when in fact either of mr sanchez's prior convictions for texas indeed indecency with a child or texas sexual assault of a child actually qualify as a crime of violence under the relevant guideline definition there was no objection to the extra sanchez or combined two year concurrent sentences for his two thousand and eleven texas convictions for indecency and sexual assault of a child which arose from the same incident but the p s r then assessed an extra criminal history point for an uncounted crime of violence but mr sanchez should receive that point only if both of the prior convictions qualify as a crime of violence under the definition in guideline for b one point two but in fact in neither of fense qualifies under that definition they don't qualify under the first part of that definition which is a use of force prong because this court's case states that they do not the last case or vera and us v houston hold respectively that texas indecency with a child in texas sexual assault of a child which is a statutory rape offense do not have the use of force as an element the offenses also don't qualify under any of the enumerated offenses in the forty one point two definition equivalent to eighteen u s c section twenty two forty one c which requires either a victim under the age of twelve or a victim under the age of sixteen plus a four year age differential plus the use of force and the error of classifying both of those can be pretty hard to make that argument with a straight face and it's pretty hard for us to have to enforce a law that is you know linguistically absurd but anyway  in the tenth circuit apply the categorical approach and said there's no element of force and so it does not qualify and the air is clear and obvious in light of alaska it's all there houston and the plain text of the guidelines definition which does call for air review and we do have to meet those browns for the sure actual stressfully i believe an express waiver would require some indication that knowing waiver of an error and there is nothing in the record that indicated counsel was aware of an what was in the p s r there was appalled me about the facts in the b s r but there was no discussion of whether of the legal definition of the crime of violence definition and whether counsel was aware that there could be an argument that these offenses did not qualify and chose to forgive that object you know we've you know you're no stranger to this court and you've argued before me before but i have remonstrated with this public defender's office on more than one occasion about sandbagging district court so and there is nothing in this colloquy or in this counterintuitive but directory presentation about crime of violence that the public defender's office did not or should not have known at the time of this guy sentencing so i think there's two parts two parts to that statement so as for the sandbagging i would point the court towards it certainly is something we have heard from the court before it is every time the court expresses a concern we take that to heart we listen to that but i first handbag i think there's just no realistic probability that that's what happened in this case the supreme court said it was which is the whole basis on which we have many public defenders well financed well paid and so on and for them to come now it perhaps it's not going to happen anymore in crime violence because the whole  scheme of that has been rejiggered but you know for the public defender to come up to say oops we made a mistake at sentencing now i it's absurd and i've chastised the government when they've done the same thing but of course public defender stands to gain more from plain error so i certainly hereby concern my office as her back and we certainly strive to be the expert but all i can say is that mistakes are made sometimes things a a very difficult part of your case and that is that you that the judge made a pretty darn plain that he wanted to sentence is fellow more than forty one months because he had sentenced him to forty one month only a couple years earlier and he said not only served his time been deported but he had immediately come back into the u s and got caught again so what the court did was impose an upward departure of guidelines based up or departure for under representation of criminal history because that previous legal reentry forty one sentence but the reason why there are still affected substantial rights in this case is because the error caused the court to begin a departure from the wrong point so starting from category four the court went up to category five one by one category of yes but but doesn't the record make it pretty darn plain that even if the judge had accepted your characterization of the appropriate sentencing range he would have been where he is today i don't think the record does make that clear because a court selected category five was infected by the error in this case so the court never actually considered the correct guidelines range or the correct so you think you might have since the fellow to forty two months instead of forty one i do judge jones and i think that there are so we are on a four month differential yet and of course supreme court unresolved can we quote you that to judge crane if we have to research absolutely all right the supreme court said that any amount of jail time is significant to the person and i certainly wholeheartedly support that that position and there are several sentences above the forty one months that the judge was concerned with the forty eight illustrates the possibility of prejudice in the case where judge crane actually sentenced a defendant in very similar circumstances to mr sanchez including the same prior forty one months and a quick return to the united states and a prior conviction for  possibility the reasonable probability of prejudice in this case had judge crane begun the departure from the correct beginning point of category three as opposed to category four and after martinez the reliance on incorrect and i realize that that is now very stringent tells can you can you hypothesize for any circumstances where plain error would would where any error first raised on appeal would not be reversible plain error following rows on the fourth prong you know i i don't think we've seen one actual case yet but i could hypothesize perhaps there is a plane error but maybe there is a second plane or of us discovered on appeal that was in the defendant's favor so perhaps one error can cancels out the first error that could be one circumstance that i have thought of but here i think it's clear that what we don't have anything here other than the government has raised  to opposing counsel now if i could reverse the flow just a bit to judge jones statement about the error in this case the error in this case erroneous lee adding in an extra criminal history point which increased sanctions hernandez from a thirty to thirty seven advisory guideline range based on a criminal history category three and a total off insulin with seventeen was completely obliterated when judge  took forty one forty two and all the other numbers off the table at page ninety two and ninety three of the sentencing transcript judge crane provided for separate specific reasons for departing