determination of the guidelines that renders the sentence procedurally unreasonable with respect to this point in our brief on the one of the errors was that the the particular guideline to d one point one a one it requires that two things be established by the offensive conviction in order to apply the guideline and those are number one that death or serious bodily injury resulted from the use of the controlled substance that was distributed and number two that the defendant committed the defense after one or more prior convictions for a similar fence in other words these matters are being reviewed for plain air and mike right that the standard of review for us is plain error that these arguments were not raise that ground below we argued that mr c could belong to the fence level thirty eight forty three for the ground the ground that we raised was a different one that i started out my argument like deep the our first argument which if the court doesn't accept that because we said he's a thirty eight that that's not enough to preserve it the guideline is plain it says that there's two requirements that must be established by the offensive conviction and one of them is that the defendant have a prior similar crime now whether even if that means just a prior drug felony there is a procedure for assuring that by an offensive conviction which is we all know is twenty one u s c eight fifty one requires that a information before all of that and that the conviction  established was not a stablish to be a prior drug felony under that procedure and therefore his offensive conviction does not establish that he that he had that prior prior conviction the words the offense that he pleaded guilty to in front of the district court here did not establish the existence of this prior conviction that gets into q if yes does it have to be a prior felony drug conviction or does it have to be a prior felony drug resulting in get but i also understood you to be saying that even if it only has to be a prior felony drug conviction the guidelines require the those is that death resulted from the drugs distributed and that has to be an element of the crime yes now you're saying that's not present here because your client was allowed to plea just a lesser charge no no we're we're not disputing that the judge allocute him as to the death results and we haven't we have a separate issue about whether all the elements were met but putting assuming that the apply assuming that allocution was valid there yes and that's and that's all the more reason to to understand that the sentencing commission intended this life this level forty three guideline for a very small class  defendants or sr circuits are split on that question and i don't understand us to have spoken to it so how do you have playing on that question well that that see that's th circuit split on that that i know of because at that doesn't help you well i think you need to show us that this is clearly established in the law and i don't think you've got a supreme court case and i don't think you've got a second circuit case so where look well i have the guideline itself your honor and the guideline itself i think is plain it says the the plain language of the guideline itself says that  the prior felony felony has to be established by the offense of conviction isn't the case law that something has to be clearly established in the supreme court or circuit precedent to be plain i well i've i've i've i've dealt with that standard certainly in corpus cases in state habeas cases where the standard is that  to raise something a federal violation by a state convicted person there needs to be a showing that there was clearly established let me tell you cannot let me be doing another tack yes what are we to that statement in and of itself is not enough to render this sentence harmless number one be it was a very it was a significant guideline increase of five levels the  differences between a life sentence and a sentence with a range is a difference of degree and it's a difference of character and there's no sentence quite like a life sentence in the guidelines and i also believe that for the reasons that i've been arguing it's a five year increase from the bottom of the range of the bin three sixty to life right well right the fact that the court gave a sentence above the  guideline range i think is a factor and in face above above even a thirty to life arrangement which we think the guidelines should have been i think i think that's an argument in favor of finding that there was prejudice here  pronounced specially said so and we've we've indicated precedent that where it's absolutely clear that it would have been the same sentence that we have harmless error and this is a judge who said so mean this is a case in which she used your client as being responsible for deaths i understand your honor but i don't i don't think that i don't think it's really quite that clear i mean the court did say you know for whatever it's worth i would have given the same sentence but also i think you have to look at the nature of the error which was we submit based on a really fundamental misunderstanding of what the sentencing commission intended they didn't attend this broad application of life guideline to every drug felon who is prosecuted under the death results aggravated statute and so i don't think that  o i mean i understand that the courts take account of those statements but i mean my position is that they're really made under artificial terms and because of because the guideline that was found was life and it's so much different from what the correct guideline would have been i don't you know the potential impact on the courts the king i think is too great to offense we can see that under burrage and as a result of that admission he exposed himself to a mandatory minimum sentence of twenty years and a maximum sentence of life under the statute so judge cibo when it came time for sentencing to operating within that statutory framework now there are two issues that the defendant raises on appeal with respect to the application of the guidelines when it comes time for sentencing one of them was forfeited not raised before the district court the other one was the issue that was forfeited is this issue of so that's the first issue and that issue was point one one that's correct i'm saying which is that section it requires is prior convictions for similar offense to be established by the offense of conviction that's correct how does that not mean that it has to be an element of the offense of conviction well i think that the court what the or what the guideline says is it must be established by the offense it doesn't say exactly how and here what you have is a district court's finding at the time of sentencing with respect to the defendant's criminal history the whittaker case which talks about when it is the district court should apply the crew offender guidelines and what the court says there is that fifty one notice is required only where sentencing range is what you're saying is that you can we can construe this language