indicted and had not been admitted and then using that fact finding to increase the statutory maximum from two to twenty years this is precisely the same error that this court denounced in the recent case of united states v all in this case unlike a not case the error was preserved the remedy is vacating and we manning for the sentencing in the government's most recent letter to the court it argues that in this section that he was sentenced under thirteen twenty six he had no notice that the state of deportation was in play he didn't admit the state of deportation and there is nothing in the record to suggest that the state of deportation this court should consider and that's the fact that this conduct that mr aquino has torres pled guilty to was never presented to the grand jury it was never indicted because of this we can't be sure what right your honor in regard to that that alleged conviction and i believe your honour's have a complaint and an abstract of judgment in that case i believe that was the only conviction alleged that was supported by that type of documentation the others were supported only by p s r allegations and court printouts from the various courts of the alleged conviction however your honor i thought argued in my papers the problem with the enhancement in this case is that it could have been based on california's overly broad theory of aiding and abetting liability for you so that and i don't really understand why raises one aspect of the issue that i argue in my briefs which is the promotion and investigation aspect of the california aiding and abetting theory i've also raised another alternative problem with california's aiding and abetting statute california i'm not a california or so i may be wrong about this but it appears to me that the question of natural and probable consequences has nothing to do with the defendant's subjective state of mind that it's a different of california you still have to prove for an aider and abettor of the state of mind which is knowledge of the criminal purpose of the perpetrator and the intention of causing that act to come about your honor my understanding is that you have to prove the state of mind for the initial crime that the aider and abettor should should have known would lead to the crime of which he's convicted whereas under federal law you have to actually i don't understand that answer i don't understand what you're saying california law requires you want to m under california law if you have the means right to commit one crime and a natural improbable consequence of the commission of that crime is the second crime you can be convicted of the second crime even if you didn't have the mens rea to commit the second crime which is broader with california law as opposed to federal law so in this case we can't be sure that mr aquino has had the means right to connect the assault with which he was charged rather than some other crime that led to that assault  information in this case tracked the generic language in the statute there's nothing in there to indicate that mr keating didn't have going straight to commit another crime that led to the assault as opposed to the assault itself which is what would be required under federal law thank you thank you was deported the fact of deportation is not in doubt the only the date of deportation the second is he committed a felony whether that felony constitutes a crime of violence pretty well all he said all that all the objection says is we don't admit to the accuracy of this section so it doesn't tell us what if anything there is an objection to it and you and and  other parts where they do mention the date of deportation it's clear from reading that what they're really talking about is the nature of the prior conviction as it relates to that importation in other words this specific issue of the date of deportation was never presented as a specific objection to the court when you fail to do that it's plain there for example in that in say that city which is cited by counsel there there was an objection to  involuntary intoxication jury instruction because the court gave gave it as to one count of three counts and fail to give it as to the other two for aiding and abetting like the defendant in that case did was present an alternative instruction on involuntary intoxication in the this court said that's not enough and the reason is clear it doesn't give the court i fear chance to rule on the issue or is on  government on notice that more information is required before and that history can't remember facts can be found about that history it made in some cases but i think in this case what was what is clear is what was being attacked consistently was the nature of the prior conviction and so what comes of this is well it follows this deportation and the other fact is there was a case in the ninth circuit prior to colvin fan of all wh for a moment that we just agree with your interpretation of the record here that what would be the remedy and how would that work it well if the court disagrees that we it's review it's it's harmless error review and i believe it is harmless beyond a reasonable doubt because there is nothing in the record as whether rigorous rodrigo's puts out it's points out it's harmless error if there's nothing in the record to suggest anything otherwise in other words there was no dispute there was there was no specific evidence in the record for example there was no affidavit saying no i wasn't deported on that day there was no other evidence put in that says no i wasn't deported on that day in fact what we know is before the defendants plead guilty in the discovery these things are all provided so let's say let's say we don't think it's harmless what happens if it comes back for re sentencing and the date is proved and the date is proved  still a harmless error i mean there's nothing to suggest that there's no independent verification in the record there's the date statement that there's no underlying evidence suggesting it so presumably that would be the subject of a proceeding on bring in those documents that would be that in town that's true in your heart but i think that's why it's harmless because there's just as rodriguez would really assess there's no sense in doing something that's perfunctory there's no evidence that there's nothing to take place so there's no prejudice there's nothing to harm the defendant here so it's harmless beyond a reasonable doubt otherwise it's just a perfunctory thing we go back we do it over we present the documents that i the classic case of harm is there now would you take a moment to talk about whether the conviction for assault with the intent to do great bodily harm is or is not a categorical crime of violence or within the statutory maximum for a felony which is not in dispute is ten years it's only if you act committed an aggravated felony is it twenty years here this defendant was sentenced to less than ten years there's no constitutional problem that exists in this case second even if we have to even if we have to apply the taylor categorical approach we have here now in the sentencing guidelines a i well i think we do in this case i do agree that the the probably the best thing to do here is to wait to see what happens with the doll case after the u s supreme court rules i thought that probably is the best way to go but i think we have an answer in this case because there are two things number one what the defense is arguing is that this natural and probable consequences theory is not part of federal law number one there was a case for ninety three for the second eleven seventy court well the other thing is using the modified categorical approach here we can show that that is not possible in this case the only time the natural problem of probable consequences can come in is if you're charged with one consequence crime that can have been committed so nothing less and there's nothing more there's nothing less and there's nothing more but we have so whether that theory applies or not we can now say in this case given the documents we have that the in the other is the crime of a right so i think what we have here is as i said the dollars coming down we probably can wait for that but i think it's not absolutely necessary in this case i think that we result would be on reading and where this hard to find the coby in sound of all error that i outlined the result would not be to put more evidence in the record and that's because in a printing error occurred here under a primary any fact other than the fact of a prior conviction including the data removal objections the probation officer specifically responds to the date of deportation just use that's number six of the p s r objection responses showing that the court was apprised of the exact problem i raised and overrule the