failed to engage in the we because as the court that ensure that outcome would have been the same as the defendant had already conceded in every view very least by the defendant filing three separate objections to the a fifty one and handsome and never challenging the fact that this was methamphetamine and then that it was methamphetamine and a sentencing hearing at the very least it could not show under plain every view that his substantial rights were affected by the months you don't waive on i think there's two types of waivers are are given in the papers before rodriguez two weeks ago was that under the statutory terms of eight fifty one that by filing an object of written objection three written objections and never including this one that statutorily the defendant had waived at the same time by by conceding the issue that the defendant has at the at the very least subjected himself to playing every view on the substance of question of whether eight fifty one and under plain area view he simply can't know that the outcome of the case would have been different as he's conceded the fact that it was methamphetamine it wasn't one of active conviction and the statutory definition of the offense that seems to preclude looking at the unique characteristics of what they did in california what why why doesn't the california drug statutes is currently with the panel and has not been decided yet but as to the question of whether modified categorical analysis can apply to a drug statute i don't have a case at hand but it's my understanding that if a defendant is convicted under a statute with the correct with the showing that the defendant was convicted for one of the listed offenses that have to deal with the fact that all of the punishments for the offense or for the different chemical that aeration no your honor i think the only issue on that in this case is whether the drug itself was one of those narrow range of california drugs that falls outside of the federal that there are drugs in california statute that are not included under the federal enhanced section but in this case that the defendant or minimally waived at sentencing and conceded that  that the drug in his case was not one of those isotopes that falls outside the federal definition it was methamphetamine all squarely within the definition and as judge smith noted the mere fact that the p s r listed it as methamphetamine and he failed to object to that even without the affirmative concession is under rule thirty two and have made a factual finding that this was in fact methamphetamine so it simply under a plain area view standard that there's no reason to send this back down and made that mission but there were we had a document of conviction in california that made it clear that it was methamphetamine would that be the same he would be in the same position making the same argument so  nothing unique about the confession concession that you're relying on not under a plain area he's done or no as to the jury instruction stand on point that says way well your honor i think there's there's case law that says if a defendant fails there's case law that says if a defendant admits certain things that's why i went through all of things that the defense did in this particular situation is this last case about the colloquy how far that goes and how it applies in this situation and i'm testing you now issues there's the the failure to engage in the colloquy grid and we acknowledge that under rodriguez that that the court's failure to engage in that colloquy here does means that the statutory waiver trekker does not apply rodriguez made that clear even if you file some objections if the court doesn't engage you and ask you essentially are there anything else you want to add and then thing that you didn't raise doesn't trigger the statute and our position is that putting that aside the court has made it clear in a number of decisions that plane error review plane or review applies to an eight fifty one enhanced meant when the defendant failed to object the united states filed its enhanced meant defendant never raised this issue and conceded that the substance at issue was methamphetamine and at the that means that point every view and in order to succeed in order to have to send back down he would have to show some sort of prejudice and if not directly very exact unless you can show that it would made no difference where you may have harmless error the initial question to you i think what rodriguez said affirmatively was that plane error review subject harmlessness and then the substance of the court's decision to apply the a fifty one enhanced meant based on the documents in the record subject to play in every view on this court has held in as recently member of last year in epis an unpublished published decision that the when a defendant fails to object that the documents in the record on supporting a fifty one conviction fails to get to argue that that those fall outside the federal definition of felony drug offense that this court reviews that issue for under plain error review so it's our position that by filing three motions never raising this issue before that the defendant has to meet this plane air standard and he simply can't show prejudice in this case because he's already substantively admitted that the that the substance was in fact methamphetamine to other mycology of what do we do we're going to read a statement failure to comply with sexually fifty one b renders the sins illegal the common never never argues that how do we cope with that i think in that separate part of rodriguez they say that the failure to comply is subject to harmless analysis and in this case there can't be any question whether it was harmless because the defendant conceded the only issue that he's not ready raising on appeal well except except that it really depends on whether the test is a  qualified comparison or an absolute compares if it's categorical it can't be harmless because you've conceded the californias convictions are broader if it is a modified categorical then yes it would be harmless because a concession it was seems to me the case really turns on that if the definition of family