the court things larry spong representing the government in this case i'd like to remember i reserve ten minutes and rebuttal and to respond to any arguments brought by the apple even his profit feel in this case the district convicted of a crime of violence and defining a crime of violence as including burglary of a dwelling that person should be given a sixteen level enhance in this case the utley was convicted of first degree burglary under california penal code section four sixty which defines first degree burglary as burglary of an inhabitant of therefore the sixteen level handsome it should have been applied like the district court do something else your honor district court i believe  was persuaded by the defendant's argument that the defendant was only a quote lookout that's he was aiding and abetting the first degree burglary and therefore should only have an that the government didn't do anything before the district court judge callahan's a series of questions in the rebuttal argument the last case and what do we do when we're faced with you know just a court judge who's never offered any of the arguments that you want to lie on appeal now how do we find that our first brief on cross appeal we argued that in fact that this course of the playa planar analysis if it finds that the issue isn't waived entirely by the government and the government had no response to our playing their argument so i think they waive their right at this point to eleven and what that case says is that when the government makes a pro forma objection and i'll quote now a perfunctory objection that raise none of the arguments now advanced on appeal that that's not good enough for plain error review under the circumstance well let's see whether you're correct that your characterization of this is a perfunctory objection or statement of what or who is mr alexander mr alexander was the prosecutor right and he says your honor i think probation would be in a better position to address this after the argument two l one two there's a reference in which one talking about a quote crime of violence under definition b to two there's a reference to burglary of a dwelling as being included and in this case there is a reference to the california statute being overbroad concerning burglary so it says this is a ha this been a burglary of a garage or something else that he wouldn't qualify but this was a burglary over the welling so what's i don't understand what's so perfunctory about that when the prosecutor says burglary of a dwelling it's right there at sixteen points if the defense argument had been that there's no proof that this was a dwelling type  offense that it wasn't there was no proof it was a first degree offense then i would agree with your honor but the defense arguments that were laid out in the papers and laid out in oral argument before the district court were number one that the aiding and abetting elements under california law for burglary are different than categorical approach burglary under taylor that was argument number one i got number two was the caliph this california burglary did not have an unlawful entry requirement which is also required under taylor this these are games did not respond craigslist without consent without license and that's what taylor with the intent to commit a crime or for theft inside right that's what it requires that that's not what taylor requires taylor requires not only that you have the intensity of the theft inside but past this so what test is is that this is not a burglary because burglary is defined in taylor and this definition of burglary that's employed in california does not comply with taylor so your argument is that no california burglary no and i'm not saying that it's in there you know there could be situations where on a second stage taylor announces you might be able to meet the test by demonstrating that you know the defendant admitted specifically that i answered without consent answered without privilege and i'm not making this this stuff up about  that he had to commit a crime or thought well he actually didn't it that he answered but the bottom line is that the the the charging document in this case has the same language as the california supreme held that taylor requires that the entry be on privileged or without consent california doesn't require that the charging document in this case didn't require that the based upon the people versus berg's case and mr rodriguez rodriguez didn't rea under aiding and abetting that's why this is a perfunctory pro forma analysis and the district court refuted lee pointed that out to the government but this report said that at page eighty six of the expert of record and page one fifty seven of the hearing but the argument that was raised on his behalf in the in the proceedings below before the district court was the legal argument that i'm talking about today both of them and in one of the excerpts of record the the entire defendant sentencing memorandum is put in there so it's clear that very legal issues that i'm talking about today were not argue below one of the probation reports or the previous the court just simply said this is a burglar who is well he didn't address the legal issues that we've raised today and the district court in the world thirty five motion that the government filed made a specific finding that the probation officer's report did not address the defendant's argument and that's that defense expert of record page one seventy three where this repor quote the probation report did not address the defense argument in this case so the argument that the government was making today were never made in a district court that's why this course should be reviewing for quain error and again i go back to the the veeck case i started which says that when there's a pro forma perfunctory objection and that's what it is here in this case because they didn't address the legal issues that were explicitly raised below by the defense and