conviction i think the record demonstrates otherwise and i do want to go into that detail however before i do that i'd like to address what could perhaps be called the legal elephant room and that's this court's decision which in turn was based on the supreme court's decision in not it's that it's versus vine so vaughn is sort of the beginning of this of this line of thinking in the on the supreme court addressed the question whether or not there should be a plane  but this court i would respectfully suggest improperly imported that standard in discard when a defendant has pled guilty and been found guilty of conduct that doesn't constitute a violation of the statute that he is convicted of that is a violation of the defendant's substantial rights so i think that that aspect of the court's decision and dis there is another factor that distinguishes this case significantly from sorry and that is do sorry i did not argue in this court did not address the question whether or not the government's attempting to substitute one predicate offen outlining the of the elements of the offense the assistant united states attorney talked about the elements being defendant to be convicted or even charged of the predicate crime and here he pled guilty to the alternative predicate why isn't that enough well because your honor that that violates the plea agreement all the time the government offers conspiracy as i said that that was what was said during the rule levin haring it's the elements that that were told to the defendant it's the elements that risk recited by by the government a plea agreement has to have significant it's essentially what do sarge the furthest reaches would be chill and respectfully i think your honor's question and is that the plea agreement doesn't have the significance as long as the defendant could have been found standard in the context of somebody who is not claiming a technical rule eleven violation but that he's been convicted of a crime he didn't commit that this court could circulated a decision to all the active members of the court saying that decide was wrongly decided deciding this case differently i understand that's a stretch but there's another argument here that wasn't made to start which is that this is a violation of the plea agreement and what is the outer reaches of what the government can do i could say during  i'm guilty of anything but if the got if the plea agreement with the government says i'm pleading guilty to certain offenses those are the offenses that i'm pleading guilty to to permit defense and to be of more error when i don't believe that this court would permit the government to argue as it's arguing here that i had been convicted of the one and a and therefore should be subjected to a ten year mandatory minimum will just say i'm not going to repeat it much i just want to say st of all that's not dispositive in this case you still have to answer the question you know what did he plead guilty to so for example if this court were to decide that attempted hobbs act robbery is in fact a crime of violence sufficient to support a nine hundred and twenty four state convention he would still have to answer that other issue which is what what what was the plea to hear i would just say in terms of the government's argument in the previous case which may or may not be repeated here the case is that the government relied on thrower and the several other cases the government talked about come from from this court were interpreting new york state law what is attempt what's attempted robbery and what agree under new york state law which has a very different definition it's not a substantial step it's essentially it's a more liberal to defend and standard which essentially requires a defendant to commit every act necessary other than the last act for completion under our standard as the th circuit said very clearly in the united states versus taylor it's a substantial step the government always cites as well they should it's certainly appropriate for this as the defense judge the dissent judge women who gives the example of a defendant who goes who buys a mask you buys handcuffs he buys a gun to who gets to the scene of the robbery sees the police there product or components of the same conduct on state charges there is no time element here but ultimately this court will have to decide that other issue which is what did of course the defendant defendant did not argue below that we violated the plea agreement and it's a baseless allegation i'm the defendant can't point to any particular provision of the agreement that the government has violated or to and frankly do sar decides that issue you started says the court is not going to prohibit the government for making that argument simply because the p remit happened to only list one of the event your sins has to show up assuming attempt to contact robbery is a crime of violence this you wouldn't have pled guilty it has he known had he known that hobbs act robbery conspiracy was not a that's what he needs to show in order to get relief and he has an alleged any facts or provide any evidence that would have happened that has you know not only us the court has other questions will rest on our brief i thank you for your attention that the government can't just assert outside of the record that that has no significance to clients frequently are willing to plead guilty to one predicate offense and not another predicate offense as the basis for a nine  anyway there's been no violation of us of a substantial right how can how can a court say that that a conviction for something that is no longer a crime is not a violation of substantial right i would suggest that