good morning miles polk for mr valencia mendoza and i'd like to reserve two minutes for rebuttal when it enhanced mr violence human does his base offense level the district court erred in using the statutory maximum for possession of cocaine instead of the maximum in that case recidivist finding can set the maximum term of imprisonment only when the finding is part of the record of conviction but where is here mr valencia mendoza's record of conviction only authorized a sentence of six months that six month maximum sets the maximum term of imprisonment for purposes of assessing whether he had been convicted of a crime punishable in excess of one year all of the circuits to have considered this issue in the wake of carrot considered analogous arguments to mr holland's human dozers and have embraced them and i think the brooks from the tenth circuit is particularly instructive books considered a statutory scheme that in all material respects is identical to washington's kansas if it does not do that then the kansas courts are by legislative decree just like in washington bound to impose the presumptive term in brook's the defendant had been facing in kansas a presumptive range of seven months that meant that his statutory maximum that he could have received was fourteen months the prosecutor chose not to notice aggravators and so the court was not able to impose that there was no recidivist finding in the record and the brooks court concluded as a consequence that the defendant in that case in the kansas conviction context could not have received more than seven months and accordingly concluded that the career offender guideline which uses operative leave the exact same language as the language again in the different context but in the rockeymoore case the sixth circuit to have all embrace to the same exact analysis and mr vallance human does his argument makes sense it respects the guidelines purpose of tailoring sentences to specific offenders and it also respects the text of the guidelines which did not key to state classifications but instead specifically said that a particular state offense qualifies as a quote felony only if it is punishable by a term an excess of one year and the supreme court has rejected the notion that state's labeling of an offense is a misdemeanor or felony controls and in various different contexts including in taylor and in shepard  that case a single tablet of unprescribed then x could qualify as an aggravated felony but if the court rejects mr lindsey and does his argument here then this same consequence could follow in washington a person could possess a single unprescribed tablet only be susceptible to six months and present and yet receive a bum for having committed a crime punishable by more than one year in prison so even that analysis in that particular context would be would be realized if if the court chose to reject mr collins human doses argument and the last i would is that part of this argument is that crawford have been effectively there irreconcilable with the supreme court's intervening case law and i think that  clear from the case law and from the subsequent circuit law as well but i would also just note that crawford did not ever consider mr valencia in those as precise argument the focus of crawford oh is that is was essentially whether a pretty or blakeley required as a constitutional matter the courts look to the offender based actual statutory maximum as opposed to the theoretical maximum and this court held that no as a constitutional matter that was not required but mr violence human dozes argument is is different here mr valencia mendoza's argument is that as a textual matter now the supreme court has weighed in and said no as a matter of the statutory text one needs to look to the old finger based actual maximum as opposed to a the main point i wanted to make at this argument is that when we look at this issue the issue is really whether the crime itself is punishable by more than one year not whether a particular defendant may have been eligible for a penalty that exceeds one year just so i have a question wholly apart from a direct one about the meaning of the guideline in the fifth circuit  government in a series of cases in twenty fourteen and twenty fifteen took the same position as the defense does here that is conceded this issue  sentences in each of the cases being below a year basically exactly what the defense is arguing here what do we make of that or are you bound by the government's concession and stipulations in those cases or not and if not why not you're right i don't i don't think we are bound by those concessions and i'll say that the position that i'm taking today is different than that position yes i know that that's why i'm asking you the question and i don't i'm not sure that that is the right decision that this circuit should take and i understand we're talking about a different i'm not asking about what your you substantive view is i'm asking about what effect if any we give to the fact that the government is taking an inconsistent position with respect to a position that took in several  cases i understand it's in another circuit but it's still the united states so what do we do about that don't i i don't think that them conceding that issue requires this court or us to take the same approach i've won and i'm an interested about this court i'm interested in your business and certainly for my part one i honestly don't think that is the right position to take and i understand the united states has taken that position at a different circuit but i think when we look at this case and when we're looking at this washington conviction we are in a different position in this circuit than those courts were with their crimes in those states for those crimes so what we have in washington is a clearly defined maximum penalty of five years for this and i clearly statutorily required grid for sentencing and the judgment of conviction shows that six months is the maximum that this person can be sentenced to why isn't that different than the old you know discretionary guidelines yes you are and i  k a comparison of two defendants who are charged with the same crime well illustrate my point for that if you have a person a who has been convicted of possession of cocaine and they receive a six month s and then