whether or not mr barnes forfeited or waive the right to bring this case here today and then whether night there is whether or not there is a plane here or your honour's we are if the court that the guidelines were in correctly calculated  our position is your honors that this case represents something that is rather unique when compared to the goals of the government sites in its brief the cases of the government's points are all cases that if i were writing their brief i would point to except that in this case the criminal history point that mr barnes received in the smoking marijuana ar it's so different from what the state law as it were are green and should not count indeed the charging authority at the municipal level previously had convicted mr barnes from three separate occasions of possession of marijuana killjoy i think you need to address the prosecutor's argument that the contention you're making now has been waived normally i expect to see a response to that kind of argument in the reply brief but you chose not to file a reply brief in your opening briefed us and address this either this is your last chance think your honor so with regard to whether or not this argument is wait we're urging the court that it's more would if he understood that there is an argument here to get to remove his promote these three point would have made that argument if you help but he didn't he represented the p s r was correct or a lot of people who wave argument through their decision but you can't be contending that every waiver that is rude is not in fact a waiver because there would be no such thing as waiver as soon as somebody waved a point and later repealed presented to the court that he was seeking the lowest possible sentence the court was comfortable with and so it's our just our position that if he had any argument if you understood there is any argument he he would not have given that up  use the charge that would have any state law corollary in addition on the conviction that we're contesting it is a charge where the evidence would be consumed  you know because it's smoking and so unlike a charge of possession in state court or in federal court there is very often a some sort of a lab test wherein you know by an officer you know seen someone smoking stains smells like marijuana in their tour of no past and so we think that this is sort of unique in the fact situation that it placed before the court so you're saying that in determining whether a local ordinance prohibits something that's also a violation of state law the courts shouldn't just look to see whether this is also a crime under state law but still look at the process by which the local ordinance  well partly ronna i think it in trying to fashion arguments for the court i think the counselors were sort of struck with how strange the charge was in the charging authorities decision to not charge court but i mean this court has said in the past that even ex parte proceedings are ok and the government decides that in their brief but i do think in the case of the government sites too they just don't simply present the court with such a attorney the so the district illinois on behalf of the united states believe we see this is through the three tiered argument the first year would be that this this whole line of appeal has been waved at the district court level because it wasn't raised before the district court sentencing the second line of our argument would be that there was no error here at all simply because this particular  local ordinance violation is substantially similar to a state crime which would be possession of marijuana i'm third line of argument would be if it's forfeiture and not waiver there would still have to be the fourth prong  doctrine which would be that it substantially effects of fairness integrity of the prior proceeding and there you're honestly would say simply that this one point difference in the guidelines would not is not something where the court needs to step in now  i want to focus on the waiver arguments or our leader in our strongest argument if you were called the criminal history category was the reason that mr barnes was resends because there were some underlying crimes of violence that qualified him as a career offender which he was actually adjudicated as an adult but he was fifteen at the time he committed the crime so after he was sentenced to three hundred months he was able to get those state convictions basically brought down to a juvenile adjudication as opposed to an adult conviction and that's what prompted is his recent and saying so the whole focus of this hearing at the district court level was on the criminal history point city had and at the time he had ten points and this far in down before this change in the status of his fire protection so this is not a situation where mr barnes me of just not noticed this issue or lost sight of it i really think this is a textbook case of intentional relinquishment of the argument because to attack this smoking marijuana on a public park conviction would have really distracted the district court from the the most important argument which was to try to get this reduce from ten to four and which resulted in one hundred eleven month reduction in the sentence if the court were to find that this was not waved some foul and this was merely forfeited we would just make the argument that as mr branco basically conce your question just dirt that you would need to the court should not look into charging decisions why that decision was made the case on the circuit is clear that when looking at whether an ordinance violation is also a violation of state law what the court looks at is the conduct underlying that product conviction here that conduct smoking marijuana in a public park the consumption of marijuana necessarily involves some level of possession and in fact in the p s r believe it was the the way that the violation was described is that according to the arrest records the defendant was seen smoking marijuana in a park and refused to pick it up when  do so by the officer so that there is something tangible there that he's smoking consuming and that would be a state crime as well so unless the court has any questions we're going to stand on our briefs for the rest of this that you if your honor that i have no additional rebuttal the rest it's in this case i notice the both the authors of the three job is not to argue in some illness