the government cannot identify only some acca qualifying convictions that sentencing thereby limiting the defendant's notice of which convictions contests and only later raise once the burden of proof has shifted to the defendant your honour's the does your sat or let me ask you that you started out with that argument what were the issues we certified for  hodge arguments we won we address the two questions one is whether north carolina breaking and entering is it is a violent felony and two whether assault with a deadly weapon with intent to kill inflicting serious injury is is a violent felony and your honor is i realize of course that those are are sort of phrases in the abstract but of course they don't exist in a vacuum they exist in issues the certificate of appeal ability and earn a five hundred and thirty issues this court case law seems to indicate there is a decent amount of latitude built in there as to the arguments that may make on appeal under those issues and we contend that basically the district court erred in saying that the breaking and entering conviction was a violent felony and that the assault and the chills the violent felony when the p s r never designated those convictions as violent felonies as legitimate act of predicates and i would point to this court's decision and when bosh and i would remind the court that this the away the issues thirty five dollars and winbush was analogy is that we asked in that case whether the district court heard in doing something in this case we asked to abstract questions whether particular crimes or crimes of violence are we can handle what to do if we conclude that they are or they are not but i don't see how you get around the simple question is a crime of violence is be a crime of violen completely i have to say that i you know this was something that i thought of i took this appeal over for a colleague and when i saw that i have a hard issue my st thought was do we need to expand the certificate of appeal ability and what is the right to do that if there's a way to do that here is what our local but our local rule says that if you don't do it we're not allowed to consider anything in the brief that refers to it so again when it drew local law twenty two you're familiar with that aren't you yes term but then when i looked at when i looked at when bush i thought i think we're finally here and not for nothing i have to say i consulted with more experienced appellate colleagues and everyone was on board everyone agreed that we didn't need to tell us tell us more but when bush because i'm not in disagreement on that to some extent i mean when bush is pretty expensive i don't think is it limited is it appears i mean when you look at when bush and the issue hard issue yes and it resulted i think anybody reading that would say that the same thing exists here it looks pretty clear to me and i would i would just also add your honor  but this is zero point you get when bush and i don't see how you get around bush i gree completely judge when i would also say that you do have this court does have the authority to expand the certificate of appeal ability and i do think if there's any question that that the certificate of appeal ability as issued does not cover this i think it would be appropriate to expand especially given how low the standard is for issuing a certificate of appeal ability it's just on is this an issue on court found that now of course the the court found that the p s r is designation of the predicates was a type however we believe that that is both factually dubious and legally i during the sentencing of the court didn't refer to stolen property crime the court referred to the crimes in other words the explanation the court gave is there was a paragraph inserted that that everybody assumed everybody assumed that that was correct nobody took objection and so nobody objected that i do think that's interesting so i'll say two things one is you're right on j a thirty four at the originals at the original sentencing the government argues he has four felonies that count for the armed career criminal each of those is extremely violent in terms of the criminal conduct where  then how could paragraph ten the breaking and entering conviction in which he broke into a carburetor shop and stole a few items when he was sixteen that's not an extremely violent that's not a violent criminal conduct so i would also point out that the government on direct appeal to this court from and mr go and appeal to this court on direct review specifically told this court that the felony the felony possession of review it matters at benefits and i think there is a lot of confusion and that mr there is no evidence in the record to show that mr gowans had the notice that hodge says that he needs he needed at the time as to which aca predicates were going to sustain that aca status and especially in this you can't come back on collateral review and say oh no we just it was a typo no big no biggie and states versus wrongly i do think that perhaps the best thing to do here is to just send it back to the district court for reconsideration in light of hodge and light of wrongly the district court can then make the decision now in light of the rehabilitation evidence of the last ten years why would we send it back why would we just order re sentencing i mean it seems to me if you're right about this that there wasn't an  i think that that's actually a close call whether there was an error or not because it's not as confusing as this sounds it's just one paragraph number offset and if he preached a senate supporter between the two riginal  draft in the final and sort of a paragraph it would throw all the paragraphs off by one and the district court thought that's what was going on because at sentencing they only referred they didn't refer to the stolen d property nor do they refer to the drug they referred to the to the others and so the court assumed that that offset in numbers was just in there but if it wasn't in there i guess your argument your suggestion is we could have the district court to determine whether it numbering was off i won and i would just remind the court that you know i know it doesn't appear in the record but i can assure the court that the draft p s r is absolutely identical to the final p s r and i would be happy to submit that and i'm you know if if the court i believe had just looked at the original draft p s r the court would have seen that there were you know there were there wasn't any off on one