so that the government can enter into plea agreements with the defendant let him plead to the lesser  i'm just use acknowledge that it has to be established by the offense of conviction because that's what the guideline says but you say it doesn't have to be an element so how do you prove it is part of the offense i think the circumstances the offense of conviction establish the defendant's criminal history is something the court takes into account every time he conducts a sentencing proceeding i'm not sure we've ever said that's part that makes it part of the offense well i mean the offense takes  offense of conviction takes place within a defendant's criminal history that's the way that the court goes about conducting a sentencing and when you have a defendant who  these per film any convictions there was actually a discussion in advance during the course of plea negotiations in this case about whether the government should file the part filling information and we elected not to but there was there was really no dispute about how this came about and whether or not the defendant would be subject to everything that's considered becomes part of the and we can't i don't know of any that i can point to you judge reggie but as the court noted earlier we don't have to point to that because we are dealing with a plane or a view with respect to do something that would affect the statutory range in order for a guideline guideline unhandsome and that's based on a sensing finding to apply here we have a circumstance where the district court looked at the defense criminal history and made this correct i'm not sure that you can argue well they didn't need to track the statute in this section when they say they meant track the staff well there are places where the guidelines track the statute in fact all of two the one point one tracks the statute for example if a defendant pleads guilty and admits is part of his greenman and it's a factor that the court considers sentencing the distributed two hundred eighty grams or more of crack the statute guidelines six the offense level for that it ten years even if the defendant pled to some other offense for which there is no mandatory minimum so the guidelines are yes that's correct that's correct ye on the same side as the government on that issue that the program direction is simply a prior drug a drug conviction that's in our view consistent with the plain language of the guideline again this is an effort to match the mandatory minimum right that's correct just read there's separately this issue of foreseeability we think there's really no room for disagreement on this every circuit that's way down the issue and there are five of them have rejected the argument that the defendant is advancing here i will note that given the facts that were present in this case in the in the p s r there is an argument that the defendant it was foreseeable to the defendant the people would die as a result of the drugs that he was selling and that's actually something that judge sidel took into account in fashioning the sentence in this case one of the things she pointed to was the fact that this is a defendant who had a warning after the first death  she knew that the substance he was distributing was killing people and he went ahead and kept doing it and he tried to cover his tracks as it were that's certainly an aggravator it's one that took into account in fashioning the sentence that she did there are others to the guidelines the offense level under the guidelines doesn't factor in the issue of the fact that there were multiple deaths there's nothing in the wrote application of the guidelines that that does that there's nothing in the rote application the guidelines that takes into account the fact the defendant had so many prior drug felonies because at a certain point they stopped counting and that's what happened here and so what judge bell was doing was she was applying a global view of what the offense conduct was and what this defendant's criminal history was and coming out as sentenced as she said at sentencing was the minimum sentence she could possibly stomach imposing and so this gets really to the issue of harmlessness and whether any of these guidelines issues affect the defendant it which is that when the court is very clear and contemplates an alternative guidelines range and says you know what even under that scenario i would imply i would apply the same range i would be apply the same sentence there's no there's no effect on the defense it's harmless or the defense not prejudiced depending on whether you're operating under harmless error or plain and here mr great you did research time to do one point one a one is different from other guidelines that war criminal history calculations that the courts can for mr belief find by a preponderance of evidence because contains this language requiring that the prior felony be a standard really would be offensive if you what you should think about is the implications of requiring the government to fall apart felony information in these cases where there is no walking very much so your honor i'd first of all i you know i i have read she was unsafe in the government's exercise of discretion about when to charge people as predicate felons it's a big step but more technically but in the southern district of new york that's a that's a different matter but you're asking us to require in affects the government to file a part of phone information every time that's  e absolutely not your honor the the who or the government obviously retains the discretion whether to do that or not but here the the the sentencing commission recognized i think that by putting every criminal history category at the top of the sentencing chart if they if the offensive conviction establishes a prior truck felony was clearly deferring to the wi with this yes yes you are those to ask those two elements was clearly deferring to the will of congress which imposes mandates a life sentence for every defendant even if they're in category  one and this was the fundamental mr understanding respectfully of the district court which is why we don't think this was harmless because we're using it i mean if the government filed it you climb the sentence to life instead the district court for you this is particularly serious commission of this crime but he had the benefit of the plea and so she gave him four hundred twenty months instead of life but she wasn't going to give them the minimum given the circumstances where he continued to sell drugs after the first death but the anchor for the court or the starting point or the the lodestar or whatever words different words at the court used was life line and it was but it was premised on a incorrect view of what the senate seat commission intended the sentencing commission didn't take it considered view of should we impose level forty three for every such defendant regardless of criminal history category there was no reason for them to do sell because congress mandated that every one of those defendants must face life all right thank you very much will take the