chavez challenges the imposition of a twenty year mandatory minimum sentence in his case based on a finding not one that was made explicit but one that is implicit in his sentence that he had  convicted previously for violating california health and safety code section eleven thousand three hundred and seventy eight and that conviction qualified as a felony drug offense under sections eight hundred and forty one fifty one essentially if there is if that is not complied with and there's no showing of harmlessness in this case it's certainly not harmless error but at that point it is an automatic the sentence on its own a reason for e mail and that is that under when you apply the modified categorical approach in this case the analysis shows that mr chavez did not plead guilty to the controlled substance element in things in the charge it's not tied to count one of the california complaint he never admitted to any controlled substance element so  given that this had a profound effect in doubling the mandatory minimum right there we we have that the error is certainly not harmless and then the rd part of the argument case the court doesn't even need to get there based on what we already have but that is the recent case that has been the published but the the holding still stands that the california statute is overbroad because it includes optical and geometric isomers whereas the federal statute only includes optical isomers and the state of the record there you know there have been  some there's been some litigation in the district court but as i stand here today no court has found that geometric isomers of methamphetamine do not exist and when you look at that stat when you look at the the decision and litigation has gone but but the government asked this court to take judicial notice of some declarations that were followed filed in the trinidad hernandez case that case was remanded in the central district there has been hearing where that expert testified and at the conclusion of that testimony the district court judge said i need more information i need to appoint an independent expert at that point the district court judge proposed an independent expert it turned out that the government had communicated with that expert and that the expert had sent an e mail to the government saying quote this exactly there are many geometrical isomers of methamphetamine and that he thought there was one that is the problem and in fact point the government had cut off communication with the expert and had gone with this other expert who said that there weren't that it should have been and moved to dismiss those cases in the district court and and i don't my understanding is that there hasn't been any other litigation that's the state of the record now  o but if we show this back for any one of the three r s and you're talking about i assume that you'll then have to bring your own expert in and show why under the modified categor this is overbroad and it just doesn't work and you can't have a conviction that these were qualifications for sentencing right exactly i mean i think for the st r v it would just be that this doesn't qualify anyway because he didn't  y your charger says count exactly so so on that i thought i mean that's the main argument lorenzo is gravy there but yes i would imagine there would be some sort of other there'd be some kind of hearing on that issue i was hoping to ask about a different thing so the acceptance of responsibility issue yes i can't figure out if it made any difference because the mandatory minimum seems like controlled the sentence and so we did this responsibility issue matter it didn't matter  it didn't matter at this sentencing because the guideline range straddled the mandatory minimum it was two hundred and ten dollars to i think two hundred and sixty months and the mandatory minimum was two hundred and forty months and so are you arguing that now only in case you win on the other issue and comes up but do we really need to reach that right now or can i just happen if we do remain and can that we can we see if it matters the next time i believe that it would matter because the district court  to make a guideline determination and at that point if the mandatory if the mandatory minimum doesn't apply and it shouldn't even i mean now the st step back to come along and and he wouldn't this enhanced meant wouldn't qualify under the new law oh but so then you think the acceptance of responsibility would matter more because there wouldn't be i think in either case it would matter because the district court would need to make the determination of the correct guideline range so is it clear that if this does go back  the st step back to now would apply to vis sentencing and preclude that higher mandatory minimum i believe that it would because the sentence at that point would be vacated  the the language in the st step act is a little bit confusing it says a couple of different things and at some point it says that it applies if the sentence has not been imposed as of the day of an nachman but it also be a ten year mandatory minimum if it's not true even with a st up after yes it would still there is still be a ten year mandatory minimum and and does the guideline range change so they would then straddle that minimum or do you know what the guideline range would need to be recalculated and i believe that it would still at this point it's that two hundred and twelve thousand two hundred and sixty months and that might still be the same even with the different mandatory minimum defendant's counsel also referenced in the are seventeen and in the sentencing pleading and g r eighteen and so they knew this was there specifically knew there was not fifty one and then there are really three ways of challenging a fifty one you can say you can change identity that's not my conviction you can bring a collateral attack under a fifty one c or you can raise some sort of legal challenge identity was completely off the table defendant had had stipulated that he had this conviction this his counsel filed other challenges to the conviction with respect to the p s r there