drugs nor does the admit to an intent to distribute drugs and so the crime drug trafficking hasn't been a satisfied by legally sufficient proof in a way that that can be counted as a valid predi states versus rivera the court has dealt with the same conundrum which is i have an invalid unconstitutional predicate there was a valid predicate charged are we going to be able to arrest and on about a predicate and it really boils down to in contrast to mr du sarge case the individual admitted during the plea colloquy that he was involved in the context conspiracy and so he admitted again to the elements of a valid predicate which is successful on appeal he faces re indictment and re indictment includes the count two dismissed drug trafficking crime a ten year mandatory min and a five year nine hundred and twenty four cecil mandatory minimum of fifteen years and he received eighty four months or seven years and so careful what you ask for in terms of taking this appeal st we don't believe this is asking for an advisory opinion at all it's a very advisory opinion really boils down to is there a case or controversy there definition is a definite definite and concrete controversy touching legal relations of the parties having adverse interest clearly that exists here i cited the court to a district court case from the southern happen if i file it government made the same argument there's no case or controversy and the district court rejected that saying well yes there is this is very real i mean what would you have him do and i also point the court to the fact that clearly  court frequently addresses what they're going to do on remand even a free man has to do with three trials retrial really going to happen all the time the court defines what can happen on remand and they should hear and i didn't want to repeat that if the court and  finding that yes the government can read and we have asked that the court give mr the opportunity to withdraw his appeal because then i would have put him in much worse position than he would have been if he hadn't gone for this appeal i would also reinforce that if the court decides that we're not going to decide this question that likewise he be given the opportunity to address appeal because the risk of what would happen below may frankly outweigh what he would want to do  feel but then turning to the rd and final issue your honour's which is ok can the government re indict him opposition obviously is that the government cannot read and item and there's two ways to approach that one is to approach it falling from the th circuit law so therefore you have thank you so therefore no the government cannot me indict we are strong your honour's that you actually don't need to go that far in terms of deciding it because here the issue in terms of whether the government can re indict is really governed by the plea agreement the plea agreement is authored by the government and if you didn't plead women are construed against the government they chose which crimes to drop which crimes to go forward on and the controlling provision of the  addresses what's going to happen if something gets reversed on appeal if you look at the language the language says an obvious and decisive a lot it's in the breeze it's further agreed that should the conviction following the plea of guilty be vacated for any reason our position is that the conviction has not been vacated because he still stands convicted on count one he's not challenging count one he'll get re sentenced on count one we're fine with that the government did not draft a plea agreement to say should any count of conviction be vacated then we're free to go ahead and we indict and if you just simply contrast the conviction with any counts of conviction i don't know how you get around the notion that there definitely is an ambiguity in that language and that ambiguity needs to be questions yes in the appendix that you submitted to the court the judgment on count three says that your client was convicted of possession of firearms in furtherance of the narcotics conspiracy was that the original judge that the original judgment that was entered has has that been was there an objection to that or three possession of firemen for the rights of narcotics conspiracy so now i didn't see any effort to correct that i wasn't comfortable but regardless i did not see that if  kanata that your honor i know it was not corrected was there any objection to the description in the pre sentence report that described the quantity of narcotics that was to be stolen resolution where the defendant needed to demonstrate actual innocence here if you look again at bieber and rivera and the johnson case which they follow from the question on on on whether we're going to substitute that the time is already passed out and then the notion that twenty four months has passed but i guess i may not be realistic that i expect that the judge in formulating his sentence looked at the two different pieces and that was one outside the twenty four months but again i don't know whether that was a function and part of having received the sixty not just the brass follow up on judge jacobs question about i guess  dealers transporting narcotics at the time i committed the offense i knew what i was doing was wrong now why is that not good  frankly under johnson he doesn't have to have been can dictate of it it's enough that he allocute to do it here we honor in terms of the quote which is the same quote that i referenced as well at the outset of my argument no where does he admit that he intended to distribute drugs or that he had distributed drugs you know both of which are one of which anyway is a necessary element of an allocution to the drug trafficking crime of possession with intent to distribute and in northern district california