you have another person who's committed the same offense but their sentence is twenty four months we're looking at the same act or the same conduct of each of these defendant not looking at the same statutory requirement for what that person can be sentenced to there are a series of findings that are required by law before the sentence can be greater than six months and it's clear from the judgment of conviction that none of those findings has been made so they're not similarly situated in your example because to follow the law in that other situation there would have had to be additional factual findings made that would presumably also be reflected in that tishman the conviction that's correct your honor and my point is that those other factors well they may not be present in that statutory scheme those factors would be present to the sentencing judge in washington so even though those are on the record the judge would know about those and those factors will be taken into account at sentencing well what apart from the inconsistent positions the government has taken if you look at the tenth circuit case for example the court said the maximum amount of prison time a particular defendant could have received controls rather than the time of the war so receipt of this so leaving the government's inconsistent positions aside wouldn't you also have us create a circuit split if we were to adopt your position here i don't think so your honor and the reason i don't think so is because the moncrief case and they care a cherry case are both distinguishable and the in circuit law of the ninth circuit supports the united states position in this case well i don't think if you look at the brooks case out of the tenth circuit and i know that you probably will try to parse the hands a statute a little differently but it isn't the ultimate holding there about whether you're looking at the worst possible recidivist versus that actually isn't that the same principle you want to hold the opposite  well it's not a matter of whether each defendant who has a different criminal history will naturally receive a different sentence so we're not looking at the worst offender what we're trying to look at is the crime in this case and what the conduct and look at that brooks case dealt with this kansas statutes they did not have like washington has explicit maximum penalties so that's the difference that we have here we have statutorily mandated a maximum penalty in this case which is five years you're out of the last thing i want to mention is that i believe this is harmless error because the defendant in this case also had other convictions which would have given him the four level increase and those are a two thousand and ten malicious mischief conviction and a two thousand and fourteen assault with a deadly weapon possession of stolen firearm conviction in which he was sentenced to thirty three months in the courtroom i am either of those i'm sorry did the court rely on either of those conviction the court did not rely on either of those convictions but my point is that because of those convictions and their existence he would have received a four level increase and could have received a four level increase for those convictions and therefore is harmless  the exact same problem as far as we can tell as far as the record suggests as the possession of cocaine conviction and with respect the twenty fourteen convictions that mr duggan referenced those all postdated mr valencia mendoza's last removal and  twenty fifteen guidelines postdated convictions do not qualify for the bumps l if the court were inclined to examine alternative bases for affirming here i don't think those bases exist with respect to the circuit split issue brooks is indistinguishable the other circuits cases are indistinguishable not only in their reasoning but also in for example brooks's case and frankly in the north carolina statutes case in how functionally these statutes work you have a presumptive range in kansas and the presumptive range for any given offense in the kansas grid will set a statutory because it is provided by the kansas legislature a statutory maximum that statutory maximum will be double whatever  range is in brooks therefore the statutory maximum was fourteen months the prosecutor could have obtained a fourteen month sentence in theory had the prosecutor noticed aggravators just like in washington a prosecutor could in theory obtain a maximum sentence by noticing aggravators but brooks court concluded that because the prosecutor had not done that and because the grid required no more than seven months that was the operative maximum and the same exact analysis applies in  washington and so i simply don't think that those statutes can functionally be distinguished in any way from the washington context and then with respect to whether there's to the inconsistent positions that that i noted in my briefing that the government has taken i would just note there has been no change in the law that would justify a distinction you know a different position now the law is is exactly as it was is there any limiting principle opposing counsel said well those are other circuits that show circuit the sixth circuit and so on does that matter in terms of the position of the united states does it matter that those concessions occurred  no i don't believe so especially not in this context where the concessions were based specifically on the same exact theory that i'm articulating perhaps it would be one thing if different control if the circuits were split and there was different controlling law in different circuits where there was a different theory that was operative in the supreme court had not weighed in but in this particular context the concessions were rooted in moncrief and character a which are supreme court cases and i think that the government which is a unified body is bound by those concessions and then i would just say that the government's example of two defendants who you know could potentially receive different maximum terms of imprisonment and they committed the same  offense that is that is well and good that that could happen but again i think that is just to underscore the point of character a which is that it isn't a matter is now an amalgam the supreme court has told us of both factors sentencing factors