page seventeen forty one point two defines what convictions count as clear offender predicate convictions and it says the term crime of violence means any off and under federal or state law so this appeal is about whether or not federal state law means territorial convictions in the government's thirty seven page answering brief in this case in my case the single issue brief is all about convincing this court that the word state means territorial convictions specifically puerto rico but it simply does not say that there isn't and in time and time again a different correctional statutes and in the event in the career fender precursor of the special offender statute the statute specifically defined what state means for instance in the special offender statute this is the old thirty five seventy thirty five than the five which was abrogated and replaced by the sensor reform act  statute and indeed many other statutes and even parts of the guidelines why does it define the commonwealth of puerto rico to be a separate concept from the cons of the state the government's argument seems to be statute or in this case the guidelines should clearly state that plainly here the commission uses words of limitations it says it has that you have federal or state convictions now we know the government can't get up here and say that well for convictions can count or travel convictions can count we don't really that that is not the case because they have to be accountable and the guidelines say that foreign travel conditions can't be counted we know that these are words of limitation now the government and both the district of the government here they're asking the court to say that it's actually says something that it does not say that it has an expansive scope of normal statute as an expansive scope and that we want you to fill that gap what was the interesting point one thing we don't know here is why the sentencing commission put those words a limitation in the guidelines the government to supply no legislative history or i should say commission history in this case to help us decide that i couldn't find any but one reason is that it's difficult to evaluate for convictions and in this case we had that concern that documents were received from the convictions in thirty three thirty four the challenge convictions were in spanish and we know that the puerto rican state system is not a traditional common law system like we have in the states it's a hybrid system that's the law and come on it or it's a difference just so a reasonable basis for the commission to say we are going to include foreign convictions we're not going to include convictions  than from the states in the federal government is that it's difficult to evaluate those convictions and it's a reasonable basis for reviewing and it can't the decision can be based on what the district court said which is that while they give people a lot of rights of ordering when that's not really responsive to the important they give people a lot of rights in western europe but we know we can't count those convictions we know we can't count because this is federal state we've got to get up here is and say that a belgian conviction counts because it's not a federal state convention i think we have to deal with this issue in light of d therefore we can conditions cannot be used to trigger the criminal visions now other guidelines and step strike visions in my view are not and are not contradictory to this decision for example the background no two for a one point and certain convictions from this list are never counted for example as mr carter said organizations aren't counted some military convictions aren't counted travel convictions aren't counted but then you turn around and you look at the armed career criminal statute indicates that any conviction is counted and particularly telling now is the repeat sexual offender provision which specifically defines the word state to include part of rico now if the term state was automatically included or inclusive of puerto rico then that kind of makes that definition superfluous and it also makes the listing of territorial convictions in for a one point one the back are not superfluous the congressional definition in the repeat sexual sexual offender provision indicates a clear congressional intent to include puerto rican convictions for that statute it also in case the congress knew how to broadly defined the term state and if they didn't do that in the career criminal provisioning intentionally left it up to the commission to define kind of violence now the first circuit law is not instructive on this issue particularly morality as if you look at that decision and the court is basically your standard of review but be that as it may the first circuit actually is is saying to the defendant you didn't fully argue this issue and so we're not going to decide it so the fact that the court didn't decide that issue really doesn't set any has a quarter of a commonwealth of puerto rico the degree of autonomy and independence normally associated with streets so it isn't saying we're not going to does declined to address it so i'm taking that as meaning they're not going to address the issue because counsel didn't mean to enlist all the that's my opinion i believe it was all victor because as they clearly say they declined to address the issue decision and basically tours grosser makes two mistakes first it relies on morales the as as making having made this decision and set precedent and secondly it places the burden of proof on the defendant which as we know goes against longstanding in this market so and either one of them really went into any detail as to be honest how they reach their decisions the government as an alternative argument also asserts that because puerto rican convictions in this case were a bank of commission to decide and the commission indicates that you look you're not looking at the overall conduct you're looking for a specific element the use of horses what you're looking for so one these two are not interchangeable one is very broad enough you're looking overall conduct and one is very narrow in that you're looking just for one specific element and so also the thing to remember is that the commission had the enabling statute in front of it when it drafted the definition for crimes of violence and if they had keep in mind that the position i'm advocating today is not going to have a widespread application and i don't really think it's inconsistent with this congressional mandate because even with this mandate for you convictions are not counted in puerto