would like to reserve a couple minutes for rebuttal of the issue regarding this the transcript i believe is very important but given that the sentencing issue is much more complicated i'd like to and prove me on a reasonable doubt are clearly insufficient under well settled authority of this court in the i think it's the crack house case or whatever the one one three six ninety conviction sentencing the challenge was at the district court the challenge was initially to the fact that the they're maintaining a you know house for drugs or whatever it is was not a fraudulent it's the eighty eight conviction but right it looked to me in reading the transcript maybe concede is too strong a term but it didn't look like the defense really was arguing that the nine ninety conviction for felony sale of cocaine was improper to rely on in some respects that is correct however they did start to argue that there was a choice that needed to be addressed in this case and the government disagree that that had anything to do with a fifty one priors and i think the important thing to stress is that the district court judge did not advise mr map of chile that he had to speak now or forever hold his peace he and so i don't think these issues are waived and the government agrees that the court did not do that i'm i'm going to direct your attention to e r eleven eighteen which is page three of the sentencing transcript and the court comes out on the bench and basically says to counsel for the defense  and go ahead i'll find it well my worry i guess is that if you're just going to talk about whether he waived his challenge the fact that they didn't have the colloquy may get you out of that problem but i was somewhat similar to what judge tallman had suggested about the ninety ninety it was a conviction for selling cocaine right i think what's important first blush that there's something wrong with that however we do know if any document that shows own no mean an order no transcript of any plea no transcript of the sentencing hearing all we have is the information and the judgment and that is clearly not sufficient but the government produced the information which charged mapper to i don't know how to say he's name with violating eleven three fifty two which listen don't cocaine is the controlled substance government produces the abstract of judgment which note the conviction is under the eleven three fifty two as for the sale of cocaine i guess i'm trying to figure out why that is not enough i will tell you because  and shepherd us supreme court case we have to have documents that show what the factual basis for the plea was and in stolen burger this court held that a minute order what are you going to do with martinez lopez which is the one one three five two case and with shepard you have to have something that shows what the defendant admitted and i think this is really important to point out that stella berger the reason that this court found that a minute order  was sufficient was because if the clerk is required under their oath to prepare them in an order and during the court hearing when the defendant pleads guilty and the abstract of judgment is not prepared by the clerk that was in court is not prepared by the coverage that it was in it's just an abstract but just a second there are there any and consistencies between the information the abstract judgment i think you have to have there something is there any you will the information and not i guess therefore i'm having a tough time for your argument i think you're better spend your time in eighty eight nine hundred eighty eight when it and i did find your go ahead respond to that but i did find the reference i was looking to that the court comes out at eleven thirty your lover thirty of states the only issue that is before the court were with respect to that prior conviction set forth in paragraph forty three which is the hundred eighty eight maintaining the house of the pre sentence report is whether or not that conviction is a felony conviction that is the sole issue before the court this afternoon and defense counsel in say anything and then they spent the rest of the col convictions and the fact that it is plain error because under snellen berger under marching is llopis and under shepherd we have to have some document that explains a factual basis and i think it's important i'm kind of coming you know we're good smith comes out i mean the documents that were before the court are all consistent that it was felling the sale of cocaine and i'm having a hard time seeing any error at all in that  error is because the clerk who is in court according salim are going to clerk was in court and here's the plea or here is the sentencing is not the person who prepares that judgment and there are frequently this council said nothing in the in the conviction and defense counsel didn't give the court any help at all on that issue by remaining silent i think that according to the the case law snellen berger which was a valid law before that shepherd was la good morning and may please the court francesca vantine for the united states unless the court has any questions about the transcript issue i will address in my time the sentencing claims that we embraced and on appeal with respect to the one nine hundred ninety conviction two match is sufficient under the muck modify categorical approach for that reason there is no error with respect to the one nine hundred ninety conviction now my opponent did not address the nine hundred eighty eight conviction however i would like to  discuss that in the remainder of my time in the in in his brief the defendant argues that the conviction for maintaining a drug premise do not qualify under california law as a felony but that contention is for close but this course decision into another two cases robinson and yes are way to where the defendants as in this case receive suspended sentences for so called california as i understand it is that under california law the presumption is that it's a felony unless the superior court judge says otherwise either at the time of sentencing or entry of the judgment so there's no evidence in the record here tha satisfied when he found that there is nothing in the record to show that the second method that would be the declaration the formal declaration of the defense transition to misdemeanor was used the presumption that the conviction was a felony has not been over calm and that was the end i moved forward i've heard your argument about that and i'm sorry to movie but you're moving down so let's suppose it is a felony suppose it is a felony does the eleven three six absolutely and there's well i'd seems to me that there are if you will conduct under is levon three sixty six point five a which are not covered under twenty one u s c hito two forty four