considered before and if this court does decide to consider procedural default we also believe that there is no procedural just law at issue here so very recently this court decided  of united states versus taylor which is very similarly situated sarkies procedurally the government raised the same procedural just fall issue that it has raised here and this court found that argument with the argument that our plane is making was not available in any sense of the word back when he was sentenced in two thousand and eight so will he was sentenced just shortly after the supreme court's decision and james which specifically it for close to best argument about the unconstitutional vagueness of clauses like the residual clause and then our client filed his chains and so in that sense there was cause because the claim was foreclosed before that decision and johnson and then the prejudice here it is plainly that our client is currently in prison on an unconstitutional charge and us is serving time under as it's a conviction that can no longer be constitutionally supported and again it's tempting to defend th that the drug trafficking charge is not an element of the underlying nine hundred and twenty four dollars c event so i guess i'm having trouble understanding why that's the case i mean he was pled right in the the defendant in this case never admitted to all of the elements of the predicate and in particular never admitted during the guilty during the peak quote colloquy never admitted to the element of intent to distribute all the statement of facts talked about is that there was an amount of drugs that they attempted to rob and in the apartment that amounted to more than perhaps one could infer more than a personal use about but that's it so why isn't  simple as that he never actually admitted to the element of intent to distribute so even if the government could use this as a predicate it fails for want of of a valid that's exactly right and even that it's a bare bones that well but i guess whether i'm right or not it is a separate question my two colleagues may disagree but i didn't get that it didn't seem like that was sort of the focus of your brief and maybe i just misunderstood as you so you agree with that this is really about a rule eleven pleaded issue and whether or not the defendant actually admitted to the elements of that alternative predicate when he st played guilty is th finger there are multiple issues years so one of those issues is our st point that you raised and asking about why the drug trafficking crime was not an element of the conviction and so under the element would have been a non elemental fact in so because that drug trafficking crime i don't think the government would just you know that there are people incarcerated right now on nine hundred and twenty four cities in relation to a crime of violence the drug trafficking crime was on elemental and then there are further issues here in that there was no proof beyond a reasonable doubt of the drug trafficking predicate and as your honor pointed out there is no element of that drug trafficking offense at the plea hearing your argument would still be that because the one hundred and twenty four dollars c conviction was satisfied initially by the hobbs conspiracy offense even that that admission would would still rather this offense defective because it's not an element of the of the ny twenty four dollars c counties that were saying yes that's right your honor so because anything related to the alleged drug trafficking would have been superfluous box our position is that it was improper reduced to rely on those because as the supreme court has instructed a defendant who pleads guilty he pleads guilty only to the elements of the crimes which they are pleading and not every fact offered by the prosecution but as your honor has pointed out there is the additional issues here in that there is no proof beyond a reasonable doubt of elements of the underlying dreamtime in crime that the government is now seeking to rely on well can i guess can i just want to make sure i understand your argument on that nd point so he pled guilty to count three and count three says that he used a firearm in connection with both a crime of violence conspiracy to conceal object conspiracy and also during and in relation to a drug trafficking crime to w attempt to possess with the intent to distribute a controlled substance so he pled guilty to that to attempting to possess with the intent to distribute a controlled substance so why isn't that enough get to i guess what i think judge diaz was talking about which is what did he plead guilty to here and so i guess is it your argument that was the disk did the district court judge need to we agree right that if you try to take that my if you try to steal drugs in that quantity that means you intend to distribute it to the district already to kind of put this on the record this in france and the amount of drugs to the intent to distribute is that the problem here or are you saying that it like a reasonable jury or judge could not infer from the quantity of drugs at issue here an intent to distribute well i've been the problem is  getting our clients to stipulate to the fact that the firearm was a firearm within the meaning of the united states code and things like that and there is just no specificity at all in re you're talking about proof that this was a police it was a guilty plea and so the issue is whether or not the defendant admitted he didn't ever every element of the of tends to include the trafficking offense and if the judge has to infer whether thousand and eight with the hogs are conspiracy charge because you do not eat it kind of violent end of drug trafficking insurance you support and i'm twenty four c section which