mr or take a calderon the issue in this case concerns the reliability of two uncertified nine shepherd approved documents used to prove the fact of the two thousand and three california conviction for assault with a deadly weapon used for applying the twelve level crime of violence and handsome and in guidelines section two out one point two the documents at issue here were provided by the preparation office and the government relied upon them to meet its burden of proving the enhancement by sufficient reliable evidence those documents were twenty page unsigned uncertified computer printout of information concerning the two thousand and three conviction and a unsigned document entitled disposition of arrest and court action which also had some of that information however there is no trustworthy information about where these documents actually came from other than the probation officer your client does what we do not have an issue either way whether your client committed a crime in california or b whether it is a crime of violence correct we don't have an issue of whether it is a crime of violence if the court finds that the prior that can the documents at issue here are reliable but we do have an issue if the documents aren't reliable whether that conviction actually exists and but you but your client doesn't deny that he was convicted of something in california in two thousand and two he didn't  affirm that conviction ok and it's important that to didn't a denial of the prior conviction is not a requirement to require the government to meet its initial burden of providing reliable evidence for the district court to consider in the first instance and set a kind of two part well i'm not trying to get you but it's wasn't a trick question i just trying to focus the issues but go on go on with whatever you want to do so our real issue is are these documents reliable enough for the court to have found to have relied on them to believe the contents of those documents and to believe that a conviction did exist in this case for my client were arguing that no these documents are not reliable because we don't know where they came from we don't know who prepared them and we don't know how they're used so the question is this is clearly not a situation where you're trying to use shepherd type documents to establish the elements of a crime so you can figure out through the categorical approach if it's an appropriate enhanced case or not this is more it seems of an evidentiary type standard so are you trying to hold the district court to the same kind of standard in terms of the quality of the documents that we would do with the shepherded analysis not with a shepherd analysis i recognize the court and marry her nan does said that that nine shepherd approved documents may be sufficient to prove the fact of a prior conviction and although the rules of evidence don't apply necessarily at sentencing the documents and evidence at sentencing to prove a prior conviction for to prove an enhancement have to still be sufficiently reliable according to the guidelines and that's a basic at the different denture foundation that first must be laid before the document can even come into the proceedings before the court can consider it is probably as reliable enough that to believe its contents are probably accurate we're at the very initial stage of whether there is a document before the court that's reliable enough for it to go further and consider the information in it and we're saying that neri hernandez set the legal framework and it really is the only opinion to date that has delved into this issue about what it what type of document when it's not a sheppard approved document and when it's not certified as to its provenance where it came from who prepared it what kind of document can survive scrutiny to be reliable enough and there hernandez says that as long as we know where it came from and who prepared it and how it is used in the court system to reach if it's used to record a conviction in the first instance and we do know so i want to get to the documents themselves we don't know with the requisite reliability where these documents came from we can suspect that the twenty page doc computer generated document came from the title at the front which says superior court of california but we don't know it's possible but we'd have to speculate where we if we if we have speculated about if it indeed came from the that court and it was actually entered into their database by a court clerk and looks i was suppose this were a social security cards and they produced facsimiles or actual cards that you know look bad that curly old fashioned writing on them and a number and to these were found with the fellow's name and he using twelve different social security numbers how would your argument differ in that case from what you're saying here visit this is an argument with broad ramifications it seems to me for proof in  in sentencing cases i think this case is limited to how reliable prior conviction docky how reliable are documents that that a port to be conviction doc lie i and go in to answer your question i think the question you're asking about is much more sakshi will about the information in the p s r and whether you're trying to prove that the p s r is wrong by other documents or prove that the p s r facts are correct was and there and mary hernandez says that when you have a document that's been challenged that's trying to be used to prove the prior conviction it has to be sufficiently reliable that is we need to know the document in which the information is housed is one that was prepared by the court of conviction by a court official a court clerk or and is actually used by the court to record that conviction example go ahead i'm sorry why what room choir's proof that it's a document as opposed to a printout of the court docket because we would if we know that the court docket is prepared it from the court it originates from the court of conviction and we know that it was authorized that information was put in by a court official and we know it's put in there for the specific reason of recording this data for court records that ok but if we don't know where the document came from even if it looks like it did if there's nothing to have been if there's been no foundation laid by the probation officer in court saying i got this from the superior court of california this particular superior court the superior court that actually heard this case and the clerk of the court was authorized by statute or by current court rules to input that information and we actually rely on it and we send it out to other people as evidence of the fact of this part conviction but we don't have any information about this and and that california courts are are pretty strict about the information that they use that they share with the courts and police officers and probation officer your argument is not limited to california and it seems to me in