words if i may i like to to focus my argument primarily on the first issue with regard to the judge's rejection of the proffered plea of guilty and on the last argument which has to do with the nature of a prior conviction i think with regard to the second argument on the eight fifty one information that the case by this court of mayfield probably just as positive but i would rest on the briefs with regard to that parent from from the from the pleadings what he was trying to do is is set up a determination by this court as to whether or not in an indictment such as this the court may require the defendant to edm it the all of the allegations concluding statutory or or guideline enhancing facts that are charged in the indictment if you know the question there is no way that anybody could ever determine is deprived of the ability to determine the quantity of the drugs well the course at least required to make a factual or or take a factual basis from the defendant and i think at that one well depending on what the  bear out or what the facts are that are admitted by the defendant the court can make a determination as to whether or not the quantity that is alleged in the indictment or or the type of drug that's alleged in the indictment sustains think the court can and can certainly ask the government to make its proffer of evidence and if there is a dispute the court can reject the plea at that point but that's not what happened in this case what happened in this case is that the court required the defendant to admit the to follow up on something you said a minute ago because i'm not sure i understood it correctly it sounded like you said that he was basically setting up but in effect he washed an advisory opinion from the ninth circuit did you say that he wanted this court to solve the catch twenty two that he put to the trial judge well i think the catch twenty two is there because of earlier cases by by this court and that is that a person can admit the elements of for the specific purpose of having a case come to this court so that we could resolve an issue is that right it is i'll tell the court i was in counsel for mr combs trial but it certainly appears that that's what he was trying to do in this instance  and it seems to me that he was faced with a position where the government had not offered any kind of a plea he either winter trial and was facing the allegations that were in the indictment in particularly with regard to count one of the superseding  indictment that he was going to have to face all of those charges and all of those enhancements and while he was prepared to admit the basic elements of the offense he wanted to certainly to challenge the proof with regard to the statutory an quantity and there's been well as case which we have referred to there's a number of other cases in fact that the locus martina's case where the defendant doesn't even have to know the the type or quantity of drug use kerry that ultimately that was a choice to be made or determination to be made by the court now buckland has changed that and has said that although quantity and quality are not elements of the offense they are material allegations that have to be pleaded improved by the prosecution  an element of the offense then no i don't think he should be required to do that just as an analogy i'd like to say that into song where i practice we have a lot of cases where a defendant is charged with illegal reentry following a deportation when we enter into a plea agreement among the things that are required by a defendant to be admitted or the fact that he may have an aggravated felony the type of felony that is the date of the felony and what kind of a sentence he got and all of those are statutory  guideline enhancements however when a defendant pleads straight up to an indictment all he's got to with it is that he is in the country illegally that he has been deported and that he doesn't have permission to be here and we have had situations where  to at the request of the prosecution to have the definitive mith those enhanced minutes and over my objection usually the court will not do that but that's exactly what's happening here you have an indictment if you look at says simply say that the court must remain and for a determination based on what the actual admission is and the change of plea and as i say in this instance the judge probably could have said look if you're not going to admit any facts with regard to quantity or quality then i'm rejecting your plea because there's no factual basis but that's not what happened here i think the defendant in this instance was prepared to admit that he was engaged in a conspiracy and was prepared to admit his role in that conspiracy he was prepared also to to distribute it appears the quantity of drugs with the exception i think of count two of which there was no no question about but with regard to the rest of that i think he was certainly within his rights under under case law in this circuit to dispute those those facts and and have a determination made alternately as to whether or not the the district court could make those findings and by what standard think that there's a right if the indictment charges burglary of an occupied building and that's what the indictment charges if you're going to plead unconditionally that's to say without a plea agreement then i think that's what you have to plead to i think that's what intent is required to i'm not unconditionally i would think that if he's going to enter his plea to the indictment that the judge would be in his rights to refuse the plead because there's no factual basis to sustain a conviction for the indictment that's what's confusing i suppose about the case law in this circuit is that in some instances you can plead to certainly all of the material elements of the next but there are some statutory enhancers that you don't need to plea to and you can't be required make a determination as to whether or not that was sufficient and i would tell the court that under case law as it exists today a defendant doesn't necessarily have to admit to the choir he can simply say i thought there was a controlled substance involved i didn't know what  didn't know what type of drug it was but it was a controlled substance and therefore i am guilty and i admit that i did and didn't in effect your client make a conditional plea he did ultimately yes because it doesn't here it depends i guess on the condition that we're talking about because the condition here that the port imposed on him is you've got to admit the entire amount is charged in the indictment and in the end and there's certainly appears to be no case law that requires that he can certainly plead to a controlled substance and that would have been a valid plea whether or not that's a condition that the that the district court  upon him as a as a condition proceeding to accepting the plea i would i would guess that's exactly the issue that they were trying to present in this instance and our position is that the the court wouldn't be able to this prior conviction for burglary in arizona the burglary in the second degree involves entry into a structure a residential structure there's no question here that the senate entered into a structure of some sort the problem is that arizona defines structure very broadly in fact at one point where they describe it as a place that's got sides in a floor but it also can be a railroad car a vehicle or any object in fact the argument here i think is very much like the the argument was presented to this court in winter which is the primary authority relied upon in taylor the the discussion was whether or not burglary common law burglary is the same thing as what is defined in the state statutes  structure it was a structure i mean they don't it's not a kind of a case where they say a building can include a car or a tent or in our little league stand those are the things we have him one of into a residential structure but the word structure is defined as being any building object vehicle railroad car or place with four walls or four sides and a floor which is  security and that can include any number