tells us we're using a modified categorical approach the whole purpose of that is to be able to unequivocal a determine whether or not this particular conviction qualifies as a predicate tell me under eleven zero one eight forty of transporting a can substance and selling now you shake your head and say no why is that necessarily so well it isn't it is an either way and that's that's the problem your honor is that we need to have an  well they may or may not be there your honor i have no clue about that i thought you said that the government didn't get them which would be in my judgment in some fashion that they were actually there well rather than letting something be done by slip it's clear in the records that he did specifically excerpts of record page eighty seven they're talking about the panel where the drugs were hidden in the penal of the car and that's what my memory of reading the state  probably starting in line eight no different from any other abstract or judgment generically because it appears what happens in california and it's it's and part of the brothel and almost every other case i've seen about the wording is the same regardless of the crime in other words the looking at california documents but i think that based on this court's president on the judicially notice what facts what can you look at what should you look at the judgment is that are all the final document in the case i mean it's telling this look at nothing more than this piece of paper would you like to do that you're really pushing me to the line this morning i think here's what i think your honor i think that  suppose from my perspective from the government's perspective when you're losing a case that's not such a bad thing but i don't think the remainder is necessary when judge mckibben health three separate hearings he did that he relied on a document that we've seen many times excuse me how do we know that because of the context of the conversation the first one we've already discussed which is on page eighty seven and it talks about the panel of the car and that's exactly what the a twenty six of the sealed document that i'm sure you have a copy of it yes so why are you so sure of the state when when there's the information the judge mckibben referred to appears to be directly out of the federal p s r well they got it from the state p if you let me ask my question i understand what you're relying on my question is what church kevin was relying on and i don't understand why you say that you were sure that it was relying on the state p signed and judge with him in this thing well that's all well and good but how do i know that his thing if you're just doesn't mean read i just read it you know i'm not putting my imprimatur on necessarily on the information i read it i got it i read it three of that fifty three ye thomas about i've seen a million of these but that i know that box is not that big and you can only fit so much in that's what they refer to the you know and that's not the end of the judgement as i mean that when we enter a mandate here t any other questions by the court are not run way over my time but i want to dance with the courts questions thank you out they disagree with some of the factual determinations they have jack this court decides whether or not to hold a hearing or not in this particular federal p s r there's a description of this prior  situation and there there's a language that the federal probation officer says would tie him in to telling me that would count now we have said we're not going to rely on that i understand that but suppose the defendant doesn't object to it and the district judge then rely on that information as a factual determination to determine federal p s are frequently has a factual determination spliffs the defendant is there and can object and i'm just wondering whether that rule applies here if the factual determination indicat that and we do because there's a will you pay for that you don't object to contest it but in this case we're looking at the statute first which we don't look at the facts this is different from federal science and so what i'm saying is is that i  bottom line is this you know we go through the system the facts can be reported one way or the other but what you actually the factual basis of your plea may not represent that at all i mean that's the whole point why we don't basically ideas you're not trying to turn in the second trial for what happened in the underlying offense you're trying to say what if the defendant of not so sure it was a playground exactly because that's the only thing that really tells us if this qualifies