up crim criminal history category for the iranians criminal history category to criminal history category five as judge jones set to train immediately recognized sanchez tremendous had been in front of him  made twenty fourteen he'd been sentenced to forty one months he was deported after approximately he was released after approximately thirty six months and deported back to mexico and returned in less than six months judge crane said clearly as many of the judges along the border have said clearly something more than forty one months is required to address your recidivist behavior the p s r suggested under two l one point two application the five defendant was back less than six months after he had been released from b o p specifically judge crane said after addressing several arguments that optic up in just a moment judge crane said the court adopts the factual findings in the guideline calculations in the p s r which leaves you with a total often slowest seventeen a criminal history category of four in an advisory guideline range of thirty seven to forty six however the court finds category four thirty seven to forty six months substantially under represents the likelihood over sort of ms and given that you've got forty one months and you return you served it and returned in less than six months and now you're standing in front of me again i find criminal history category five which in this case is forty six to fifty seven months adequately addresses the likelihood  added up to the sentencing factors under eighteen u s c thirty five fifty three a and i find that category five forty six to fifty seven months addresses all of those factors so in response to judge jones comment we're here over two months forty six or forty seven which of the only two sentences that would be less than the forty eight months that was actually imposed by referring to the previous sentence i respectfully submit that the forty six month was also not  was also not on the table for the simple reason that during the sentencing hearing judge crane said when you were here last in may of two thousand and fourteen i sensed you to forty one months which at that time was the lowest end of the advisory guideline of the correctly calculated advisory guideline range clearly that wasn't enough clearly the lowest in of the advisory range doesn't get it it stands to reason the judge crying would be unlikely to impose a sentence at the lowest end of the increased forty seven forty six to fifty seven month range so i would respectfully submit that the only other option would be forty seven months we're here discussing the remote mathematical possibility that randy crane might conceivably have imposed a forty seven in forty eight can we go back to whether planar review applies at all i take it that the government has conceded prong one of the planar review standard after government's position that when the defendant and his counsel reviews the p s r all of the stuff in the p s are the guidelines ranges all of the mathematical recommendations from the probation officer cetera and then  correction made to what's in the p s r so they clearly thought about it read it talked about it and then make an intelligent waiver on the record that that is the same as a forfeiture that is not noticing a problem  the direct answer would be not that i would give an indirect answer the direct answer would would be that our offices are viewed on numerous occasions district judges routinely ask is everything in the p s are correct they don't go paragraph  routinely ask is everything in the p s are correct and the response is invariably yes except for an alias name or a date of birth or something along those lines as was the case here our office has argued i personally have argued that that constitutes a waiver of the error and to the best of my knowledge we have never succeeded on that other than in european and chavez hernandez where there was nothing about the female victims age in the p s r but at the sentencing hearing there was a discussion that the young woman was fourteen when the court concluded that the defendant was bound by his failure to correct the representation which we called an evidentiary admission and called an evidentiary admission and you agreed that you agreed with fifty two wouldn't apply if for example the court the colloquy was paragraph by paragraph and we just said do you agree that fair to say that this is a broad based waiver i mean they go through it and there are corrections made for example where was i arrested was in rome or somewhere else and it's not as if they you know it's not intelligent they clearly read through the p s r they agreed that the  exception which was corrected so it seems like a waiver not a forfeiture of whatever error may have existed as out wrong that is not wrong and i certainly apologize to the court for not raising that issue that would be my incompetence for which i am alone and responsible although as i say our office has raised that issue before and not been successful and at some point you simply proceed to well either there's nothing in the other i mean plain error has been a da has been resorted to use you know probably a thousand times in the course of our sentencing appeals and i mean by not only not only or by race by the public defender but by other defendant's counsel is there any authority anywhere in the united states that the fact that they discover an error after sentencing prevents prevent the characterization is plain error mean where do you draw the line between outright waiver and you know forgetfulness supposedly that is an excellent question which i simply do not have particularly the third prong where as i was saying judge crane said criminal history category four not forty one months criminal history because history category for thirty seven to forty six months is only insufficient to address to the fourth from the argument of the court's determination that all of criminal history category three was not sufficient takes this out of rosol us morality martina said when the sentence imposed in this case seven months by jane and falls within the correct range seventy to eighty seven and the incorrect range seventy seven to ninety six you cannot require a quote more to grant relief in real solace morale us supreme court said you cannot go above and beyond the shocks the conscience of the common man standard you're left with the impugns three other reasons came to the fore during the discussion at the sentencing hearing second both trial defense counsel minimize is state court convictions claiming that they were not assaulted behavior neither the sexual the indecent sexual assault of a child was an assault of behavior and there's a discussion between the two attorneys and judge crane to the fact that he pled guilty to the indecency of a child and went to trial on sexual assault of a child and was convicted by a jury the prosecutor argued effectively i think that grabbing the fourteen year for a twenty two year old man to grab a fourteen year old girl's hands and place them on his sex organ is assault conduct to place his penis in her mouth is also assault of conduct and therefore by minimizing his prior conviction he undercuts the seriousness of that a sense also the third judge trainset i see that because