sixty or eleven three seventy nine can constitute a prior aggravated felony conviction for purposes of sentencing hansen's under the illegal reentry sentencing guidelines under section two point zero two l one point two of the guidelines now the court has repeatedly found in the past that both of those california statutes are overbroad in the sense that they encompass conduct that is in addition to what is recognized  whether this is a prior aggravated felony and instead look to the prior felony the prior plea elocution of the defendant there are two convictions here one in one thousand nine hundred five for a violation  fine so if the court said at that time at the sentencing now it's in front of the court on this situation and i'm not going to look at the police report but looking at the plea itself the plea is admits everything that was charged in the indictment the charge an indictment is an transportation transportation and offer to sale there are police to all of these now the court in deciding that the defendant at it's we call it really pled guilty to all of these is in fact directly contradicted by the plea for a plea that would court on january thirtieth of one thousand nine hundred five and the language cannot be more explicit that this was in the destructive in the alternative it was not he pled guilty to all of these so as the court stated in taking the  transport or sell or offer to sell marijuana charges a felony is that your plea is your plea guilty or not kill it guilty or no contest the defendant guilty and then he goes on to plead to count two which is again absolutely clearly in the destructive either or so the court's determination after rejecting the police reports and then determining that the defendant had pled guilty to all three of these offenses all three matters is simply not supported by the record then with respect to the one thousand nine hundred eight conviction which is a conviction under the eleventh three seventy nine eleven three sixty relates to offenses dealing with marijuana eleven three seventy nine relates to offenses dealing with other drugs excerpt a record one forty two of our excerpts of record absolutely unequivocally established that the friend of guilt pled guilty to an offense of transportation not to sale which this court has previously recognized i not an aggravated felony and i believe counsel for the government can correct me if i'm wrong when he has an opportunity to speak but the government concedes that there should not have been any enhancement travel and has been for history category that my client is a homeless individual who has a number of petty offenses he had nothing fed an addict who lives by a railroad track and has a long criminal history of petty offenses so i don't know exactly where at a level eight what it would result in even i think it would be a significant reduction ok and one that would perhaps repatriate him to his native country sooner than you otherwise would be the only issue guidelines have been ruled advisory this court has stated several times that i wrote the court's attention to at least two recent cases in my twenty three letter that if the court incorrectly calculates the guidelines it is as if the court has not properly consulted the guidelines which still remains a requirement notwithstanding the fact that the guidelines are advisory so here with respect to the extent of the downward departure even though it may not be reviewable the court incorrectly calculated his otherwise applicable offense level based on its one thousand nine hundred eight conviction and i think it's fair to say that the court viewed that as they an appropriate step as to how or floor as to how far it should go and i think that the court recognized that that conviction as the government c day letter recently by the government with respect to their arguments as to the appropriateness of the district court's decision making with respect to the one thousand nine hundred five conviction and i misspell your provided me with a citation to recent ninth circuit case that's in her twenty chain letter their oath the last question i'm sorry your honor i just read it this morning i don't know the author of the opinion suggesting that the charging language precedence over any contrary language in a charging instrument so i don't think the government's reliance on career of the last question goes very far but even if you do look at that charging instrument it is charged as the fleet is al in the alternative and so it really does not get very far the and then the other aspect is the police report which the district court did not rely on what the government is now urging this court to rely on as the basis for finding this enhanced myth and i think the reason the district court did not rely on the police report is that immediately after in the one nine hundred ninety five clearly elocution at our excerpt a record one twenty five after it establishes very clearly that it's in the alternative either or the court then asked whether counsel stipulate that the police report and other documents contain a factual basis for the plea well again it relieves this ambiguity is the factual basis for an either or plea and so i don't think the police report really serves the government's purpose and i think it's the reason the district court did morning may please the court barbara valuer on behalf of the united states i'd like to start with what the parties do agree on other parties to agree and the government does concede that the eleven three seven nine conviction in one thousand nine hundred eight was not a basis five convict applied and therefore then departed downward four levels the government's position actually did object to answer judge whilst his question did object below that the four level departure was unnecessary but did not cross appeal on those gro and i say that for several reasons first as the district court didn't look at the original charging document which in this particular case not only identify the elements of the particular fence both counts one and two but it also went on to make  one in two of the indictment although the district court one or two of the indictment were in the disjunctive that's all he pled to the factual allegations your honor we're not in the disjunctive they were actually in the conjunctive and he pled women tell factual allegations in the charging document in this particular case the factual allegations in the document as it's clear on page record as cite ninety which is the indictment stated that he your honor it's actually specified as well in our brief how the count weeds but even if the court were to disagree with me about this particular point about whether or not the defendant in pleading guilty to counts one and two of the indictment which included the factual allegation corrected the court at one point when the court started talking about transportation and i'm looking at page and i'm hoping i'm on the same exeter record as you are your honor i'm looking at page i believe that's one hundred twenty five six of the record facts in that case it was a nine nine five motion was more than enough to get you to the place where you need to be which is that the defendant had admitted the facts that were contained within that document i think that part of the problem here is that the documents in the record the police reports as the factual basis for that plea and those police reports make out only one set of facts and that's a stat that's essentially that he was guilty of selling marijuana on this entire record i know de novo review i'm sorry i i was just going to ask you in your closest case to allowing us to go beyond what the defendant on the record agreed to plead guilty as your closest creases which i think this type of argument that we're having here today about trying to interpret what happened in one thousand nine hundred five and what the traditional records may or may not show or what the defendant may or may not have admitted to is precisely the type of judicial inquiry that should be foreclose five as far as this conviction is concerned counsel says the defendant although he pled guilty in a disjointed is bound also by his counsel's relation to the police report which shows in fact he did sell the drug but the stipulation is not the stipulation to the accuracy of the police report the stipulation itself i think needs to be paid careful attention to this question put to council was not is the police report accurate in all respects it's just simply is the does the police report to council stipulate the police report and other documents contain a factual basis for the plea and was in the destructive so the police report could provide a factual basis for sale or offer of sale or transportation we don't know exactly what that counsel stipulated to and i think it's because of that ambiguity judge gen i was briefly looking and i did not see any such clarifying statement by counsel that we're just talking about just a sale it's a levin page twelve page transcript i'd urge the panel to carefully pay attention and i've read it just a few minutes here and could not find such a stipulation or statement finally with respect to the standard to review and in fighting the court for de novo review i think the standard of review with respect to the applicability of one of these