had left he still had a relationship with this woman he was coming and going from time to time i think the facts would indicate that there is nothing to indicate and in fact the testimony of misty brows all would clearly indicate that  she wasn't she had a small child she wasn't aware of any weapons in the premises i think this was probably some kind of a crash that area was being used for that at the time that this warrant was executed did she testify at the trial yes she defendant did not testified that testified he also testified that he was not aware of any weapons never possessed any weapons in the case back factually it's interesting that when i cross examined the officer who executed the warrant he indicated that i asking specific questions was or toys for small children was there any women's hair care or sorts of things in the bathroom air dryers called brushes he didn't know any was found there it was a different name on it but his photograph is that correct that is correct it wasn't not a current i think it was two or three years old and not a current it was not his current driver's license or his current there was there were some things of this name and there was there was documents which would amount to dominion and control type documents but they were invariably old documents years o third degree assault whether it should be counted as a crime of violence and this court has ruled on that issue on a number of occasions and we would suggest that in this case it certainly should not the judge and we cited in my m randum what the judge's oral statement was in that regard and it is not sufficient first of all you have in the extraction the judgment and sentence as well as his statement of plea this was clearly indicated that he talks of inadvertence i believe in his statement on plea of guilty he clearly indicates non intentional act that is in the heart of that portion of the offense which say that because it indicates that restitution will be a parable if there is any restitution it's nice you know as you know we can't we can't evaluate it on that basis and i have a categorical approach so you may want to save the remainder of your time for rebuttal because you're specifically to the one to one of the through several firearms that were found i mean if if all the evidence shows young and his girlfriend mr bacile are living in that apartment and me and i don't know if the government is brief this was it wasn't really argue that i don't think by by mr young but how do we deal with those pieces that joint occupancy does not permit is when you have two people in a residence that have joint control over it and have joint actions to each and every station or place within a residence is to say and specially with like in this case where you have both of them bacile the girlfriend says i am unaware of any firearms in the house i would not have any firearms because i have a small child in my house so i know nothing about the firearms that were hit and then you have mr young  who says well i know nothing about the firearms in my house but you have the firearms you have firearms that are tucked under a mattress so obviously indicative of someone who is attempting to conceal those fire the other one is that their was of rifle that was found in the corner under a blanket in plain view the so the question becomes just how does one who lives of that residence not see gun under a pillow and a husband and wife lived in the residence and the ninth circuit said well you know there's not sufficient evidence to link the cases where we found a link as we find a fingerprint and or some testimony or something so reasons where they find his judgment human said a firearm under a pillow and another one that he had a painting in the house again that the defendant shares with his wife and the court ends up and she wasn't residing there ok and then the defendant claims he wasn't residing there either but then on the fifteenth the day before the search warrant both of them are at the residence the defendant is laying on the bed sleeping when the probation officer and run from the scene and handcuffed and that's why they're looking for him it'll you're you know the evidence lends itself to believe that the person who's in control of those firearms would be the the the main likely candidate would be mr young in that woman who just you know makes an exception to or normal goodness and because she wants to live with to help this person and now they find a firearm in the in a two thousand and four united states versus signs of all that thirty three assaults and walking to this is not a categorically a crime of violence and that is my case and so i'm very familiar with the facts of that case  and yet i think that there's not really a good way for me to try to argue around that decision but we have the modified categorical approach that the concern is that under that we if you can only be the statute of conviction then we've ignored reality because the judge the district court judge in this case saw the intentional act and have that and then the second point is there in supplementary that we stay judicially notable document from which you can predicate regardless of the fact is that there may have been a plea and as we know the state has them down for any number of reasons but the original conduct and to say you can't look at that because that's not what it led to but that was really what happened was that it is actually the district court to ignore reality and create some fiction that caldwell what he really did wasn't what it is but the judge doesn't have any of that information so i think  which was dismissed and saying well he was judge that's what really happened no that's not what he was charged with there was a there was a supplemental information or an amended information which charges assault three which includes non intentional conduct mr young so it's not an intentional conduct and in fact it is statement on plea of guilty he makes it clear and it's non lawyers words it's very clear that he says yeah i wasn't paying attention that it or something to that fact that it's not intentional so even under the non categorical approach he pled to a non intentional act and therefore it is preclude the deed of b l s i want to bring to the court's attention because where i practice at the trial level i think we're scratching our heads to some extent i think that not only after williams the hernandez or nando's case i think we all are scratching our heads a little bit because we're seemingly the court is saying that well if you have thirty days of sentence and twenty eight of it's suspended it doesn't count if the judge suspends all thirty days that does count and that runs right in the face of the guidelines provisions which clearly says that a sen suspended portion and in this case it was totally suspended and seems that the court has questioned its own williams decision viber landis fernandez and i think this is a wonderful opportunity for the court to clarify that so as folks who go through this exercise sometimes slightly byzantine determining these things can understand and unsuspended portion of