applies when we're trying to decide whether something is a predicate crime of violence and here that's not so much an issue we're not trying to disc you know that the fact finder looked at only a shepherd approved documents and didn't go into the particular partly government says it was for that it was a controlled substances violation yes you're ok so the question is it's not the nature of whether there's a crime of there's no amended indictment at all it went from the indictment and then i believe a week later i'm sorry in june he pled guilty that was the first that was the only document that that was submitted well if it is a first degree under life and then conspiracy in the second so he was being charged with the second degree conspiracy for a first degree underlying offense and yet in the conviction it is conviction for conspiracy the different elements that need to be proven a first degree controlled substance offense is not what he pled guilty to here the conspiracy charge it had to involve something else we do not know what the government did not provide the which i feel like that's a red herring in the case there's nothing on the record that entitlement was amended as the squire has said the conviction record that's in this record shows that well as for stopping at the indictment there's really no case law that says that we need every single criminal document in the case to establish the crime zero but certainly that's not the attenuator to look at what you actually like your signature and see what this i was going to is going to say yes if we could get into whether this is third degree or first degree a conspiracy i'm just not sure what differen or country that relates to a controlled substance for decades the board has interpreted that very broadly as look at the underlying offense because generally conspiracy offense says dong clued all of possible crimes for as it's a reasonable interpretation of the immigration and nationality act yes also the by congress leading to a controlled substance offense the definition includes conspiracy or time to violate so the second circuit and discuss court precedents and how you need to look at the california conspiracy which is very similar to the new jersey statue they found that conspiracy in california is divisible which is why petitioners arguing because it is a conspiracy to commit any crime the government but it really you know and even if the square it didn't agree with the government and wanted to apply the categorical approach as courts have that it it keeps expanding and the government agrees that it doesn't need to apply here but even if the court decided to apply the categorical up routes and followed the night circuits approach it could find a conspiracy is divisible into the crimes as a separate element math s the supreme court ma now it has never been made it's not exhaustive and it's waived and there's really nothing in the record that would support that argument that indictment has been amended approach i have the court can look at the modified the modify or take the matter modified categorical approach look at the record of conviction the supreme court has held and circuit courts have held that the indictment plus a judgment of infection are evidence and to further address the discrepancy between the indictment and the conviction the supreme court and a camp did say that that the charging document is unreliable and there needs to be something submitted by the government the indictment is the charging document it's alleging that this is what they're going to come with but the prosecutor has broad discretion in amending it especially when it comes to pin a go she she's not exactly what happened here there are factual basis that were be first degree conspiracy only second degree conspiracy because the underlying offense here how do you find it there in degree crime in order to be convicted of a third degree conspiracy that's two degrees away from where we started there