interpretation of the advisory sentencing guidelines however before i address this issue i would like to with the court's permission request that in light of the withdrawn opinion infidel and the pending on my decision that mr martinez's argument regarding the over breadth of california penal code section eleven three fifty nine and aiding and abetting excess oriel liability be preserved that's on page twenty and twenty nine of mr martinez open two which is the guidelines provision for violation of section thirteen twenty six now in that chapter and be one a subsection one mr martinez's offense level w enhanced for drug trafficking offense for which the sentence imposed exceeded thirteen months now when you go to the definitions in chapter two hundred one point two in the subsection it tells you that the definition of sentence imposed is to be found in subsection b of section four a one point two of the guidelines so essentially point to chapter four and under four a one point two subsection b it says you will find the definition of sentence imposed there when you go to the section for a one point two it tells you that the sentence of imprisonment is the find as the maximum sentence imposed or the portion of the sentence that was not suspended now in for a one point two and application no eleven which is the crux of mr martinez argument and i think where the misinterpretation  of course the singular so application no eleven in for a one point two tells you that when you have multiple sentences and then subsequently you have a revocation of probation that arises from the same violation conduct underlying sentence that means one of them now the issue is how the issue is i think the government's twenty j later misses the issue because the issue is not whether a revocation of probation augments the underlined sentence mr martinez is not arguing that what he is arguing is that how the revocation sentence is applied how it is used to augment underlying sentences and the language is crystal clear in application  level there's even an example in application eleven that tells you if there are two sentences and one is a straight probationary sentence and the other is a forty five day custodial sentence with probation and subsequent to that there is a revocation of probation arising from the same conduct and the thirty five day just total sentences imposed you take that pistol sentence and you apply it to the forty or to the underlying case that tha you do not apply to the straight probationary sentence in other words you not augment the straight probationary sentence you only augment the underlying sentence that had the custodial sentence because this results in the highest criminal history points now w not in that application note is any mention of offense level and i think the government's case marino cisneros which they submitted in its twenty eight jail letter was its two thousand and three case which occurred long before mr martinez this sentencing which was in august twenty fifth two thousand and five now i think that given application of the eleven and how it tells you to apply probation revocation sentences that given mr martinez this case it's clear that the district court arbitrarily applied that to either all three cases or at the very least two of them now mr martinez had three underlying cases they were sentenced on the same day on february seventh one thousand nine hundred two the first case fifteen three three zero two was for a violation of california penal codes section eleven three fifty and eleven three sixty as cited in mr martinez's brief those are overbroad and those do not qualify as a drug trafficking offense the other two cases fifteen three three zero three and fifteen three three zero four in the santa clara county court were for violations of eleven three thousand know now mr martinez does not waive his argument that those were over brought under aiding and you're on i believe that i would still make that argument and as to preserve that i think it's a particular no to mr martinez case and i understand the court's point that mr martinez underlined two cases for the eleven three fifty nine choosing rather than applying it to case fifteen three three o two which was for the violations of eleven three fifty and eleven three sixty of the california penal code which would not result in a sixteen level enhancement so put  the highest criminal history course not offense level now the district court made a decision to take that to your custodial sentence and first of all the plates are more than one case which is in direct contravention of the application of eleven to section four a one point t they are advisory in the us thirty five fifty three a controls however the first step under control is to do the correct calculation and with that your honor i would like sas to reserve some time for both thank you thank you time agreed with government counsel saying that in fact i believe that it was not it was appropriate for plus sixteen however the court continued the matter so that the since counsel could review the convictions i asked for the three convictions that are before this court and i believe erroneous leave before this court now an obvious twenty fifth two thousand and five when we had the final kinda thing in this case the government again relied solely on one conviction which is they came across this last night yes but you know when you're dealing with the federal defenders in san diego you're dealing with a group of probably the finest lawyers in the state and they don't leave anything they don't leave any stone unturned actually runner i believe here this was left out and this is critical because a court stenting was based on this eleven three fifty two iran or and that is the conviction that is the basis for the sixteen eleven hands but not the three convictions that have been represented in the briefs and i can point the court's attention to all counsel i have a question if i may please yes wro counsel here in this case now i will address as well the court alike with these three convictions that are priest in the brief but i would want the court to know however that the actual spending was based on a completely different conviction understand i look at the government's argument in fact i don't get picked up before the reference to cocaine but it does appear the government's talking about something different but i can't see where the court makes clear what it's reliable i think you're on the way that we know which conviction the court reliance upon conviction and directly after that conviction is discussed by government counsel the court makes a determination that in fact this defendant has been convicted of an aggravated drug trafficking conviction and part of the honour's i believe that the three convictions that are before this court clearly are not the convictions that the district court relied on plus sixteen however if your honour's were right i will never less address those those convictions project i'd like to in in chapter four the syncing guidelines that deals with criminal history category and it's clear there that when you're dealing with criminal history category that it's necessary to allocate a revocation stands to a plus sixteen the court agreed with the government on x or the record one seventy six and so then when you get to the to the final sensing after that and after the continuation again the government propos any argument any substance arguing about any of the other convictions but what i will say there was that the fill council did preserve its arguments with regard to all that they weren't categorically plus sixteen but the government specifically argued on  think from the first perspective mr cheney's perspective i don't think that supplemental briefing is required because i can deal with the issue swiftly and simply on page seven of the pre sentence report the cocaine conviction was referenced the conviction documents were trafficking offense it was dealt with in the district court finally at your one eighty the district court stated the court has had an opportunity to review the conviction records with reference to mr martinez all of these were submitted to the district court the district court clearly made a finding records the district court took those conviction records made all of them part of the record the government argued that the cocaine conviction was a plus sixteen defense counsel argued that it was not and therefore the argument was clearly before the district court the district court result that i think the it's found that there were two convictions i believe that qualify for the plus existing the cocaine conviction was a result of your honor because it was brief it was greased by both parties and it was argued by both parties and so i think that there's no question it was before the district court and that the district court said i have reviewed the conviction records including the cocaine conviction and concluded that the two eleven three fifty nine cases qualified for the pl calculations submitted by the probation officer were adopted by the district court and again your honour's i think it is taking away from the main issue here which is the application known eleven of four a one point two which is how are revocation probationary