sentence despite having zero criminal history points the district court imposed a mandatory minimum instead of significant guidelines range sentence that mr colorful would have been subject to one hundred fifty one to one hundred eighty eight months honors i'm going to spend my limited time here this morning addressing the main issue that we raised in our briefs and that is whether the mandatory minimum was properly applied here this is an issue that this court refused to know of and the district court imposed a mandatory minimum because it found that mr cofield had a prior conviction that has been for a felony drug offense that has become final under section eight forty one of chapter twenty one the u s code now what mr cofield had was a state felony drug charge that was handled through tennessee's judicial diversion program mr cofa pled guilty to the charge in order for the court to place him on version of the court did not  and no judgment of conviction mr coe full completed the diversion program of which point he did receive a certain as did he not sets of probation he did receive four years of probation yes your honor that was that was a  tennessee law it's not considered a sentence it's a probation and he finished the he finished the diversion program with no judgment of conviction in fact with no conviction because law governs whether it's considered to be a conviction for purposes of sentencing in the united courts federal law governs your honor but as argued today there is no prevailing law in the circuit that defines what a conviction is for this particular section of the statute for section eight forty one and that's where the analysis has to focus not on the general definition of conviction not on the definition of conviction from another statute but on a definition of conviction within the context of this particular statutory provision now i'd like to begin by  further making first of four points and that is that this issue remains open in the circuit that is what counts as a prior conviction or more specifically whether the diverted dismissed and explained how about the other circuits i don't believe all the circuits have ruled on this issue there are a number of cases that treat similar programs there are some factual variations terms of whether there's expungement whether there is a finding of guilt  what exactly what kind of procedures were followed in the program but to my knowledge the there is a line of cases in the eighth circuit which has been disagreed with by another one of other ones there are several other circuits that have that have found the other way so we would be creating a circuit split if we ruled your way your honor as i said there is there is at least one line of cases in the circuit that i know that has has held in that in first that the person who successfully completes the program does not have a conviction for any purpose tennessee case law has also specified that defendant who goes through the diversion program does not have a conviction successful completion of the program doesn't still does not have a conviction what does the definition of conviction have to have just one definition or kind of conviction mean different things in different contexts it can mean different things in different contexts your honor and that's precisely the that i would like to make here is that because conviction means different things in different statutory contexts there's no there's no another statutes definition another federal statutes definition of conviction cannot automatically be applied here we are in adopt your argument would wouldn't it be contrary to the the sentencing guidelines and how they treat statuses that have the diversionary programs and wouldn't we be somewhat inconsistent do say that expungement may be considered still in the alice of adequacy of the criminal history category but that's what i thought ok but so if we are really your way that would be inconsistent with t in in the context of adequacy of criminal history and that's that's what we're asking here essentially is for in the absence of a clear indication from congress that the mandatory minimum should apply here that instead  the senate should be within the district court's discretion within the guidelines range which is significant one hundred fifty one to one hundred eighty eight months roughly twelve and a half to roughly sixteen years what do we make of the tennessee versus kelly case which i'm sure you're familiar with that says under tennessee law criminal acts for which defender received the version can be considered a prior criminal behavior to elevate the defendant's remains i think the distinction there your honor is that refers to prior criminal behavior and not specifically to a conviction so that the scope is broader there there is in the statute it's clear that that the successful defendant successfully completes the difficulty arises here with applying the federal meaning of conviction to a state offense that is explicitly not a conviction under state law so the question then is whether the federal definition was meant to encompass state non convictions and that that isn't the case careful and why wouldn't we look at what the court said in miller to be some guide guidance to us here miller does provide guidance on the issue of finality your honor well but it also provides a little bit of guidance when it said it is longer recognized that alternative sentencing such as that utilized by georgia are similar to this in its first offender provision does not prevent the underlying offense from being treated as a prior conviction for purposes of federal sentencing statutes or the language is broader honored says does not does not prevent in