britain versus united states convictions qualified as predicates under the arm career criminal p s r then identified those three armed career for the act predicate to include fleeing in attempting to reliance on any of the other convictions i agree that mr bruton only had to agree that he had three aca predicates the government then never contended yes but there is a difference between admitting that you have a prior conviction in admitting that something is an act of all find a defendant is also entitle to notice and what the government is relying on  elsewhere if for whatever is of those also no longer qualified as aca press under johnson problem is that by the time you get to that point the burden has shifted  well there is we shouldn't get there because mr brewer in should be entitled to rely on the fact that he entered into it that there were three he had three qualifying offenses and we know that the three that were relied on because they're listed in the p s r so the police lists four and mr burton agreed that he had three call flying offenses we know though that the three that the court relied on there was in contemplation of mister plea agreement in order for him to get the benefit of his bargain i mean the government got the benefit of the bargain that mr bruton pled and they greeted that he only had to agree that he had three acco qualifying offenses and in the p s r there listed three aca qualifying offenses mr brewer in didn't object to those three acca qualifying offenses in object anything only that i have committed three qualifying offenses or i have committed only three qualify then it seems to be stated as a a minimum the mission rather than a complete admission but again the government here had the duty of proving the act of qualifying offenses and the government drafted the plea agreement the government could have put that all four qualify it would have been simple it would have been very easy for the government to put that all four of them qualify and you obviously obviously tribute i think it's you've fairly recognized as your most difficult case but how do you even square your argument with b m and of course under some want to be a man you have to determine actually whether this person was sentenced under residual clause offenses suppose that's met but then step two is and show that there weren't three total qualifying offens existence how do you how do you square your argument with with the beeman analysis that we have carried out many times now i don't think that we should reach that point because i think that the government has waived getting there because they agree that he only had three and i think that we shouldn't be is only mandatory if the government proves that he has the qualifying conviction proof beyond a reasonable doubt that he had three convictions which continue to qualify talking about that plea colloquy and talking about the plea agreement i'd like to point the court to the plea agreement which we provided to the court in our supplemental appendix page twenty one dollars of the plea agreement it says written admits he's been convicted a victim of the following felonies which include three felonies that bruton admits qualify him as an arm career criminal and it lists forty three dollars of which continue to qualify nothing in that statement says that he's been convicted of only three qualifying felonies nothing in that statement says that of these four only three qualify it happened that at the time he entered his plea agreement we had the judgments and the case numbers for these cases and could prove that he qualified under the a c c a and those were included in the plea agreement in addition at page fourteen of the plea agreement there is a paragraph labeled three sentencing information in which the united states reserves the right to present any and all information to the court relevant to the sentence that includes the totality of the defendant's criminal activities and his criminal history nothing in that plea agreement created an obligation on the united states to object when the p s r said that at paragraph twenty three dollars the defendant has at least three qualifying convictions under the ac ca and the probation office relied on these three and the probation office just relied on the three qualifying convictions in order of the time at which the defendant had been convicted of them that at the time qualified united states was not obligated to object and say wait a minute he's got others excepting a defendant stipulation to a particular qualifying often it's does not mean that we are waiving the right for other qualifying often says rule thirty two of the role of rules of criminal procedure does not require the court to rule on an objection that is not before it that has never been made and it does not require the united states to present evidence for multiple alternative grounds to affirm  sentencing enhancement when the defendant has stipulated what's your response to the burden shifting argument made by those in council because of course if there were if there was another if one of the three remaining convictions was one that there  opportunity to be heard with respect to the court's examination of particular convictions in his p s r to which he has admitted and use of them to support an a c c a sentence he's admitted because he did not contest the p s r which included those convictions in this description of criminal history he's admitted yes i have these convictions but if they were on council he could come back and say they were on counseled and in the he also could challenge those convictions based on their use as a c c a predicates he did not do that here well at the time the law was such that he didn't have any reason to object to those other convictions right he would have had no basis in the law well he certainly if he had not as predicates i mean as predicate if he had not been convicted of them he could have come to but you're right as predicates because because the probation office had relied on three others because he did mid to four he didn't have an incentive to say well by the way that other sale of cocaine that you're not citing as supporting the a c c a sentence doesn't qualify as a predicate he did not have that incentive but he did have an incentive to say that's not me and he didn't do that that's a different question though it is what i'm saying is that he's admitted those was at issue in tribute by the way there are still things that he could have done he still had his due process rights but the united states has a due process right to and to say that the united states somehow is limited to only the three convictions that the probation office cited in support of its recommendation to the court would mean that the united states is never given an opportunity to respond to the defendant's objection when he finally belat makes it which is what this defendant did now i would like to move for a nd to the court's question about the defendant needing to show prejudice  question and then judge grant had another question about squaring this with be minute self the questions of prejudice and the question of whether there is a johnson violation to begin with which is what eamon discusses depend in those cases in tribune in this case on an examination of the same evidence because we're talking about whether there are other convictions in the p s r that would support the sentence but the questions the court is answering are different the be even analysis the question of whether there is a johnson violation question looks at whether the defendant's sentence turned on the validity of the residual clause and one of the things that a court considers in deciding whether that is the case is if the defendant had other convictions that would have qualified the question of prejudice focuses on whether the defendant has established actual and substantial prejudice that infects the entire proceeding with error of constitutional dimension that's the definition from fraidy to answer that question the court cannot look at the error in isolation it must examine the error in the context of all of the prior events it's a very very different and that means that this court has to examine the entire record not just paragraph twenty three and while in this case the district court based its ruling on an examination of the other convictions in the p s r as did the district court in which chose not to address procedural default but answered st whether there was a johnson violation that won't be the case in every circumstance when there has been a procedural default as there was in this case the question is whether based on the entire record all of the proceedings below the defendant has shown a substantial prejudice and there will be circumstances in which he won't be able to do that the st thing that comes to mind is the concurren sentence doctrine but there are probably other circumstances when a defendant objects in a district court timely to a sentencing and hansen united states has the opportunity  sentencing proceeding to respond to the objection and may respond to that objection with other evidence that's in the p s r may respond to the other objection with other evidence that came out in the discovery or that came out in trial of which the defendant was on notice that we see that answers the objection the substantial prejudice question has to consider all of that so if there had been a conviction that wasn't in the p s r we would have been able to respond to that and say you didn't include this one he's now challenging the a c c a he is an armed career criminal based on these convictions what the defendant wants is for us never to be able to respond to is objection when he finally makes it and that's why they're relying on auntie and bryant but the focus in the procedural default context is what would have happened with the result had been different if the defendant had timely objected that question that focus itself leaves no room for cases that derive from the united states waiver of certain predicate convictions in response she and bryant were cases in which the defendant objected and in response to the objection the united states waived affirmatively its reliance on an ability to produce shephard documents for some convictions which was what happened in canty or on a legal theory of qualifications it's what happened in bryant it was the united states response to an objection that constituted a waiver for certain there is no waiver inherent in the plea agreement in this case and the defendant cannot read one and by inserting the word only wherever he chooses could have objected to the existence of the convictions or the validity of the end of the convictions but he would have no reason had no basis for objecting to them as predicates zat right at your argument thank you counsel rico will be in recess for fifteen minutes