is why the drug trafficking crime was no completely with those those propositions the question is is it sufficient in the context of a guilty plea where the most direct getting to the point is mr defendant when you rob these individuals of these drugs did you have the intent to distribute them  he admitted he had with guilty of the offended as charged after specifying in the rule and so that both predicate for the basis for count three so i do think that the elements of all of the predicates were in front of intent was to trap big these drugs there's nothing in the statement of facts that specifically says that so i just want to make sure i'm understanding the government's argument correctly the only evidence of of the court sustained the conviction saying the evidence was also sufficient to establish pinkerton liability which was a separate theory of liability office in that context because playing error place the burden on the defendant to prove that he could not way of thinking about what happened at the police colloquy here and the statement of facts and everything so i sort of agree what we're trying to figure out is whether it's clear that he pled guilty to both of the predicates and not just one and there is sort of a common sense argument right that when you look at the indictment and then the plea agreement break he he pled guilty to the substantive hobbs act violation the crime of violence he did not plead guilty to the substantive drug trafficking crime so just as a matter of common sense one might assume that when he pled guilty to the nine hundred and twenty four dollars c one it was on the basis of the predicate to which he had pled guilty and not the predicate that was dismissed and then you look at the  you also might sort of assume that if in fact everybody's understanding was that he was pleading guilty to the trafficking predicate somebody would have said something like maybe the magistrate would have mentioned  the intent to distribute and made sure he was pleading guilty to it or at least mentioned that half a kilogram or more of cocaine the just something about it and instead there's this kind of notable silence and i'm just wondering whether when you whether or not i i actually have not recently read but i think i have some dim memory of some of the cases you're talking about in what happens at the rule eleven call clean even if you weren't going to say that there was sort of a rule eleven problem here he didn't plead guilty to it since we're trying to kind of infer from the this record what it was he pled guilty to could we take account of that omission at the ruhleben coakley that nobody said anything about intent to distribute or about the quantity of drugs involved or any inference from that quantity that it was just kind of dead silence on that point and your honor i think i would have a harder argument if the drug trafficking credit were not mentioned at all but it page eight in our supplemental up and it's it was specifically mentioned were just a few moments ago earlier i thought i heard you say that you thought the colloquy in this case was deficient even perhaps on direct review but now you're suggesting that perhaps it wasn't but it's good enough because this is this that the predicate offense of conspiracy to commit hogs at robbery is no longer a constitutionally valid predicate after this court's decision decision and simms in the united states supreme court's decision in bait and davis there's also no question that mr crawley pled not guilty to the drug trafficking offense the count to that it was dismissed as part of the rule eleven plea agreement there's also no question that when the district court judge when the judge below any mention of the quantity of drugs the government alleges mr crawley and his co defendants intended to steal at the plea colloquy so while it's true that the drug trafficking and drug trafficking offense was mentioned in passing simply guilty so therefore any information about the drug charge is superfluous to the nine hundred and twenty four dollars c conviction and so it would have been inappropriate for the sentencing judge to rely upon that and it was inappropriate as we can see on page ninety nine dollars of the joint appendix with the judge below in dismissing mr crawley's two thousand two hundred and fifty five petition to vince essentially fine mr crawley guilty of the drug trafficking yonder reasonable doubt years after the fact the problem here and why we're even discussing this is because language that's relevant there and the elements of the nine hundred and twenty four dollars c charge are supported or were supported at the time by the hobbs act robbery the conspiracy to commit object robbery charge and so anything after that would be a non elemental fact because the elements of that crime were are satisfied and so for these reasons we asked this court to reverse the court below and of a cape mr crawley's conviction in his sentence thank you i simply want to thank washington university school of law for taking on this case as court appointed counsel and in particular i want to thank the two students who so ably argue the cause on behalf of their client if there is to afternoon i also want to thank mr grano for ably representing the government in this case did not do the work that we do without competent counsel coming before us and representing the interests of both defendants and the government and that certainly happened this afternoon so again thank you on behalf of the court and be safe and be well we typically would come down and greet you personally and particularly love doing that when it comes to students but obviously we can't do that this afternoon but thank you very much on behalf of my colleagues and on behalf of the court take care