federal sentencing statutes in fact the cases cited there i believe the first case that the miller court cites to is dickerson v new banner institute supreme court case from one thousand nine hundred four which considered a provision the federal gun laws not in the federal drug laws and which also in but miller was a drug case was yes but my point is simply that dickerson the case the main case to which the miller court is citing for that proposition is the case involves a different statute not a case that involves the drug statutes dickerson itself also says in the opinion that the meaning of footnote six at the meaning of convicted in conviction are not the same in every federal statute that they differ in different statutory contexts moreover the made clear in the first footnote of the opinion  that the issue before the court was not whether miller had a prior conviction for purposes of his record for purposes of sentencing enhancement but whether that conviction was final miller had conceded that he had a conviction in his brief statute and miller the miller court expressly said that finality was the issue before the court under section eight forty one not the prior conviction issue and when it engaged in the comparison of or sort of the analysis of the georgia diversion statute that's what that was its focus it was looking at whether or not the offense for which miller in that case had been diverted was a killable that in order to establish finality so that's why i looked at that statu now the statute the prior conviction language in the federal statute here in section eight forty one comes with no definition it's unclear what prior conviction means and there's no definition elsewhere in the statute since there's no definition in the statute we look to the ordinary meaning of the term conviction and as discussed briefly earlier that meaning is that word carries multiple meanings between the government's  cited a total of maybe four dictionary definitions of conviction and at least three of those define conviction as a judgment of conviction and two of them as a judgment of conviction or as something before judgment something like a verdict of guilty or finding of guilt so that the ordinary meaning analysis reveals that conviction has many different meanings and there's no there's no strong indication of one mean to be preferred over another in any given context now the the broader statutory context of the drug laws provides at least a little bit of guidance suggesting that congress did not mean for an offense that was processed through a diversion program and resulted in a non conviction should count as a conviction for purposes of sentencing enhancement now the provision then referring to here is a diversion program under eighteen us code section thirty six of seven which is not a political here to potential imprisonment and all sorts of criminal sanctions if there is not a conviction how could you be subject to these penalties i mean there almost has to be a conviction whether or not there's a document that says judgment of the action if it is treated appears like it's treated as a conviction and the only sense you could make for if there's a violation of the sentence of probation how could that have any effect unless there is an underlying conviction i mean if there's not a conviction there's no basis to to order jail time and everything else late as it and the judgment of conviction comes after the offending conduct the offending conduct was not subject to the conviction seems like it has to precede the offending conduct for there to be sections not the other way around well i believe that once the in this case once once the defendant makes pleads guilty then the proceedings from that point are effectively suspended and the conviction only comes what is the authority to to sentence the person for his violation of the probation if there is no conviction that forms the basis t but i think at that point there is once the probation is violated then the proceedings are reinstated and there is no action there is no legal grounds to order him to have a probation you must do these things if there is no conviction there i mean is it voluntary is a control group is what's the basis that he has to perform these convict can conditions if there's not a conviction that the court doesn't have any authority over him otherwise the defendant does consent in  the in the ok it so it's a consensual thing right there the diversion at least under the tennessee law can only can only happen if the defendant consents to it and that's that's the point at which is it more of a contract that i hereby contractually agree that you may punish me if i file late these terms and because you don't have any right under the constitution or the laws of the state of tennessee to punish me unless there is a conviction i mean it is it is clear then at the point that if there is a violation and the court revoke the probation is clear then that it that it that it does impose upon it that's clear at the beginning that the court has the authority to do that if the if the diverse the defendant does does violate the probation i see that my time is up your honors you have preserved your rebuttal time so thank you miller did not have to directly address the underlying question that mr carville presents in this case and instead focused on finality but as this court has pointed out during his argument  miller certainly did address it as did as did this court in subsequent cases graham and in another case adams just out of curiosity counsel if instead of this being a federal prosecution of mr cole felt the state of tennessee had prosecuted him for for these drugs how would the tennessee diversionary