brown case and they were robbing up a cane stash house clayton in the southern district that is robbing cocaine and a clean no again the twenty three letters that is robbing a drug dealer all those recognize that yeah that would be much more you need to that's the hobbs act robbery conspiracy allocution he mentioned that the targets were drug dealers but so you know that it doesn't establish the elements necessary for the drug trafficking crime  for violating section one hundred and twenty four even after date of discharge conviction remains supported by a valid predicate that was unaffected by data using in carrying a firearm in furtherance of the drug trafficking crime as explicitly charged in the counts you start pled to he started allocute it that he used and carried a firearm in order to steal mark arctics at gunpoint from persons he believed to be drug dealers plural transporting narcotics the sort argued through his sentencing that it was the tremendous amount of money that could be gained through selling those drugs that drove his commission on the crime that was his intent he carried a gun to obtain a supply of drugs to steal to deal on this record it's clear that use are guilty plea is premised on a valid predicate and is supported by an adequate factual basis and that he would have pled guilty regardless of which of the two predicates were noted by the district court during his allocution indeed do start affectively concedes that he can't satisfy one of the p because he does not want to withdraw his plea should this court decide otherwise the terms of the plea agreement permit the government to consider its recourse and that includes potential  reinstatement of the section on twenty four dollars c charge based on that remaining valid predicate before the district do start was facing a fifteen year mandatory minimum sentence for his crimes in this case prior to his guilty  he entered into a plea agreement to his great benefit and he secured a sentence of eighty four months and he did that in the express exchange for his acceptance of responsibility to not want but to  obligations but still keep its benefits indeed he is asking for a premature advisory ruling on this question to give him the option of withdrawing his appeal completion of the normal amount of money that could be obtained by selling the drugs he was going to steal during the robbery and he discussed further that for fifteen to twenty kilograms of cocaine at a price of maybe possibly thirty dollars to forty thousand dollars scripts you a gram that would be a life altering amount of money for the conspirators and that's consistent of course with the documented evidence in this case you start never objected of his participation in conversations regarding the intent to sell these drugs that that was the purpose of the robbery and that they had buyer's wind to buy their drugs in advance of the robbery that that appeal in the event of whatever action or some action by the court you address that for a moment are it's our position that that would be premature decision because the government may never take the action that the do you start is talking about if the conviction is reversed we'll have to consider all our options concerning how to proceed and one of those could simply be to proceed to respond and of course it's our position that the judgment should be affirmed but that's an option that's available to the to to the government should the court decide otherwise and another is of course that we could rely on the terms of the plea agreement to reinstate the dismissed charges but none of that has happened yet so it's not right for decision and the issue hasn't been squarely presented it's also inappropriate manipulation of the appellate process because if you start wants to get a ruling about the remedy before he decides to go forward with the claim and it's no mystery why he wants to do that your honor he's got a tremendous benefit from this plea agreement including the dismissal of account carrying a ten year mandatory minimum and he's acknowledging to this court that this appeal isn't worth losing that critical benefit and it's for that same reason that he which is the one that held that you don't have to have been convicted of the predicate offense in order to be able to sustain a conviction of the nine hundred and twenty four city says clearly you need legally sufficient proof in order to be able to do that and legally sufficient proof in the context of trial is evidence legally sufficient proof in the context of a plea is what is out you to do it's never what hidden in the p s r never what's said post plea at sentencing it's what was allocated to which is exactly why this circuit and even rivera has undertaken that type of analysis what was allocated to which goes to the rd point because the government continually repeats the mantra that the plain error standard as applied in this context is going to look like  offense and there's no question they put that turns out it's unconstitutional if the government that's suggesting that well we want to sustain it on another on pled to predicate in that context the question is well what do you the question is personally in cases that i've had i certainly thought of a coup some cases the course not overly interested thankfully and giving a defendant a pyrrhic victory he's sitting on an unconstitutional conviction and he's trying to address that  if the notion is our conclusion is that we're not going to decide whether you get reinvited thankfully the court has pretty consistently given a winning defendant appellant the opportunity to escape from his an advocate but basically the government's position is you mr deuce are can drop your appeal from what is an unconstitutional conviction or risk the consequences and that to me seems a more apt