waiver of his right to review of that calculation on appeal it's our contention that this court's prior rulings with regard to waver don't reach that far and in fact the cases cited by the government and also referred was no objectionable role playing fair review should apply here and mr delgado concedes that that would be the standard of review under these circumstances it's mr joe got his position that the district court's num points as well as the court's subsequent variance in his sentence based on reliance on prior dismissed conduct including in particular conduct that was dismissed twice because there was an absence of probable cause to support a charge and finally those errors procedural errors were compounded by the fact that the district judge failed to conform with mr goh gado that he had reviewed the pre sentence report with his attorney in advance of sentencing and that's significant in this case because the pre sentence reports there were no objections by the government or mr delgado mitchell p s are the final p s r issued on the day of change in the calculation of the already calculated criminal history points there was a prior conviction that in the initial p s r received i believe it was plus one and that was removed because there was a consolidation of those sentences in the court along with a state court and there was no intervening arrest so the p s r that the parties were reviewing at the time of sentencing was different in substantial ways from the p s r that was initially present well the more significant issue for mr delgado in his sentence here is the initial errors by the court in determining that he should be sentenced as an individual who had on his prior criminal history a conviction for a crime of a particular prior conviction that us probation consumer to be a crime of violence warranting a two level increase in the total best level mr delgado under two k two point one of the guy offense as far as i know under puerto rico role and it's not an offense that specifically appears on mr delgado criminal history mr delgado has a number of prior convictions or a brandishing or discharge of a firearm under article five point one five and a number of convictions for robbery under article one ninety eight but there is no conviction for discharge of brandishing  during the course of iraq and that's significant here because the assessment that this court has to make in the assessment that the district growth is supposed to make in the context of a sentencing in determining whether a prior bench is a crime of violence is an analysis of the elements of that offense it's a particularly complicated area of sentencing and even with recent guided soon from the supreme court it seems as though we've become occasions are now flooding from the residual cla contingent of robbery correct and he was convicted of brandishing yes if either of those qualifies as a crime of violence and hansen stance i thought we agreed on that well i'm coming back to that had a firearm pointed at the elements required that the individual be placed in fear that there be an attempt or some other communication of an effort to cause harm to the essential elements under the sun so those are person could suffer it's our contention that this is a statute that really broad bennett compass is conduct that can both be violent that could play somebody in fear but also conduct that can be harm or otherwise a threat can't be something that is not communicated in here are the elements of this best don't require that there be a threat and individual we can be committed to this offense by simply discharging a firearm from a car that a robbery can be committed by the slightest of touching the statue of a purse or taking the watch after asking to see it can constitute a robbery that is not violent forces are required for iraq under the rico good morning here honestly at least equate my name is an insurance representing united states there's good reason to infer a waiver here at this argument not only because he failed on multiple occasions to object to the p s r and failed to object to the sentencing court articulation of the prior crime of violence at sentencing but also because the record allows this court to infer that he had a very good strategic reason for not drawing attention or asking the court to focus on the finding of a crime of violence why is that because there's a very good chance that had he done so the district court would have found that he in fact had two crimes of violence which would have resulted in a higher copulation and the reason we can infer that is because at the change of the government made articulated at the parties joint good feet calculations of the sentencing range and working backwards from what that sentencing range wise he can tell that they thought that he would have a base offense level of twenty four which least had the opportunity to show that what we do have is the p s r which lists several convictions for robbery and several articles by fifteen convictions and so if any two of those would suffice you would get the second enhancement and have  higher calculation so as a strategic move on his part to refuse to challenge the characterization of his record as having one crime of violence is not something he should now be able to benefit from a second time o i would just like to emphasize that there is no argument of prejudice for that whatsoever he doesn't argue that he was unaware of anything in the p s r or that if he had had the opportunity to discuss it that anything would have come from it there's simply no argument as to which means if if we are bound by the puerto rico courts interpretations and their own statute and there stood at least the one piece where i believe it's the supreme court of puerto rico says  it johnson wide said about force they were interpretating violent felony and they were considering whether a florida statute qualified as a prior violent felony the poet would have you believe that that florida statute and the puerto rico robbery statute are similar in terms of what kind of force they require but that's simply not the case the florida statute was actually a misdemeanor statute that made it a felony only if you had a prior battery conviction so it was a misdemeanor slightest offensive touching statute and one of the examples that this is important even analyzing that case is it could be violated by merely a tap on the shoulder that was unwanted force has to be sufficient to cause a person