will now hear argument in the first matter on our argument calendar which is united states versus strategical reason why it was done it was just mere oversight nonetheless we would strongly urge discord that the matter still fits the bill of the plane or standard the problem with as i understand it was that the sentencing court had before it the pre sentence report which identified your client's prior conviction in california and there was no opportunity in the absence of an objection to order any additional court guy acumen produced to resolve the issue that you now complain about why shouldn't we five grams was stated in the pre sentence report and there was no objection by you to that fact can't the court conclude from the pre sentence report alone that the possession was intent to obviously draw a difference between both possession and purchase but we never get that far if the court was the pre sentence report as i assume it did at sentencing to incorporate offended by a reliance on what would obviously be a drug trafficking or finance in the absence of an objection by the defense well i think that the administration of justice  is justice the founded on the facts of this case were your client would clearly fall within the reach of a drug trafficking offense under section eleven three fifty one because i think that again  agreement to purchase and not talking about an agreement to purchase i'm talking about actual purchase in constructive possession definition guideline to a one point two it did not commit plainer the second supplemental issue applies only if the court finds that it did and that is what should this court too should have remand for an open or closed record every sentencing if the court finds it's plain or it should remain and for resets thing on an open record so the government could prove that the acts that the defendant committed are an is an aggravated felony under the modified categor without distributing it is common in statutes to use many words that statutes drive statutes in order for the legislature the naksa to make sure it covers any possible situation and i think that's what they tried any belief when the purchase was made that you had some rights over the controls that institute purchases i would argue that that would then not be a completed purchase distributing and dispensing not necessarily identical  a crack drugs and distribution he would be an owner of crack well if i believe what you're saying is the person convicted of dispensing may not be the one that actually handed the drug may not be the one who own differences in those two but they seem very similar and i think there are it's very common in the law nolan void to have lots of phrases that mean basically the same thing and here i think the crux of the issue  analysis am i correct that judge hines had before him at sentencing nothing more than the information in paragraph twenty nine of the pre sentence report the fact that the defendant had been found in possession of eighty five point five grams of cocaine and a nine millimeter pistol that's correct your honor and in that pre sentence report it listed the crime as possession for purposes of sale  under that approach the the issue under the i think the court can look at the facts they had to determine whether it was plain error it would be wrong for the courts to find it for the district court to use just that under the modified categorical approach to find that it was a drug trafficking offense well i still wonder whether we get that far in the absence of an objection i'm i'm having a hard time maybe i just can't get past the plain error issue but i hope you don't just understand if the court relied upon those facts to which there was no objection then why isn't that sufficient to conclude that eleven three fifty one would clearly criminalize that conduct in this case i think it would i would agree it would not be plainer since it was not objected to the court looked at those facts again that should go to the issue of whether there was plain error and since the facts before the court were not objected to i don't believe it was plain error for the court to rely on those and looking at the statute i think this court should find it was not plain error to rely on those facts i will relinquish the rest of my time  arguments in this matter on our argument calend