morning your honor is matt campbell on behalf of mr mock and i'd like to reserve three minutes for rebuttal mr mock was sentenced as a career offender pre book or based on washington third degree assault convictions in resolving this twenty two fifty five motion the district court correctly found that those third degree assault convictions did not qualify as predicate enhancements so now the question before us is as is about the oregon convictions that is correct and whether they're related and related that is correct so the seven issue is what did what did the district court have in front of it at the time and it's us a bit ambiguous but the court does say i've got two different sentence judgments and i don't know much more about it then that and so those didn't exist in the p s so it seems to me that they must have been talking about the judgments of the actual judgments am i wrong about that and he says he was going to think primarily about the p s r but then he says i've got these two judgments in front of me the court did make that your honor is correct the court did make that statement about i've got these two separate judgments right but what is not clear from the record is whether he was referring to the fact that there are two separate judgments reflected in the r or that he actually physically had in his hands at the time two judgments what is clear is that the documents that the government's admits that i've objected to move to strike were never admitted as an exhibit they were never included with anybody's pleadings either mr mock or the government's pleadings and ultimately judge whaley stated and i believe it's a page one ten that he was relying soley on the p s r ever says so he says primarily or at least maybe the place i'm looking he says primarily i that's a statement made all right because he says the court notes this is the written order of the court notes that neither party requested a hearing on the facts surrounding defendants are going to controlled substance offense convictions that's the speculate that the court must have used these documents but in pronouncing judgment or at least judge whaley clearly stated he was limiting himself to the pre sentence investigation report  did not necessarily mean that the court had those documents or that the court used those documents i think we would be in the same position for example although i think it's frankly dispositive that they were never introduced as an exhibit or never stated this is numerous places defense counsel did cite to the p s r but that's why i went into some detail about the difference between planar review and invited error and i can deceive me i'd be foolish document when it isn't why isn't this invited or no i mean i'm looking to having trouble seeing the page numbers on here i've been sort of cut off on my copy and i apologize for not it's  page six of the motion hearing on april fourteenth and counsel says we had communications with the probation office before the hearing where probation obtained all the court records from the two convictions in marion county oregon and provided those to both of us meaning both counsel at that time and i think that the information in the p s or is an accurate reflection misspelled but an accurate reflection of what's in those court records  so i guess i have some difficulty now him having the argument that well we have to assume that those court records don't exist  or that there that there wasn't an affirmative agreement that the p s r would be and as an accurate reflection the place to get your i think well i think the answer to that is right to have the court not rely on the p s or because the p s r in johnson hearings is routinely distributed as a document to be considered at sentencing i think we would be in a different place if  the government had tendered the conviction documents and the defense had come in and said we have ject to those documents there are uncertified instead we offer the p s r that would be causing the error and relinquishing the right to look at the documents and i think the case law upholds that there has to be some affirmative waiver this is not a situation where mr mock said i know we could look at the documents but i there another word on for statements in the p s or supported by say taishan to shepherd dog documents sheppard type documents i'm not exactly sure what your honor is asking i think it's i think it's fair to say that it would appear one could infer from the p s r that the person writing it well that's what document that's about defense counsel senate both of us got copies of the original documents that the probation office was preparing the piano song that's i mean i think she said i think that i agree with that and i think it's true but again we go back to judge wally statement i am limiting my review to the p s r so if he's limiting his review to the p s r because the defense and counsel asked him to does that make a difference i don't think defense counsel asked him to i think defense counsel simply argued off understood the best answer i can give is that i don't think defense counsel asked i think it was a given that the p s i was going to be consulted and then defense counsel didn't go a step further and object the failure to object i would argue is plainer and plainer of you i do want to point out one last point even if the documents are properly considered if we look at the documents there still is insufficient proof of an intervening arrest because the according to the commentary and intervening arrest occurs w arrested for the first offense prior to the commission of the second offense and most even if we look to the documents that the government cites the second april conviction merely states that on april eighth i believe it was he was engaged in manufacturing methamphetamine that doesn't state that that offense