not going to come in but that's different from a defense that at the time he committed to its conduct there was a controlling case that made him and it's such a technical stiction but it's a real one the claim here is wh and they're required to you know obey the rules and they're on their own but here what we're talking about is i mean i have to concede that the review here is for plain error but we're talking about the distinction between waiver and for can well he may be able to but because it wasn't developed below it's difficult to say at this point mr aldrin there was evidence especially in the first trial but also in the second that march the wrists are a few people that lived on the property and there was evidence that more than just mr alton was involved in the cultivation of the plants in the first trial for example there was testimony from a witness that said you know there were a lot of other people around they were growing marijuana and a lot of them had serious illnesses like aids parents and they could decide whether in fact he was cultivating it for commercial purposes or he was really cultivating it for him and it would you know probably present evidence as to who else was involved and when they had serious almost as well they fel representing the united states in these matters and i'm going to focus primarily my argument on why the race case does not control the outcome of this case or not shall that argument is that your grand jury refused to indict on that count while you're out of that the defendant has conceded in both of his briefs that he was growing the marijuana to distribute to can you're correct he was convicted i think when you're looking at whether or not the holding of wage would apply in this case you would still look to the underlying conduct and whether or not the underlying conduct includes as you l not relevant factor in determining whether or not his conduct is within the narrow holding of great before addressing that i want to briefly go over some of the facts of both of the d mr all in about it and he showed them his large indoor grow cultivation operation that he had and they saw many plants and so they and at that time the defendant told them that he was growing the marijuana for his own personal medicinal use and that he was selling to other patients at about two hundred dollars per ounce and that he was selling it to cannabis clubs on the basis that they want to got a search warrant they executed t search warrant bases over a thousand plants he was then convicted for cultivation i'm sorry he was indicted for cultivation convicted by a jury of that he was sentenced based on a finding by the court that there were seven hundred  to find out whether he could even properly lay out the crime of aspects for the defense and then it could ultimately be a no it wouldn't go to the jury because there is no medical necessity for it would be it would go to the three weeks after he was time since in the first case a second growth was discovered on his property again he's the one who called the police out to his property because one of the tenants had been taken at night night point bounce and large amount of several pounds of dr marijuana worse rock he was robbed of as well as five hundred plants they get there they see again a large indoor grow with over a thousand plants as well as twenty pounds of dried processed marijuana and at that facts you look at to determine what the conduct is in other words he doesn't have to be charged with distributing for there in fact be distribution and working admits that he was distributing i think the court can take recognition of the fact that what the purpose of the marijuana grow was for and say that is different from the purpose from the class of activity defined by the racecourse to exceed the commerce clause powers we know in this case there was distribution control the court also said in explaining why it wasn't commercial activity at issue in that case that it was because it lacked tailless change of distribution which are the essential elements of commerce and because we i think because it's so clear in this case that there's is distribution and it's and i think it's quite clear that race didn't intend to extend its holding to cases involving distribution may need not wait but i certainly think that would not  council but what we do know is that the government made the motion the court gave the defendant ample time to respond and in fact quote and urged him to talk to mr portman about it we also know that mr portman but in any event he didn't oppose the government's motion and i think from that we can infer that they did in fact have a conversation he was in fact advised to object and he chose not to do so i think we have sufficient facts and record from which this court can find there was error at all because cert had already been granted in the case by the time he was doing his conduct such that a change in the ninth circuit lot that time was not  we have here is different because we have a new law we have one light circuit decision there is no circuits so you know she defendants have to accept the government's view on what the government is saying by urging this definition of due process is should defendants have to accept the government's view of the law on the interstate commerce clause i want to make a few things clear we don't concede that he was cultivating for the can of this