was no  arguments the defendant making now i certainly think the colloquy is important in the context where defendant as in rodriguez doesn't want to admit that it is his conviction but when the burden is on the defendant to show prejudice under severino i think it is appropriate to doubt whether or not a defendant being advised you have this conviction you have to admit or deny it has anything to do with his ability to bring a modified categorical approach much much less well i guess i don't why would it be more important when someone's trying to deny it when someone's trying to make your st category rather than your rd category i'm not sure i understand why it's something is more or less important i think that given a particular record here certainly where counsel knows of the conviction has filed other challenges to it he filed a criminal history based challenge to it i just don't think there's anything showing causation really between the fail advise and a fifty one dollars b and those legal challenges that said i recognize that's a difficult argument severino certainly found that there was i think the best case is how silly housley similarly assessed the situation or at least identity and if you want to see were foreclosed that's the best precedent we have in this situation pivoting to the actual legal challenges on the sufficiency of the charging documents this case actually has a better record than most cases the cases in which it than it has conviction and this do are conviction is overbroad then how do we know that he admitted the facts that you want to and i just don't think that's a fair reading of the record i agree with you if he said that i did the things necessary under state law to do so this is what that kind of is what he said isn't it i just don't think that's right ron he said that i did the things that are stated in the charges that i am admitting and to me the distinction between charging count is too hyper technical the reason why the court has focused on count in the past is because in those cases the de didn't say something like this he said nothing like i admit that i did the things that are stated defended just as guilty count one and in that situation the court is required a very tight relationship between what does that count and what does it say because the senate has really made case is the defendant relies on are cases in which a defendant has admitted to a completely different crime so has whereas the indictment alleged eleven thousand three hundred and seventy eight he admitted to eleven through fifty two i mean how do we know that in carefully choose those words though it's a checkbox on the california charges at minimum i would say that this is not plainly or if the court is looking to this new as opposed to just as a part of the prejudice analysis this is certainly not plainly erroneous under this court's precedents and so i think there's no basis for her so as a stand alone talk to that expert who had sent this e mail that was confusing because we couldn't talk to him because he'd been appointed as the court expert we were in this awkward situation of not wanting to breach the court's own rules we have clarified with him there are no geometric isomers of math but if that's true what's the under the modified categorical approach and the court was faced as here with a late raised lorenzo claim and after lorenzo was withdrawn found that there was a factual dispute that meant that any error was not plain and so did not mean the one case where the court has been ended which is isomers for too much longer but in any case right now there is no controlling precedent about over breast there's no controlling precedent about the existence of these isomers they do not exist and there's no basis for a man in a case where it hasn't been pre means oh i'm sorry i see you're right and i spoke backwards it's as if the defendant if if the defendant position is correct about the existence of geometric isomers then it's not harmless right that would be true and we don't have a decision of the says that they maybe my question earlier wasn't clear but in fifty one dollars cases it seemed to me that when there is the procedural error the court has actually talked about harmlessness rather than plain error even though obviously no one objected or they would have had the colloquy so if let's just say  st nd it's more like harmless error than plainer i'm not sure that this the cases that are about plane are about the what method forms are translate exactly because maybe we're under some sort of lesser standard for the fifty one  there is some harm out there and there was also a procedural error it's that you were prejudiced five that there were and argument here is that there is no basis for consider thinking that defendants ability to bring a organic chemical modified categorical challenge to eat fifty one had anything to do with a fifty one be procedure certainly he didn't raise it and certainly he could have but on this record i think there's no basis for concluding that that was because he was or wasn't advised a gray there was no force at that at the time of this colloquy so dumb that does not say there are not errors that could be litigated i think those are all within plain error review but with respect to the actual and i think strongest argument about a fifty one dollars b it is the government's position that he the controlled substance element this is the plea form this is what he admitted to is a list that he's pleading guilty it doesn't mention the count it just says he's pleading guilty to health and safety code eleven thousand three hundred and seventy eight and that he admits i agree that i did the things that are stated in the charges that i am admitting and so there's no mention there of any controlled substance element and so just right there we don't have a match with the california statute and it doesn't qualify  so really that's as far as we have to go we know that the eight hundred and fifty one the procedures were not complied with its eight hundred and fifty one b is a kind of a weird bird where we don't apply plane air because as you said