case there was actually a trial that occurred and there was testimony by a police officer that there was a certain amount of playground  much of a playground the court even noted that this is well it's not whether it's much of a playground it's whether it's legally a playground and they didn't say in there when they stated the factual basis they didn't say it was that the park they said they said that location with may be a place where chronic drug users hang out it's also a place for kids or another people utilize it for their community for gratian it's still a park but there's no there's no evidence in the record that that reasonably likely or whatever that you wouldn't have entered the play and if the if she's already been convicted at that and they're worse and stipulated previously that they've got those three pieces of equipment to make it a playground and it is in fact a playground how would it be reasonably likely that she wouldn't enter the play way we get it was he was alleging a rule eleven claimed for the first time on appeal which would be subject to planar review if at all and under the plane air review under the von case as well as the ninth circuit precedent this court is not confined to the four corners of the rule eleven call a clue but you can look at the entire record as your honor has pointed out the record here shows that she had actual notice that this was a protected location she has an earlier conviction for the exact same  allegation that this occurred within a thousand feet of a public playground there was no objection from the council or the genocide court even measure in the courtroom yes that point something like that how far away were you and you sold the drugs and ye excerpt of record on number of the defendant and it is that it was within sixty feet of the isle of park which this court in two thousand and three in the media cases to my friend pointed out did hold that at that point in time that was a playground of this particular offense and as part of the excerpts of record filed at a revocation hearing on april nineteenth two thousand and four at age nine the defendant was directly asked did you commit this offense within one thousand feet of a playground and she said yes that is part of the record if i may your honor there is one other argument that i'd like to expand upon slightly from what my colleague wrote in the brief my opponent this morning said  that the defendant was subjected to a much heavier punishment on account of the location of this offense i beg to differ in reading the pre sentence report it is very clear that the location of the offense played absolutely no role in the ultimate sente happened is the defendant clearly admitted even by my colleagues argument to committing a drug offense under twenty one u s c eight forty one one that has been held by this court to be a lesser included  sentence report was based not on the location of the offense but on the fact that the defendant committed a drug trafficking offense and she was a career offender if your honour's look at the pre sentence report that  paragraph twenty three and essentially the paragraphs preceding paragraph twenty three essentially apply the base offense level for a drug trafficking offense they add two levels for the fact that it occurred within a thousand feet of a playground the adjusted offense level then became a level twenty but when you get to paragraph twenty three the pre sentence writer and again without objection of the defendant said that because this defendant had two prior felony convictions involving a crime of violence or a drug trafficking offense the guidelines would be increased under the sentencing guidelines for b one point one for career offender status and the guideline range  was there or the plate base offense level was therefore up to level thirty seven so even if you ignored where the offense occurred the mere fact that she committed a drug trafficking offense at any location anywhere your honor were to review the sentencing transcript she thought two hundred sixty two months was too high and she granted us the post book or equivalent of a downward departure and went to one hundred forty minutes which was about half of what was required and she made the