decided raising the question and the issue as to what is the statutory maximum well but it raises the question of question the quote we just had the question is the statutory  the statute it does not specify a statute or it or what that statutory maximum is supposed to mean we would continue and that the government only gets what they bargained for and that if there is a question want to watch today you know i think you have to take into consideration what the law is today but it but what i'm trying to address is the argument we're trying to separate which is  but what i'm what i'm arguing is that what the guidelines it's asking for under trying to remember for b one point two or something of that nature what it's calling for is something that is beyond the simple definition of the statute of what the prior conviction is shepherd says that the evaluation needs to be limited to the statutory is asking for something beyond that if we look at the if we look at the barracks the judge in this case made findings that the prior convictions for the drug felonies were sufficient and he didn't need to look any five point nine nine two those particular statutes do not track the terms of the sentencing guidelines you mean or the definition of a controlled i've seen as he's going beyond the statutory definition of the sentencing guidelines if you know he's going beyond the statutory definition of what the prior conviction was under under oregon which mean different specifically they say they didn't prohibit delivery and they prohibit it as defined the actual constructive or attempted transfer other back object to that we did object to the application of the career fandor but it was not on this basis but on this specific statutory faces no i have to admit we did not but we did raise because you had a printing at the time the plea agreement was entered into the plan the exception covered prior convictions counsel attempts to distinguish ip randi by arguing that the court has to go into more of a fact finding process with the career spender determination i don't have a case out of this circuit i do cite a case in my brief us first trial out of the third circuit which explicitly provide found that whether an offense is a crime of violence or a controlled substance offense that's a legal determination which does not raise an issue under a printing so that already one circuit and when you look at the pre sentence report which the court relied on in this case to determine whether or not the defendant was a cur finder all of those five delivery conviction and sentencing one year so we know the court back well that delivery and distribution defined you look normally to the statute of conviction whether or not it qualifies as a distribution giving not for money not for anything just giving it to another person and in this case i conceded in the government's brief that the statute of conviction was not provided to the court at the time i think that the pre sentence report or from the government and that this defendant somehow has shown to you either it's done saying or in this record of appeal she didn't have five qualifying convictions that in that event it should go back to the district court  portion to the police and report you know th  regarding at the career fandor statute not being alpes a couple so we contend that we did challenge the application of those prior convictions and as to whether or not they qualify under the career offender