definitely test that's one of our main points and in fact the regional police here is not on the record so we don't know exactly what it said and later the revised plea is not a conviction either and they revised the it was not a guilty plea indeed if  dickerson for example in the supreme court made clear that in no contest plea could be the equivalent of one with this case if the person applies in federal law does control to assert that virginia law controls but even under federal law i would not be the equivalent because it's which are all in dickerson a footnote seven the court distinguish which are all pleas and cited to law and under law supreme court explain that a plea that is withdrawal even a guilty assume let's assume the federal law applies for the mom ok i know you you argue that doesn't it but in terms of the november plea why isn't that sufficient to federal law applies even the federal law the inventor flee the revised plea is not a conviction because number one it's still withdraw and under lot that's the if its withdrawal is not final until there's a judgment conviction and number two the november flee and according to the government indicates that the brands we county sheriff's office executed a search warrant on his property discovered a plot of marijuana directly behind the garage in the yard and another part of marijuana behind  chicken coop and all thirty six marijuana plants were seized along with firearms which are relevant and might not be otherwise but are relevant when you're sitting krug and then it says the plea agreement also a plastic bag with a half ounce of marijuana in it they found while searching the house like i could see church understand that but thirty six plants growing in his yard again there are there is a miss ability of that evidence against  agreed not to challenge it and we do believe that there would have been actually a case to challenge him as ability the evidence against him personally but that has been a very didn't happen it did not because of the agreement itself and he specifically greed not  says those things i read cluster in the garage a shoe box full of buds some marijuana buds along with a gallon sip walk bag ful seized the defended admitted to sharing some of the marijuana with a friend and that is the legality of the search would have been an issue if the matter gone to trial and then so your position is that because you have the legalities the search would have been an issue that you're not admitting the facts here well that's stand but you say it doesn't constitute a conviction because the fleet was withdrawn and what i'm trying to find out is is there any other reason in your view if federal law applies why this isn't a conviction water jefferson is not just that it was a draw but th going to ask you about and i'm interested in it i mean this is this is not a criminal off that it this isn't dealing with criminal consequences this is a federal employee that statute or congress decided that leo officers should be removed from their employment statute in the purpose of it which was if somebody did acts that constitute a felony and agrees that they did that that's sufficient under this personnel statute for removal with the personal set yourself seventy three seventy one especially references state law and says that the conviction has to be entered so we do believe that congress understood that the entry of conviction had to be pursuant to state law and therefore the conviction had to exist under state law and here mr clinton is not read it it just has to be it can be a felony under either state law or federal law i mean they didn't want to limit this to people charge of federal courts they also want because most criminal proceedings are state court but it doesn't mean that it had to be final for purposes of state law for this statute to apply they just wanted to sweep in all state and federal dollars well i agree that it could be applied to either sta of place the you look to state law or federal law to see whether it's a felony but i'm not sure that i understand why you would look to state law to figure out whether it's a conviction where are you have dickerson and other cases that say the have a system in place in one state where the only way you can get probation is to plead guilty and then you serve your probation and then the conviction gets expunged that the statue would apply but if you have another state where you complete no contest go through probation and then get the arrest and everything a race it would even though you committed the same said of x you agreed that you did the same set of x and it's only the differences in the way the states have set up their sentencing and probation schemes that made a difference why would congress ever want somebody fired in one state and not in any other state just based upon state criminal law and sentencing  paragraph before that the court scribed it as the plead no contest even if you're talking about a binary world where it was a guilty plea and that you just you either have a plea of innocent or plead no contest and guilty it still does not admit the underlying purpose of the statute to keep prison guards to sell drugs or use drugs from operating in the federal prison system not the case as it there will be for expungement there is literally a court having heard the evidence this is from may the first one accepted defendant's plea of guilty in found him guilty of possess marijuana with intent the intent being to distribute yes it and if you don't agree that that would drop and therefore not a conviction i believe the virginia law makes it very clear that the government did not contest this point that the court will be without power working i believe there's other remedial actions that the court that the agency