of things with the trial court did at the state level let's say you went into a house and that was somebodies house and it increase your client's sentence in any way so how how in is there a problem well the cases and certainly blakely and the subsequent piece of  the calculation of the guidelines has at least got to be accurate that's the starting point even if you get the minimum part me even if you get the minimum well i would think so your honor i mean whatever the couple which but it is likely to come up again and because arizona does have a lot of a lot of cases that come up to the ninth circuit and there are some defendants that have these types of prior convictions and so it would be helpful to have  opinion as to whether or not this is correct or not we should note that it's not correct and that it shouldn't be used as a crime of violence in order to qualify somebody into career offender so you're not happy with the modified categor that'll make you happier because it's not a very practical problem in this case not not in this case thank you kind of thank you refused in fact properly refused to accept the plea agreement in connection with this matter that it properly applied the eight fifty one enhanced meant and that it properly applied the career offender statute in connection with this matter to begin with the rejection of the plea i believe the court is correct with the defendant and the district court did not abuse its discretion where the defendant had in fact refused to waive his right to a jury trial as to the material factor yet argued at the same time the district court could not empanel a sentencing jury to determine the amount and while  on had in fact requested a pre settlement conference report in connection with this case the defendant was facing three hundred sixty months to life based on the career offender status he knew that from october of two thousand and three it was it is equally as reasonable to offer that what the defendant was attempting to do by pleading guilty to an unspecified amount of methamphetamine was to limit his sentence under age forty one to twenty years that would be he would be facing zero to twenty under the case law that the court had had in fact handed down in fact the defendant strenuously argued below under thomas that he was in fact entitled to plead guilty even though wonder thomas specifically said that absent a way river jury trial right excuse me absent a waiver of the defendant's right to the jury trial determination the district court couldn't determine the drug in quantity the i believe is correct and i believe that's what the court was referring to when it indicated that there was an error this case was in fact proceeding while it fell between blake excuse me it fell between blakely and then booker and fanfan and there was a series of we were in fact arguing whether or not the defendant could in fact plead guilty and what what under the and under what evidence anywhere in the record where the defendant in fact disputes the amount of narcotics involved in this case well that's a no no in fact the district court found that the amount of narc the amount of drugs knowledge in connection with particular in connection with these matters what it would require was essentially and it would require jury trial we're going to put on the same evidence to prove the quantity as we would in fact to prove guilt or innocence for the most part there would be very little difference we would have to call witnesses they would be subject to cross examination and and that's fine but we might as well in fact go ahead with the entire jury trial rather than doing it just for strictly the sentencing purposes what what in fact purpose would that serve to allow the jury just on those issues there may be there may be an unusual circumstance rule eleven on the rules of criminal procedure and rule of an age says a variance from the requirements of this rule is harmless error if it does not affect substantial rights i'm going out of the eight fifty one this matter that the court should also bear in mind that this matter was isn't essentially resolved by a court trial not just by a court trial but by a court trial based on stipulated facts the defendant didn't fact sign off on a document that reiterate d a whole series of factors which in fact proved the amount of narcotics in this case beyond a reasonable doubt and i'm not certain what the remedy is the defendant is asking for whether he's asking that the entire conviction be overturned in which case this would be remained for we're not quite certain what since there was no plea offer in connection with this matter and so we are kind of back to where we were before if you want reminds me of my question which is that  again as i mentioned to your opposing counsel the reality is that the trial judge in this case sentenced the defendant to the minimum sentence it can't get any better than i can and as far as this man is concerned certainly from the government's point of you can't get anywhere that is correct basically we won the battle and lost the war in fact found a career that he found the defendant was in fact a career in fact there was no plea colloquy in connection with this matter because this was a court trial so all he did was in fact determine whether or not the defendant wanted to waive his right to a jury trial so any in fact i'm not sure what the remedy would be in this case and so or what the remedy would be that the court would order and we would argue that in fact and here in connection with this matter would certainly be harmless well the sentence to them if not if you have the minimum  again no in this case logistically it's a bit more difficult there again the government indicates there was no agreement he got his the points for acceptance of responsibility over the government's objection his rights to appeal that he would have forfeited had he in fact truly pled guilty there's really no harm with regard to this particular matter with regard to the burglary issue  the government in this case offered a series of documents including the transcript of the one nine hundred eighty nine plea colloquy for the defendant the court is in fact i believe the court had a question as to whether or not the what in fact the indictment indicated and what in fact the plea agreement indicated in connection with this matter both the indictment and plea indicated that the defendant committed burglary in the second degree of residential structure there right in the sense that structure is defined in several different ways but residential structure certainly narrows the definition located at a certain address to twelve o two east summit street in tucson arizona and it's typically indicates it was occupied by a clinton l specifically asked them this was a home right and the defendant responds yes and he says mute and it belong to these people and you didn't have permission to be there and the defendant says yes and says you went in there with the intent to steal something in the defendant again  just briefly there can be any number of reasons why a defendant would want to enter a plea and continue to contest enhancements for one thing there's the acceptance of responsibility adjustment that's usually done  committing the offense he may also try to qualify for the safety valve so there's any number of reasons why defendant would want to plead guilty without necessarily admitting everything this charged in the indictment which is what it appears judge  doing in this instance was requiring the defendant to admit the quantity you know it's true there's no colloquy that indicates he was asking him to admit what his role in the offense was or whether he possessed a firearm during the commission of the offen to be determined by this court because those we can tell what your suggestion my suggestion would be is that we have some kind of procedure to determine if it's a jury trial on o to contest those issues that are going to perhaps result in a lesser sentence that he might be facing and unfortunately we're at that point where because of the supreme court decisions that the sentencing factors have to be