accurate he pled to aggravated battery that's accurate the appellant's counsel then goes on to make an argument that is not in the brief break this is the first time that the government is hearing it that somehow the aggravated battery statute is actually based on the penalty here an imposed to wit six months and one day we can safely conclude that pled guilty to aggravated battery in the fourth degree since the maximum punishment of the offenses is up to three years i prisonment the penalty prerequisite for being one doc two should not be in doubt with respect to this case the defend the defend this case was arrested inside an as he was placing a rifle loaded with sixty rounds of ammunition in a future in cabinet he pled guilty to aiding in a bell and abetting a felon in possession under eighteen eighteen eighteen u s c nine two two g one the district september two thousand and fifteen to seventeen months in prison which was a sentence at the bottom of the guidelines the most straightforward path to affirming the sentence is a straightforward weaver argument here and there is no  to the guideline calculation i mean this is not for want of opportunity you tell untaet six months between the publishing of the p s r and the sentencing hearing in which to file written  nature of the conviction was in the record all we have is a probation officers statement as to what it believes is a qualifying offense and then we have a defendant comes in and says gee if you look at the case law it turns out that might not have been a qualifying offense and the u s attorney's office then says to us well they didn't object and i just don't understand do you guys look at the convictions to see whether they qualify before you tell judges that they should impose these large sentences and if you don't you do you know you look at the records here you know under the practices yes we do look at the underlying conviction if there's some reason why we don't where you don't put the convictions on the record in order to make it easier on appeal again and this instance the government was not seeking the enhancement and there was no objection regarding the probation or the judges for that matter  them and what we have is a probation officer has made the assessment that under this unbelievably complicated bit of jurisprudence this qualifies because it could get to visible offense you know with respect to whether or not the prosecutor look at them we don't know there's nothing in the right there's nothing in the record either way but i don't know that we conclude that he did not know that he did or that he did so from our perspective we should assume the worst you should assume that because it's fine with you even if we do assume the worst for him to get the enhanced insight and that's what are his i'm just wondering why this someone it would seem like would have an interest in and i would think the u s attorney's office would have an interest in making sure that the people it's prosecuting and knows maybe somebody is very long sentences have actually committed the offense now i recognize that's on defense attorney and the defense attorney should be raising that concern and that's our jurisprudence or present says that but it does seem to me a case after case it's odd to me use attorney's office is content that the sentence is to be imposed without anybody having checked to see whether you if you looked at it and you know it was not a qualifying offense presumably you would inform the court of that yes you are right so the way it's playing out is by never checking it there's no need to inform the court of again your honor i respectfully disagree with the notion that you never prior convictions in order to create a record so that everything is perfectly clear nonetheless in this case the government was not seeking any and it has been in this situation it was not an instance we were trying to claim a game of gotcha with anyone we we didn't seek an enhanced and based on this i think is another point you need to stipulate to that you know record label instead we're putting it all on the probation officer who with all likelihood in this case relied on the residual could be relied on the residual clause for all we know may may have relied upon the residual cost which after after buckles would be leonardo the fact that the underfed and fail to file any written objections fail to object to the categorization during the hearing even though given multiple opportunities and despite the district characterization of those two prior felonies as qualifying convictions and the defendant's efforts to raise their arguments for the first time want to feel that counts as as waiver not just forfeiture another point to make is that even if