factors work specifically in the context of a career of fender sons unfortunately it appears that this question for presented by serino may exceed the scope of appeal the permissible scope of appeal based on this court decision united states versus colmes i'd be forced to concede that colmes doesn't appear to be determinative of the question of what issues may be appealed after a limited  president but from this court that there are some factors that take my situation there are three in a situation out of the pretty limited factual holding that serene at that out combs talks about because  that it is limited to the specific for seasonal context of that case and in my situation i would submit that the district court and inquiring whether or not it would have been posed a materially different sentence under advisory guideline regime take that as the answer no to the family limited remaining question we can take it as a new sentence either way it comes out to the same result and i take it your challenge at that point is that result is unreasonable assuming combs doesn't apply for the moment that result is unreasonable in the post poker world for some reason the nucleus of our argument the crux of it would be that career offender context at least under the specific facts of this case that the thirty five there's an inherent tension between thirty five fifty three factors there is a factor that the court must consider the guy like range in this case the like what makes the sentence unreasonable i mean to be blunt about it your your client's record's pretty bad and  read the brief and what i see offered up against it is that you know we'd like to be together with his family and his wife thinks he's a good husband as against this record i don't know that amounts to very much and there's no on the whole guideline regime this is squarely within the guidelines so what makes this something so reasonable what would think it unreasonable or at least questionable is under the thirty five fifty three act or thirty five three a factors the court is that look at the seriousness of the offense and the nature of the circumstances of the offen on one hand on the other hand the court has to look at the advisory guideline range the sentencing commission when they created the guidelines which riseth just to go on analysis of comparative analysis and determine that for a given offense in this case bank robbery the gu should be axin that is a pretty strong pronouncement as to the seriousness of the offense in the circumstances of the offense in this case that range turned out to be about sixty three seventy eight months and this is based on the crime of conviction but the career  guidelines are implicated that range becomes essentially quadrupled into the two hundred sixty two hundred seventy month range and art the crux of our legal contention here is that there is an inherent tension there and then the career offender context a guideline range mean d v presumptively unreasonable and that would be the argument i'm going to leave the rest of my time for co counsel thank you thank you inclusive in this case it applies when there's the taking of property by violence or intimidation and in puerto rico the word intimidation has never been interpreted to necessarily mean  intimidation based on its implied threat or attempt of physical force me yes that was a portion of the puerto rican supreme court decision injuries will happen and we think the that excerpt as a whole it seemed to indicate that this puerto rican supreme court was using intimidation with the thought that it would be intimidation with weapons and so consistent with  of robbery or article one seventy three erodes in the context of the death penalty i'm sorry of the felony murder rule and i thought leave the court if you read the case it's not talking about specific elements that you're talking about i'm sorry go ahead which we didn't have the whole case translated we have with the government provided in by way of a translation but from that section we can see that the court is talking about robbery in a generic sense or aggregate sense that it can be a dangerous crime but it's certainly not saying that that's a required element for any conviction under that statute in terms of other not unlike the federal robbery statute i mean that i state you can things that were intimidation as well it does and it's also a common common law configuration of language the important distinction is that unlike in puerto rico where we just don't have much there's a long history in the ninth circuit in other circuits in the federal context of specifically defining the word intimidation and as requiring a threat of force or violence it's always a crime of violence in the federal system because it's been specifically defined that way   if you had the opportunity to go back and look at the cases with that he helpful to you because this brand new and we're all kind of taking a different look at the picture  honor i mean in going through the frustrating aspect of this appeals are we just don't know enough about what happens in puerto rico we have the one decision we don't have the long history the way we have in other cases i guess to another point is that if i mean if i slightly but it ties into that it's that the district court really didn't have time to look at all of this because it didn't receive the documents from the government until the day the hearing and it did have that pre sentence report i think p s r before that have they included the information excerpts of records you'll find that sentence at one point was that for december twelfth two thousand and five on november twenty third counsel for  submitted objections to the probation office the government responded to those who provided a copy to transco insole on december first of two thousand and five well in advance of the scheduled hearing at the request of defense counsel that was continued until february twenty first two thousand and six was no response nothing further from defense counsel until less than a week less than a week before the hearing that's not even counting interviewing holidays and weekends on under some or rather on february fifteenth that they file their sentencing memorandum and request for downward adjustment now in the reply and again here orally i'm taken to task for not filing a written response with the court within that three day window that i had to do so and quite