the primary issue before the court this morning is whether the district court can review the government's failure to file a motion for the third point exceptions of responsibility under section three one point one b undertake the full review what i think is clear from the record is that mr espinosa condo did meet the criteria that are listed in section three eighty one point one b he notified the government of this intention to plead in a timely manner in fact he did so immediately following the denial of his motion to dismiss the navel the government to avoid preparing for trial by stipulating to every fact that was necessary to support his conviction well  subject to the discretion of the government certainly your honor by virtue of the protect act there is now in motion from the government that is required before the third point can be awarded for acceptance the question is whether the failure to do so to make that motion by the government is unconstitutional motive for the failure to file that motion or if it was not rationally related to a legitimate governmental and counsel what evidence is there in the record there was an unconstitutional motive governing the government's decision not to recommend the third point and if it be your argument that there's no unconstitutional motive but that there was an arbitrary decision being made which i think you are going to get in your brief where's that where's the evidence of hard maturing this i think there's two answers to that question number one i agree that there isn't evidence in the record and i think that's because the district court did not believe it could undertake the review at all and so i think it would be appropriate to develop that record look what i would indicate to the court is that what we what we know now based on what's before this court is that the government's opposition use its rationale for refusing to file was an interest it believes it has in discouraging  your client wanted to retain certain rights with a plea and the government said if you want to take early acceptance that that's it it's going to be over it's done and will go that way right and you just couldn't reach an agreement your  client wanted to retain a right to appeal the motion to dismiss cracked or certain meeting of minds about whether he was willing to plead guilty he certainly indicated immediately and repeatedly that he was willing to accept responsibility and in fact had done so the first moment in ins agent contact get him in custody what you're on are suggesting is that yes we did not agree to a conditional plea the defendant didn't wish to appeal his motion the government said we're not going to agree to let you appeal your motion because we believe it does not have merit now of course one of the issues that we had raised in the motion to dismiss was a an issue under navarro vargas the case that was being argued on bond before this court as to the becomes is denying the third point for acceptance rationally related to that end and we would submit that it is not and there's a couple reasons for that one of them is practical i think the point at which the government is deciding whether to file or not to file that motion for a third point they have no idea whether a defendant is going to appeal or is not going to appeal and it's putting the cart before the horse in that regard but i think the more important argument is a structural one and a legal one and that is that whether it's the government wants to discourage appeals they can withhold their consent to that excuse me they can withhold their consent consent to a conditional plea but it does not follow from that that they can also refuse to make a motion for the third point for acceptance when all of the criteria for upton's have been that by the defendant and that basically i think is what i'm hearing five think i could make you know it falls into the category you can't have your cake and eat it and that but i think i could also make the  same argument well i really wanted to played early but i couldn't get the numbers that i wanted so i have to go to trial and now later and then i say well you know i did want to play then but they wouldn't give me the numbers so now even though you made me go to trial shouldn't i be able to get the benefit that i should have because i said early on i want to play it if you'll give me certain amount of time when you want to refers to having one speaking meeting too and i think that that's an apt analogy because perhaps if mr espinosa kind of had gone to trial if the government had in fact had been put to its burden of preparing for trial summoning witnesses putting on the case perhaps then we would not be in a position to claim responsibility clean entitle me to that third point then it would be directly analogous to the situation your honor just described but here he didn't do that he stipulated immediately to every single fact that was necessary to support his conviction and the trial so to speak lasted less time than the standard change of plea and so the government is trying to have its cake and eat it too by preventing the defendant or trying to prevent the defendant from feeling or discouraging him from the feeling and also saving all of the resources that you fire to prepare for trial didn't to protect the counsel and the defense was in a position do argue for the third point of acceptance now after the protect act the standard is different the defendant has to timely advise the government of an intent to plead guilty doesn't say a conditional plea of guilty and a slow  hold that under certain circumstances it is the end of tory that the point be awarded and i think that actually distinguishes merino trevino and smith in the tenth circuit decisions and it's even more compelling in this circuit that when a defendant has satisfied those particular criteria that the district court is then entitled to review the failure of the government to move for that what do you want to say to the balance of your time thank you felon and perhaps this panel so i'll start there i would like to respond to some of the opponents contentions first this ingestion is that the government was attempting to prevent an playing term of the since amended protect act make clear that there there could be no third point i think bill is saying our cities or well because there was a trial and it may have been a stipulated facts ven them in his motion to dismiss would have been extinguished by that but the government cannot stop a defendant from pleading guilty and getting all his three points and second i think judge callahan pointed out something that's