speed it in their plea agreement but because it depends first the characterization of a prior burglary conviction as a crime of violence despite the absence of qualifying evidence to confirm that sentence and hence in fact or do you agree that the plain error standard applies to your procedural i do your honor and and here's my problem how can it be plain error for the district court to do something that this court has specifically reserve decision on in other words there's not a case that says you can't rely on the p s are too recent to say we've checked and the stuff you give disposition says this was a burglary of a dwelling and this court said that's an interesting question whether you're allowed to do that we're not going to decide that now if there was a decision that said you can't do that and the judge did it anyway then it might be point in error but how can it be plainer to opposed to relying on the pre sentence report to say there is a certificate of disposition and it says what it's supposed to say to make this count well i think part of the problem and dance floor in my understanding a part of the reason for the remained was that the adequacy of the underlying certificate or underlying documents some might have been of shepherd approved documents some might not have been there was some there were issues of fact as here where the district court hadn't actually considered them before and didn't hear the district court never saw the specific a disposition as far as we know because the government only obtained it in february but the government has it now the other problem with plain error is how can it be a miscarriage of justice to say that the district court relies on somebodies hearsay statement on the probation officers hears a statement of what the  disposition says when it was accurate it is what the certificate disposition says well the these are to can clear the certificate of disposition one is it's a presumption that it states what it says accurately and it's rebuttable and that's something that has not been litigated in the district court and i didn't intend to litigate it here because i was always taught you shouldn't do that but second think is is it at is it adequate to show that in fact the burglar conviction of which mr m was convicted in two thousand and six which by the way was only graded as an aggravated felony when he was before a federal court up north in two thousand and ten not a crime of violence whether that should be graded as a crime of violence  any theory that was still available to the district court at the time of the sentencing when in fact new york law on burglary is pretty circular and includes things as the panel and welch agreed that go beyond the categor true your honor but subdivision too says dwelling and then you go and look at new york state law and what is a dwelling a dwelling is a building and a building under new york state definitional law that's one forty point two i think it is is a structure that may include not only the you know generic version of dwelling that we all think about but also water craft and vehicles and that takes it again outside of our potentially outside there's a factual issue in other words the brief with the court with the district court saying conceding telling the judge that it's a violent felony because it was a burglary of a dwelling i understand your honor but those kinds of representations at have been held by this court not to satisfy any kind of waiver of a defendant's right to challenge a prior conviction you know that's something that the government's burden is there the government doesn't get relieved of the burden because defense counsel misspeaks at sentencing and it is a misspeak here because there wasn't any misspeak because we have the certificate of disposition now and we know what it says well we know it says subdivision to we don't know what kind of thing whether it was a dwelling that was a building was it was a dwelling of the was a home that was a watercraft we don't know any of that from the certificate of disposition so that's an open question one and two the district court when it decided and this is something that should have been objected to below that the burglary was plainly a crime of violence did so on the basis of the residual clause up by that point by the time of his sentencing in fact have been held unconstitutionally vague but in fact isn't burglary of a dwelling specifically listed as a violent crime government's burden and the government always has even when the government is nice enough to stick by the plea agreement as it was here you've got to look at the proper documents and we have to look at them now because as a matter of fact six months later the sentencing commission said hey burglary isn't a crime of viole property crime f b i thing so you know if it resulted in overly severe sentences and it did in this case of can you talk about that about the substantive reasonability sure if we go back for the purpose of correcting the record to have adequate and challenge consideration of whether or not there are separate approved documents before the court then presumably we also apply the current definition if you go back he's going to get a different  guidelines as at least i read me the government will disagree and do you disagree no i think that's why you want to go back that's that's the beef but let me actually ask you about that mark because i'm always interested in these sentencing cases  assuming you prove rare and what you hope to accomplish on remand exactly i would very much like to accomplish that he be sentenced with the underlying burglary as an aggravated felony versus a crime of violence which good morning my name is ryan harris and represent the government on this appeal here the district court to not commit plain procedural error and calculating acropolis is guidelines range i just like to summarize to the court what's not in dispute in this case it's not disputed that he was previously convicted of in convicted under one hundred twenty five subsection two and of course it's reflected in the typical disposition nowhere in the papers has asserted otherwise that fact is nowhere disputed second it's not disputed here that this section one hundred twenty five subsection two was at the time of sentencing a crime of violence and duplicable guideline crime of violence at the time under section two hundred one point two defined it as among other things burglary of a dwelling and that's precisely here in new york penal law one forty section twenty five subsection two what that sachi prohibits in fact the eleventh circuit in united states you can stand a has held that specifically to be the case that this section constitutes a crime of violence as burglary of a dollar under section tw them so there's no dispute here that the district work properly calculated the guidelines range acropolis argues wherever that the court committed plain