couldn't resist shepherd until you reply brief because it had to come down and still no problem for me if we don't confer before arguments so i don't know what my colleagues and my concern is did you tell the district judge that you disputed whether the affidavit was that was filed in state court at the time of the fleet was something that could be considered and did you making a statement i agree the court may review the police reports and a statement of probable cause applies by the prosecutor to establish a factual basis for the plea i think what the problem is clearly and shepherd makes this a problem even factual basis if the boss said something to the nature of defendant agrees and stipulates that these facts are true or agrees that these facts are accurate for purposes of the plea or something along those lines that was he just the defendant at th time they're entering this plea agrees that the statement itself is accurate but that's not what it says and that's clearly what charity is concerned with is having having the defendant at the time they that all of those facts are in fact accurate or are in fact adopted by the defendant i think what's what's happening instead is i was drunk and i don't remember is the same and it doesn't indicate a factual basis for a plea so what i think it matters for our position because i don't think that this would have met the crime of violence under these circumstances but you must indeed there are given that there's an animal and remember that we're that's our position it's one that's most interesting to me i don't know what my colleagues will find interesting  i can't see what incentive the defendant would have had when he pleaded guilty to argue about the facts all it takes for a factual basis is this is the proof the government would put on statement which isn't too drunk to remember anything if you're too drunk to remember anything you can't very well admit or deny what happened and what happened go in that there are other alternatives in state court don't dispute they can prove it and i'm not denying it what what the circumstances are that we have to presume that he went over this with his attorney at some point in time and he decided to concede that he was guilty right and that he had that doesn't mean he admitted that he did that critter to people involved the cop says one thing the defendant sometimes says another but in this case he doesn't because he says i'm too drunk to remember what happened it's a difficult issue but he could be convicted of the crime without with the policeman said being accepted as true by the jury he can be confirmed he could be convicted based upon with law enforcement officer second strictly on their testimony but the policeman wouldn't have to believe of defense attorney please people out in state court if he's got a good deal if the defendant has a good deal there's just no reason to be arguing about all kinds of details typically the clients want to lord argue about all sorts of details where they say the policeman is lying about their histories lying about that and it is immaterial and it's a good deal there's no sense in risking the good deal but then years later they get into federal court and under your theory put in the highly artificial position of saying being asked well why didn't you argue about it and mess up the possibility of your good deal if every feature of the policeman said wasn't true i think that the what makes this a close case but i think it can be considered by the court and i think what you're pointing out is the issue that i was concerned with coming out as an outsider on this too from the standpoint of looking at it is the fact that he did say you know i was too drunk i don't know what was going on and i have to concede that that's a very significant concern when you defendants plead guilty they make statements and then come back and say although i didn't although i made that statement now it's not true and we're still trying to avoid the fact of that's different that's altogether different where they say yeah i admitted that the state court said that the state court but i was lying in order to keep my deal that will fly but here he didn't say anything in state court that he's trying to disavow he didn't say thought in the federal proceeding he was arguing about whether the enhancement could be applied and he raised the issue and just didn't mention shepherd didn't knock him down if i have what i'm can you tell me what page in the excerpts to look at for what you think is critical in there excuse me can you tell me what page to look at in the excerpts of record for what you think is critical on the waiver in the u look look at a situation where what the whole purpose behind these issues are this outside categorical approach is that we don't want these large parents i believe that when you look at right thank you s government is trying to say exactly what shepard said that the court cannot do which it is and the government is saying that in the federal hearing we didn't have a big hearing about the facts of this previous conviction and well of course it's years later who knows what the witnesses would have to say now if we went back and tried to redo the third degree assault hearing and that's exactly why shepard says we don't want to have these many trials we want to get focused on whether or not it counts based on the documents that are presented without going far afield to our position is relying on the affidavit of probable cause in this case it was far afield that the statement that's contained in that box is not the to the accuracy of the facts and therefore they should not be considered a crime of violence thank you you thank