the knowing and voluntary waiver of the claim and it's linked to miss kaufman's claims of ineffective assistance of counsel quite briefly the argument is that miss kaufman creates a clear record not that she didn't fight the had good knowledge that on a regular basis the just turns office in nevada we can see that statute is being overbroad for a limited purposes and it's clearly prejudicial to the client because of the amount of time that that will timidly ends up adding to his sentence this is a substantial sentence and if you simply look at his criminal history score and offense conduct without the career of fender it's a reasonable range of a four hundred five months so the issue isn't that he didn't know that or she didn't fight it but that she allowed him to argument than being advised that you may have some factual issue to fight out with the court you're giving that up she may have said look you have a factual issue to resolve with the court the court to decide what to do under the career offender statute we're going to make arguments the government's going to make theirs and whatever happens happens now now that decision on the factual issue is subject to a different standard than what happens if you will have a good argument where you allege you have a good argument over the overgrowth counsel  i think the harm is that the i guess i'm not conceding that it would have salut leave qualify think there's some discussion about the prior convictions but i guess the harm definition of the ineffective and i know that i don't mean to muddle these two points up but i think it's important to understand the fundamental premise of signing a plea agreement is that you understand what you're giving up and you know the courts are very careful to say well you've had a chance to read this and you understand this and i think it's clear that he understood he had a chance to make a factual argument on this issue i don't think it's clear he had any ability or was ever informed that he may have an appeal over the over  give one right you give them all their different rights there's a there's a right to argue this is the district court which is a district court proceeding under one standard of review is a whole different right then an appellate court review it a different standard and identify as many of these issues as possible and explain them to them now when you say well something anything can happen appeal i agree with you but if a lawyer should see something they could be an issue an appeal or issue at sentencing that may have  involved with it and doesn't and doesn't inform his client or her client of what the ramifications are other that the question isn't what happens at appeal and who knows what could happen in appeal the question is and the whole point of the sentencing guideline application is is this conduct that qualifies within the federal system that wouldn't possibilities there i suggest that takes us to modify categor approaches and one last point well i you do concede that the statute is not over broad he falls within that you can see that i think i have to i think the last unfortunately the as determined by the court and in this case the court determined that the applicable sentencing guideline range was that the defendant was in fact a career offender and that would place him at a base level of thirty four minus three for acceptance of responsibility which place in level thirty one furthermore it is clear that all of the parties in this case were aware of this career of standard provision and that issue i will point out to the court that this case came before this court and was reversed in a previous proceeding because the district court of belief failed to properly follow the rule eleven plea colloquy p s r was prepared back then i believe would have been in two thousand and in  what defense counsel did in this case is she left open the possibility to argue to the district court that he was not a career founder and she did fully litigate that issue and it was not until after the district court ruled against her and found defendant to be a career founder did she stayed on the record your honor i was ineffective and out to the court there was a question by one of your honors with regard to i think i should bring this to the court's attention and i guess about three weeks the case in in this particular case it is a great book or case the district court did believe that guidelines for mandatory at the time that he did since the defendant so that's a separate issue first the government's position is that they did  right to appeal this issue and with regard to whether or not the the predicate offense state offense that would be eleven three fifty one point five of the california health and safety code and we look at the categor approach in this case it is clear that all of the elements in that offense particularly as interpreted by the california supreme court do fall within the career fandor statute the california supreme  you courts have always will interpret this statute have required that the defendants have knowledge dominion and control of the controlled substance before they can be convicted of this offense so using the categorical approach honor this offense does fall within the controlled substances definition as outlined in the career thunder statute i think we have a recent case in the on the book