woman one garcia her on they please the court section eight fifty one b of title twenty one requires a district court to adhere to a specific procedure before it imposes an enhanced sen's under that title requires strict compliance with that procedure and it's held that you can result in very real prejudice to a defendant this court is also held that the california drug statutes are divisible and therefore not categorically drug crimes for purposes of an enhanced sen's under title twenty one here the district court imposed a twenty year mandatory in hansen's under title twenty one based on prior on a prior california drug conviction and it did so without complying with the required procedure under age fifty one b the court also expressed the stated that the enhanced sentence it imposed was harsher than the sentence it wanted to impose the question now before this court is whether the  i don't know if you are as one of me to address the issue of the appellate waiver but the sentence there's no question that because the court did not comply with such an a fifty one b below that the sentence imposed was illegal and therefore outside the p view of the appellate waiver the ninth circuit case laws is pretty clear on that a failure to comply with the fifty one b renders the sentence illegal that's united states versus rodriguez and an appeal waiver will not apply if the sentence violates the law united states versus bill or the court also said and that has said that a general appellate waiver does not prevent the court from analyzing the claim of an illegal sentence and that was just last year in united states versus pollard so the appellate waiver i think  is obviously does not apply to to this case with respect i mean really the question here is was mr garcia herrera prejudiced and clearly he was he was sentenced to a twenty year sentence that the trial court or the district not wish to have based on a prior conviction that this court has subsequently held is not a is not a drug  that doesn't count that doesn't that does not establish that these were the priors were drug crimes because that is not within the group of judicially noticeable documents the documents that a district court can consider to determine whether record stated that the defendant statement is neither judicially noticeable nor can it constitute an admission that methamphetamine was the element of section two seventy eight to which the defend the pleaded guilty i've lost my a third side but the pinpoint size six sixty nine gave two very specific reasons why a defendant statement is not it miscible to demonstrate that the the prior was categorically a drug trafficking offense or  and i guess with that if the court doesn't have any questions i would like to reserve the rest of my time for rebuttal ok it please the court i want to start with a factual note and then i'm going to transition the discussion of the waiver first so answers as part of question and did admit the fifty one here which is exactly what the defendant and the didn't do and the times about admitting that are a lot defendant here didn't just say he had a prior felony drug offense in pleading guilty he pleaded he admitted quote the allegation in count four that's in agreement you are ninety five he pleaded guilty on monday to help four of the information which is the e r one seventeen alleged the defendant had quote been finally convicted of a felony drug offense as that term is defined and used in title twenty one united states code sections eight zero two forty four eight forty one and fifty one also your adversary just told us and it is as i believe i that's what the fifty one b speaks to itself you don't have to put the government to its proof on every single prior conviction alleged in an eight if you want information you can plead them and just in the same way that you can plead guilty to an offense and it defendant thought everything he would trial he objected to the eight fifty one and various grounds and then only at sentencing where there are some passing comments about the nature of the conviction and of course what someone says at sentencing might not be sufficient to make him guilty of a pleaded offense or any fifty one but here we have a plea and again defendant just didn't just say in the in in general terms that he had some prior he specifically pleaded to count four and again at the r one seventeen count four specifically listed the drugs issue and it specifically said that the defendant part of me that the offense qualified under the definition under it of two forty four that completely cuts off defendant's claim in my view this really is more of a case about waiver however and so before you go to waiver but you're saying what the district court did here did comply with a fifty one b because it really requires the court to inquire whether the defense affirms organize a prior conviction after conviction i would point the court to house hunting and require strict compliance so i'm just trying to figure out whether the court met this requirement by simply taking his deny and then there's the the advisement housley on my reading of house lay all the defendant did was plead guilty to a felon in possession charge that had alleged that the same felony that was also alleged and it fifty one and house we found that that plea to the felony as part of the nine twenty two g plea was sufficient to satisfy the admit or deny aspect of the fifty one b it went on to find that any failure to advise on the second half of procedural claim just like this and review for plain error there is i think there's no clear obvious error i think there's no error at all but there's certainly no prejudice on this record just as the court concluded in both severino and for the same reasons that the court found harmlessness in housley so in my view that a fifty one procedural claims are pretty well for closed by those two cases i think the waiver argument is very important however and so i want to make my best run  speaking we are not just talking about a general waiver at e r one of seven defendants specifically waived his right to appeal quote the procedures and calculations used to determine and impose any portion  just mentioned he admitted that he had a conviction as charged in count four of the information which is the fifty one and he recognized that by doing so this is that you are one of the six he was relieving the government of the burden to defendant focused more on beauty and error i'm not going to address that unless the court has questions about what happened it's and saying now defendant is emphasizing the biblical line and i would point the court to be able or itself which completely forecloses defend claim that this is the kind of quote illegal sentence to which as to which defend it cannot waive the right to appeal they learn defines what the legal sentence is sobibor says that the only exception to waiver th view applies to the instant place is the exception for a legal standard says a sentence is a legal if that it sees the permissible statutory penalty for the crime that is not the kind of illegality at issue here we're talking about i defendant under rule thirty two you can calculate the guidelines incorrectly all of those are potential basis for a versatile error and of course a defendant can waive those kinds of procedural claims that's the whole point of a waiver like the waiver here that the defendant waives the of claims that can't be waived that is not the kind of illegality that a fifty one b entails in the specific incredibly clear waiver at issue here should be enforced as if in its appeal shouldn't just be denied on the merits it ok i think i'll work backwards from where the prosecutor left off first of all this is very clearly an illegal sentence the ninth circuit case law could not be more clear on that point  second to find it again and i believe already cited it to your honor's in united states versus rodriguez this court said quote the general rule is clear that failure to comply with section eight fifty one b renders the sentence illegal eight fifty one b itself says if the united states attorney files and information under the section the court shell after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence that did not happen here there is no work nowhere in the record does the government point to that coll taking place this is therefore an illegal and illegal sentence under rodriguez and again the ninth circuit cases are very clear that if there is an illegal sens the appellate waiver does not apply with respect to plain first of all it is just our view circle barker why the plea to the information that specifically admitted this offense doesn't suffice well there was a plea agreement here i'm sorry what's the question he pled and he admitted the obligations i think it was in peru for right but a fifty one b is very clear that after the plea or after conviction but before sentencing the court has to make the inquiry and the court didn't do that so the government's argument taken to its logical extreme would exclude a fifty one b from every case where a defendant pleads guilty it would only apply in convictions without guilty pleas or convictions after trial that's not what the statute says the statute says if the government files an information after the guilty plea or excuse me after the conviction but before sentencing the court has to conduct this inquiry in the court didn't do that so this is an illegal sen under age fifty one b in the united states versus rodriguez so with respect to plane air first of all i disagree that this court reviews for plane air because soaps equate to the case that counsel cited this court noted that the whole point of a fifty one b is is that we're supposed to put the defendant on notice that he has rights to challenge the prior conviction and it does actually punish the defendant for failing to raise something the failing to raise the court's failure to alert him gets it exactly backward and is a perverse interpretation of the statute so i don't believe that plane air review applies i think it's simply harmless error however even under planar review we have a defendant who received a sentence that the district court said was longer harsher than the sentence the district court wanted to impose impose that sentence erroneous lee because we now know that the prior drug conviction that mr repair asked is not affected his substantial rights and the integrity of the proceedings i see that i'm out of time but just just very quickly i wanted to point out you know campus drama the court dealt with this issue of admissions made by the defendant and i mention this already but the court was very