and modified by the idea that they district court didn't really tell the defendant what they could do and what they couldn't do and so therefore i've had to look at the issue and try to make sure what we have here and that's why i said eleven th ree sixty six point five eight i said does that criminalize conduct that's not covered by twenty one u s c eight o two forty four and in my book it does your honor i the the a anabolic steroids or the presence or stimulus substances substances all of the conduct that is covered by the code from the law provision relates to narcotic drugs marijuana anabolic steroids or depressant or stimulant substance it certainly all the act the act they're prohibited by the california provision fall they relate to how to control substances and then the only question i suppose could be a question e going to go there we're going so we sometimes finish each other's question the question as i from other cases is california essentially includes in its list of anabolic steroid and this is the substances prohibited list that under this federal schedules ada one forty four to forty four this provision does not require a match for the federal schedules instead it requires a match to straight that the california law regulates possession of sale of numerous substances that are not similarly regulated by eight o two forty four that's what it says right innit  was not anita to be able to forty four case ever for you know was the federal controlled substances act case right so but i but that same thing applies i guess i'm trying to figure out why is a well give me your best answer right so there is substance in the fall under statutory definition including that this test or definition of steroids under age are two under the statutory definition itself which are not necessarily listed under the schedules which are the ones that were at issue schedules to see what substances the government the federal the federal government and the general decides to designate a school closeups as is in a particular schedule what it looks like there's a broader functional definition which is only partially imported into the schedules and the first is for the definition of steroids for say your that your honor just just reference the definition of steroids under eight o two is is broad and the list of specific substances that also appears at that point if i don't agree with you on this first step they can't be accorded categorical match because the california statute is too broad you lose right if the i mean is the section divisible the section is not it is not divisible it may or may not and therefore not divisible me either got to get it under categorical or you lose right so that this actual error may not be divisible in this particular case however waiver is not just a waiver to the extent that was discussed before in the colloquy with my opponent whether in this case is relevant because the issue was also not raised on appeal period and because it was not raised on appeal this would the it's waived  for the for the for purposes of the appeal is not just by operation it is even if it is technically clearer because of that fact we should exercise their discretion not to notice is that it is not a discussion not to address i mean this court would be you have discretion under the under the clean air rule even if the four prongs are met we do have the discretion to say even though that is so we are going to exercise her discretion and not act upon so so we're saying arguing that but we also are going beyond that the fact that if an error is not if an argument is not advanced in an opening brief it is not it is not proper for this court to problem is we're really talking about whether this is where the nine hundred eighty eight is a predicate felony conviction a question of law on the first hand the just district judge doesn't tell the defendant that he has object so there are documents which come in that certainly should have been objected to if in fact if in fact this is not if in fact this is not something we can  through having the absolute no question we're going to have a categorical method here and it's a no problemo if you can't get to the category past the category called approach those documents would come in and therefore it's a question of law it's something you've been able to brief or think about and i guess i'm trying to figure out why it is i would make that determination most of the last one that will raise is that the error even if there was any er clear that even if the adult thore to impose a sentence other than a life sentence with respect to the second count he found that the thirty five fifty three factors would warrant the sentence anyways and any fact that this  excerpt the defendant's excerpt from of record at page eleven forty four ok where the course or even if the court could vary from the mandatory minimum term it would not it would exercise discretion not to do any fact this is not just offhand remark here we have proof positive that the court would not have to part it because on count one the distribution count the statutory the mandatory minimum was not a lot if it was twenty years or in fact perhaps ten years time wasn't it ten year ten years i'm sorry i'm sorry for the slip up but in the course still impose a life sentence on that count as well so you make very little sense to to believe consistent with what the court not only what with the course said but just as an objective matter that the responsible and it was found in possession of trafficking convictions are almost thirty years old he was he does have a record after that but he was on probation i think for getting into a drunken fight in a casino is this is you know you said the mandatory minimum of ten bad i mean in terms of criminal behavior but the drug i mean a life sentence versus fifteen years fifteen like you said fifteen years is a lot of time and if we're going to send somebody to life imprisonment without the possibility of release i think we need to do it right well what are you going to do with the language the judge might call the kid paraphrased i mean it's almost as as counsel has suggested it almost says it wouldn't matter what there was here this is what this guy's going to get that the judge did not make any kind of a finding that he was an alternative he would impose a life sentence in this particular case and he's just  then what are you going to do with this good argument the good you call it makes which is if you thought this was such a big good argument that i'm making about eleven three sixty six five a why didn't you make it well you know i think that the fault is mine i should have made it when i pointed out that the court said that he did not know what section of whether it was section a or section b and i pointed out that there's a men's ramp