procedural error because it did not directly review the certificate of disposition before categorizing this crime as a crime of violence however the substantive reasonable miss of the sentence that the sentencing commission has abandoned the approach that led to the guideline that affected the sentence and has substituted a set of rules under which the a guideline today would be what the government thought it was and stipulated that it was in the first place absolutely not your honor no court in this court nor other any other court that i'm aware of has ever held that a subsequent guidelines were otherwise the district court here cited to a number of aggravating factors that would amply justify an above guideline sentence if in fact the guidelines were otherwise among other things it cited to his lengthy criminal history noted that he had twice been deported from the united states been convicted of this prior offenses previously and all of this demonstrated his repeated disregard for the law and his willingness to place its own interests above those of society those are factors that are not explicitly taken into account discount of the weight of these aggravating factors and perhaps took into account other mitigating factors as is more appropriate but that could force the government represented that the sentence is much lower or would be sufficient to satisfy all the purposes of sentencing your out of the government it represented that due to its error that it was standing by its calculation however it also explicitly held that a sense within the correct guidelines range would not be unreasonable given the fact that court had articulated these particular factors as being particularly aggravating in its well that it would not be unreasonable is a representation i guess about what this court should do with the sentence if the district court saw fit to apply it but with respect to the standard that the district court was asked to apply the government took the position that a much lower sentence would be sufficient to satisfy the purposes of sentencing which is a representation of what the sentence actually should be ye of factors that were not taken into account in the sentencing guidelines calculation that if ms hind could find a highly technical mistake that the district court made that would require a rematch and and the and then the district court in assessing what was an adequate sentence would be required to take into account as one factor an entirely different guideline calculation yes it would your honor however would also be more than justified it would be but and perhaps it would be justifiable for the district court to go by in the face of the guidelines but since we assume that the district court fulfilled her obligation to take the guidelines into account as one of the factors maybe it would come out differently that's the perhaps quixotic venture that ms hind would like and i'm not sure there's any legal argument here the problem is there's a considerable irony in a guideline system that says these guidelines are supposed to be an important factor when they can change from day to day and if the defense lawyer had managed somehow to delay the sentencing for some  the sentencing might have gone entirely differently thanks to the change in guidelines and i know that that happens all the time and that that happens every year your honor every year there are a menace to the guidelines and that does not render every single sentence previous to that retroactive that's the case your honor again the question is at the time was the sentence substantively unreasonable getting back to what i think this court referred to as the tech potentially technical error there was no plain error here this court united states v dance a logic to it right because the issue is what was the prior conviction as opposed to the issue the reason we have to look at the shepherd approved documents is we're looking at what was the prior conviction  categorically not what were the underlying facts yes your honor we can't rely on the end of the pre sentence reports investigation as to what the underlying facts were but the fact of what the as to a fact that the court can rewind on which is what was the fact of the prior conviction it's unclear to me why the pre sentence reports representation that this is the fact about what the conviction was is any different from any other fact on which the court is permitted to rely on the pre sentence report that's absolutely right your honor here it's very different from example a case like united states v ray as where this court held the court a district court may not rely on a factual description of the underlying conduct in part because the factual underlying conduct is not relevant in re as this court wrote that the factual description would quote at most tell us what ray is did not the specific provision of the florida statute for which he was convicted here precisely opposite the opposite is the case here the certificate of disposition on which the p s r relied stated this is what he was convicted of and therefore it does not control here dancer specifically let this quote this issue open and other circuits have either declined to address the issue or explicitly prove the practice this court has repeatedly held for example yet to be bastion that it typically only an error where the operative legal question is on settled including where there is no binding precedent from the court's only stated reason was not that it was enumerated in the guideline at the time which it was but that she had a residual rationale because it could have caused somebody potentially injury and thank goodness it didn't and that was there by itself second possibly may well because at in i think this is a crime of violence because it's a crime of violence under a very complicated rule that maybe i would have been unconstitutional except it isn't under beccles when in fact it staring the single crime in his whole long sad history that is deemed a crime of violence shows that it's kind of out of character it should be deemed a property crime because that's what he's always done and the last thing is well first i think the church should e under the two thousand and sixteen amendments to the guidelines so that's one reason and second indents for the court well first i understood that the government was complaining mostly in its brief that it couldn't be playing  because this court left the door open as you mentioned and i also understood and dance for that part of the reason for the remain and was and i quote we're not in a position to decide the issue definitively because neither party has presented the argument on appeal which is also the case here this is an argument that should be considered by the district court in the first instance even though we're back on some kind of technical basis because of the lack of a shepherd documents and i hope we'll get the chance thank you