the nature of it it is simply not limited to court documents and if anything a print out the looks like a court record that's twenty pages long has more indicia of or a liability than the twenty social security cards that i bet i mention to you but i think that that's mixing apples and oranges because the fact of a prior conviction is a fact that is used  what i'm talking about is a legal question versus a purely factual question well the legal question i mean this is i'm just having a hard time apprehending how we would decide this case in the way that you want just want to decided without casting considerable doubt on the whole idea that sentencing is not run according to the rules of evidence i think mary hernandez sets the stage for that and it says that preparation origen preparation news are important and as long as the probation officer verifies where the probation officer got the document and there is a signature of some kind on it or a letter from the clerk saying this is from our database which isn't the norm in our court system it's not unusual for that to be the procedures matter fact very rarely are these facts of conviction challenge because often defense counsel gets the required reliable documentation i just have all the cases in that have been cited in the briefing have either been the documents have either been certified so we know where they came from and who prepared them and or their abstracts of judgments from california for example where we know that that is a commitment order and it gives authority for a state officials to implement the judgment and sentence in marry her name and as it was in new york certificate of disposition it was certified in that case so provenance was an issue but state law said we consider this to be presumptive evidence of a conviction area nonda us was such was a shepherd case it was challenged as a crime of violence where were the elements of the offense for purposes of right  certificate of disposition reliable though it wasn't a shepherd of the us occupation because again the sheppard context is very different and obviously should be very specific but we're talking about sentencing there's a great deal of case authority on how that's supposed to be run and there is this idea that the p s r has a presumption of reliability of car obviously we can't take that too far to the point where it violates due process but with the presumption of of reliability then the cases are pretty clear that jet really speaking that a defense counsel's objection alone is not enough to undermine the presumption of reliability i don't recall from the record if there was any extraneous evidence or  offered by the defense counsel in connection with this p s r and those attachments at the sentencing but why would the district court have to do anything if it's just based on objection of counsel which the law is clear doesn't require it if the p presumptive reliable to do anything but this court in sloyd did say that if there is an objection to the adequacy of the evidence to support the prior conviction at the p s r alone is not and that the  statements in the p s o alone aren't sufficient in the face although that general rule is the court can rely on the p s r that it's not it's not always allowed to rely when there has been an objection and in this case not all objections will suffice but this court knew what was going on this court knew defense counsel was upset with these particular documents because defense counsel asked for a judgment and any other relevant documentation and he knew he was looking at reliability in the he actually said i believe this is sufficient to show it exists but we're saying no it's not because we don't even know where it came from at a minimum this court can rule you at least have to show where the document came from i mean actually come forward and say yes i got this from the california court of conviction and it was entered by a court clerk we don't even have that you would have to open one or you have time a and an interruption of it i just want to be sure so would you touch on the standard to review i mean it just the process of whether the court can even consider the document reliable in order to consider its information probably accurate but i would say it's not even if it's not that it's not clear areas it would be abuse of discretion in the most analogous case did the court assess the quality of this evidence correctly and it didn't here because it didn't look to see where it came from who prepared it was it in was it a court judicial read was it a judicial record of a conviction from the court of conviction and that is what this court requires and mary hernandez are you saying that that would be an issue of law it would be the very fact of whether the documents are reliable i say a legal question the conclusion is legal made looking at what information has been provided to show it's reliable is it reliable is a legal conclusion you get to the factual issue later when you're deciding whether the information in it is berry for the united states the district court correctly held that the united states met its burden of proof and established the existence of the prior california conviction by the preponderance of the evidence whether the conviction exists is a fact question which this court reviews for clear air and rodriguez and recently maz and ringo salazar this court has consistently held the before the district court may impose a sentenc his handsome and the government must prove facts necessary to justify the enhancement which are reviewed for clear air so under the highly deferential lens of clear air the district court correctly held that the documents were sufficiently reliable to support their probable accuracy and there was no rebuttal evidence there's no requirement in myriad hernandez that testimony as to the source of the documents be taken that the documents be certified or case there's three aspects about these three doc these two documents that support their probable accuracy or did they come from there was no testimony about that your honor were they attached to the pos saw or was initially the computer printout the twenty page computer printout was provided by the probation officer and then the defense counsel stated that they were insufficient to support the conviction and then this probation officer amended the p s r with the certificate  at sentencing about it at record page fifty five and i just want to point out that the district court asked was everything about you correcting your report in the defendant said yes it was  the in the sentencing hearing the defense counsel said that all they had was the computer printout and the probation officer then said i believe i amended the report with this certificate of disposition and then defense counsel said nothing said nothing to to rebut whether those documents were untrue whether they were forged there was no allegation of that there was never a quest for a hearing to