i forget i would like to reserve a couple of minutes for about all probably five minutes but i don't believe i'll be using my full fully a lot of time so i'll watch my time on that thank you there are two issues before they hand bank tanel or decision the second issue is whether the district court incorrectly calculated mr gonzales his criminal history score by adding one point for a prior misdemeanor conviction of third degree driving while license suspended when the entire sentence on that prior three in november of two thousand and six when the three judge panel and asked the parties to submit briefs on whether the issue should be reheard and the government submitted a brief acknowledging that williams was wrongly decided we moved at the district court to have mr gonzalez released pending appeal and the court granted that motion in december of two thousand and six use a gonzales was released he is now on supervision however saying based upon this court's decision i would note that under his original sentence he was scheduled to be released to a halfway house in december and then his projected release date from total confinement of the original sentence was may of two thousand and seven so he had almost served his entire original sentence but for seven months under the original sentence if this court overrules williams and sends this case believe it would and technically it's not moot because you know under booker the judge has a lot of discretion but even if the court sustains that objection as i mentioned in this case and  overrules williams if this case goes back he'll still get credit for time served and stands for vision so if the court would like me to address the firearms in hand and i'm prepared to do that but i understand that the court is probably much more the relevant portions of guidelines which is for a one point two it helps to go through the analysis when you have the guidelines in front of you these are as i mentioned before mr adams also guideline range was increased the and that term under the guidelines was recently and mended to provide that a sentence imposed means the same thing as a sentence of imprisonment and therefore a one point too so and  in the average hernandez case the court ultimately concluded that entirely suspended sentence does not count as a sentence of imprisonment therefore it doesn't count as a sentence imposed a phrase  claims would be counted instead the issue is whether a prior sentence also qualifies as a sentence of imprisonment for at least thirty days which we talked about a dozen hitchhiking it says by whatever hernandez went a little bit further and said well we're going to distinguish between a partially suspended sentence and it's only suspended sentence and that's under the two for a one point   court said the sentence imposed in hernandez the defendant received a ninety day sentence with eighty seven days suspended and the court said that the sentence imposed for his prior conviction for  and because it's not clear does it come within the rule of leniency where it should be construed in favor of a lighter sentence for the defendant so i think that honestly the guidelines seem to be pretty clear the only ambiguity tends to be whether the same and it appears from the context of the guideline that they do appear to be the same and in the rules when it is pretty much a fallback if we can't decide any other way then then tie goes to the defendant and in this instance that this is how we would suggest that that they be read any sentence under the guidelines constitutes a choir sentence and answer what for a one point two c pretty much any so if the sentence was partially suspended we only count the non suspended portion and if it was totally suspended it wasn't a sentence of imprisonment on so some everything counts as a prior sentence not otherwise excluded are to be counted so again everything constitutes a prior sentence the question is whether they're excluded or not counted going back to point one point one for a moment one of the things i excluded under for a one point two c one anyway it's still a count even though it's a totally suspended sentence what the guidelines have done here is they have said certain very serious  pointed at sentences that are suspended in capturing those criminal history i don't understand your question i'm sorry see he seems to be the catch all for anything that was and and i guess i'm sustain a sentence of thirty days or more or a term of probation of one year or more and then you have this low level class of misdemeanors like loitering and hitchhiking that the guidelines said we're never going to count so there's three levels unfortunately with hernandez hernandez and williams what we've got right now is an absurd result wardlaw points out we have sentences that are entirely suspended being counted but if you're fortunate enough to get one day in jail williams was a large decision and this portion of it was a very small portion kind of on the tail end of it and it's this small section that just needs to be overturned so that the purpose of the policy behind the guidelines is promoted through a construction mentioned it was it was a very large case there were numerous claims challenging both the conviction and several claims challenging the sentence that particular that particular conviction williams on this piece of it was a prior conviction for criminal mischief yes and the defendant was arguing that criminal mischief was similar to disorderly conduct so it fell within this trivial misdemeanor category and and since he got a suspended sentence it shouldn't have been counted and the government's argument on that a secondary argument we said even if it did count as one of these minor misdemeanors he got sixty days and it doesn't matter that that was suspended and quite simply i mean i'm here to i'm here to confess that we were wrong in that argument you know shepherd eyes or he cited hernandez decision and i wasn't able to find more recent cases sort of applying or you know ruling on that so i don't know that that's an issue so much in the eleventh  doing but we did send out out that guidance to all of the u s attorneys offices and the like the one thing i want to that i do want to clarify though because what we're talking about here is a completely suspended criminal history point because it doesn't fall within this class of sort of trivial misdemeanors and that's and that was the government's first argument in the williams case that criminal mischief is a more serious offense and as far as i know the ny circuit hasn't ruled on that case in the eleventh circuit case and hernandez there were two there were two prior convictions that were at issue and the first one where they went through and actually did the analysis it was that prior conviction for bank less seriousness demeanors they only count when and when in the particular facts of the defendant's conviction was serious enough that the district or the court that was sentencing them thought they needed to go to jail for thirty the sense you know the purpose seems to be that the more serious misdemeanor should count the less serious misdemeanor should and so and so it's just sort of backwards you know it's backwards that the defendant was prior conviction was sufficiently and i'm trying to think of what i terms of there is that every case where there's a term of probation that's not actually i mean i'm just not sure what yeah i actually found a couple of a couple of cases that the guidelines were ambiguous does the government agree that it's ambiguous actually i would say now and the reason i would say now in terms of the rule of law and i think this is my understanding of the rule of like at least with the more onerous construction that you're penalizing people who the trial court views to be less dangerous or less likely to repeat  was totally suspended i think you know the guideline is not a model of clarity and what it should say is you only count and i'm suspended you know when trying to determine what the sentence of imprisonment is you look at  or less than that what do you do with that well if say i mean that time served portion would be counted on this i mean so if they've already been in jail ambiguity but you know our position is that you know we can all look at it together as a group in the whole and look at the comments and and the application notes and the policy considerations and and the history of it and figure out  suspended comes up in this context an eleven months to the bottom end of the guideline range but it has also been known to disqualify somebody from safety valves which can be a much more severe sanctions so this is an important he's an important  issue judge might he mentioned i believe is there ever a time when he term of probation is different from the actual time served we actually have a case that we're dealing with a district court right now where the defendant received a one year term of probation but six months down the line he was violated on that given a ten day sentence so and then probation was ended so the question is when the sentence was imposed it was a one year term but after six months probation ended that will be an issue