a firearm a crime of violence the government has conceded that that case and that that conviction needs to be reversed that indictment needs to be dismissed and the case sent back to the senate saying we agree with that and that would render essentially moot all of the sentencing issues that were raised in the initial brief and so that leaves count three under way if the  maiden robbery conviction paul fine well your honor just to address that he wouldn't have been convicted of a triggering offense if we get rid of count for ninety two for see use of a prior are  i don't know if conspiracy to hide how exactly as a trigger for the career offender guidelines is going to be a live issue but yes you are and perhaps we could i confer and file a letter with the cry to let the court now following the argument we're going to ask you this so you'll know before you leave so would i could i'd like to address the race issue if i could and raif says that the defendant must know had knowledge of his prohibited status and what matters in this case is that his two criteria are two very important criteria he must know he's been convicted and he must know that the crime was punishable by a turn exceeding ryan a year those are two separate components and they're not as simple as the government would suggest a crime punishable by a term exceeding one year actually has another definition which i submitted in the twenty eight year letter which to him it does not include a crime punishable by a term exceeding one year to is not included in any state offense classified by the rise of the state as a misdemeanor and punishable by a term of imprisonment of two years or less and if you look at the indictment the st three alleged felonies were prosecuted as misdemeanors under massachusetts and my client did not receive a sentence exceeding two years the senator's two years arrest so whether he would have knowledge of that status is something that he would have been entitled to litigate in which the grand jury would have had to find this case raises the question of whether or not i've defended who has had a case continued without a fine day or a case who has already defended who tenders and all for a plea or a case where the that particular statute for eighty two dollars was not specified in the entitlement and that knowledge of status element is what separates innocent from innocent conduct from prohibited conduct however even under plain error we are we would succeed because when the defendant has not been indicted when the grand jury has not passed on that image and when the defendant has not had a notice and opportunity to c test that element and when the grand to discuss it when then that would be his substantial rights would be an impact it and i would point out if i could finish that effect substantial rights and the fairness and integrity of the proceeding so we're asking that the court dismiss that indictment thank you here thank you this court must of course consider the four factors laid out in the parker case that a coup de lay for put away the reasons for the delay the defendant's assertion of his rights and the prejudice caused by the  in his trial the significant crux of the issue in our case is st what time will be used to count the length of the way and nd the issue of prejudice is the predators provide f acquitted the credit is the miles are rd question the death well i mean that's that's certainly part of it that the government seems to focus on the question of showing a prejudice to his actual ability to present a defens concerned about is it wasn't hard for dead by the time that this case was brought well he was he was he died after mr arar was brought into custody are robbery charges he died during the pendency of mr lara's state robbery charges which were dismissed in favor of the federal prosecution if you will he died for your early on in this process that is correct five months into the process no evidence of bad sure i can't think of a case of a time i had that involves a proximately eighteen month delay where that sound of this court has been willing to recognize another context is in another context something of honda in the government had come on with the delay in honda but that was in a way of of six years where mr honda had been indicted a parent without his knowledge left the country for many years with a charge to be arrested he didn't even know that a criminal case was pending he was never in the context of this case with any witnesses they complained to fading memories rather certainly witnesses that testified to a lack of recollection on certain respects as i recall the testimony of heidi hutcherson was essential to the government's case but didn't she remember there was substantial question about hoover and when there was mention of  pills at the home that was that it was designed to be robbed she relied on statements that she recalled years prior from an individual died as hartford to established the so the claimed conspir intent to rob percocet pills not to rob cash money which was another potential reason for the robbery the passage of time certainly made it difficult to inquire as to the exact  details of that conversation she had trouble recalling exactly who was at that meeting she wasn't sure if north and more was in attendance for that or not but there's an alderman to become a jury question i mean she's you examined on that she's offense but because it has a statute maximum of twenty years that means that the base offense level would only be thirty two dollars and my assessment would be recalculated guidelines indicates that  determination but also the criminal history claims about him by which the district were never actually ruled on and lo because of the career under finding this court doesn't need to decide those questions i didn't see specific reference to it being the government's burden i know that the court needs to take the forty factors into account collectively i believe that still the defendant's burden to show prejudice in the totality motions and as was discussed previously earlier in the argument there's really been no showing of prejudice here there is no showing that the confiding conditions were unduly oppressive or snow out of the ordinary anxiety that mr two pieces of critical evidence one is the stipulation that mr windsor agreed to indicating that he had previously been convicted of a felony and i think that the jury could infer from that that that to the extent that there is prejudice here that i did this is the consequence of mr williams own trial choices had he chosen not to stipulate to this felony conviction the government had records which ha before the jury no but i think no but i think that where the absence of that evidence is a product of the defendant strategic choice the court can take that into consideration in determining would respect to the other instructional errors that are claimed as regarding the the general instructions as to that conspiracy and the responses to the jury knows we would i should fail here also from that we accepted in the record to each of the responses to the jury notice that i think the case yes i would suggest that it be the convictions that we relied on to indicate that he had prior convictions exceeding one  and knowledge there were not missed meters these two thousand in the massachusetts commission or larceny from a person with an eighteen month sentence i don't believe that was charged as a misdemeanor certainly the main robbery main conviction for i think i may have interrupted you said there were two critical reasons why there was never but just one but the stipulation which we will talk about and then the other i assume was these other convictions in terms of the trial one knew what the law brought us and if we had had the opportunity to make strategic decisions there were many strategic decisions that could have been made as i stated these st three alleged felonies are at work prosecuted in the boston discipline court room and that means that no state prison sentence was permissible and so they would have been treated as mr manners under state law so the question is not only maybe they might be convictions but the question is whether he knew they were convictions and whether he had an opportunity to fend the allegation that he knew that they were conviction because of the name and the main and i would the mr williams tendered  and i could not find any answer to whether or not a nolo plea case addressing that directly i think i think that it would be considered a conviction under main law but again the question is whether or not the government would have had to prove both probable cause to a grand jury and beyond reasonable doubt to the jury whether it was right whether he knew it was a conviction whether he knew he had the prohibited status under federal law