preliminarily before i get to the merits they are going to just want to touch on the government's contention that this argument has been waived the one we can waive a lot of things through a guilty plea by mr vera but the one thing we can't waive is a challenge to the subject matter jurisdiction based on the facial invalidity of the indictment as established by the circuit in youssef we may be right we may be wrong but we have not waived going to the merits your honour's it's clear in this case that mr vera is only charge the nine twenty four j offense was not charged with a nine twenty four c offense and it's our position consistent with case law that i've cited from the tenth circuit with the battle decision in the eighth circuit the allen decision making and the language in hargrove the notion that nine twenty four j's aggravated penalty provision and if it does not describe a discrete crime then it cannot at least arguably cannot be charged absent the nine twenty fo so i don't think you get around it through seven i also don't think you get around it through a prejudice analysis subject matter is not sorry subject matter jurisdiction is not a prejudice analysis i mean either a charge a federal fence or didn't charge a federal offense and the fact that my client violence but his allocution specifically stated that he was part of the narcotics conspiracy and that it was part of that that he agreed to participate in the robbery but in other words he himself  and that would be enough wouldn't go on on on plane air review i don't see where he's prejudiced by any ruling that may eventually come down from the supreme court on the categorical violence of robbery the difficulty i have a daughter and i don't usually have to navigate this where my clients found a bunch of prose issues obviously i didn't file a brief on that issue so you can infer from my please the court my name is sarah christoph i represent the united states in this matter i also represented the united states below the judgment of conviction here should be affirmed first count one of the indictment twenty four j count properly alleges a federal offense second there was more than a sufficient factual basis for the defendants pleaded that count and third the defendant waived his right to appeal the below guideline sentence imposed in this case two hundred seventy months the court would do here to determine whether or not to move to the merits is is there's a very narrow inquiry is no and an indictment in this case pleaded guilty like the defendant and her group of the defendant doesn't get past the waiver issue here but even if your honour's were to review it on the merits it does not withstand scrutiny count one cites two only two at the bottom of the account to title eighteen united states code section one twenty four but there is no question that nine twenty four incorporates in it policy of the office i know in this case we believe that the citation there was completely appropriate given the incorporation of nine twenty four c into the night twenty four j sometimes there are certainly cases where the nine twenty trafficking crime and this is united states attorney when we when that when he got to that at the time of the plea corrected on record so there's a mistake here it's not a drug trafficking crime it's really a hobbs act i think review of the plea transcript shows that the plea agreement the language of the plea agreement did say drug trafficking crime and it was and with amended by hand at the proceeding to reflect to track the language of both of the defense counsel so it doesn't matter something like that you have that  off the bottom of appendix page twenty four the court asks are you going to in fact amend the plea agreement the government response i can write that in your honor the court has any objection mr ginsburg  you could survive the attack i was only asking counsel about the possibility of his client satisfying the third and fourth promise of playing now he says that it's a drug that it was he was part of a drug trafficking crime i do your honor it was a very extensive factual elocution but if defendant and along a factual recitation by the government to which the defendant did not object recitation by both the government and the defendant and finally in terms of the sentence government's minutes at the appeal waiver governs in this case mr rivera's waiver it was knowing involuntary there's nothing in the record to suggest otherwise he waived his right to challenge any sentence of four hundred in five months or less and unless the know that we would reach the merits  not just in terms of the two hundred seventy months imposed but he thinks that we should be looking at the two hundred seventy plus one hundred forty four freebees least served because he views it all as part of the same criminal activity what's your response to that  is most favorable to us in the indictment and hargrove there was a reference in the body to nine twenty four c but the tenth circuit still viewed it as charging solely nine twenty four jack and in that case i was struggling to find the name of it it's in my brief the western district case u s versus remarriage to mayo forty f subsecond one forty two again stands for the proposition that's had to do with the illegal alien re entry if you just charge them with a penalty provision thirteen twenty