don't think that we can relate all the way back to june to know what the relationship of the parties was back in june ok thank you good morning your honor saw for the record michael de from connecticut i represent sergio fernandez i mean please the court i'd like to reserve two minutes for rebuttal please thank you there are two issues before the court presented by mr hernandez the first being whether the district court when it found two point eight kilograms of cocaine base attributable to the defendant and the second issue is whether the district court or a light upon cory material that's the massachusetts connecticut offender record information as proof or the predicate offense for career offender i'd like to welcome it's with the second issue and address the harmlessness that has been addressed by the government the government has presented on appeal documents decided whether the material is indeed shephard material or rear fender purposes seconds the the government proposes that it can provide the state court records which it does have concern sheppard material and i would respectfully argue to the court that there's something unique about sheppard material there's an evidentiary neater to shepherd material us versus brown when there is a challenge at sentencing to material that is offered say through the pre sentence reports more is required and that's exactly what occurred in this case there is a preliminary sentencing hearing there was a challenge to the representations in the p s r of the korean material there after it was and it was indicated in the p s r certified copies of the convictions were ordered but not yet received the court certainly found this to be a very important issue delayed the sentencing and then reconvene sentencing at that second sentencing hearing none of this information was presented and the court proceeded based upon these score your representation of this case is very similar to us versus points where there was new york state police information national crime information in just believe that's accurate to be anything here to tell us whether the cory records are something that you should be ron or something that we should have skepticism about your i don't think we do however what i will say is there was there was a challenge obviously in science and singing to this and there was a discussion about documents that were provided where one sentence was kind of written on top of the other was an increase of down or there was some confusion over this so i think at least  said is that the government has a modest burden in establishing the existence of a prior conviction and that burden can be met by a representation in the pre sentence report however it's been defended objets to the representation in the sense report mr hernandez did do so in this case the court in bryant said something more is required where i disagree with my friend is that this court in bryant quite clearly stated that it was not adopting shapard as the touchstone for the additional materials that could be required in fact this court left it to the district court in the first instance to make and thinks that it would be better for the district court in the first instance to pass on that and we would submit that the appropriate course is to read the ending for the limited purpose of determining whether or not the government had met its burden of a sabotaging the existence of these convictions it seems to me that there is just one step that you might have skipped over or not understanding how the bride works when you simply didn't require them to come back with separate documents just  i said it is scored against it the better course would be for the district court to consider this in the first instance with the defendant having the ability to object then the appropriate course in our view would be i don't think you would have two different things there was simply the representation in the pre sentence report that based on a review of the defendant's quarry he has these prior convictions on me and the district court  based on the defendant's quarry records it had identified these convictions it was the probation office was seeking the records at issue the sentencing hearing was continued for this very reason one of the docket sheets that issued her actually was presented to the district court and there was a debate about whether that was a condition for distribution or possession my understanding is that probation office happy other two at the time but they were  august of zero loven august of two thousand and eleven and continuing there after until sometime september two thousand and twelve that included the june twenty fifth two thousand and twelve transaction in which m sold two hundred grams of powder cocaine to his co defendants that clearly can be taken in conjunction with the july thirty first sale where he was found with ninety three grams of crack cocaine that wallbridge above the two hundred eighty grams or more threshold and just a brief comment on this one to one conversion ratio because i think there's been this i just want to clarify the point the statute requires that it be in this case to trigger the ten year mandatory minimum two hundred eighty grams or more of a mixture or substance containing a detectable amount of course it's similarly the guidelines the statute nor for purposes of the guidelines does it have to be pure cocaine base and what you have in this case is the defendants repeatedly stating on intercepted conversations that they were getting more than one hundred grams of crack cocaine from the powder cocaine that day had purchased the district court before could reasonably have concluded from that evidence that there was basically a one to one ratio between powder cocaine and material we simply that simply hasn't happened and as a result this case really is very much like client where this case should be remanded for a hearing concerning this issue placing this court in the role of fact finder i think is problematic