important here is that relying on the that the defendant may have made an offer of a conditional guilty plea is an inquiry really that ought to be irrelevant in the circumstances for a couple reasons first the nature of the conditions that the defendant wants and the kinds of appeals they want to bring  the government should play an active role in that i think it would be very odd for the united states to consent to a guilty plea a conditional guilty plea on the grounds that it would later ask this court to dismiss as not presenting a substantial distinction government's interest to do a conditional guilty plea when there's already favorable precedent for the government and when that trial would have cheered any defects in that respect and second as judge callahan said there's a lot of moving parts to a guilty plea and the conditions of a whether there should be an appeal or not it's just one small aspect of the sentences the touch of waivers the defendant is willing to do the types of charges even that the government's going to agree to drop or to bring those are all parts of a plea agreement and that is what it should be an agreement in this case you can see that the parties were awfully far apart in the sentencing memorandum the the government was asking for thirty seven months of fun it was asking for twelve so i think that the simple fact that there's i think would be a waste of the public's time and so i'm willing to take a little less on behalf of the government with the idea that this will be overdone final if you don't well i think that's to get that is is that wrong i'm not sure that it is your honor and i would also say i think if the expressed purpose was we just want to discourage appeals we don't want people making appeals at all maybe there might be some problem with that in a general sense but as i said before there are so many moving parts to it of course one aspect is going to be the amount of work that is going to go into the any plea agreement that's done but the there's so many other aspects that go into it y the prospect of this this argument extending into other areas for example defendant losing a pretrial motion motion to suppress evidence sort of statement and then wanting to conditionally plead guilty admitting the elements of the offense but insisting on the third point of exceptions well i think one reason why the protect act makes the question of whether the third point is should be awarded in the discretion of the united states is because there are an infinite number of differences that can happen in every given case the facts are are always different always changing there's different types of motions that might have different value want to appeal different interest for the government and so in any given case it's really up to the governor to cite how much and here there there have been no guilty plea and so the plain language of the third point hasn't hasn't been met i know working on this issue of the third point of acceptance or responsibility if i can get to another issue for just a moment  that dealing with the prior aggravated felony conviction in this case i think both sides agree that the tailor modified categorical approach is one that should be followed because of the breadth of the grand theft statute theft of labor and still solicitation of labor which the standard federal definition of grand theft only prevents the theft of merchandise the police report in this case was attached to the complaint and at the time of the  from what happened in this case well i think it is different from shepard for four of the main important reason which is in shepherd the police reports that the united states attempted to introduce into evidence or not attach to anything else or not incorporated to any charging documents or anything else like that that would have a material difference on the actual sentence that or the actual guilty plea that was entered according to ninth circuit law a person who pleads guilty to a charging document necessarily admits everything in that charging document now in this case the charging document included those police reports and again once again present also says that incorporation by reference makes documents attached to complaints part of the complaint that's all the same document so here it was the complaint itself that was pleaded guilty to and then the senate did have a remedy against that if he didn't agree with the things that were stated in those police report suggest that since mens rea is really one of the most constitutionally i guess important issues of any crime i think that if california were prosecuting people who didn't have the intent to actually take something category as when they're describing using place reports on the other context will just go and i think you make a very good point that it is indeed a police report as what it says on the topic right now is incorporated by reference is the complaint and that's part of the point that the united states was trying to make that without the factual basis that complaint would would not establish probable cause for a violation which complaints are required to do so the the complaint can't exist on its own without those those police reports that are pending if i may add one final thing on the third award this third point under booker discretion and the court caught up right where it could have and did not and i think that that also goes to the factual issue of whether the court thought that there's anything untoward about what the government was doing in this case by not making a motion for the third there's that that why didn't the council object why didn't council object in the state court to the fact that that was being at that point you're out of the issue of the modified categorical approach was certainly not before person's planing to that was not the case in shepherd your honor but i don't think it changes the fact that it requires reference to a police report if i could just respond briefly to the to the third point question what the district court judge was doing in this case was trying to follow this cour instructions apply the sentencing guidelines and then determine whether any departures or another sentence was appropriate the court was inclined to follow a guideline sentence that is why it is critical to answer the question of whether the court had  discretion to consider whether the failure to file a third point was appropriate because that does directly think the guideline calculation whether two or three points was appropriate and ultimately affects the bottom line of mistrust and was a calmer sentence it is the fact that