deserved based on the fact that he is not in fact a career offender there are only two predicate career offender offenses at issue in this gomez's case an assault with a deadly weapon under california be out there that's what was primarily focused on at sentencing i submit in the written objections to the p s r it's clear that both convictions are being challenged as a basis and a predicate for a career  different theory is is preserved for appeal as long as the career offender status was challenge below walton and hernandez both presented very different theories below what was ultimately deemed preserved at the th circuit honor and so on the basis that are that mr gomez's career offender status on the basis of both predicate offenses was objected to below and that a different theory is presented on appeal that doesn't have any bearing i mean should you notice to raise that issue at that point i don't believe it has any bearing your honor because the issue was preserved below i don't think that changes the out analysis is far from a preservation perspective for better or for worse that argue that argument was not briefed but i think whether or not it was briefed is a different question from preservation and i think under this record we have preservation even if we don't have briefing this is a case in which there is no evidence below regarding them the geometric isomer we have that those those couple of men dismissed and they made out pre presidential but to the extent one look at the reasoning there there were no prosecutions ever for the geometric isomer even if the statute were facially overbroad i think it's clearly the supreme court precedent we could say there's no realistic possibilit that would it would ever be applied so they're saying not only are there no prosecutions ever but that's because it doesn't exist why don't seem to me that argument has  purchase and so what do we do with it in a case where nobody addressed this well your honor i think is making an assumption regarding a factual finding that this record simply doesn't have and the district court is the right place to conduct that factual finding and i covered all isomers correct i would say i would quibble your honor with the fact with calling it a very different style but they did say for example your affidavits don't help us because they only deal with the geometric isomer and we don't know because we have none of that well in our case but but i would submit that there's something different and integral from the daily torah case in the sense that i understand the point and the distinction the court is trying to make with regards to  ok the indiana statute is more broad because it does not use definitions of isomers then when you drill down further into the indiana statute there are instances in which with regards to other controlled stops and says the indiana legislature made a decision to delineate optical different types of isomers and so i don't think we can completely dismiss the fact that the indiana legislature made a decision with regards to methamphetamine they have a broader definition i believe that that is an intentionally not not oversight or laziness but intentional and i think we have to presume same thing about the california legislature until proven otherwise and that fact finding has to take place in the district court not here about perhaps it earlier with my us your rationality in which in that we love that to be true your honor i come from i come from idaho where we have the same issues but don't let your example earlier about magic fairy dust if  legislature decided that they wanted to include that statue do include that language in the statute into proven otherwise i think it's the onus of the courts to presume that there was a reason they did it there is compelling information out there the supreme court unfortunately or fortunately has told us that it's not overbroad if there is not a realistic possibility that the over breath will be enforced now aside whether or not that applies here but it does mean you we can have a statute that's facially overbroad that we wouldn't fight over broad under the supreme court direction correct i don't know that i would agree with that your honor based on the way i don't agree with the supreme court either b imagination the government says it doesn't exist i could never prosecute under that the problem is that it's like actual imagining yeah i mean so in the real case that's a good question is legal imagination different than factual arguments that because federal law excepted some l method products and california law didn't that that was overbroad and indivisible and all the same results from lorenzo should apply and the court held in vega ortiz the defendant had to come forward with evidence that those onus products actually were prosecuted in california courts defendant had no such evidence and so he could not prevail on a yes absolutely and because that the issue is federal law excepted this element product right there was a in the venn diagram the federal definition was narrower than the state one because the state one had no such exception there was a similar situation aguilar rim i think aguilar rios about federal firearms but in any case the point being the venn diagrams look the same whether or not you characterize it as an over break because california adds something or because the federal law deletes something you looking at identical  and defend its arguments of the contrary the grisel as authoritative and when it's alvarez as a secondary precedent when in fact it has to be the other way the supreme court's ruling when a salver is that there must be a realistic probability is the controlling rule the result was an application of that rule and it just doesn't apply here for the same reasons didn't apply invade or t's because the grammar of the statute alone does not establish a reasonable possibility over broad application for all the reasons we've discussed before to go to just wordless point about california and that in the statute again i don't think there's anything wrong with the statute it's just deficient there's all sorts of context in which you might have a definition that does and doesn't apply  thing and some of the members of that list might not have all of those things it's an over inclusive definition but it's not one that takes a stance about again going to chemistry or about the existence or nonexistence of anything it's just an efficiency grammatical efficiency from a legislative standpoint and so again this all comes back to what i think the appropriate disposition of all of these cases are and is that california law is not overbroad on its face in the way that grizel recognized as a result defendants for the burden to come forward with evidence of the likelihood of the er of a realistic probability under one as alvarez through some combination of coming forward with cases where they're actually prosecuted or frankly at minimum demonstrating did neither of those things and that should have been the end of it certainly in the plane era cases but also in gamble and frankly the government's declarations about the non existing of methamphetamine were overkill we didn't even need to get there because  the facial not over but of the statute put the burden on defendants that avoids all of the parade of horribles about many trials that have been talked about by the defense in these cases because it ends it in letters that is contrary to the said whatever however else we might characterize the seven circuits approach that would put us in direct conflict so i think i made the best argument in twenty a j that i can that one sentence is dicta and frankly it's incorrect i hope it will get it fixed on rehearing because at minimum a court cannot ignore evidence that a when it's preserved ignore evidence that a state section actually isn't overbroad the ultimate question is not a grammar question the ultimate question is does this state criminal these cases are all technically modified categorical cases because of the list of controlled substances in california if we were to look at the shepherd documents in the case could we tell whether or not these defendants were prosecuted for have every every drug every time methamphetamine is prosecuted have to have its chemical composition analyze to see whether it has these particular types  means that california law is not overbroad and the result should be exactly the same as it was in vegas ortiz and your and your answer and i know we're switching back to the st case where the issue was preserved by you that the defendants were excused in their burdens because the district judge said well the reds are scrubbed down i don't have to worry about any of this so this if the court adopts the overbred argument that i'm making this is an argument as a matter of law which was well preserved below there's no reason not to say that the california law is not overbroad its face defendant did not meet her burden to demonstrate a realistic probability and therefore on this record it's over and this actually does get to your concern about healing a little bit the posture of game boa can provide the court some comfort in making a ruling that i think is important for the administration of justice in the circuit if the court holds that on this record on an undisputed record where the defendant had an opportunity to present evidence and did not that there in that case the court erred in dismissing the indictment in the case goes back because it's a government appeal of the dismissal and so the defendant is not incarcerated at that point the defendant is put back in the trial court at that point and can raise other motions if he wants to and so it's not a last shot if she actually has an expert waiting in the wings she can renew a motion based on a on an on a new factual record it's actually the inverse of what lorenzo itself said right lorenzo said the government failed to do this he went on for closing our facility to do in the future case but here's what happens on this record that's exactly what the court should do here here's what happens on this record that is to court erred in dismissing the indictment and that should be reversed and in these other cases there was no plainer and the court should be affirm through legal imagination no overbred on the face of the statute result took the realistic probability standard you considered how to how can that standard be satisfied and in and the th circuit ruled that that realistic probability standard