reasons as to why this collateral tax is not barred under d one and i think the easiest one in the simplest way to address it is the fact that simply the government lost or destroyed the tape of the deportation proceedings so we have no record easily get past that de one issue the only real point the government in their response was claims that the presented a skimpy record as to the no one intelligent waiver they really imprison anything they claim that first i don't know why they made this claim that i didn't raise this issue below government argues well it could have been an aggravated felony under a modified categorical pros once again it's the government's burden to establish the modified categorical procession in this case they have and the only documents that have been submitted were actually submitted by me and that's the complaint in the abstract the judgment which appear of pages three and four of the x or of the record unlike the other case there is no specific allegation of sale only in the complaint in or is actually information in this case it includes all the language in eleven three fifty two including transportation including offering which was solicitations and if you look at the abstract the judgment it lists sales last transport slash off first slash two slash cell controlled substances list the whole or the deportation was invalid so this court has just rejected that argument and the government has decided anything contrary to that so i think regular we have the thirty twenty six charge should be dismissed i can proceed to the it would seem to apply to kids we have two different districts that are neighboring districts in california that probably have the most need with the exception of arizona the most another thirty twenty six's in the country and they do two different things with respect to the indictments and how they take the guilty pleas in the cases i think even on the merits of the merits were considered he has stated no cognized claim mr vargas failed to exhaust his ministry of remedies let's talk about what there is no dispute over there is no absolutely the government's burden to prove that it's snowing in voluntary waiver however this burden doesn't exist in a vacuum the government can't imagine claims and then rebut them there has to be a claim by the defendant of involuntary the defendant was convicted on a charge of conspiracy to commit second degree murder and later on later developments in california case law showed that no such crimes exists and this court nonetheless held that the defendant could not rely on that later change in interpretation of the law to invalidate his convictions so essentially he was convicted on a crime that doesn't exist but the principle of finality  observes still controls rather and i know that opinion was actually written by judge fletcher just briefly the statutory interpretation claim it's a very creative kind of end run around this court's repeatedly reiterated rule that a prior conviction doesn't have to be charged in the penalties at subsection b are just that penalties before there wasn't a label penalties now lest there be any doubt congress even put the label penalties and subsection b congress put generally the effects generally a as to whether or not eleven through seventy eight point five is a drug trafficking offense within the meaning of the guidelines i'm happy to address that but it seems that the case that issue is controlled by this court's decisions in united states versus civil deportation context when you're just trying to stay in the country versus the criminal thirteen twenty six contests where you're collaterally attacking that's what played by our salon which is where this court allowed subsequent developments in the case law