first thing in the morning if you like this makes for a good bedtime story i would like to start by pointing out that under any standard that you want to apply  three me it gives you the definition of an aggravated felony tells you to look at nine twenty four see and there's really no mention of the eight zero two twenty one u s c eight zero two thirteen which is actually a reset of a statute and has really nothing to do with defining a fact when you go to define a felony you would normally if you're looking at an eighteen u s c nine twenty four you're going to naturally go to eighteen u legislative history of what an aggravated felony has and well here we just have to see whether i mean what the record on the categorical or you know on that if what  can really make sure argument any different here i was just mentioning it as because our third argument was a blakely argument and so that's why i turned it in because of the blakely argument which was just to be arguments which we actually actually asked the court not to reach if you were going to decide it on the other two issues so but i thought out of conscience i should have supplied it to you anyway since we did raise that as a third argument it was in the opening approach i think the prior conviction part of that is it's not i think likely argument well the reason we recently raise your honor is because for an aggravated felony enhanced it's not just simply the fact of a prior conviction it's a certain kind has to be a certain type of prior conviction in a certain order viz a viz the deportation or removal order so it's not felony will do it has to be a right but if if the record but if i could look at this and say i mean i'm seeing the problem here is that two hundred ten days but it doesn't show a year now if let's just say that i agree with your argument on that and say under the categorical approach they don't make it and they could still i don't know where they're under a modified categorical of credit i can only see two hundred ten days from the record and that's what judge  members and if they want to continue to ask questions you know i think you know i'd like to ask the government how they get past the two hundred ten days here and if in months other panel members you know aren't seen it that way and under the guidelines regime and in finding that this one are great selling right now that the guidelines are only advisory to district courts still proceed on the basis that well maybe it's not an aggravated felony but to me it's close enough for them still imposed that the enhancement well because the guidelines are no longer mandatory so while the guidelines have become discretionary so he can still look to that point is that this is still not an aggravated felony whether the guidelines apply or not i know that nobody can say well this is not as strict agri felony is defined in the guidelines but i'm not a man by the guidelines so i'm going to create it i'm looking at here and this is what i think you deserve and now i'm going to figure out how to do that on actually you think he's going to go through a whole list of thirty five fifty three a before you can do that he can't just say oh well you have to look at the but what you have to the other question about ok no well what happened under booker under booker seems to me that the test now is reasonable miss the judge must consider the factors that were required under the statute to consider consult the guidelines make an analysis and come up with a sentence that is reasonable under all the circumstances i think that at this particular point factually we're dealing with a case that even if the court will always wrong in conceding for purposes  argument that divorce court was wrong we can still look at it as harmless error in this particular case because under the statutory maximum even if there was an aggravated felony it's still yes to other felony convictions which are listed in a p s r so he'd be looking for statutory maximum of ten years he's a criminal history category six he's been deported two times he was given the bottom of the guidelines here i don't really know what i want to judge you know i mean obviously when you decide what you have to do that you approach something completely differently then when you say well i don't have to do that now i have a little more freedom to exercise my discretion you may think you know it this record though in terms of i don't i can't see incarceration for a year i only see two hundred some this record i don't think it's necessary because when you're talking about a drug trafficking or ferentz which would be a have to show the amount of confinement in this particular case if it's one of those convoluted cases under i'd better go into where you track through and it becomes an eight level felony so that the amount of time it actually sixteen level increased but not under the simple possession statute this is one of those weird statutes were under federal law it would be a misdemeanor under state law it's denominator to the felony and then we end up with  and that has been determined on the crown of sanchez to not be sufficient evidence of anything and actually they put in eleven three fifty capital a there is no such thing as an eleven three fifty capital and the california do matter that it would have to be you have to be able to show our viewers to incarceration on a section that's where i've been relying on for ira versus ashcroft because it's a two thousand and four case so which says the same thing ok