weeks first with respect to the aggravated felony issue argument turns on the interaction of this court's recent decision just last week that's now limburger and the shepherd case and the effect that those two approach to what sorts of documents can be used in that second stage analysis effectively it adopted the standard in which the documents that are relied upon have to be documents that somehow show us what the defendant actually  at the trial that's why at the very beginning of the shepherd opinion it mentions several things that can be relied upon and those include the transcript the police form the findings so the judge transcript deeply in another case where mr mr compost pled guilty and effectively didn't dispute the guideline calculations not just number one that transcript does not contain a factual admission to what's really the big issue here which is whether or not he admitted theft of property as opposed to theft of loves of labor and services here admit to having committed an aggravated felony he i don't think if you admit to having committed an act of faith only the actual question and answer are quite convoluted there are a number of things in there so i wouldn't concede that he did that but i don't think that we really even need to bother reading that transcript because it is completely barred by this court's precedents from conviction case itself we don't look at documents that are generated in other proceedings even those documents that can be called judicial admissions and ok so maybe i'm i think company is recording what proceedings complexes and my point is that no proceeding is relevant in jury in terms of finding out what the prior conviction was except for the proceeding of the prior conviction so the only thing that we can cockily versus ashcroft at three seventy one third third at six twenty three twenty four both those cases hold that this court does not consider judicial proceeding admissions made in other proceedings other than the prior conviction that's being used so the only documents that we can consider are the california documents generated that the government provided in its supplemental extra record so that transcripts effectively are rel ok so shepard adopt a defendant centric approach that requires that the documents that are used documents that evidence what the defendant actually the smell of birth that's that's the reading of shepherd that we set out in our reply brief and is a different document that's been approved for really ike the first half of your question is absolutely correct and second half you take issue i do you don't think that an abstract judgment is a reliable document for purposes that determin acknowledge it and i embrace shepard comes along and says that you have to give us documents that show what the defendant needed like a plea colloquy not present here a plea for not present here a judge's findings based upon a rule eleven type proceeding agree is not exactly the same thing as an abstract but the minute we were enacted this did not demonstrate that the defendant had ever had it shown to him well and that's a peach three of the snellen berger case so the bottom line is th document now post sheppard the document that the government wants to rely upon has to evidence what the defendant admitted this document does not do that not me that marcos hurdles that it does not do that this is simply a document that concede with respect to the second and third elements of that definition that the government offered sufficient evidence on those there's a warrant of deportation that was admitted at trial so numbers two and three i don't have an argument my argument centers solely on the first one there's no evidence here that there was a deportation proceeding in which mr composted all participated the reason i say that is that unlike almost all the cases that we see there was no deportation order entered into evidence in this case there was no transcript of the deportation hearing there was no witness who came in and said i was at the deportation hearing i was the immigration judge and i ordered this gentleman deported there's no immigration court generated document which reflects that there actually was a deportation proceeding here is still a box this is quite clear that those threat is required it's the first portion of the three part definition the adopted if i could i  a double jeopardy case it was applying asked versus once and so it was required in order to apply asked for just once and to determine precisely what the basis of the acquittal was in the previous trial so what it did was it focused and found what the issue was the jury acquitted in that case because the government failed to meet its burden in the jury's view of demonstrating that there was a proceeding in which mister chrystia boss this was actually deported so you're saying the deportation order is not enough t that's not adequate in your view well if that didn't happen in this case how does the deportation prove in this case the only document that was offered was the warrant of deportation and that document was put into evidence through the witness who actually  proceedings that exist there are scenes where there's no immigration judge at all there's voluntary returns there's all kinds of things that could have occurred the bottom line is that the definition adopted in the steel box this requires that there be a showing that there's an actual proceeding in which the alien participa value exceeding four hundred dollars per ran four hundred dollars to get to the box and tools the property of rugby but there is no set of circumstances under which this could be a theft of labor or services there are simply not the abstract is simply used not to say what the facts of the underlying conviction are simply that the conviction exists that was beyond i think it's it's not it's not i think it's he they're correct in this not relevant to look at what occurred the the point hearing in that case for sure certainly not just to occasion but my explanation there are lots of transcripts in this case this is this person has a huge record and it wasn't until recently that i discovered that this transcript in fact existed that's not  so i think it's beyond dispute that he pled guilty here to and well how do we know that that the specific jury instructions and that's what the court of appeals is repeating we don't lightly disregard our colleague right holdings ok then if we don't agree with you that i procedural posture of the drina precluded from doing that the medina case is a case where the defendant made a motion pretrial to dismiss the indictment saying that the government does not have to keep the deportation proceedings and then he took a conditional those circumstances does not require the inappropriate and improper reliance on a factual finding from a prior administration proceeding just with regard to the element of prior deportation the government right now really moves to prove that the deportation challenge to an indictment so the indictment standard is not proof beyond a reasonable doubt so when the court's evaluating whether or not there's sufficient evidence to support an indictment which by the way is an inquiry that they shouldn't be conducting because at the moment the grand jury right doesn't allow for sufficien charges like the one the defendant challenged here but the bottom line is that the issue in this case is is there probable cause to believe there's a deportation and this case holds that there is sufficient evidence under that standard but this is a pretrial challenge  not a rule twenty nine i feel such as we've raised in this case where we're saying that the evidence offered a trial is not sufficient under the beyond a reasonable doubt standard so it's a completely different standard and the words reasonable doubt don't appear in the paragraph that if it's not rebutted in any way i think i don't agree that the testimony of the person who did not attend and does not attend aeration proceedings and the document offered by him that does not involve  unrefuted if the warrant if there is no there's no question about the warrant there is nothing to indicate that the right has been compromised in any way you still don't think that would be sufficient to support a finding beyond a reasonable that no because it's a completely different proceeding it doesn't involve the immigration judge at all that the execution the warrant it's basically a non discretionary administrative act the deportation hearing itself involves findings of fact it's presided economy between you know the administrative act of a warrant being executed and a different quasi judicial act of perceive the deportation proceeding and there's no evidence that that occurred i agree with that the governor doesn't have to prove what a good hearing it was but  and they didn't prove that a trial can award issue outside of a hearing yes how how desirable outside of the hearing conducted by immigration it yes i mean for instance there are read statements that are i don't agree that this is really an issue in this case but i think after morales this year though that said that you don't have any sort of criminal penalties attaching to reinstatement i don't think that would be sufficient evidence in a jury trial under a thirteen twenty six o need information plus you need some evidence to show what the defendant made it there's really not any distinction i think rationally that can be drawn between the minute order and snelling berger and the abstract here in snowbird that the guy was charged in and charging document with a sufficient crime and then they offered the minute order to show that he had been convicted of that crime and this court said that it wasn't enough i can't think of any reason why an abstract would be better evidence than a minute order since neither are reliable and that they're frequently have to be corrected and ultimately if it's if it's to use to send the guy off to prison it doesn't matter to the prison officials you know whether his sentence is sixteen months based upon theft of property or sixteen months that's tracks yeah well this is an unusual case because usually what you have is the police form where the defendant says this is what i did and then he signs it or you have findings by a judge or you have lived in many cases the actual transcript of the police but you don't have any of those things here so it's actually a rare situation to rely solely on information and abstract as is the case here so i don't think it's really a problem i think in this case eleven says insufficient i don't think it's going to affect a tremendous number of cases but herrera who was in the archives and i spoke to him personally on the phone and i had him tell me what he had in his file and as you do that i went through all the documents i had and it was it was even interestingly enough in the same