it was not and the government has agreed to that and their brief and i actually like to ask you about that was look at the different definition of film only convictions in the sentencing guidelines and he could have gotten up to two years on this michigan quote misdemeanor correct no because he pled to the attempt and under michigan law the statutory max on the attempt is half of the statutory maximum of the substance offense which is why the statutory maximum became one year the supplemental filings when he actually pled to the misdemeanor the maximum offense laid out on the documents as one year and or two thousand five hundred dollars fine ok thank you recommendation the court sure has to widen but within the parameters and so i do agree at that juncture is the defense making the argument that mr wise ms a corporate a reference his previous written purport to in any of the convictions say whether there felony convictions or misdemeanor convictions and that's just the standard federal p s r as they never do that they never have a subsection that says this is a felony or this is a misdemeanor so there wasn't anything to object to in the pre sentence report that the present report what it didn't do was clarify that he pled to a lesser offense than what he was originally charged with the p s r actually sets forth the original charge actually says he played that he pled guilty but that doesn't clarify that he pled to a less serious offense but it didn't accurately sets forth what the sentence imposed was and so before the sentencing when judge miller started  out this is your seventh felony this is your seven felony there you know there was nothing to object to now and to be candid it appears it was more mr miller himself than mr wiseman that you're object this count because it would judge miller finally stopped after he was for the second time talked about seven felony convictions he what he does he says give me just a moment here mr miller i just want to explain where i'm coming from because i know twice now i've mentioned some felony conviction and you seem concerned that i had it wrong so mr miller it's not transcribed what mr miller did but he did something that was that was sufficient to get the judge's attention  and mr miller had previously in his allocution said i have five prior felony conviction that he's pacifically said that in his elocution which was before this point where judge miller stopped and then judge miller said so i know you think i'm wrong let me take a pause go through this and he did it's just one of the convictions you listed wasn't a felony conviction it's a misdemeanor with that night and the time to object they had already of the objection is what caused the judge to stop and i think this gets down to what's the difference between an objection and then the what is an exception the contemporaneous objection rules you gotta at the time stop the judge bring it to the judge's attention so the judge can consider right i mean there is no objection and and the point is transcript mr miller is objecting he's saying i don't have six could felony convictions i mean i know what we'd like allocating saying i have five correct me if there isn't anything in the nature of an objection here well as i said certainly there's nothing whatever mr miller was doing that caused judge miller to stop in address this issue is not transcribed and so i don't know if you were speaking loudly to counsel or if you was waving to the judge saying that wrong but whatever he did was sufficient to make the judge stop it say look i think you're making mistake in judge miller understood this mistake that there that mr miller was claiming he's saying i don't have that many felony convictions and that's why judge miller said i'm going to stop and go through these the convictions what i'm saying about the felony convictions now look obviously it would have been better if someone including the prosecutor or the probation officer would have or defense counsel to i mean in fairness would it would have said  you know is there anything else until the defense and you don't have to really object at that picture that says mr wiseman's use of the phrase but within the parameters i get yes let me ask you a couple  i guess the one of the complaint concerns are you want you want to remain free sentencing because of the mischaracterization and i understand that and i guess i'm concerned about how much point there would be given whether this is called a felony or misdemeanor mr miller is still literally off the charts on criminal history that's accurate but it also gets into the second pair where the judge is saying i think you know if the criminal issue categories went on you'd be in criminal and i know this wasn't at the point the judge didn't depart but they said that forty one point three says if when you're looking at criminal history that goes beyond six what you do is you kind of you can project out and it just the fact that he was going to be in it is not that this is a guideline there a case it's not and as i said as much in my twenty j letter but the the basis for i believe it or at least a strong basis for the supreme court saying ordinarily when this happens this is playing error is because it is to promote respect for the system that when it is clear that a judge in probation officer is when they're just wrong and then  that wrong information as a basis for their sentence that's just not something we should say no big deal it's harmless that is or corrosive because it just is it is it  appears like the judiciary saying we're not willing to be held accountable for our own mistakes i could save my last few seconds whether the defendant preserved or or didn't preserve this objection for the number of above felonies that he had i was a trial court attorney and and mr miller first brought up  court and others myself were expecting certainly at the time i did not realize that that there was an issue with the mission of conviction in comprises of phone your or a misdemeanor i don't know what mr miller did during the hearing the prompted judge to stop and then list out all the the convictions you were the only attorney who was present here that was present there that's correct and as i recall just those courtroom with side by side tapes crust right i was looking in judgment i was looking out over at that answers the questions with regard to appendix page thirty two right but i do know that when judge miller was listing out the senses nobody spoke up and said you know that michelin conviction that should be characterized as a felony and certainly i think your preserve it defense has to bring it to the judge the tensions that the judge him at that point addressed the issue certainly i was unaware of it i don't think judge miller was aware that conviction should be a felony or misdemeanor regardless our position is  times this was the seventh felony yes i mean that's the one could easily see the judge thinking it was didn't matter that much of matter that much but that's not the language we see in the record that's true i think in the context of the entire sensing judge miller was making this point because of the breathtaking natural nature of the defense from history a judge miller was not mistaken about the fact that there was a conviction that defendant did violate criminal laws and there was a valid mission conviction there was no mistake about the nature of the facts the facts underlying the conviction those who listen precentor for namely that of the defendant had was in a car and was found with a gun in the car and mission for that mission vision and then the greater context of it you know just miller was not  so the materiality of this mistake is is mr armey seems minimal and does exactly right i want to point out the three cases that i mention my in my brief the jones case rise to a certain level that they taint the choice of sentence i think there are here is even lesser then those mistakes in those three cases because there isn't really a mistake about the nature of the criminal history two points number one even though this didn't this error wasn't a guideline err in us vs england this court held that the due process problems with relying on inaccurate information applied to the facts  versus united states in this court talk about harmless error and you have this townsend tucker problem is that the question is from cortez was whether the sentence might have been different and this court set that question is best addressed in terms of whether the court