it i just know that the usual procedure for augmenting the record and correcting it wasn't followed if if we agree with you on that is there any reason we just shouldn't have our what no arguments record with it i have no problem with that in fact i think this court can seem spontaneous do that but the rules allow you to do that too so it can be corrected in that way as you know this is a case involving an illegal reentry following allegedly a conviction for an aggravated felony against a thirty four year old man at the time of his deportation so he is now thirty eight a mexican national not very articulate obviously not fluent or even very conversant in english he arrived in the district me immigration court below elijah cade it apparently native spanish speaker he had been twenty years in the united states since the age of fourteen he had been a permanent resident alien for ten years so he had legal status here he was stripped in december i'm sorry in june of two thousand and one of that long term permanent resident alien status he was deported for life and barged memory entry he was denied any right in fact the immigration judge told him he was not eligible to apply for discretionary relief which would have allowed him to retain his permanent resident alien status avoid deportation and stay in this country he was then after he reactor charged prosecuted and convicted for that based on in the state of law by the immigration judge the immigration judge wrongly concluded that mr trey had been convicted of an aggravated felony and it was that conviction that barred him from seeking discretionary really where he could have remained in the country to be precise on the point when the immigration  required to conduct to determine whether a state conviction actually call applies as an aggravated felony that analysis was not done here i understand that the immigration judge well i don't know actually if he even knew about the first panel decision in corona sanchez i don't know that he took the word of whoever in the immigration service filed that notice to appear which alleged that this was an aggravated felony i can see no independent inquiry was made at any time even if he had however was there another conviction on his record he had other convictions on his record none of them were aggravated know i say also that i don't know that it matters that the corona sanchez panel decision was out there partly because it wasn't a final decision it was pending on a petition for rehearing it had not been made final petty theft as well as petty theft with a prior cannot qualify as an integrated felony the california statute because it's overbroad it all depended on state if i understand this right in order to step your argument we have to accept that it is plain ever asked subject to reversal even when there is no objection for an immigration charge to follow a panel to the station of the ninth circuit if the mandate has know and the immigration judge i'm sorry the ninth circuit also found into two sort of three areas one is the underlying deportation order if it's invalid the conviction should be reversed the sentence vacated and and the indictment ordered just missed because the government will be unable to prove a crucial element of the save that particular question for another day now having said that if we look closely at the shepherd analysis instructor it is basically saying if you're going to do fact finding with respect to a prior conviction that that perhaps i something that i may take it out of it all mentors for situation but in our case what is different from our case and sheppard is that what was at issue in shepherd it was second that were not officially part the court record in determining whether under the taylor modified categorical approach whether that whether that should hold or not if our case we're talking about attempted first degree burglary in california and  dangerous crimes and win which there really is no problem in terms of deciding whether generic or not because of the just reported expressed some concern about using the burglary conviction doing hands absolutely your honor and senate and i understand your honor if that's the way the panel decides to go i understand that there there's there's usefulness in getting that kind of clarity for definite clarity from the district court but i what what i'd like to suggest is that in this case that the government that bears the burden of proof on this issue before the burden of proof the immigration hearing at the deportation hearing to prove and establish any intelligent and considered waiver and they b there was something wrong but he had two long years before that i am telling you when i came across corona sanchez i went back to shepheard's over and over and over because i couldn't believe that any competent counsel would not have that i think you received a terrible representation in the district court and you know i'm not surprised that he wanted to go ahead on his own but he was not particularly articulate he certainly raised the claim he also raised the six  claim there were two or three places in the record where he specifically dismiss the indictment it wasn't files i can see normal strategic choice in that it just looks to me like your incompetence and i'm very sorry for us to try to know that that's how things were the government's proof was not adequate on any of that and i think that's very clear for a waiver of appeal at a deportation hearing to be valid  because he didn't speak english and the third factor is to be considered and that they want and that the immigration judge the government is not there it's by clear and convincing evidence that the appeal waiver to deportation hearing was valid even on is there anything that is going to matter to this case was a practical matter except for the on line me man i don't think it has to be remanded under emmeline i think that your honour's can find that not one of those aggravated felonies first of all i hope that you will find out specifically that not one of them qualifies as an aggravated felony and they cannot be they cannot be considered in the sentencing in that way i understand the guidelines are discretionary now but still  around and i just wish i would i just would hate to see more air happen below one more time have to be spent on a second appeal and back up here again so the more clear the instructions to the district court can  sentencing guidelines it's still clear that the district court judge felt constrained by the guidelines and followed that the in the on line decision the night circuit also