to surrender their property in the context of robbery the government's admits that it's pretty clear that a tap on the shoulder is not sufficient force to cause a person to surrender their property but h it not no matter how much force is used where enough to snatch the perch but it doesn't have to cause pain or injury it doesn't have to cause it but it must be sufficient to have caused if that makes sense so when we're snatch a purse from some are exercising an amount of force that could cause them pain it's more than the slightest evidence of torture saying they'd be entitle to instruction that the jury should have quit unless the amount of force used to snatch and purse was great  and i do want to be clear that this is article one seventy three robbery which is a different article from the one that was passed later i submitted a twenty eight chain letter to try to clarify the matter there but they talked about that but with mortality as of violating the briber talked about in the hill piece in the second circuit binding that hobbs that robbery was a prior crime in violence and basically what it says is this examination of what the statute requires to violate it shouldn't just be an exercise in that legal imagination the mere fact that we can come up with a hypothetical that we think might violate the language of the statute doesn't matter and less the appellate can bring these cases his own or others where the statute has actually been applied in that way and again in this case we don't have any reason to believe that people are charged with robbery with that we've never been particularly inapt to a prior that sort of reasoning in puerto rico where we really wouldn't have the capacity to determine what tribe brought in the puerto rican courts over the last ten years never resulted from our pins there could be dozens of cases where someone pointed a gun and the statute was just cases and in this case because at most we're on plane error or if you i don't think it rises to the level of a clear or or obvious  not know it and i believe the defendant's argument is therefore that's not a crime of violence because it's not a use of force it's not an attempted use of force it's not a threat and use of force almost the person  it in that instance if we had reason to believe that that was the case that it could be violated by that i believe the government would concede that that could be violated by something that's not use of force and or threat of force and or johnson however there's still the discharge and i would point this court to the p s r which in one of his other prior convictions does say that he discharged the weapon so there's reason to believe that he may have been convicted under both mo not intentional and then you've got a problem under fish and several other of the homes so because it's limited to a public place where the person who fires can't be sure that there one around you could be harmed sorry let me back up one second i don't believe that the supreme court has held or has ruled on whether recklessness is sufficient  puerto rico view on this if you continue further down in parts seen out force this is not what the defendant was convicted under and this is not it is a defensible statute so we're not arguing that that c is relevant for the purposes of determining his crime of violence but in terms of looking at how the views the firing of weapons where people can be hurt and the seriousness and the threat that that poses heartsease as indiscriminately just charging a firearm from a motor vehicle constitutes utter disregard for human life and so i think that that goes to just the way that puerto rico has struggled with the problems of gun violence there have been issues with people firing guns into the air and the harm that has come as a result and so i don't believe that the puerto rico supreme court would agree that discharging weapon into the air in the public place in a public place is not the use of force singular issue where between sentencing and appeal these supreme court had made laws that turned the district courts analysis into something specifically inappropriate and just to clarify that so thank you thank you to the robbery issue i would like to point out a couple of things to credit cremona as address one seventy three robbery now one of the robbery and under a prior governments of mooted thirty eight of rule thirty eight but are suggesting that the statute hasn't changed that spanish and that more than the slightest force is required under the robbery statute that mr delgado was convicted  that's simply not the case the jury instruction defines violence as understood to mean any use of force even the slightest is sufficient that's clear from the jury instruction  montanas is the controlling authority under the existing statute i would suggest to the court that the difference in the wording of the english translation in the spanish statute arises from the back of an interpreter or translator has to try and find the word in english that most powerful word is being used in spanish in this instance given but teach the montanas in the first is more appropriate in english than under district judge to get the sentencing guidelines correct is an obligation that exists regardless of whether there's an objection the government was perfectly within its bounds to bring forward shephard documents to address that issue with the core the absence of shepherd documents from our viewpoint is immaterial because there is no basis to resort to the shepherd documents at sentencing your honor because we believe that firing a gun in a public non visible offense and so the absence of shepherd documents or the presence of sheppard documents or objection but lord doesn't change the fact that the district judge exceeded bro would have been the appropriate and what is the appropriate sentencing guidelines by finding that there was a crime of violence and that's a fine position to be taking on appeal assuming that the plane error but the government in its are knew that there that the district judge found a crime of violence that doesn't exist in his history or on the statute and quite clearly found it by going to the group back as we argued that there was no need to do so because they're not the visible statutes and that that error resulted in an elevated guidelines set that's a calculation from which the judge then very word depriving the defendant of his liberty even greater of which we contend affects his substantive