and the effect is that plain or review applies unless there is evidence in the record that the defense recognized the error and decided not to object for some tactical reason invited error and waiver do not bar the appeal and here there is no evidence of that there is no evidence that this was anything more than a mistake on the defense's part is the same mistake that the government made and the district court made and probation made in just failing to recognize the positives in the pli well this was  in all the cases that we've cited in our briefing mr ortiz libertaria accepted the p s r s erroneous calculation of the plus sixteen and included that calculation in his sentencing memo and his sentencing summary chart both of which the district court the district rules the southern district  california require him to file and then argue for a below guideline sentence below that miscalculated range and as that's exactly what happened with these other defendants planar review applies there wasn't any advocacy for this plus sixteen second regarding martino's controls here it held that a defendant can rely on a district court's guideline miscalculation to show an effect on his substantial rights and that's what occurred here this is the normal the usual case that melinda martinez talked about where the sentencing guidelines anchor the district courts discretion the district court imposed a guideline sentence here the district court imposed a four level departure to recap at the guideline range and then within that adjusted offense level the district court said it was imposing a thirty three month sentients sentence which it referred to as the mid range of the advisory guidelines the divisibility of the conduct part over breath of the of the substance or for the transportation to sale and personal use the visibility because i think it is clearly established that this eleven three fifty two is overbroad as to substance there was no it's divisible as to conduct because this statute covers transportation for personal use as well as sales that issue is still unsettled correct correct your honor and given that the supreme court case in math light on that very issue what are you asking this court to do and i think i was unclear that's an alternative argument for how the district court erred there's there's two reasons that the statute is is not a categorical match and the first is that it's overbroad as to substance and the documents here don't help because there's no substance mentioned and so on that basis alone our first argument is the district plainly error because it failed to conduct any sort of categorical analysis under castillo moran and then under the plane air analysis his substantial rights were affected because have the district court applied the categorical analysis it would have seen this is not a categorical match as the government concedes as the substance and there's no substance in these in the judgment of the government submitted and so a lot of this point mr ortiz look at terrell has served as of april of this year he would have served twenty one months which would be the high end of the guideline range that the government is claiming applies with the alternative conviction the plus twelve but even if the district court is going to get to the modified approach here for this conviction the documents don't solve any of the questions that that the modified approach is supposed to to to resolve well so what you're saying is just go ahead and send it back and you'll raise these issues before the district court as to what the documents show or failed to show yes your honor and if and if and when we were to do that given the fact that at least depending on whatever the math this that we trawl route road just says that this statute is opportunity then to bring forward other separate documents i would request that the government that this be reminded i'm not an open record because the government as your owners know have the burden to support this plus sixteen tenancy enhancement that they argued applied of the united states i do want to focus on molina martinez because he really does provide the framework for looking at the plane or issue here and let me preface that by saying that molina does not change one circuit law only  rejected the fifth circuit approach requiring some additional evidence beyond the guideline miscalculation which was never required in the ninth circuit but why mylene is useful is it provides a framework for looking at the two categories of cases where you have a guideline miscalculation that may or may not constitute planar on one hand molina states that where the record is silent as to what the district court might have done how to consider the correct guidelines range the course reliance on an incorrect range in most if the defendant can sustain his burden to show that he there's a substantial likelihood that he would have gotten a lesser sentence given a correctly calculated guideline range that is certainly a substantial right yes  majority opinion that says well most cases will fall into the first category is just that and the court needs to really look at the record here and assess whether this err in favor of a defendant in this case and say well in most cases the guidelines the sentences tethered to the guidelines and some when the ninth circuit we have whether one likes it or not we do we are required by case to treat dicked in effect as controlling how should that affect their analysis of a supreme court case also the dictum we're talking about is the statement that most cases will fall into the first category and whether that's the case or not our argument is that this court could find based on this record that this case falls into the second category and so basically the reason is that in the only way you have a case where the this report with little to no explanation imposes a sentence precisely at the low end of the incorrectly calculated governor range and based on that record in the absence of other statements in the record to suggest that that number was chosen for some other reason the defendant in that case did sustain his burden of showing that the sentence imposed was a product of the guideline miscalculation here what we have is a guideline calculation of forty six to fifty seven months and an ultimate sentence imposed of thirty three months and a clear record and numerous statements by the district court as to why the thirty three month sentence was chosen  the the district court articulated a series of positive factors favoring a lower sentence namely primarily the defendant's father's medical situation as well as his prior time that he has been in the united states and his family presence in the united states as well as aggravating circumstances namely the criminal history that the district court described as horrendous the two prior drug convictions as well as numerous other convictions and the need for specific deterrence this is a defendant who had previously received forty six months for the same offense conduct and in terms of specific specific deterrence was getting a significant break in this case given those positive equities that th described this case would be a little bit more straightforward if the district court had elected to characterize a sentence of thirty three months as a downward variance rather than as a departure under cooking  acknowledge that that's sort of a complication here cook is in one thousand