but the first case is united states versus jones number thirteen seventeen seventy three mr made and miss haywood opponents of the evidence that the defendant here was convicted of a crime of violence therefore his sentencing as a clear maybe we can start and that's a good good thing to have for here is what one of the reason it matters is you set forth at the outset of your brief that this is subject to plenary review and it sounds to me like what you're arguing is pure fact finding why the judge and an argument that there was an adequate basis conclude the fact that he and i should not what i said is really the issue that judge smith has the way he has phrased it is it one or the other and just as one other thing to add to that when i look at page eight twelve of the transcript judgment often said i find for the reasons previously stated that the simple assault conviction of nine hundred ninety seven was a crime of violence within the meaning of the guidelines that he make a finding of fact here that this review for clear i would be and i would say here both sides just want to say that it was also it was an error of fact but i'd also say it's an error was based on what he used to come to this conclusion what difference did it make  for the district court and the government incentives brief to us to be arguing whether or not a one eight to a three are considered crimes of violence that's a legal determination and there's no dispute between the parties as i understand that it is a legal matter an eighty three offense is a crime of violence for purposes of calculating the  but i understood the real question to be the factual question the historical question did mr jones plead before the court of common pleas two and eighty three conviction to put it another way did mr jones plead to that which was charged in the information i understood just that's a historical fact either re did or it did and if that's what you were a teen up as i understood you to be teeing it up at page eighty four of the the appendix that the sentencing transcript at the same time because there is no colloquy for the who are to rely on it's unknown exactly what he pled to that's factual question right i agree with that judge i believe that is a factual question and if if there isn't sufficient evidence in the record to demonstrate that in fact he pled to  i would agree just i believe in this particular situation based on what he was allowed to review what he reviewed would fall short it's required to fight this mystery you've been around the courts for a good while and and know is i understand your position and from my own review of the short record what we don't know as a matter of fact is what the defendant pleaded to as an offense pled to and was sentenced on by the court of common pleas unless we conclude that the mere charging document alone was sufficient to draw inferences reasonable inferences to support the conclusion record but may have been produced in the court i just saw them this morning or yesterday but i will point out judge the only thing that was there was a plea agreement and the plea agreement itself says he will plea to simple soul period it doesn't plea agreements reached as we see in the selective prosecution system that is that says absolutely in fact it can get pretty freewheeling in the state system on a trial term in the federal system i was in front of your daughter i believe when you're in johnstown that i'm going to states this and i was shocked how there is that wheeling and dealing and it goes from one point you may you may be pleading the one thing and they walk in a day of the plea you may be pleading this something that was never said who are in the criminal mation completely different and it's a mess orderly conduct in fact can cover a multitude of sins under the crimes code and never have been charged in the information in the first place absolutely it just switches o'connor and her to set in the separate case indicated there may be scenarios in which as a result of charge bargaining defendants guilty plea is premised on substantially different backs than those that were the basis of the original police investigation and here because we don't have the evidence to what he pled to not what he was charged with i can't dispute what he was charged with originally but we don't know what happened ten months later and what he actually played to and that is basically my argument the weakness that you have is that when you have the description in the information as to what happened this person went to a bar with a nine millimeter handgun and with the with the purpose of where we carry the firearm and he had no license and he put someone in fear of his life a person in the bar how could could that be a one or a two judge announced facts the way it's set out i'm not sure the court isn't health rely on those facts that set forth i think that would be a mistake to look at the factual basis here i mean underlying did not that that wasn't proven is that what he was he pled to and again your honor let me go back to the search for words i find the used by judge with often i find for the reasons previously stated that the simple what we have here is a three condition if it is a finding of fact your own i would argue it's an error because i don't do a sufficient evidence produced by the government allowed him to reach that again not disputing what the information said and even in the even in the pre sentence report it said the person was convicted only of simple assault never specified that the samples now you mentioned that there may be additional documents that were given to the court in one thousand ninety seven ninety seven judge i believe i cited this sent to the time of the sentencing here the only thing i saw judge that indicated that was a plea agreement to which the defendant agreed to plead hearing it was the first time i saw any of these documents i had objected beforehand and i saw these documents for the first time i remember judge mclaughlin it was if you apparently hadn't even seen the information prior to the sentencing because you asked for it at that time and looked at it what are you indicating now that there was a document that we don't have in front of us that indicated that mr jones would plead guilty to simple assault generally i saw that suggests i saw that this morning that but it's not in this record i didn't know i didn't see it till today and neither side has presented it to us was it in the record before the district court if it was judge i never saw not referenced in none i mean to to me if it were then picture job an awful lot harder because just as you and i have discussed experience in the court of con the busy could have common pleas i in my