that the district court will out upon than this court should review for plain error there's  no showing the governor has even argued in any of their their pleadings in their briefs that there's a substantial right of the government issue in this case and ultimately it's a discretionary call on the part of this court as to whether or not you should notice the start of this issue at all and i would strongly urge that you not do it because the government itself has already conceded that the sense in this case was not so bad if you look at the exit of records this is the government's expert of record f h ninety two government counsel when the district court judge d describes this is an extraordinary move on the part of a court to grant the government relief in these circumstances and you shouldn't do it in a case where the government has already told this record that the sentence was ok now i don't know if would submit so i don't so basically you have a situation where the government is asking this court to do something that viki described as extraordinary based upon a sense that it's all the district court was ok based upon legal argument that it never revealed to the district court even though the district court continued the sentencing hearing so the government could make its arguments so basically this is not the case with this court exercise its discretion on planar review i also don't think assuming that there is any error in this case that the error is playing for two reasons number one the argument that aiding and abetting under california is not sufficient is an argument that this court has addressed in this context this cour to whether there was a pro forma objection or not your honor the government was in agreement with the pre sentence report there was no objection to be made the government was in agreement the pre sentence report has made it clear that the defendant was objection to make how do you respond to the argument that it's some level the government ought to be a stop to a communal just because you acquiesced in the sentence by saying and at some level that probably would be appropriate in this case i think your honor first of all that is looking at the fact after the court has already indicated that it's going to apply an eight level not a sixteen level enhanced and i think all the prosecutor's doing there is looking out and saying ok this person served thirty months i guess that would be ok in this case i don't think that's what that a stock loss from saying no that's not the appropriate sentence under the law why not i mean if you tell the judge it's appropriate this is what he served before it's appropriate well first of all he said probably it would be appropriate as saying thank you very much or on some sense yes i would think so but in any advance even even if there's no of assuming that the government had some bird making objection this court has always found that a district court in any event i think it's clear here that this is a burglary of a dwelling that's what the defendant pled guilty to i think all this talk about aiding and abetting in the intent to come in after is just sort of leads us down a path that we need not go and and basically what we have is there's two agents involved here there's agent overton who says i read the guy his rights then there's agent garcia who testifies both at the emotion hearing and at the trial agent garcia testimony at the motion hearing is i didn't read the guy his rights he doesn't ever testify that there's a waiver he doesn't ever say that that the guy who talked to me that he gave up his rights and so on and so forth what they rely upon i government relies upon this document to demonstrate the waiver and there is a point in the docking where he says i'm willing to make a statement without anyone else being present i swear that i will tell the truth the whole truth and nothing but the truth so if you rely on this you would find a way over and the reason that you shouldn't rely on this is that garcia is the defiant here this document for ports to say that our c e o read mr rodriguez rodriguez his rights so the document itself is internally inconsistent he says on the one hand i waive my rights but it also says that agent darcy is the one who read them to me the so agent garcia's motion hearing testimony and i have not this trial testimony but his motion hearing testimony which does thompson who's the judge who ruled on the that he heard directly contradicted the affidavit so i think under those circumstances when you go back to miranda and the government's significant burden to actually prove a waiver when you have a document that is internally inconsistent that there's really no think that the that the discrepancy here was pointed out and i think if you find that i've waive that in the find the government way if there's a point then it's it's a question and i'll just have it when i was going ok that's all i have to say on that issue your honor the question here is waiver and the defendant was asked are you willing to answer my questions at this time without a lawyer present the answer was yes that is an waived his right there provided with this affidavit and he answered questions are you under the influence of mind altering substances well are you willing to answer my questions yes and then he went on do you swear that all the statements you make will be true yes what  you mean jose rodriguez and he went on and answered all the questions on the totality of the circumstances it shows he was aware he was funded appropriately to all the questions he knew what was going on even read this right he was asked specifically are you willing to waive them he did sell under under that not only is there a specific labor but even under block under the imply waiver looking at the core value of the circumstances here it was also a labor is just nothing to suggest that t and we will do the next case on the calendar which is united states versus roberto martnez martin