good morning my name is behind me and i'm representing the government today to sustaining a felony conviction for a crime of violence the conviction being for aggravated criminal sexual assault the determination of whether or not the defendant's prior conviction constitutes a crime of and usually what we would be able to prepared to prove documents are gathered by our probation department and they use their documents to put the p s r together and usually we tender the at that point we couldn't get to the point of finding out where on the record to say that you couldn't get to the point of finding out that's what it's for i'm i had some trouble with that i think because it seems to me that the just record just started to say i think that's a question for the jury but i didn't indicate i didn't seem to be any indication of what the government intended to put on her it was going to put on the support of a satisfying answer your honor on the record the court explained that on its face it appears to be a crime of violence the prior conviction but in my view that would require a finding of fact it would not be merely a question of law evidence would have to be received to try to right and that's i guess what's kind of  that's way in the sense i mean that's pretty far into the sentencing hearing yes but we believe that the court was pretty clear on its beliefs and goes on to say that the way i read likely put what was that what you have there is that one of the government has already took to tender that to me your honor to be honest with you i did not have it in my hands but the probation officers documentation at that point would be what i would have to present and if the judge felt that he needed more i would be prepared to attain more documentation normally if you will if you disagree with the judge's legal reasoning and you want to take that up  proffer and say you know judge me put on the record what we would show and then then you'd have something to argue  he did say those things you can't do it correct but i felt as i listened to the court that the court was definite in its understanding and how it felt on the issue and the fact that the court self of either the defendant documents were and often they don't get the judgment of conviction and we know that p s our son and his testimony has been hearsay so do we this record is devoid of any any evidence that would comply with shepard actually and you need to judgment of conviction you can't and that's something that you can put in without the without the without the probation officer i used in a certified copy but from what you're telling me here and i may or may not make any difference but i want to make sure  what happened you were prepared to do that well your honor the defendant did admit that he did have a prior felony conviction during his change of plea he did admit to the elements of the crime and when that judgment of conventional list for x or y there are two different things correct i do understand that the fight is different but previously in prosecuting these cases the courts have never requested that we tender a certified copy of a conviction to prove at sentencing what type of yes i mean i know this from nevada and that was a that was kind of a there was a period of time that that occurred but we reversed a number of nevada cases on those grounds so that's and decide whether or not the you are precluded from putting on any evidence at all and just have to gauge that from the record yes i know that is the core of our argument here today that we were precluded from even getting to that and our second argument is that this case should be remanded for a full sentencing rehearing so that the court may consider a number of facts that would raise the defendant's guideline range including the age of the children  the court could consider the issues like the enhanced the possible enhancements that i just listed and again at that time the court felt that it was precluded from considering any of those enhanced minutes and those are enhance that have to either be admitted by the defendant or the minute to a jury and that is argued the conclusion of our argument if there are no other question the court cynthia hahn for a i'm kind of on the same page as the court is at least according to the questions i heard is that what we have here ok application of the guidelines even if it's a non constitutional error and the defendant sentence was not enhanced by extroverts findings are still error if it was done prior to book or if it was on the blakely however i think what we have here is harmless error because whether booker or blakeley applied at the time of mr mosley sentencing the fact remains the government had not one document not one picture they say they're all these pictures but they didn't have any they didn't prove up one thing that was in the pre sentence report and i don't know how long this is i mean i know corona sanchez was two thousand and two on bond this is not new case law by any stretch of the imagination and whether it was booker or blakely this district court did not have the materials to find either an appropriate base offense level he did admit to a felony he didn't admit to what kind of felony and the judge correctly of pictures and they didn't come with one there was nothing there's nothing in the record where the government says your honor we have all this documentation we have an expert here to testify that these pictures are indeed  children and not more pictures we don't even know if there are more pictures we don't know if there's any pictures of children we just know when the p s r what it says in the p s r under this court's law for a long time now is banned is not enough and when are we going to start doing something about this because what happens is it gets sent back down and the government gets a second shot to prove it up and i understand them to matthews why they had that circuit has said many many times to the government the p s r alone is not enough how many times does it have to be said why do they keep coming to court with just a p s are it waste the district court's time time it takes we all have to fly up here or drive up here we go back down again it's it's crazy and i will point out that judge read what is i think the only judge left in the district in  of record page fifty six so he realized he had discretion here it may not have been to the point of booker discretion but he certainly realized that he had the discretion to put the sentence as he saw fit and without anything else but the p s r there was nothing else for him to do but go ahead and give the man and the level twelve under the gun and then he couldn't apply five hundred five hundred or more pictures he'd never seen any pictures he had no testimony he did what was the appropriate thing i sent over to the court this morning the court card case and i realize it's not on point because the criminal history case when i was doubt about that but the problem i think from your point of view is i think the judge was incorrect in saying it's a question of fact the jury and that's that's finally wrong i think under us as to the facts of convention now whether or not the government we say the government did prove or show to prove it at the time may be a separate question but the fact of conviction can't be subject to that so know i agree i agree with that but what i'm saying here is that it was harmless error in that it did not affect the substantial rights here it was just with respect to the convention leaving leaving aside the photographs with respect to the convention what i think there is some force the government's argument that they were cut off the past because treasury started off city that portion of the hearing by saying i've made this anything and that's why i say it's harmless error if it were a book or case they still would have shown up with nothing that's how they work they show up with nothing and then we end up coming up here and at some point it's got to be considered willful and it's invited error it's become invited error basically the government invites error to get up here to get it we may end it and they have more time to collect their case and put their experts on and i think at that point that it is not harmless error because it really is affecting the substantial rights of mr mosley whereas right now we have a harmless error whether it was book or a blakely to government had no idea that the court was going to say what it did it should have come prepared expert in child pornography who is willing to testify as to the age of these people and in the pictures and how many there were and your honor we're ready to go forward with our with our burden of proof because we've got it and  just wasn't the case i mean you don't give the court a chance to say no it's very speculative who knows what the court would have done if the government had come like that and that's why i say it's harmless error because under blakely or booker the government felony conviction and that the government is correct in this case saying you can't the court can consider that