nine hundred one ninth circuit case is in one thousand nine hundred six supreme court case those are both obviously pre book are and what they state is that the district court has the ability the authority to depart upward or downward for circumstances not adequately taken into account by the numerical guidelines mask of this the changed a little a little bit since the probation officer in this case made the determination in the p s r that the prior conviction was a drug trafficking crime rather than a judge and we have to send this back anyway and if so for recency and and if so why are we even arguing about this since that's all going to have to be taken up a new anyway well i think we're arguing about this because we're applying plain error of you and if the defendant appellant does not sustain his burden to show that this  improper procedure had an effect on the sentence you're claiming that not only what we talked about before but the fact that the probation officer made the calculation and the determination you're saying that's not  unless we can show that it's in quotes plainer well yeah i mean i think that's the error that's being claimed here and the error that we have the only one i think it's the primary one and i think that's the area that we have conceded as to promise i want have plainer and the question is from the your argument is that there's no showing that has substantial rights were affected under plane air review because the court imposed a sentence below the range of what  lower than the guidelines and for reasons other than factors that are incorporated in the relevant guidelines for this offense yeah that's a hard argument for the government though because how do we know that if the guideline range had been calculate statistical look at the proportion of cases where the sentence opposes either within the guidelines range or based on a departure from the guidelines upon government's motion and molina observes based on the sentencing commission statistics but that happens in the majority of cases and so based on that empirical evidence includes well in most cases the guideline the ultimate sentence is tethered to the guidelines in some way but this is not that case in that the district court imposed a sentence that was below the guideline range it did not do so based on the government motion for downward departure it did so based on all of the thirty five fifty three factors that it articulated defendant then filed the sentencing summary chart affirmatively calculating guidelines consistent with the guidelines calculated by the p s r and and subsequently by the government and the court that if if this court does elect remand the government should have an opportunity to put any documents in the record to support this or some other of it just like on an open record  because you didn't you get a second bite even though modified categorical approach is always on the table but surely well i understand it and put it in to begin with i understand your honest perspective on that from from the perspective of a district court with dozens of cases if the parties come to the court without a dispute as to a particular issue i can represent already put in twenty one sure i can represent that we would be prepared to satisfy the plus the documents required to sustain a plus twelve enhanced meant for the prior drug trafficking conviction  that does not have this visibility issue as to transportation and also provide the specific type of controlled substance as methamphetamine so we would be prepared on an open record to sustain our burden as at least as to the plus twelve offense so you've got the separate documents you have the shepherd documents as the older conviction for the plus twelve but not asked to this conviction for the plus sixteen is that what you're saying i can't say for certain whether if it were an open record we would make further attempts to sustain the plus sixteen but the plus twelve offense does not present the same issues that the plus sixt does but it's just important to note that because of the way that the defense really came to the table in accord with the plus sixteen you know there are numerous felonies here the government eisley did not submit documents in the record to support a plus for for the prior thirteen twenty six offense let's say the reason being we're not just going to submit documents for every prior conviction th defendant has if if he comes to the table saying we agree that the plus sixteen applies and so i think that does provide a basis for the court if it's going to remand term and on a record where the government can prove up any enhancement that it believes it can thank you thank you very much you know some rebuttal time i believe i have four points i think your honour's the first is regarding the fact that the government now says that it has shepard documents for the past twelve but not the plus sixteen if that's true it should have advocated for a plus twelve at sentencing instead of a plus sixteen because it could support the plus sixteen which you had a duty to do but if i understood him correctly what he said is like they agreed to the plus sixteen why should we deal with anything else basically it's like a plea agreement because your honor they have a duty to come for with evidence to support any sentencing enhanced men that they are advocating for and they can read and the other cases that a salvage this is overbroad just as well as we could in the district or in probation they could have realize and should have realized because it's their duty but this was not a plus sixteen that they could prove so they should have gone for the plus twelve and as judge fisher noted had they gone for with the plus twelve and the district court granted the four level departure again the twenty one months would have expired latest in april that's not counting the time and so mr ickes libertaria has been prejudiced by the fact that the government didn't satisfy its duty to support that part sixteen i said that not not to take up your time much but as there been any discussion between the government and defense counsel to just get this resolved between yourselves rather than continuing to litigate this since the gentleman's in jail and has been for pretty much the whole time plus sixteen the only discussions we've had about resolving this case your honor is before the government filed its response brief the government counsel called me and said they were thinking about conceding error and so they were asking for an extension that didn't end up happening and then they came forward with  being spent was a very valuable resource as perhaps it can be resolved we'll go ahead and proceed and let us know the contrary but this is common sense suggest it out to be resolved in my judgment i don't disagree  archive just make one more point just to clarify the record for i just want to be clear that this was not a below guideline sentence the government said that the district court calculated a forty six to fifty seven month range and then impose a thirty three month sentence which was below the guideline range that's not what happened the district court granted this four level departure which then adjusted the guideline range to thirty to thirty seven months the district court itself noted this was a mid range guideline sentence and so as the guideline change as as the supreme court noted in molina martinez even a variance from the guideline