points to three points that he received the government concedes shouldn't have been given in light of this court's jenkins and gill decisions so i'm going to focus on the remaining points before we go past that hour i had been wondering whether there were any if we need to remain and for consideration of his criminal history the district judge is entitled to consider the facts and circumstances that lead to that conviction course thirty five fifty three a is very broad however to now import vishal documentation does present a bit of a problem if the government is to make essential in aggravation argument in support of criminal history i think that the west and noble lines of case suggest that you should come in robbery it's a little hard for me to see a great injustice here different elements of the offense we have the unconstitutionality convictions in this supreme court case ag so that takes into a whole different category where you're talking about as i understand it is thirty five fifty three a factor and that's still relevant of course but i don't think takes us out of the playing area in my client's ability to get relief under even that difficult standard because it's unconstitutional convictions unconstitutional cruel history points come off the books and that's consistent with the application for that particular guideline so the lesser offense was unconstitutional but  admitted armed robbery didn't turn out to be very offensive conviction which is very significant well may or may not be but that may have to be up to the district judge you know again for purposes of thirty five fifty three  extremely broad judges can consider many things but for the criminal history the guidelines say that this should not have been three come on history points if i may then the second point and that is the judge honor but all i know is that it was said to be like substance and said to cover and yet we don't have a picture to show us anything about how it covers or how it appears there are no factual determinations by the judge and that's really important here  hearing on this without the defense having offered any other evidence that i could see that i missed something the police not exactly clear on what they're admitting to of course my client is contesting reserving the right to dispute it but with what evidence i think the burden is on the government to show that the advancement applies we start there ok you can read it looks to me like you disagree that up the factual issue for the district court to make a determination under the decision this court and the judge instead it said that i don't see quite like humanity was in disbelief that there was any contest on the legal ability and made no factual determination just so we're clear though the defense offered no evidence to dispute what was in the plea agreement or the p s or right but my position is that under eighteen he should have been given the opportunity and instead the judge didn't take any additional evidence didn't take any evidence accepted the government's position as a factual matter and then reached a legal conclusion you read either saying the judge has an obligation to hold a hearing on evidence that has not been proffered i think that it was put in contest and therefore the judge did an affirmative duty at that point to resolve the factual issue to the legal what evidence did the defense what evidence would the defense present now i would like to see the gun i've not seen it it's nothing that's been produced as part of the record  serial number that the enhancement cannot apply i think that is a fair reading but i'll tell you if it is a matter of prudence that that has not held sway and so if you can use microscopic extract with the information in the metal substance down to where you need intense forensic examination that's been found to be sufficient so that doesn't quite put you in a dictionary definition of phrase by the commission and you look at what the underlying statutory scheme was for the un traceability of weapons we can determine here that without the necessary information from the commission to define this that inclusion of those articulated in salinas and carter and the other cases because that standard requires a material change in a way that makes accurate information must accessible i don't think something like that could be anyone on the street handling the gun could clear pull off a piece of tape they would know that that is that is not an untraceable fire and which is what what these interesting hansen is trying to get at punishing is paid is not hard to remove from metal while in this case it required a laboratory to do polishing and apply a solvent serial number removed of literary editor altered more to preserve us for that matter and i'm concerned that you know the guidelines are al think that looks at it and i think that the purpose of the guideline is more of a general general the turn factor it may be that the particular individual to whom the guideline is being employed in a particular case might not have known a serial number was obliterated although i think that is more likely to be something that they would know than for example that a firearm a storyline but in general idea is to make criminal defendants aware that we did not adopt that standard we have to have something that is any alteration or ration not visible to take a break apart and what does it take how hard does it have to be pretty hard it's got has said that these terminations need to be taken not just from dictionary let me just let me just tell you what my concern is my concern is that i don't think whatever standard is adopted should make it possible to defend and i twenty two cake prosecution for example by saying well did you try you tried techniques a b and c to recover the serial number or did you try x y and z and if not then i'm not guilty right course important feature is that the context of a criminal prosecution versus the enhancement proved beyond a reasonable doubt and a knowledge requirement would be standard in so far as what the right language is i think that is a tough task but this standard of proof with the facts don't satisfy thank you thank you counsel the case was taken under advisement are