of california penal code section one hundred and eighty seven we are asking this court to find that based on the allegations in the superseding indictment in this case that racketeering murder murder with the use of a firearm and a killing that qualifies under section one thousand one hundred and eleven which is what the government argues and which is what the district court applied you would be missing one of the three elements section racketeering murder of a car statutes allow the federal government to charge a violation of certain violent felonies based on an offense under state law jury unanimity in california is not required for the underlying theory of the st or nd degree murder or the underlying intent or ask related to st or nd degree murder and related the underlying asked specifically related to felony murder or to provide it after murder i see that i haven't had any doubt in my time unless the court have further questions right now i would reserve the rest of my time for  very well thank you thank you categorical approach establishes that his violation of section one thousand one hundred and eleven dollars that the elements of premeditated st degree murder which is of course a crime of violence starting with procedural default for decades the supreme court has ordinarily he would have to show you either cause and prejudice or actual innocence in order to proceed on this claim but in his opening brief in this score it doesn't allege either ground doesn't establish cause of prejudice and doesn't establish actual brief your honor that that his actual innocence excuses his procedural default because he's actually innocent of that element although i would know that under booz lee versus united states the supreme court has specifically held that in the context of the guilty plea the defendant must also extend his actual innocence claim to all of those more serious charges that the government or went as a part of plea bargaining and in this case the the government dismissed count three which is a viking murder count with a mandatory life sentence or the possibility of capital a capital zero dollars ten cents and the defendant and none of his briefing in this court in the opening brief or in the reply brief makes any claim of actual innocence on that count as a result under booz lee and which is binding the defendant has procedurally defaulted on his claim i touched briefly on the plea agreement waiver which is just to say that the defendant entered into a binding agreement it has a waiver of collateral attack and appeal rights and the defendant makes no mention of why that waiver would not apply to his case in his opening br and under united states versus low which is cited in the government's brief this court has previously and forcibly agreement waiver where a defendant waits until the reply brief to attack the waivers validity or likeability to his case  and the same is true here if there are no questions on procedural default or the waiver i will turn to the merits this defendant was convicted under section one hundred and twenty four dollars j one which has two additional elements in addition i understand that your honor and let me respond with two quick points one is that the defendant have to show a reasonable probability of overbred and the additional elements in one hundred and twenty four j one make that showing more difficult for him because we know that no matter what the outer bounds of the california penal code or of section one hundred and fifty nine we know as a categorical matter that his predicate offense fits within the definition of section  has to fit within the definition of section one thousand one hundred and eleven dollars because it's a single event that again no matter what the outer bounds of kept the california penal code or by car murder we know that it meets that definition and the nd point i would make is the element as the use of a firearm defeats any realistic probability that this individual's predicate offense was done by omission or starvation or poison or any of the other means that the defendant argues in his opening brief because we know the defendant engaged in committing his gang murder i'm asking that the court look to the elements of his offense of conviction and the elements of his offense and conviction preclude any reasonable pub probability that his predicate offense was committed by starvation or poison and the nd point i would make is that under castle men which this court adopted in stud horse for analyzing crimes of violence under nine  four see the argument he's making about poison and other ways of indirectly killing an individual not being a violent felony are just simply precluded by that case law there's there's no way to regardless of the particular facts of it just as an element that it involved the use of a firearm that he had to have committed the murder by firearm in order to be convicted of this offense and so categorically we know that is  is no reasonable probability that this was a parental neglect murder and then the nd point i would make is that he failed to articulate any of those examples in his opening brief and so while in reply citations the burden is on him to show a reasonable probability in that opening brief otherwise he waives it that the state will apply this statute in overbroad manner compared to a crime of violence if there are no further questions on the merits the government would ask that this court affirm were dismissed as procedurally defaulted or waived and not become the st court to ever hold that by car murder or  premeditated st degree murder are not crimes of violence just a couple brief points as to the procedural issues the government does not dispute that if the sentence is illegal but under this court's decisions and taurus and mobley that the collateral attack waiver is not enforceable mr he has shown cause and prejudice based on the three reed factors and i would point the court to the cases of cross and snyder in this that and the ten circuits the found similar claims under johnson a collateral amounted to causing prejudice based on all three read factors what's unique about this case is that the section one hundred and eighty seven murder was never alleged as an intentional st degree murder and i and with premeditation in violation of one thousand for j that is nowhere in the superseding indictment here we just have allegations of st and nd degree murder and applying this court's precedent and supreme court precedent but this unique allegations in the superseding indictment that were vague that the car murder could be a crime of violence in those cases but based on the unique facts here it is not a crime of violence under section one hundred and seven dollars because the