of your two prior texas convictions in two thousand and eleven for indecency with a child and sexual assault of a child you should have registered under the sex offender registration and notification act sorn and this is a page ninety two and ninety three of the transcript of the record you haven't registered i'm just wondering why is that and then judge crane asked the prosecutor why was this not indicted as a separate county prosecutor responded that the case is not been presented to our office judge crane then said we see a lot of this along the border people reenter they've committed to thirteen twenty sixty two violation which invariably carries a hot almost invariably carries a higher sentence they have also committed a prior state sex offense usually in texas which requires someone a registration and yet they're not registered and your office doesn't pursue the sort of charge of the prosecutor said that they're not they've not been referred to us by an agency for prosecution the final reason for judge trends or her departure the final reason that takes this out of the reason like that because i had no option for me it was not optional because my son's mother is sick it's common law wife also not a u s citizen had several very serious conditions there was some discussion of those and then sanchez hernandez said and truly i don't regret this in the sense i don't regret it because i came back to help my family i did it from the heart i felt that i had no option to me it was not optional judge crane responded immediately you should have stayed in mexico you should have provided moral support for your spouse and your minor child from there and you should have sent them whatever monetary assistance you could because now you're going back to v o p and you can't do anything for them there and then he said the last time you were here less than four years ago i gave you forty one months not only is forty one not sufficient that entire criminal history category four is not sufficient and therefore we're going to start the computation that forty six months under criminal history category five so i would respect was seventy seven months which was above the bottom of the correct guideline range but at the bottom of the incorrect guideline range giving rise to the assumption that perhaps there was a reasonable probability that th could show had he been sentenced under the correct guideline range he would have gotten something about them so let me ask you does the government do the government people have any feel for what is the moderately confident that the administrative office for us courts does keep those statistics as well as the sentencing commission right that's one way to look at gosh putting making us plough through all that seven eight months and again the presumption is had the court use the correct guidelines range then the imposition of a sentence of seventy eight months of eight months above the bottom of the correct guideline range does impugn the fairness and integrity of judicial proceedings generally to the extent that it least according to the supreme court it been it can be corrected expeditiously in a recent instant proceeding to start with prong three i would submit the record does not show that judge crane selected category five independent of mr sanchez's actual criminal history score as opposed to deciding that a one category upward departure was warranted because of the prior sent it legal reentry sentence from whatever the initial category was calculated and here judge principally never considered the correct range or the correct colonel history category helpful case on this point is or being of one test which is cited in the briefs where the here the court decided to hit impose a guidelines based departure which is in fact a guideline sentence and when the court chooses to be guided by a guidelines range that is leader shown to be incorrect then there is a reasonable probability of prejudice the fact that the court would impose an up or departure from the correct range is not enough to show that there is no possibility of prejudice because if the court began the departure from the correct lower point the departure itself might be lower i do want to address what the court has brought now a couple of times about the the waiver issue and whether this was an intelligent waiver of course i apologize i've not reviewed some of those cases in preparation for this argument since it was not briefed and wasn't brought up by the government but my to my knowledge no circuit has said that simply agreeing that the p s r is correct or not having any objection to the p s r isn't knowing and intelligent waiver of any legal objections that the defendant might have and i would also point the court again to was alice munro is where the supreme court acknowledged that errors in the p s are due in fact or originate with the probation officer as an arm of the court and well of course we're just and what degree do the probation officers have they have college degrees and i certainly have statement in the world but far be it from me to criticize the supreme court come from the supreme court and while the air originates way in the p s r with the probation officer of course we are obligated to raise any objections that we see but simply missing a legal objection that we could have raised i don't see how i mean really you know that you've you make a very good argument you have a very good point here unfortunately it's a difficult case but i have to say i can't believe that the public defender down in brownsville think that's where judge crane is didn't offer his antennae didn't go up as soon as he saw indecent conduct with a minor because you know we've had dozens and dozens of cases about that it's macallan and it is in fact an area where a lot of law has changed the forty one point two guideline aphasia of the defendant every step of it has been in favor of the defendant so for them  look at anything like this down in the truck or level is pretty bad all i can say is that it was a mistake and i certainly wish that we did not make mistakes but sometimes we do and that's why we get here on plane air review but i would do want to emphasize we don't believe any circuit has said that simply not having an objection to the p s r when there is no indication that defense counsel was aware of an objection that they were for going constitute a waiver as opposed to a forfeiture that leads to planar review and i would urge the court if the court that would be a sea change in the law if the court does want to address that issue i would ask for the opportunities to submit the met supplemental briefing on the issue because that is just that is not the law i don't believe that's the law in any circuit and would urge the court not to recidivism or the reasonableness of the sentence as appropriate forth from considerations but even so here the age of the victim is not the only reason why these offenses don't qualify as crimes of violence even if the categorical approach did not apply and we applied a fact based approach they would still not qualify because twenty two forty one c requires either an element or it requires a victim to be under twelve which is not the case here or requires an element of force threats or into prostitution which is not