appears to be the it's a kind of an art it's an oklahoma deal where it's a court order my client has not signed it it seems to be not a transcript but a paraphrase of the proceedings in the court he pled and which start and stop on the same day and there are no details factual details about the circumstances of the offense in that document and that's basically it there's also some there's i think there's a document from the oklahoma  your your contention is that because you can have escaped that are nonviolent right there nonviolent escapes therefore they would not qualify under the taylor category  escape were and but there's i don't know where he got that information i haven't seen it myself so i'm not was not made available to the trial court in any other manner except trial counsel's representations and i think what u s attorney had available automatically categorically a crime of violence i don't think that if we were to delve into the facts here we would find that and the courts you know the eleven other eleven circuits have found you know but i think that that's based on an impermissible set of speculations about what might happen when someone goes after the escapee and i don't think that that's in the forum about the first issues or your prosecutorial misconduct yes the other issue has to do with stricken and we don't i think that the government's brief accurately sets forth the transcript but i don't think we can i think there's some ambiguity about it i think what resolves that ambiguity for us is judge wayne jer's i statement at sentencing on july first two thousand and five that there is no evidence in the record of an october two thousand and two trip to oklahoma to make sales and therefore we're excluding those quantities or excluding out his office conduct because there is no how the steel strip should be made there weren't even any there wasn't any testimony about what he about something my client's sad or something my client did it was all about mr moore then all saying well you know i think can she go and you know he can drive  so we are speaking of there are standard or he would have to be playing error here because the objection was not on this ground was not correct like respectfully disagree the i think the question is drive in those statements from marino that described the proposed voyage to oklahoma to sell cocaine and p c p whether or not those statements were all of them were stricken which would have been appropriate and the objection was because if the well if i'm understanding your question correctly if all of those statements if that part of the story was strike and then the prosecutor's referring to a writer and i do think the the court and trial and that counsel at trial was instructive about this at the during closing argument because the prosecutor begins to argue it and trial counsel objects and the judge says you know there's some discussion about did it come in and what came  period i'd be happy to entertain any other questions about that with regard to the alleged misconduct i think it's a very fact specific a very philosophic record specific question i think got the transcript in front of me counsel in the trial court committed misconduct by merely referring to that i think that's fair for start if we're saying that this entire all this stuff all the evidence as to the trip in october the proposed trip in october that the government's witness did not go on but learned about it was hearsay yesterday was he under player because there was a very limited objection and a very limited ruling starting at page one thirty four of the transcript the witness starts talking about this trip how did you become aware of the plan and he talks about he in this trench davis we're talking about it and the testimony of power that trip goes on for  page and then the informant says he was invited to go the officer said that he couldn't do that because he wasn't ready yet did start to do it to get ready for the next trip and defense counsel objected his first objection is beyond the then esther more questions about this trip in october continued on and no objection and page one forty one of the transcript the defendant or excuse me the witness went in again talking about i did go on a trip and in december and plan for this carefully because i couldn't go on the previous trip all that being said all this just about the record i think the government's position is put forth in the brief is exactly right the objection that was sustained was the witness started to go on about why he couldn't go on this trip what the investigators thought process where our counsel properly objected to trial court properly limited that that testimony the argument was perfectly proper counsel let me interrupt you for just a second we just ask you a simple question if we disregard the evidence it's hard for the for the comment that's being objected to without that evidence without that comment about the of the government's counsel's argument is extremely brief but this is not a central part of the argument this doesn't seem to me to be a central part of the case if anything it's harmless  the defendant's arguments seem to shift between the opening brief the reply brief again if we're saying this all if counsel's argument now is this whole thing was hearsay and never should have been brought in that's plain error it's in of a new issue raised in a reply brief there seems to be funny foundation because the witness testified he was very familiar with mr davis and the defendant he associated with them a daily basis in this drug this seems to be plenty of foundation it also seems to be a strategic decision by the defense counsel knots of force more foundation not to add more ammunition for the government so i think it's pretty clearly covered if you read the transcript it's very clear that the court when it objection was very very limited in what way might strike any kind of page one forty one lines three to eight of the transcript again the government project or went back to this october back again because i don't see any unfairness the government relied on the state law every other circuit that looked at this issue every circuit that looked at the issue it said just look at it categorically all states are crimes of violence the unnecessary but part of the statute says a person can be a trustee or awaiting transfer court neither of those have anything to do with violence today i think whe thing to point out is that the district court because it's took a certain view of the law never decided whether or not what the governor put in it was or was not sufficient i've looked at it i can't tell i just read through it would like to point out with respect to whether or not a scheme is categorically a crime of violence that the conduct that all the other circuits so fear is generally criminalized under other statutes resisting the running obstructing an officer or firing a handgun or whatever the conduct would be that the violent conduct that that arises from somebody trying to elude recapture is otherwise criminalized and so to incorporate that conduct or to assume that conduct into the statutes that criminalize escape is not warranted and that there's probably a separation of powers problem there among other things so i would point out that not only is it inappropriate it's also a necessary to we would be looking carefully at the oklahoma statute we would see that the oklahoma statute criminalizes what is only nonviolent conduct which is a trustee failing to return after old furlough or whatever  and we would see that it is not necessary necessary the elements of the crime do not anticipate necessarily that there be violence and that the nature of the crime itself as described in the oklahoma statute does not assume violence in those pages following that and i do think it would be a waste of time to send this back because i don't believe the government can make a showing us kind of what i'm interested in is whether the government could benefit from the evidence that w