program impact a subsequent prosecution after the probation had been successfully completed and an order of expansion had gone on it would be impacted in the manner in which a judge bell indicated  conviction i don't i think it's by the terms of the statute that it can act that way in tennessee it doesn't necessarily call it a conviction i don't believe it does it doesn't then become  tennessee convictions to my knowledge thank you so certainly it was addressed in miller as at least a matter of policy that a defendant should not be provided with a technical legal advantage if they continue their criminal conduct in graham footnote thirteen again not directly addressing the question this is addressed in in footnotes thirteen and fifteen but in thirteen this court referred to the second third fourth fifth seventh ninth and eleventh circuits in a greeing that prior felony drug convictions should be counted for purposes of section eight forty one even when those convictions have been set aside expunged or otherwise removed from a dem defendant's record  reasons other than innocence or error of law in other words for reasons such as we have here with with the first offender type statute adams said i don't know that i don't believe it's in my brief six twenty two  conviction is ever entered this court said consistent with miller we hold that a plea of guilty to a felony drug offense qualifies as a prior conviction for federal sentencing purposes any plea i mean please don't have to be accepted by the by the trial judge i mean somebody could come into court your honor i want to plead guilty it's usually up to the judge whether the accept it or not but are you saying that just a plea itself would would qualify as a conviction i think the plea itself followed by a sentence would qualify ok as well that's that's different you know if it's treated as i see here as tennessee treating this as a conviction and that's that's a little different and any any any time i attempt to plead it's going to be a conviction i think that's right your honor in fact there has to be a finding of guilt and other is no finding that's i mean that is a problem i mean because  judge usually has to determine that the defendant who is pleading guilty is competent to plead it's voluntary that there's a factual basis for there's a lot of factors that go into accepting a guilty plea we don't have any of that on the record here we don't have we don't have an acceptance of the guilty plea all we have is it it it it it's treated as it is accepted so it's like a de facto acceptance and it  is a little bit troubling but on the other hand it might be a conviction for one purpose and not a conviction for another purpose well i think i think that there's no substantial difference between what happened with mr call felt in state court and what happened four year probationary sentence it may be though that this this court will be the first one to address directly the question that mr colville raises and he says mr miller did not directly raise because he conceded the point that he had a prior felony drug conviction is that is there a record made that plea that felony drug offense in order to be receive the probation his or her record made in the court there is a record that there's should be somewhere in the tennessee files somewhere a record of the lawyer this gentleman from the government and the prosecution and and the elements of the offense set forth in the judge saying i accept your guilty plea yes your honor it's not a part of the record before this court but there is such a record but there but there is a record of the judge accepting guilty pl it's not clear there's no i don't have a transcript i haven't read a transcript to see what happened it takes place on paper but if i go back to what was just said living with these things all the time do we have anything other than the paper as part of the record here other than documents acceptance of guilty plea in order to get this version or instead this i don't believe so in adams this is not a good case factually for it and i say that because the timeline for mr coffee is this he finishes his probationary sentence on first offender on the due judicial diversion program in tennessee in march two thousand and ten he's indicted federally in may two thousand and ten the expansion in dismissal does not occur in this case as defendant points in his brief does not occur until august  thousand and ten mr coffee act actually was arrested on a federal indictment that alleged he participated in a conspiracy reaching back to january of two thousand and seven he was arrested in may two thousand and ten on that had an initial appearance in may at which he was informed he had a twenty year minimum mandatory based upon that conduct because there was no expulsion or dismissal in the record and after having been after having had his initial appearance in federal court in subjected to detention hearings and in the reading of the charges and so forth he then goes back to state court not he but a lawyer goes back to state court and run to county tennessee and gets this order of expunged explosion in dismissal so as a matter of policy we're a federal indictment has alleged that during the vast majority of this individual's participation in the first offender program in tennessee the during the vast majority of that four years of probation he was involved in a conspiracy to commit the same offense he was convicted of in tennessee was the motion asking for expunge a requirement under tennessee law that that motion contain at least some kind of declaration that this individual is free of criminal contact and convictions during that period of time there's a statement