rico fictions are more document that more than just court found that he was starved at the time i don't really think i'd kind of disarray i have to disagree with that because that would mean that somebody sitting there typing up the document having signed having a copy having a file and handing it out all right there the pre sentence report and the judicial notice of the documents can you tell us in terms of what what happens in the in the states or the territorial courts of puerto rico that will give us the same level of confidence that we have in the we can we can we have a fairly you know we have a lot of information we have less so at least in my my limited experience with puerto rico so i'm asking you in the general matter can you explain to me why you think that based on your experience of puerto ricans they have the i'm just asking about the mechanics of this i am not a member of the puerto rico bars and we have that's my my alibi or ties to the eleventh the line of puerto rico so i was counting on you here to give us some in the federal district court there that they will take those court so i'm not sure if that distinction and the spanish language barrier they talk about that's something that the puerto rico courts and other courts throughout the country are dealing with every day that that's not an obstacle but i would point out is that puerto ricans are american citizen crime of violence and the previously convicted of either a crime of violence or be specified federal drug offenses now in rivera this court dealt with it with that issue but when they talk about a crime of violence there is no jurisdictional limit in other sections such definitions are not designed for general applicability that's where he stops and if you were to take that at that point time you think well they define state here or they don't we're at a loss for what to do but it goes on he doesn't quote this part of the language it goes on and reason therefore there applicability to sections other than those expressly referenced must be determined on a case by case basis and we're not talking about some sort of different fans here or gore or element of events we're talking about the simple term a startling admission he argues and i quote that the sentencing commission chose to define a prior conviction for purposes of forty one point two as a quote federal or state conviction and quote it shows that include convictions in the federal system fifty state systems the district the guidelines tell us otherwise because the guidelines themselves tell us and i quote the commentary just for the one point you did express  and say you can't use violent crimes that have to be defined under federal law congress didn't say anything about any jurisdictional limit on violent crimes if you think about it as a matter of common sense does it really matter if the mass murders committed on any one country or in the district of columbia or in puerto rico does that mean that you can consider that violent offense and it wasn't qualifying language on the drug side of that because there are all sorts of drug offenses out there they want to make sure they met some sort of test the test set out in title twenty one  well beyond the case before us and the question was raised earlier what about western european convictions or were convictions for other other places where the recognized people's procedural rights that's perhaps an argument for another day if you look at the statute there's no district of nevada and commit yet another bank robbery but that's my presentation on the first issue if there are any more questionable happy entertaining otherwise i'll talk briefly on some of gonzalez's telegrams all of his other arguments let me ask in and gets the money the person climbs over the counter the person who's being assisted who's benefiting by the protection of the gun is different results now a jury is looking at the evidence and looking at the stills from the videotape frame b you seem to be are going in time any body brings a gun into a bank and it's a strict liability for all the other people involved in the robbery as to armed bank robbery  my i don't believe that's what i'm saying when trying to say is that you said basically you're going to ask one one of the participants brought a gun and therefore the other must have known about it because they were working together that's your best argument i for reasons i go into a little bit my grief didn't get passed on to the prosecutor or at least if you do get passed on was it was misplaced injury and which of those be the case of government did have paragraph thirty three in the piece are once again we have no information about paragraph thirty three why because no information was able to be obtained by the office of probably a little to get these records which is important and it is important to be able to get the records and be able to evaluate them cogently under a healer here is how expansive are we going to find this term state it's one it's one step to say well the compass the district of columbia the difference that stated compass is the puerto rico commonwealth of puerto rico which has its more corn and nature because it has a different what's interesting is the first time i've ever heard the government tell me that there's no difference between plane air and you know i'd like to have them say that in my plane or a case of the certainly is a huge difference in the first circuit case to be read the flavor of it it seems to be almost as fully predicated on the plane  see my client that morning the gun was under serino sure throughout the whole robbery my client never referenced the gun he never threatened the tellus with the gun and he took control of a by jumping over the counter there was never ever any indication that he know about that weapon serino flashed the gun after my client had already jumped over the counter any did it to a woman who's sitting through the core feet away she was the first person in the whole of her bank to notice again and as you pointed out you could see by the photos of my client back was just serino as he was three and then there was a second testimony that serino to the gun while my client was headed out the door and that said page i believe one zero nine two one eleven and again at one nineteen of the first volume but eleventh our expert witness i had absolutely no notice of it they had the evidence they took the evidence on the date of the robbery and so that evidence was available to the government even if the government didn't happen its filing time identity was an issue because none of the