own experience would find it pretty unlikely that a prosecutor would agree to allow a nolo plea which as we all know carries with it a suggest less culpability because of the lack of a mission at the same time he's allowing a plea to something other than the crime of violence it would suggest the leniency from the prosecutor that would be  prosecutors to be less willing to offer a deal of some leniency if all the defendant is going to do is plea no i think it depends on the circumstances i'm not avoiding the question i just saw it as a court has from the state there are so many willing and dealing at the moment the defendant may not want to do a certain type of crime he may say i want to play a plea to negligence most times prosecutors will do it think it is there any evidence in this case  good morning rebecca haywood here on behalf of the united states of america why didn't the probation officer go get documentary why didn't the government ask document which then would have been game set and match for the government in terms of proof that what mr jones plug to the a three phase was charged your honor if he did and the government did actually submit these documents at the sentencing hearing the rest of the court documents and the docket sheet in the district court at talk at number thirty three is right i've read that in fact i have it in parentheses here and i have the rest of the court documents that tells me nothing he may have had them attached and filed it docket number thirty three includes the docket sheet includes the judgment of sentence and the district court for the simple assault which says he pled no contest as charged and as we were aware the information as charged is under twenty seven zero one three and there's also a page i believe it's page twenty four of this appendix the information itself has a handwritten note haitian and c presumably standing for no contest charges may i just  i don't expect the other two members of the panel join me but i have spent a considerable amount of time as my v has some of my walk trying to bring some degree of order to a case based on the record before me was the simple factual question and it was still that is a factual question by mr me of whether or not his client pleaded that with which he was charged and that with which he was charged both sides agreed it was a crime of violence as a matter of law and yet we didn't get the benefit in an appendix any other way of documents of which the government has knowledge and the defense to his knowledge my mind boggles understand your honor and so you'll be submitting what to us i will be submitting document number thirty three from the district court docket that includes the documents that were given that the government references as the rest of the court documents that were submitted to defense counsel and to the district court at the sentencing hearing in this case which indicate as i stated that page seven of those documents it's actually the judgment of the that of the simple assault conviction committed fifteen years before he was sentenced fourteen years before so he understood but he did plead no contest to a charge which there is no dispute that physical medicine thing i mean putting someone in imminent serious fear of bodily injury could be subject to serious challenge if the only evidence that was mustered by the government in answer was a charge certainly but the case is that mr made to rely upon his brief all dealt with cases where there was an information but there was also another the defendant had come forward with some argument that the defendant had not actually pled to what was set forth in that information but if the burden of proof never ship as a matter of law as a matter of law are full on the quality of europe it's even with a preponderance of the standard even though the burden of production shifts the difference still doesn't have to show anything if the quality of europe doesn't give rise to reasonable inference as to what you need to prove i would agree and i would say in this case that the information a reasonable inference inference that is can be drawn from this case from the information appendix the blue brief a twenty four is nothing more than the church and one side but on the one on the left hand side there's a hand written a patient says and c and c so it's any implication that there was a pl no contest to that that charge or asking for an inference government's evidence to prove a predicate offense become insufficient well certainly if there is a general matter the cases do indicate if there's simply a charge and no indication of what the defendant has actually pled guilty to that i would think that a court could not use a charge alone as an indication that there is has been a predicate especially i understand understood when you're talking about her offender range and you're talking about such a significant enhanc certainly there should be more than a charging instrument provided but again i think the lack of clarity here is that the when you look at the docket sheet in this case and you look at docket number thirty three on the district court docket it says minute entry of the sentencing hearing and exhibit  information which would lead one to believe perhaps that the only document that was submitted was the information i took this case speaking only for myself that's what i was like when i walked into this court right i understood but when you actually when you when impression that you know the blink impression i should say that one gets when you read this is that judgment often saw someone who had a long list of offenses certainly no going back twenty some years and had said you know you are you're always you who are the system and have sentenced him in the mid range of with your hand skylines range would be and that was that and maybe didn't give enough question i think it is natural however looked at what is in front of us including the review of the p s r which doesn't although sitting with a sentence doesn't say indication that there was a conviction it's just simply simple assault it doesn't say who seven zero one eight three it says that there is a plea to simple solve and the one thing i believe that  even one that says pleaded no contest as charged i don't know what the charge was ten months later there's no indication what that charge was what the person pled to ten months after the original charge and we would just argue that those documents are not the type of documents that should be relied on plus there are cases i believe us or society anderson a circuit which the third circuit was very reluctant to rely or didn't rely on docket entries understand will be getting a twenty eight year letters well thank you very much