proceed thank you in may place a court the district court in this case did not make expressed findings whether to criminal history points should be assigned to a two thousand and three possession of controlled substance conviction in a two thousand and four controlled substance conviction instead what the district court did was to adopt the p s i i in the probationers probation officers response to the objections of at its own without setting forth any additional facts now united states v flores says that the district court can rely on unchallenge both the convictions in paragraph fifty one of the pre sentence investigation both in his in his objections and in the sentencing memo as well as the conviction referenced in paragraph sixty attachments to my objections saying if these are the documents that the government and the probation office are relying on they are inadequate the government then files a response to my objections to the p where they put on they they submit additional evidence additional documentation in support of the to the second point on the and on the criminal history at that point i conviction and that there is he's put on probation and given eight days credit for time served it also says that sixty days is imposed but given that this was a proposition thirty six  the way i meant to the probation officer represents in paragraph nineteen that he provided defense counsel with certain documents or he makes a presentation doesn't tell us what documents down what the universe of documents is a reference and here the documents which i received from the probation officer are those documents which i attach to my pleadings ok counsel to what extent is the government conceding part of your argument i'm not talking about the restitution issue but respect to this issue i noticed in the red briefs that the government acknowledges that the record documents do not establish the terms  projects custody for the offenses described in fifty nine and sixty one to what extent does that relate to the colloquy you've just had with judge kozinski well i think i think it's a concession that th e documents in possession of that i presented in the documents that the government hasn't presented to the court don't establish mr projet served more than sixty days on either of those that's on the appellant's brief a ten and i actually had quoted it right here but i think that that's a concession that the state of the record is that there's insufficient evidence then of course the question is can the district court make a determination  not supported by these doctors documentation merely on the assertion of the pre sentence investigator that these documents were sufficient away and when you look at the documents they're not i'm i'm not sure if he ever look i mean there seems to be some indication that the probation officer looked at some not conviction that not superior court documents but documents of the correctional facility of the of the prison of the let's just make sure we are talking about the same document this is this is this someone that and i have a document that says public case access we paid it's a two page document it looks like page one thirty two is that the one october eighth two thousand and fourteen on the lower right say it's in the very last line and overridden by some other typing but in the very center of the bottom it says x o one thirty two zero zero one three  three right yes what we make of these records is that mr pritchett was given eight days credit for time served he failed to appear at one point a bench warrant was issued he was arrested he spent another day eight days in jail before he was put back on probation he failed again to appear another bench warrant was issued he was arrested again on that bench warrant he spent seven days in jail and then the case was dismissed doesn't matter because if you can push back one point in the first conviction un rut so this document has no relevance to how you read it has no evidence to the first conviction yeah this has nothing to do with fifty nine this has to do is sixty one that's and then start with a yes or no and then you can explain all you want is it correct that the government concedes does no document in the record that supports the second point  not quantum physics you know what is the record is something that we ought not to have disagreements about as you stand there you know we've got lots of lawyers the record i mean could read it again the government acknowledges that the record documents do not establish the terms of projects custody for the fence as described in fifty nine and sixty one the course that you want to say they do establish facts of conviction your hon not trying to take a different position now to try to distinguish between the record from the california court which are the attachments to the parties briefs filed below and the addendum to the p s r which i take to be part of the paragraph one thousand yes your honor or extra and it's the government's position that these paragraphs that address i'm sorry ok what language the two convictions issue are convictions fifty nine and sixty one regarding conviction fifty nine it's addressed in paragraph where you're reading from paragraph nineteen and page for your honor the probation officer also provided counsel yes you relying on rely on the language where the probation officer says the second sentence the probation officer noted in paragraph fifty nine of the information was limited but sufficient to attribute criminal history points the defendant has not provided any information to the are understand he was have you seen did you get those documents you know you are so you haven't seen the documents through the fence counsel tells us he had no documents from the second mento the defense counsel statement today just answer my question yes well you are it's my understanding from what i read here that he did provide it to defense counsel and it was my understanding from the record that those documents were not attached to our briefs so it's the government's position so that according to you understanding is a sayings of the probation officer provided only to defense counsel not to the government through is that unusual not necessarily  and he could have provided something to defense counsel in response to defense counsel's objections and give defense counsel the opportunity to rebut wouldn't that be something that he provide the government to so the government could make sense of the response  him paragraph eighteen it says the probation officer provided the criminal records received from the collateral investigation the records confirmed from sacramento county superior court sacramento county detention facility and that your honor i think is key is there's documents from the court and there's documents from the detention facility the documents from the courts are attached to the party's briefs if we look at the documents attached to parties briefs they appear to be from a court  outlining that the defendant was returned to custody on several occasions so the probation officer is representing to the parties and to the court that he has these records from the sacramento where he says he provided counsel with a copy of records o a witness and you know you put them on the stand and you can cross examine the documents last night you are i understand what the course saying certainly there's no way to verify his particular since there's no document of all have you showing th language in the agenda to the p s r it was not an abuse of discretion for the court to rely on the p s our findings that the defendant had served more than sixty days let me ask you a question of may as for another perspective that's really how can the government ask us to approve a sentence a person to be in jail or prison a longer time based on documents the government has and see honor at the government turns to the role of the probation officer for the court answer that question probation officer is the one in the process most familiar with reviewing custody records most really are with the stablish in criminal history points in this case the probation officer looked at the detention records from the county facility unless we think he was lying or otherwise misleading the court and calculated the number of days served and the district court relied upon that there were in this case an estimated certain extent the thirty objections with sub objections these were t objections among a whole range of things that were addressed at sentencing but doesn't florez impose upon the court the duty to resolve the factual dispute and that wasn't done here and that the government obviously has the burden of proof agreed your honor that we do have the burden of proof and i have i would like to address floors if the court would  with what we have here the florist court went on to say that the district court's failure to do so is not perceived will air or adequate explanation may be inferred from the p s r or the record as a whole and the situation in flor was whether a young person was a minor at the time the meier participated in the conspiracy and the p s r contains statements that establish that she was seventeen when she met flo and started on drugs but it contained no statement about how old she was when she joined the conspiracy no state there at all so in our case there is a contrast the facts in our case are stronger because the p does contain a statement it contains a definitive conclusion that the defendant served more than sixty days based upon the probation officers review of the detention r he says in paragraph nineteen that he provided the custody records probation officer noted the information was limited but sufficient to attribute criminal history points the defendant has not provided any information to the contrary and i think that last statement is interesting because it does show that the probation officer reviewed what the defendant provided and then made a conclusion after that review that the custody records still supported t confinement without looking at anything you are we certainly don't have a policy that says we take the probation officer at their word on that i would say it's not unusual when a probation officer reaches a conclusion that we rely upon the probation officers conclusion but as to the period a person was incarcerated you don't require the doc require your honor no but i'm having trouble understanding is why a probation officer would give documents to defense counsel and not have those same documents given to the government without providing documents on my own documents provided to apparently neither the defense counsel you're not questioning the integrity of the fence counsel he says he's spoken to everything he's gotten and that you tell me you haven't gotten the probation officers operating all these documents that nobody else seems to have seen just seems something that should be troubling to the to the go to the government as much as the defense counsel will give you two days in case the government chooses to back away from this