occurred after he had been arrested previously it simply states an ongoing offense and that ongoing offense was otherwise closely related so even if the government is correct that we can use these documents they do not prove what the government claims they do the morning your honor so rest for the united states first i would like to indicate that the court was looking for the sites the actual record site to defense counsel's i would say vouching for the p r one eighteen and i would indicate that the pre sentence report while it talks about the kind of underlying facts of the conviction it does reference the oregon cause numbers so if that answers the court's question p s r is of course not a shepherd document yes your honor and that's what i'd like to start with really what the council ended with here's the problem  i don't think that the well here's the issue on this issue is not a taylor decamps mathes type of issue to worship or documents are the sole source and here's why factual it is strictly legal and is this particular offense fit within the crime of violence or whether or not it's any type of other predicate a drug felony what we're told to look is the shepherd documents because they are theoretically and most of the time practically devoid of the facts that we had previously been using in these analysis what they say i this is the charge this is the date this is the potentially this is the county or and so on what that does is that then one looks to the statute the  oregon statute whatever it is to compare it to see if it applies legally this case however there is no dispute as to the fact that the prior convictions are predicates that was not disputed what was disputed is whether or not the two prior convictions there were two prior convictions were counted as related or unrelated and i would submit that that's a factual inquiry and here's that the shepherd documents as the court as defendant urges the court to adopt the shepherd documents under this circumstance the shepherd documents are generally in sufficient to addressed the factual inquiry for example the shephard documents can tell you that a defense was not committed on a certain was committed on different dates separate documents can't tell you that necessarily that there is an intervening arrest maybe it can but not necessarily it can't tell you it can't tell us the factual inquiry in terms of necessarily whether there was the same victims it doesn't necessarily say whether they were the defendant was arrested by the same officer it doesn't say whether it's a single investigation it may give us an indication of similarity in fact in this case the defendant was guilty of methamphetamine charges in bowl or bowl documents but  i'm sorry no no that's fine i just because posting council talked only about intervening roust but the court made the alternative analysis under the no common scheme scenario and i wasn't very clear your honor but what i was i guess my point was more general that the shepherd documents wouldn't necessarily be the ultimate or or the limited documents for the court to consider because it's a factual inquiry in this case the again going back to that while the sheppard documents can tell us some things they can't go into this factual inquiry and ultimately the factual inquiry is up to the chords discretion in reviewing the facts the shepherd documents could say this offensive happened on this date and the second  happened on this date but ultimately the district court has the discretion to determine whether four weeks between offenses is enough or two weeks is not enough and that's why we have different because based on the totality of the facts and there's different there's a differential a deferential review to the district court so in terms of that bulls suggesting that this record that what we have is the district court statement indicating that all that it has the judgments and the judgments do not reference each other so based on the factual inquiry of whether the two convictions were related or not related all that suggest that it doesn't matter to the outcome in your view whether we grant or deny the motion and the materials for the record i yes your honor in reviewing in reviewing the in reviewing the supplemental briefs and the what it doesn't do you agree that it doesn't matter i thought was kind of a double negative and i didn't answer that cricket no i agree that it doesn't matter really it doesn't matter for two reasons again which i already indicated this is a factual inquiry second is the court indicated defense counsel clearly indicated on page in the record that the parties had reviewed had had copies of these and that the p s r on this factual inquiry the p s r accurately reflects what's in those documents those documents in looking at them on their face are insufficient to answer the factual ten indicates the discussion is  indicate that the judge whaley indicates i don't have any record of that in terms of what was discussion about how that courts in oregon knew or treated the cases quote i don't have any record of that except i've just i've just two different sentencing judgments and i don't know much more about it than that i don't know exactly what the investigative agencies made the arrest what investigative agencies made the arrest and i don't know anything about that i don't know enough from the records i don't know whether the courts have supposed to have evidence or hearings on these issues or not or whether they're limited the pre sentence investigative report and that's where the court says i'm limiting myself to the pre sentence investigation report as a court pointed out when it when the court ultimately issued its order it indicated that it was used the term the record that exists primarily the pre sentence report and i would submit that the court's comment of having