frankly i don't believe that's appropriate they've filed well in advance of the sentencing their objections with probation office i have provided them with a copy and probation in turn made adjustments to the p s r as they believe appropriate and  facts of the case men with a criminal history and the response was filed with the district court on that day though didn't receive an exhibit number with that introduction then when we talk about whether or not robbery is a crime of violence the puerto rico statute for proposition saying that robbery can be committed by some sort of intimidation that involve violence you look at the puerto rico statute to the translated version and actually what he's quoting isn't the statute but is quoting an annotation a footnote to is when we go to correcting you as this is what we find and although he's correct they're not going out and saying these are specifically the elements of robbery one way or another you put this in context of felony murder they're trying to decide is robbery constitute a predicate for felony murder and what do they they conclude they talk about either the violence or the intimidation and then i'll read part of the translation when either of these two situations are present indispensable to the defense of robbery it is to be expected that the victim is exposed to serious risk of danger of death or great bodily harm therefore it's reasonable to conclude that robbery is as that is a very dangerous crime for human life that's very consistent with the common law interpretation of robbery and very inconsistent with this court's interpretations of the federal bank robbery statute as to what intimidation it involves and for those reasons i submit to the court that notwithstanding the puerto rico speak is a crime of violence in support of the proposition the puerto rican court cites to l r and and then a number of california state decisions you have the know of puerto rico who practice of turning to california or or customarily builds its law on california rico for three and a half or make up forty five years before transferring to nevada and this is a case of grieving when i arrive i'm not licensed in puerto rico but from practicing there it's a commonwealth so this was a commonwealth united states not a state and their criminal code comes from the civil code of spain not so much the common law so it's not common for them to turn to common law principles or for these definitions the fact that they do so in this case i think is telling as to what they were trying to do what they were saying robbery is robbery whether it be in california whether be in puerto rico wherever it may occur but what that then let me move on because i noted that puerto rico is somewhat different being a civil law jurisdiction and that's reflected most conspicuously in there charging documents in federal practice were used to multiple counts or multiple charges and contained in a single charging instrument in puerto rico it's somewhat different each try harder each alleged violation get own charging document and its own case number and that's what's reflected when you look at excerpts of record seventy two which is the the translation of the sentence from the one nine hundred eighty six bank robbery conviction four sixty one six fifty five the reason this gets broken down that way and you'll see that if you turn also to the excerpt of record eighty two where there is a nother charge related to the same event in a separate charging document and that one if you read the dock is closely pertains to i believe a watch that was taken as opposed to money from the bank but that it gets parsed out in this way by time it gets to trial or sentence it all gets put back on the same track it all gets bundled together and you see that here where the sentences get bundled together now the important part of that sort of record seventy two that i'd like to emphasize is that when the judge imposed that twelve year as parole is being revoked and it's proles being granted whether in whole or in part for that robbery conviction if you serve any of it earlier it goes into the past the one nine hundred eighty eight window if you don't serve any of it and was paroled he was back in which i quoted at length in my response was very articulate and thoughtful and the recent unsing not only did he say i would impose the same sentence again he went on articulated a litany of reasons as to why and i believe that this is the epitome of in response to judge lectures question yes we would very much like to have the opportunity to further pursue exactly what intimidation means in puerto rico if we have the opportunity of a remained and along those lines i think that's fair because the district court really didn't have an opportunity to meaningfully consider this issue in light of the late production of the documents at the hearing which we've objected to and are not actually a part of the record and to that the issue was never really argued by the government at the that search and to be honest your honor that would require i don't speak spanish we would have to do mr valencia does speak spanish that's might be something that he would be able to do we certainly could find somebody to translate the necessary documents for us if we were given the opportunity to do that speculative i don't know what what argument about the number on the hearing document that's a new argument i'm not sure what he's referring to but none of the parole documents have the conviction numbers so it's impossible to trace what exactly he was so you know i don't know how things work in puerto rico i don't think anybody can tell from this record he has years and years and years of convictions and then he's out in in a matter of a couple of years and we just don't know what happened maybe he was never served any time on that the robbery certainly they wouldn't have completely discharged that repartee since he must have been paroled for that is part of what he was parole for well as reasonable people we would we would like to assume that but but frankly your honor we just don't know we just don't know from the  record we can only speculate and i think that's the government's job and burden to clearly show exactly what he was in for at what time and what he was paroled on in order to get the enhancement much as we'd like to speculate as reasonable people  off the argument made by all counsel of the cases are submitted