think probably the reason why i misspoke is because i only practice here and so of course of course it's federal law and we're talking about the effect of mr advani intends prior which was a california his federal sentencing it's our argument that the harris position the position that was taken in harris a supreme court case was effectively overruled by the last four years of supreme court law court can do that and i would ask this court to find that there is a substantial justification for our finding differently then harris and supreme court jurisprudence and there are several reasons for that one is that the harris reasoning is really effectively been eroded another reason is the trend of supreme court cases leads to the conclusion that if there's a different test really now there's really a fact impact test in other words that here is distinction which stanwell sense the fact to be found by the judge doesn't affect statutory only affects the statutory minimum instead of the next moment doesn't apply but now we have the fact impact test which really talks about what's the effect of the fact upon punishment is the fact in question essential to punishment and under that test i can't think of a fact more essential to punishment than one that raises a mandatory minimum even more so then the booker blakeley issues involving whether guidelines are mandatory because under that analysis there are departures so a court has discretion but in a situation like this where the mandatory minimum is doubled sensually taking away discretion from the court it's hard for me to imagine a fact has more impact on punishment that the majority that was there that barely found a prior conviction exception to the right to a jury to make these determinations has been eroded away by not only people leaving the supreme court but also thomas clearly saying he decided that wrongly so i think now only one of the vote out alone except two of the majority from elm and doris are gone i think o'connor and who else another one  but justice i think rehnquist right thank you i think that if the case were up there now and there's so many it's surprising to me that it hasn't gone up yet because it is an issue that affects a lot of people but i suppose it's because they just have so much to deal with for you me to have a very persuasive analysis of the intellectual elements of all of this but we have ninth circuit cases that  such as i think it is can our move wrote the article about the trend in cases and looking at the trend were to be heard loudly it would be that the courts can with substantial justification see where things are going and perhaps take the bold move of making that step i think it'll go up to the supreme court from one side or the other rivers told as though we're not supposed to read t v they're the ones that we can't overrule our president we can go on long perhaps but we this panel certainly couldn't do that well if you do believe that you're being around and that you can't accept my first argument then i would ask you to find it even if the prior conviction exception is still valid under the precedent that you believe you have to apply that under sheffer the facts of our case don't support the application  here here and shepherd held that you have to have a conclusive prior conviction record to fit within that narrow exception of the prior conviction exception here are the facts were proven largely records normally clarksville out minute orders clerks fill out docket they're they're clearly hearsay what you have is a complaint which states a felony it's a one one three seven seven is what they call a wobbler under state law it can be a misdemeanor or a felony someone can plead to a felony or by plea agreement or agreement with a government plea down under a misdemeanor here i would submit that we don't have a conclusive record because we don't have an abstract of judgment say a certified abstract signed by a judge we don't have a transcript of a judge stating it's a felony so it falls within an area where i would say the shepherd fact finding as well as to the determination that it was a final conviction for the purposes of a fifty one so we made that we put the government to its test both factually as well  that the court's question well in other words we didn't wave a question of whether factually was a sufficient proof we preserve that  well i had two arguments with respect to the twelve the three point four one is that they didn't meet the test under sheffer to have proven factually up the prior my other argument is that it wasn't final for the purposes of its use under eight fifty one that was the second argument in the brief and essentially what we argued is sense the state court took further action and in fact reduced it to a misdemeanor that it calculation case similar to the other case that was cited which was an administrative case having to do with whether it could be used in a deportation case there has been no ninth circuit case dealing with the use of a prior that had been reduced under twelve o three point four to a misdemeanor in the context of a fifty one and that's the distinction to hayden lastly on the the argument i just wanted to note quickly on the eighth amendment argument that  government got the facts wrong as to mr bonnington i articulated those in my reply brief he was not a lifelong methamphetamine trafficker and his criminal history was not escalating those facts were just wrong and i think they minimized and ignored aggravating facts  questions about the continuing viability of the supreme court precedent that makes this clear respectfully as your honour's have pointed out that president remains binding on this chord with respect to the second issue that the senate raised the pla