the sentencing judgments knowing that the sentencing judgments  in reference to my here is my problem you know to me that doesn't seem to establish a sufficient factual basis to support his finding there's well yes or they're related or unrelated in the court found that they were not related for purposes of by his finding that they're not related it's what supports career offenders application is what was the basis what was the factual basis for the finding that they were separate he was in custody on the one case when he was arrested and the other  court's finding was that they were that the controlled substance were roughly a month apart are the offenses that's in the in the if if the court had the actual judgement and reviewed those that would have been in the judgements it also would have been in the p s r the dates of the offenses the court found that cited a case indicating that two weeks apart was sufficient to be separate offenses obviously there's other courts cut or other other decisions cited by the defendant that are much longer than that that indicated that they were related that's a matter of discretion secondly offenses involved different victims that is the defendant's argue that the victim was the people of the county in general the court found in the p s the could have looked at the p s r and indicated that paragraphs eighty four and compared to eighty eight there are different victims the meth labs were in different locations the court simply expanded the term of victims beyond the document doesn't apply to this kind of this kind of a determination you know is there again i believe so your honor and it is if if i don't answer this as as a court asking it's my position our position here because this is a factual inquiry into circumstances related to the underlying convictions rather than just the very existence of an underlying conviction right that the sheppard prohibition of how many documents can be used works with the fact of the conviction but it doesn't it is not sufficient to address the factual circumstances of the conviction and therefore the court like any sentencing decision is anything that's reliable and stated that whether or not offenses occurred on separate occasions can only be determined based on shepherd documents and if so i think that case binds us that aren't there some other things that can never be determined by shipper documents for example the fact of an intervening arrest because sheppard documents don't are not arrest records that they don't count as shepherd documents either so if if a court were to decide that it theory no court could ever use an intervening arrest because sheppard documents would never tell you the answer so why isn't it that it for at least some of these things you have to look beyond the shipper documents well i think that the is this court a number of decisions has expanded what are shepherd documents and i can't think of the name of the case my head but i remember a relatively recent decision where a court minute order for example was determined to be a shepherd dog right so that's that that's because it is that's because it's similar to the kinds of documents but aren't let's go to the one about different victims and different circumstances and different arresting officers there's a lot of information that it seems to me as opposing counsel has argued may never be in any shepherd document and it makes that very difficult for a court if not impossible to decide whether or not these criteria are met i don't understand the inquiry and i think my response would be there are a court documents such as  affidavit of an arresting officer that could be considered a shepherd document a court document such as a judgment could certainly be could be shown to be a shepherd document there are a number of court documents that could reflect when someone was arrested when they made an initial appearance when they were not realistic is that i mean basically the point of shepherd in many ways seems to be to reduce their the tejas ness of these issues by relying on things that are unassailable and what you're describing is like a hearing with a whole bunch of other stuff coming in that is way more complicated than having a defendant say you know i've looked at all the underlying documents in the p is right and we do have a can use at least one firm or court saying that if the defendant doesn't object to the piano sooner then the facts may be relied upon by the court i know i was in a different context but it just seems highly unrealistic when you hear what you're saying i think it is difficult to formulate exactly what might be considered a shepherd document in a random case but i think what we have here is reliance on a r which case law from this court states is not a shepherd doc that's right but yeah so what we have to figure out whether it's plain error for the court to do so in this unusual context understood but again i would point the court to dancer wasn't and the issue was and it's not from a certain either it's a ninth circuit this is a yes dancer was an ack a case and the issue was whether convictions had occurred on separate occasions and the dancer court squarely said be right but it isn't tarkin your own i sincerely apologize i'm going to try to mislead you had written it down as the ninth circuit decision i apologize you are one hundred percent correct it is a second circuit decision i apologize now i think i mean it still may be right but it's not minding on a switch and i agree completely and again i sincerely apologize that was not my intent but i think but i think it's reasoning is persuasive i did just briefly to reflect on the fact that again the government cited to page one ten and i think the ultimate statement on that page is simply judge whaley statement that he's limiting himself to the p s r thank you counsel