could take in order to ensure if they did have a true concern about a lot of the sure the efficient operation of the government but in that revised police he does not but this is the problem i have is that that's the system they have in arizona for deferring prosecution and allowing somebody to complete probation and that having a sentence and conviction of a felony no longer on their records they don't have a system like virginia and so why should the employee be treated more harshly under this federal personnel statute the place nationwide and an employee virginia which may have a different and more lenient sentencing regime we're out of it the obvious answer is that it's because they committed a crime in arizona but this one is or the say it's the let's just take that the crimes are exactly the same as let's assume it's the sentencing regimes that are different and in order to get the probation instead of going to trial and in arizona you have to plead guilty but that that later on that can be changed to a misdemeanor conviction or maybe even expunged altogether whereas in virginia you don't have to make that same kind of plea and ultimately you will get the same result that you no longer have a felony conviction on your record i believe that it's i the offense is a misdemeanor or felony which it appears is though state law to apply and i'm not sure the government is contending otherwise but the question is what's a conviction under  other cases is a matter of federal so used to federal law applies you have to explain why this wasn't a conviction and you know i'm not sure but the fact that it was no contest the logic of the holds because otherwise you do produce observers else you have an individual here who could withdraw the plea go to trial and be acquitted and under the current interpretation of the statute he would not get a job that even though he's been declared overturned on appeal if that necessarily includes not just a direct appeal but some other kind of instance where they've been declared and they said because it's been overturned either through a trial or  know requests to the district court of the like i get that but but that's you know that's not rendering the conviction not quite on now it's waiting to see if other events transpire in that case that makes it not final so it could be on appeal perhaps i suspect the government doesn't like the side of argument but i think it's a question we have to face it could be that the district court may look at that you might get some kind of a motion to say oh this was based on incorrect facts we're it we'll have to determine then what it constitutes to be overturned on appeal but the fact that it may be overturned on appeal doesn't make it not final for purposes of conviction well under virginia law that the way that it would be overturned would be a dismiss which says you shall be placed on supervised probation why is it that under virginia law the plea could be withdrawn it's under section one thousand to this tonight secure that it is literally withdrawal until there probation deferred disposition and on probation is neither convicted nor acquitted what if they violate the terms of his probation to see them go back and have a new trial under the terms of this agreement he would be sentenced under the general court and then he would be found but he's not guilty well there i believe that there will be two different project won't be the violation of probation and the agreement itself the other would be the underlying act and i believe that they would be cumulative but here it's not a conviction because there was no  characterize it as a conviction but your or ewing that the mere fact that under virginia law you say he could withdraw the plea means that under federal law it's not a conviction my understanding that correct i believe that's one of the foundations of the statute there's no indication of a draw and there was an adjudication of guilt even though there was a deferred aspect of that judgment and different there was a finding of guilt that was final for the case  it please the court so why is it that the government doesn't argue that the november order qualifies as a conviction under the statute the reason your are is that this is a two step statute  on november conviction that was a conviction is irrelevant to the question of whether the agency made the right decision that it was required to make by this law by the end of the pay period following judge how does understand i don't understand that answer why are you not doesn't qualify as a conviction why don't you argue that the november does well i do argue here i mean i mean i think here that it does qualify because probation is a sentence and you don't get probation the supreme court moment that he wasn't convicted of a sex i mean if you what difference it makes are you saying that he would be entitled to back pay that the removal be effective on a different date if we relied on the november or would be entitled to some back pay the statute only allows back pay if your conviction is overturned on appeal not enough no not not right but you're not going with my hypothetical i'm saying the may order is not a conviction november order could be entitled to back pay and now i'm not arguing with what the court said and i mean you were it a situation of a where you got notice that there was a guilty plea to a crime so you had to follow the statute and the fact that at some point that guilty plea was replaced with another job never in your view did it change the fact that you had to do it it didn't wipe it out that i mean if in november his conviction had been overturned on after i was a finding of guilt in the cases that they rely on under virginia law are very different in those cases the judge withholds a finding