judgment the issue cannot again be litigated by the same parties and future lost that's exactly what we have here because in the minnesota case the minnesota district court determined the illinois reckless conduct conviction resulted no criminal history which of course under gall begin with the guideline calculation the criminal history is essential to the guideline calculation the district court decided with the p s r at its disposal not to impose any criminal history in the case of final judgment results in minnesota illinois a conviction gets no criminal history my client sentenced everything is in place considering that we've got two parties that are the same mr clark was the issue litigated in minnesota it was necessary to lit case and if we expand collateral estoppel or issue preclusion too broadly we wind up creating incentives that could make it very very difficult to deal by agreement with minor issues that could have unexpected ramifications later on yes but nevertheless the components are in place so that is essentially a policy argument but nevertheless we have instances across the board where resolution of something that may not seem important at the time is agreed to by the parties and factors are from ash in i can't see how they don't apply because he got something that's necessarily litigated protocol and as a guideline calculation criminal history central mr hillis to yes i know there's a little bit of a dispute between the that the scene said the one month sentence would have been imposed whether or not you know there's a there's a criminal history point for the record conduct yes conviction yes it doesn't doesn't that kind of resolve all this i don't think so because w know where you find actual harm or potential harm in this case if you were to sweep those things aside we still have a criminal history category that's going to follow my client through any revocation proceedings so under eighteen u s c thirty five eighty three treaty if there's a revocation we're going to look seven for the policy statements those are going to look directly back to what the criminal history category is it's going to affect my client sentence if he gets who vote which is a very possible thing for any criminal defendant for all the conditions supervised so that is  substantive right that is impacted by way of future punched ok i understand that argument has been do you know has this court ever in effectively employing harmless error along the lines i talked about here has this court ever considered those kinds of court the opinion and surely it was a non delegation issue but spoke of the condition supervised release that allowed the non delegation in permissible delegation to occur about the sort of harm with the potential of the revocation in a current it i guess i should be more precise in a kind of context like this where you know judge lee is very clear i'm going to impose seventy one months either way so let's not get all you know wrapped up around the one one point issue right as i recall it was very much a down the chain analysis going to follow you through your time under supervised release and you're not going lesser category three versus sports evening for versus three for instance that is going to affect the range of imprisonment under the guidelines and so you can try under staples which means light on the camp case from the ninth circuit is that instances where you are to look in decide what the criminal history is going to be for the alleged conduct you are not supposed to just look at the summary in the p bar and you're supposed to look at the relevant documents in the underlying case the district court didn't do that it didn't look to the documents in the online backless conduct case instead relied on the summary from the probation office i think that also now is yes why because under the analysis that was set forth in the case law that said about one another what circumstance you can look at various documents they are pertaining to for state the pleading the information that was available to the district court in the camp case and said you should look to those materials post staples we have the series of cases talking about no think that those cases can and can now be read in the way that they have been read because the law has changed proceeding it didn't appear to have played much of any role the parties were focused on the mandatory minimum sentence there are a few months which was within the guidelines range that was calculated and would have been within the guidelines range had the court assigned one point to the other points i could make about that as as a case is explained courts are have been hesitant to apply collateral stop when the criminal sensing contacts for a variety of reasons but that applies with this especially with force in this context when we're talking about the guidelines calculation because district courts have an independent obligation at the start of the sensing proceeding to correctly calculate the sentencing guidelines range and so he doesn't it it would be unwise to require them to forego that obligation instead rely on an improperly calculated guidelines range from a previous proceeding and so they should preclusion that dr murray should doesn't apply in any case is to say nothing of what we mentioned by way of the criminal history calculation of the government is right in the judge gave a thirty five fifty three explanation about the length of sentence never still are accounted for the error in the fact as it goes to criminal or they find they're getting no criminal history matching somebody finds themselves now and later proceeding and they are unarmed career criminal because now we found this case and criminal history should apply we think that you should get a point you didn't get before and now you're in a whole different category you're in a whole different sentencing range these are things that are real and the government has for all it might say that it wasn't important to it to litigate this has an interest in making sure the process is correct  you saying the folks who are about to commit a crime are considering how their criminal history has figured in the past to try to gauge the risks five argue the government careful evidence is thin on that and mean i'm trying to do it in a hypothetical on the fly but it in essence would be a situation in which everybody agrees that it's appropriate to give this guy the mandatory minimum and we really are going to worry very much about the guideline jocularly and so the we've got an avenue through both sides or both sides i would think it's fair for me to come up and ask fool that you know had i went tails you lose the criminal history needs to be applied in a way that is procedurally cracked with both parties and we've got our avenue