convicted after a jury trial of conspiracy to distribute heroin and was given an enhanced mandatory minimum sentence of twenty years lied to start out with the sentencing issue before a trial by government filed an eight fifty one information alleging that my client had a nine hundred and ninety seven conviction out of new hampshire for possession of drugs with intent to self however after conviction and before  circumstance i believe the court should really apply harmless error to you instead prefer to present well st of all do we have for powered yes because i believe that this that collective mind and say you know harmless error is the test here it's really absurd to require someone to a chat to the court's failure to inform him giving him and making sure he gets it discounts the court it's duty to advise the defendant by obliging the defendant to advise the court another reason that  challenge the carrot and the consequences of not challenging the prior for all those reasons we think harmless error should apply here but even if this court prize plain error if you take a should be required to do under age fifty one so will as a result there is nothing in the record that would show whether or not he would have challenge the prior conviction that it was not him that was convicted as set forth in the information and secondly that the stuff that as a legal matter that conviction didn't meet the definition of  thing i find it i find it sort of hard to believe that given the fact that he was facing this that if he believed that he was someone else that that would have been raised below it's very difficult to understand why that would would have been happy ok and one reason that could happen is there is a prior proceeding in this case at which the judge asked the government to explain it in terms challenging which is whether it qualifies for or not but certainly free standing there saying what cron iow i was never convicted of that crime under any scenario as soon as he mentions that why would he test you might prevail good player or harmless error but this st one seems very odd because it's purely black and white and we do have a procedure in certain sentencing cases for filing for example sheppard documents with us on appeal for the st time i would think you'll really be able to file with us records showing from the state court showing there wasn't him over and over in th and context where we ask tonsil to point out on appeal what it is they would have filed regarding a prior conviction well the only document that i was able to  obtain which is not in the record was something called the case summary from the new hampshire's court and the spelling of the defendant's name is different there's a discrepancy it's not the same stelling as in this case so ser say prove it was me and the government is required to prove that beyond a reasonable doubt it's like saying well you can't really pleaded not guilty if you did the crime no you're entitled to put the government to the your client was never victor dove i'm i'm having a lot of difficulty understanding as a practical matter how mention of that would never be like st on the lips of counsel and the client even if but those were not used in connection with you know explaining the p s are to him let me ask you this if i were in your shoes and i are a client telling me i just felt like years in prison for offense it wasn't even me that would really get my attention because i mean how often do you get something like that usually you're talking about the procedure or that but someone actually says i was in the arm i would be out there gathering it could be easily proven that it wasn't him for the arrow who burned it is i would worry about that arm and wouldn't you be filing the stuff with us or with a twenty to fifty five or i mean it would be pretty high on the list of knockout punches that you would be well it's hard to figure out the referee and why i mean the record doesn't reflect what council did or didn't do or mandatory minimum trekker if everybody agrees with you we're talking about harm or we're talking about prejudiced and non sane if the court wants to go beyond the record and look at documents from the him whether he is firms or denies the prior if you denies it the defense has to file a document with the court and there is a hearing at which the government passed it prove beyond a reasonable doubt it is him and then then that issue has gone away either the court finds no it's not him or the court finds yes it is him thank drugs and those questions that can be readily ascertain from the face of a statute so this indeterminacy then made the johnson did it is the focus of the johnson white cases just doesn't curer for the last year the living in massachusetts were big jim not qualified under the jury selection now but the but the matter whether race until after the time had expired for raising such a claim there's no showing here of any there are a couple of reasons why this circumstance is different from the rule eleven situation and in such a way that we should leave the point to apply a harmless error  court on is should be more hesitant to recognize an error in the rule of contest because if there is an error it would require a trial or in the bay hating the guilty plea here a has discussed the fact that the playing error hurdle is more appropriate where the ready for the error is greater is more onerous and the nd reason that harmless error would be appropriate here is that unlike the rule that in contests this isn't a situation where we concerned a defendant is gaming the system a defendant in the rule of betting context could raise hold an objection and see how things play out and if he didn't right the way they played out he could point to the courts and mission of one of the rights here there is no benefit to a defendant from remaining silent and so that is a it finally there was no incentive here to challenge anything in the p s r neither side challenged anything in the p s r the sentence was entirely driven by the mandatory minimum and not by anything in the  he was smart enough to raise the issue of the age issue which he did not understand and it wasn't him that would have been the obvious that in addition to that by the way i did do that thank you thank you