identified paragraph thirty three on page eight as the qualifying aggravated felony for an eight level enhancement on this case when we get to court what the government produces it is from paragraph thirty four pre sentence report on page nine a car burglary under i think thirty three as the qualifying aggravated felony when it came to court there was no mention of that felony a matter of fact what was produced were documents relating to paragraph thirty four on page nine and that was a car burglary taylor has been around for at least fifteen years almost sixteen years i think we all know by now that  does not qualify as a burglary i don't think that's in dispute yet the court found that this car bill or hillary excuse me was that aggravated felony and almost started out with who's on first because this is the most bizarre sentencing i've ever seen there is absolutely no mention of what the p s r used to increase the defendant two thousand so that's almost six years old taylor is fifteen years old i think we can all agree a car burglary does not qualify as a burglary it's overbroad it does not fit his or another here which did no other things there was no other offenses that documentation was produced under either taylor or sheppard and why does that matter burden to prove up any enhancements to the defendant the defendant doesn't have to talk about them he doesn't have to bring them to the court's attention when it comes to sentencing it is soley the government's burden and that burden was not met here and when i would almost say because taylor is so old this is not a new case that i cited in my  i would say that this was invited error because everybody knows that a car burglary does not qualify for an enhancement well the prosecution here says that for fifteen years now is not an aggravated felony never can be used as an aggravated felony and say that that was just a mistake everybody the government let it go forward the defense tried to argue to the court and say you know this is already been proven not to be an aggravated felony so i would say the government's going forward with this is i mean it's a known fact that this is not an aggravated felony it just can't be used as one to be some kind of court acknowledgement of this i was saying that that it's there i mean the government mentioned in passing oh by the way you know thirty two is you know receiving known stolen property well what's that got to do with the price of tea in china everybody's been discussing thirty four at the sentencing hearing it's just this is one of those cases where i would recommend  blatant that the government not be allowed to go back and produce any more documents they had five months to produce documents in this case and all they could come up with was a car burglary and i'm holding my last two minutes  and he noticed well he was convicted under a different name and in the whole court got sidetracked in this cussing the aliases and does this conviction apply for the criminal history i'm really concerned about this because there's no objections to the brought up on an on appeal later so i want to get this addressed now so the if you look at the if you look at the matter of the hearings the hearings were were continued on the laid out it is true that paragraph thirty three under the pre sent report and actually this morning as i'm sitting back there in a gallery it i caught it too of course i was relying on the defense objection that thirty four was inappropriate my response is i agree a vehicle burglary is overbroad under the agree there were there was a mistake made however we the government brought it to the changing of the defendant months before saying well then we're going to proceed on thirty three and let the court know that they can proceed on this paragraph or paragraph thirty and the excerpts of record at page fifty five the judge describes the the burglary as the failing the base defense level as eight articulated earlier when he goes public defender said i'm confused which paragraph that he rely on and mr close to the public for me because i'm confused too i don't know i'm not sure he said i think he relied on thirty four and i said i think he relied on thirty three but i'm not sure was over broad power the shepherd case in defining what a common law burglary was broad in that definition of what a common law burglary was which included a commercial business relying on paragraph thirty two now are we talking about thirty three well because it's not in your brief that you're talking about i did and that's exactly what i what i had done as i've on thirty two in my brief because receiving stolen property is a theft offense which is an aggravated felony which therefore any are committed by the court would be harmless because we're right back to the very same sentence but except that this court you don't agree with your point i mean i you still standing by your harmless fair argument are you are you essentially recognizing that we're going to have to come back as best you could have to come back and do it again not it not at best at worst i think  i think as the way it stands now is that basically we have not one but we have two convictions in the p s r that basically say that there can be an eight level enhanced when the judge every all i agree everyone got confused and started focusing on thirty four however i will note that what the judge and gave a little stool at the at the very close of the sentencing was the commercial burglary as stated at paragraph thirty three that's listed in the objections at paragraph thirty three so what did happen is that since didn't object to thirty three there was really no discussion of thirty three he didn't ask for any the documents regarding thirty three but he because the objection was raised to thirty four the judge starr said let's see these convictions on thirty four i've got a concern about the aliases he's aliases are all confusing so we got sidetracked talking about thirty four at the end of the day thirty four really didn't really come through to say hey here's a nice circuit we are now broadening that common law definition of a burglary because while shepherd narrowed it for the rest of the country for us here in the ninth circuit you know actually broadened it out just a little bit because if there's anything in there that that fence was pulled out we'll go back on the record we can take a look at a break and that was the end of it and there was no there was no further hearing so really within the record is this morning talk mentation suppressions and is there is those enhanced months are that that burden only arises when there is an objection to when the defense attorney says court you can rely on this p s r it's good then there is the government the government has no burden to say well  yes we turned over the entire a fall to the defense but not well not to me usually usually what we do in our office is that we have the immigration officer make it available they they come to a section of the p s r it was going to discuss that it produced excerpts sixty eight to sixty jay only evidence of the car burglary that's how confused they were they had every opportunity to produce other records right now what about the fact that the judge does appear however in the end been relying and the paragraph that was just discussed she says the family commercial check yes but that was all that was given if the government was so confused why did it only supply the court with the car burglary documents that makes no sense i mean that that shows pretty much what they were relying on the other couple of things i wanted to point out was the misstatement of am a line is that the defense somehow has to make some kind of objection before the government has to prove an enhancement and we didn't say that and when said it is the