that he successfully completed but not the explicit words to my knowledge not the explicit words that you use your honor it says successfully complete having successfully completed his term of probation  tennessee what's expunged the conviction are all the record of the criminal proceedings or or what well of it it stated it states what's expunged and what can be used  later within the statute itself and if that is so but i believe it means to expunge the conviction if it is not a conviction and they say there's not a conviction at all there's nothing to expunge them right but but t suppressed at that point or i mean are they expunged to the fact that there was a criminal proceeding or are the records still there it will be radically i guess under the statute they couldn't be made couldn't be completely used to enhance it could be used to disqualify him from ever being submitted to first offender judicial diversion treatment again by the terms of the statute so while it says the conviction is expunged the record is expunged obviously it it's maintained somewhere and can be used for various reasons all the statute itself specifically says that a nonpublic record is retained it does for specific purposes it does what's troubling here is that ha the presumably had the tennessee court had any idea what the feds knew then no order of expansion would ever have been issued are entered here that's true in there i was aware of the fact that there was this this prior criminal conduct i asked myself if i should've let grundy county tennessee know about this or his former probation officer saw something i did not do that  it appears that i mean mr coffey it was in custody in federal custody at the time of the explosion its functioning in august so he did not take care of this and so if there is an attorney signature on the form where the the courts don't really look into this before they enter such an order under the diversionary program this is my first experience my first and only experience with this having occurred in this case it obviously wasn't looked into but if the lawyer was making a motion to terminate the proceeding five years successful the lawyer speaking on behalf of his client is and yes your honor and something to be said for the fact that the lawyer was misled by his client in light of the fact that his client himself was committing crime at that time yes or so therefore there's that somewhat fraudulently the disposition was obtained by making representations simplicity and a motion to terminate i will say that the attorney who handled the expansion in state court was not the same as the federal attorney so i don't know what the communication was between the parties there any provision in tennessee law for attacking an order of expansion after the fact if it turns out that it was fraudulent lee obtained i would think it could be subject to an extraordinary appeal under tennessee's rule ten which we discussed briefly in our in our brief in other context so in the state of tennessee at notice of the motion and they had an opportunity to object to it when there was no objection by the state of tennessee ursa the signature of an section forty dash thirty five three thirteen which covers this diversion program it's that the discharge of the defendant and dismissal of the proceedings occurs upon the successful completion of the probation that's not a part of the that's a separate process and the statute is also very clear that the only condition for obtaining the expungement is that the defendant requested it doesn't condition and on and on anything what is expunged just there it does not and that's another thing it does not say expungement conviction does not use the term conviction there at all just the expansion of what is expunged in the proceedings the record of the proceedings ok the official record because there's a there's yes there is a nonpublic record on the public and that's one that is  as as as the government is a government directly stated that is that is retained as an on public record for certain limited purposes none of which applied here i believe the government said in part for so that the defendant could not enter the clear as well that the tennessee statute does not consider the person who successfully completes program to have a conviction it's very clear about that and you cannot use that for  versus norris for example then see court of criminal appeals so didn't our brief distinguishes between a plea of guilty followed by diversion on the one hand and on the other hand a plea of guilty followed by a pro conviction probation distinguishes those two things and you help us out at all about the role of the judge in this proceeding with a plea of guilty as presented to the judge and the the diversionary program is what's intended whether the judge in tennessee accepts the guilty plea or makes some findings or evidently does not a record of this case before us but can you help us out what the proceeding  in tennessee all i can say your honor is that in addition the fact that there isn't anything in the record here that indicates that that there's nothing in the statute that specifies that there is there that there must be a finding of guilt or acceptance of a guilty plea wouldn't due process  i would think if you know i get a guilty plea context if we have a case and that the judge doesn't find that the guilty plea is made voluntarily knowingly and has a factual up if i may just conclude with a single sentence to ask that this court find that the mandatory minimum does not apply to mr goh full because he doesn't have a prior conviction that's become final vacated sentences in remand for the reasons thank you thank you found so basically