be had on the source of the documents the defendant never defense counsel never disputed that the conviction existed in fact as i stated a record fifty five the fines that everything in the p s r was correct this is not the case of floyd where the the just report erroneous lee held the un sworn assertions of the probation officer a stablished the existence of the conviction the support held that was erroneous question things i suppose maybe you would agree that this probably isn't the best practice to do it this way what they look like is that there's not a disconnect because they really are responsible right absolutely and i think that when it becomes an issue i don't know if in the stove case i believe it was from the eighth circuit what happened there is the conviction was old and i forget i think it was in one thousand nine hundred six case but i believe it was hard for them to obtain the organs have been destroyed at that point i know this was a two thousand and three case but i'm not sure if it was difficult for the probation officer and two to obtain the actual document  yes if this issue arises in the future we should be alerted to at least if we cannot get the actual document to at least perhaps ask the probation officer on the record where did you obtain this to obtain this from a clerk's office again and briefly touching on the independent reliability of the documents themselves the twenty page computer printout is more detail than some official documents it's under the heading of superior court of california and in fact  that he just wanted to point out to the court that all he had was computer printout that occurred later initially i thought as to whether i agree your honor i mean the defendant certainly if he wasn't convicted of the offense would have would have told the court i didn't do this this wasn't me he should have this if that was the case but he didn't he admitted everything is correct so i believe that in reality you probably waves waves any type of objection with the with the who did he have i'm certified docket sheets case summaries are sufficient to establish the existence of a conviction as to the disposition document that's the second document that was considered in conjunction with this twenty page arrest prep twenty page clerical printout judge quain noted that it was the equivalent of the california abstract of judgment which this court held in marino florian could be used for the limited purpose of establishing the existence of a conviction even documents were forged untrue he never requested a hearing to determine the source he never made the argument that the source needed to be identified he never disputed the conviction there's no ambiguity as to the identity of the offen affirmation that the government is referring to was exclusive of the objection in that case in this case and it's clear from the context of sentencing the judge that neither the judge nor the government believed that mr ortega cauldron had waived any objection there is no indication that it was an intentional or knowing waiver of his objection the court considered it fully and ruled on that it is a preserved issue because of that the court understood the issue to be whether the documents provided by the probation officer were reliable enough to establish the fact of conviction even if the review were for clear air it's clearly erroneous to rely on a document that has not been shown to be reliable and we're not asking the court to open the floodgates here and rule that evet rules of evidence apply we're only asking that the a reliability attached to those documents and it's always been it's usually done in the district courts the government does have the burden but they often rely on the probation officer and actually the probation officer usually gets it right here for some reason in this case they did not and as counsel for the government admits there is no indication of where these documents get cut came from and although we can guess where they came from we don't split don't tolerate at sentencing at this court doesn't tolerate speculation at sentencing and even though a disposition of arrest in court action has been used to show prior conviction and may be admissible to show a prior conviction it is not a judicial record and it has to be shown to have been the disposition form required by the california penal code to be input into the california department of justice database so unless we know they even got this the california department of justice and then i actually used it by their it to comply with their statutory duty to create a master to fire but now you're going way beyond my audio nonda us because what you're suggesting is nothing less than a certified record with no i'm just saying that there is more to the disposition of arrest in court action that's needed but if you could show that disposition of arrest and court action were shown to have been used in this case to come from the court of conviction or somehow associated even with the court of conviction by extrinsic evidence about these documents because the documents themselves aren't inherently reliable there's nothing about them that shows with the requisite reliability for a district court to rely on it would be at as if a doctor i don't want to use examples but i'm going to throw it out there anyway but what about judge crane's observation that the information is internally consistent it's exceedingly detailed why would somebody fake a twenty page recitation of proceedings in california court how could they even do it with any plausibility but we don't know what that is the databases from the california law in addition of reliability and does imply some level of common sense well if only it's a page or if it was a page that had a seal of you know met some county in california and said or take a calderon was convicted on such and such a date i would agree with you but this is far beyond that if there were a seal on this mike the case would be slightly harder i mean a know but i mean even a xerox that we don't even have that here we don't have we just are asking that at least at a minimum show where you got this document in order to to for the justice system to do what it does best to ensure that there is fundamental fairness and when it's a prior conviction is challenged the government has the burden to come forward with records that evidence particularly when it's a prior conviction not associated with the facts typically in a p s r about the actual often said conviction when it's used not only to increase the office level but to assign criminal history points which it wasn't there weren't criminal history points in this particular case but it's not opening the floodgates it's not putting the extra burden on the court the government has the burden the probation officer usually satisfies that burden in the correct way it just didn't do here in this particular case limited to the facts of this case and remained for correction