of guilt and here you have a finding of guilt and their decision was never notified their decision there's nothing in the record that it doesn't sentance right and if you read dickerson is saying that there is no conviction until there's a sentence then there was no conviction  virginia law could have withdrawn his police before until he was sentenced i'm not convinced your honor that no no no it's answer the question i think the answer is no your honor that he was not he could not that there's no conviction under federal law until you're arrive at a situation where the plea could not be withdrawn and they're saying that until the sentences imposed under virginia law withdraw the ple that seems to be a bit of a problem with the may order granted that's not in a correct understanding of federal law even i mean you have all of these cases that we cited woods us to be true as well this is a united states federal law you have to have a situation in which the plea can't be withdrawn in order for there to be a conviction and that under virginia law the cleat can be withdrawn long until sent your honor that act that still doesn't change the outcome of this case because the federal definition of conviction should control and the whole point of this statute is to avoid that specific problem that you're raising that maybe an error in a particular state or finding of guilt could be overturned by something the calorie down the road and the whole point is to immediately remove somebody upon that finding of guilt and there's only one they says to reinstate somebody and that's if a finding of guilt is overturned on appeal does it make any difference to your argument that in the main hearing mr clinton provided no response at all you know you are because of the significant triggering event is the judge's findings and so we don't know exactly what the content of his plea was what we know what the judge did with it the judge said there was sufficient evidence for a finding  felony and he found guilty so it's the judge's determination what i'm saying is mr clinton didn't raise to the deciding official that he might be trying to change anything he did not respond enforcement officer or that he didn't commit a felony and he didn't say grace in any of those arguments and sort of the agency was absolutely correct and it would have violated the law off if they had removed him they don't forward to what he argued at the administrative hearing judge at the m he argued that he and convicted and he presented one document and that document said that he was scheduled for a sentencing hearing on another charge completely unrelated so at that point the m s p the has no basis to believe that he wasn't convicted in the same very clear that these events do not qualify he was not his conviction was not overturned on appeal and how do you read footnotes seven differ so as to his to whether the ability to withdraw the already been sentenced to probation he can withdraw a plea after he enters it but once the judge finds guilt in fact the stars case that they say supreme court of jena case says it would be a violation of separation of powers for a judge and the sprint court has been very clear that again that a probation and the court does not give probation unless you're guilty of a crime and it all that is beside the point because absolutely the federal law should control here because of the as you pointed out the purpose of this statute the real purpose is to eliminate people who are untrustworthy from positions of law enforcement authority it's an employment statute it's not a criminal statute and specifically could not carry a weapon i don't want to terminals when i saw it in that and this decision by the warden but what i'm asking is as a probationer under virginia law could he carry a firearm and you don't know the answer  reason i'm asking that question is the same thing i rest asked out of the government that is in race anything according to your read brief he didn't provide an oral or written response to his proposed  removal he did not and that's one of the standing i don't know if it's hundred percent accurate but it's my understanding that he was operating under the bicycles ok so they have they have a notice saying he's been found guilty and letters from from the agency itself but i do want to make one thing crystal clear is that the probation that mr clean is on is not a sentence he doesn't have to raise it with the deciding official the probation he your client doesn't have to raise it with the deciding official at the first level in order to appeal that the legal argument that doesn't constitute a conviction i don't believe that he would have to raise it so what was the agency's supposed to do it made it though they get this notice of the guilty plea and which makes them i mean that statute is not discretionary it's mandatory so they have to remove them they do but that does not create the legal order that doesn't affect the legal argument and the legality of it itself and the burden of proof on the agency to prove their is convicted under the statute but that's you know that challenge i take it then the proprietary of the and the correctness of the may act and you're saying that the november action altered the character of that man action well believe that the main action also is not a conviction the guilty plea is not a conviction there but you go back to the point that was discussed with photographic sentencing here has not occurred probation that's being opposed is the equivalent of being out on  described in major the supreme court of virginia that he's out of the first disposition he remains indicted even if he's on probation the individual major was on probation supervised release that he's only indicted he's not convicted he's not acquitted