sort of renumbering going on there so but i believe questions i will save the rest of my time for a bottle all right thank you  please the court christine fritz on behalf of the united states and i asked you to affirm the judgment of the district court here i'd like to begin with the certificate of appeal ability because i think that is an important issue absolutely clear now it all of those qualified and for example breaking and entering has qualified since one thousand nine hundred and two so i think it was pretty clear to everybody at the time of this sentencing what convictions were being looked at now what's interesting is that defense counsel on appeal had asked to stay on the certificate of appeal ability to reach breaking and entering which quite frankly is confusing to me defendant couldn't have raised a freestanding two thousand two hundred and fifty five challenge to breaking and entering in the district court to begin there wasn't any intervening supreme court law that would trigger the one year statute of limitations that would have allowed here there were four and now we know that in my johnson and one of them doesn't count so now get down to three but i think that the court was the district court didn't have any issue raised whatsoever regarding the breaking and entering or regarding notice or opportunity to be heard and i note that the defendant did file an objection to that means or my opinion and in the presence of conscience to which is what also made it easy for the court to realize that at some point in the drafting process whether it was when the probation officer was drafting his own st rounds of the drouth whether it was the of cocaine possession of stolen goods a misdemeanor assault being run by the time as back up credit yes it was so obvious to the district court that that wasn't the case but she wasn't that he had shot somebody in the stomach he got it somebody with the survive only he attempted to slice the woman's throat and then he broken entered into a structure he is the type of defendant for whom acro was created and he's not like system operate properly so that so that it's clear that this was done carefully and with integrity people what's what's the what's the loss to the government on that conceded so that defense counsel for had immediately said i objects i need time this wasn't relied upon before i went to research the legal issue of a startle and waiver and all these other things and then that that same attorney found a supplemental response emphatically contending that it should not be permitted that this other conviction be relied upon and  also in that particular case in homage there were concerns about whether the conviction was in fact a qualifying predicates because that conviction dealt with a controlled substance offense and defense counsel and ho represented that as of the time his response was due he had not been able to determine definitively the maximum sentence to which could have been exposed no but it sounds like your argument is since we all know wonder my response to that is that the government also thinks that procedure is important here the certificate of appeal ability doesn't extend to that noticed was never ever presented as an issue to  procedure let's follow the procedure and now it's here here's another procedure then expand a bit of appeal ability for the for the certificate well we can so we'll d do i mean if we do that now i'm not sure  say that necessarily the judge was thinking about how much i think the judge was going through and carefully looking at the aca predicates and it realized oh wow this is wrong because i obviously was relying district court and defendant didn't have any problem with that so maybe we have some sort of waiver or it was never raised because everybody knew what the aca predicates were and so now the defendant has the obligation to demonstrate clane air on that any any kind of awkward departure about going beyond that was inappropriate so i think that it's fair to say that throughout the light the this case until such came down everybody knew what the predi and the case number of plants have not been the practice back then i think this if this whole thing would have been avoided it probably would have had the incorrect paragraphs but the correct crime entries numbers and shot as to whether they can improve their situation on reset and sing but i'm not sure what you're saying is their argument i don't think they say everything's frozen in time i think they want a bigger procedure than a collateral procedure to address this they want to sentencing if i understand correctly i my understanding of the reply was the idea that having failed to designate those convictions at the original sentencing or having the numbers off by one d heard so many i tend to think that that in some ways is what i was just asking what happened in terms of arguing that there wasn't actually an error because he wasn't lacking notice opposed to something like a misdemeanor assault or possession of stolen property and that and if there are concerns of the case every everybody knew that alternatively at this court chooses to reach the heights issue and court was quoting the supreme court stating that the public legitimacy of our justice system relies on procedures that are neutral accurate consistent trust their care and so i don't think there's any reason to treat mr go in any differently from other defendants who have gotten relief under hodge and i would point actually there's a wonderful the question that i know but the question that i'm racing is clearly the district court didn't but this was not raised below and it's now presented for the st time above and the district court didn't get a chance to address it i do note that the government did state in its text where such it would make a difference counter and i would say that i would point this court i think it's a great example of how it does make a difference united states vs net term which i cited in my reply brief that actually was  thing and we think that the same could absolutely happen here that the district court could determine that now after johnson he has a far fewer act a private dance and that and also you could consider evidence of rehabilitation under pepper and so your honors and i would also just point out that everything that you just said about how no hodge noticed was was raised below in the district court the same happened accept our greetings and thank you for your arguments we'll take a short recess five minutes