the court actually let win and mark titles representing each respective east this is a rather straightforward question before the court today whether time spent in immigration custody awaiting deportation counts as a prior sentence of imprisonment or mental history purposes and i stop you for a second do we even need to get to that question let me tell you what i'm thinking and you can tell me if you think i've missed something we have case law in this circuit a case called rockman and then another one called right where we have said that sentences that are imposed were due to cation of guilt as withheld do not fall under the definition of prior sentence and section four a want to point to a one and we've said instead that withhold of adjudication is considered a diversionary disposition under section four a one point two f which said that in right and and so if you look at for a one point you ask that says th diversion from the judicial process without a finding of guilt e g deferred prosecution is not counted a diversionary disposition resulting from a finding or admission of guilt which is  proceeding is counted as a sentence but then it says under for a one point one c even if a conviction is not formally entered except the diversion from juvenile court is not counted but in other words it specifically says that it has to be counted under forty one point one c and so by specifying what it has to be counted on it seems to me that it's saying it cannot be counted under for a one point one and the other part for a one point one but only under c and so if it can only be counted under forty one point one c then we add one point is there something wrong with my analysis and i'm missing something here no your honor guidelines it should only fall it should only be one point it should not be able to be two points and so then we wouldn't have to reach the question of whether being held in detention attention center immigration detention would count as imprisonment or not right yes your honor at that point i know we wouldn't have to reach the question at all just in case my colleagues may not agree with me we have discussed this case before please feel free to go ahead yes i mean yes and i think that is what i would also then yes argue that this court has already determined that time spent in immigration custody is not a criminal imprisonment it is a civil detention and there's been many cases that this court has underwent and explained that a defendant speedy trial rights don't attach that there's no right to present men under rule five a there's no due process rights because a defendant hasn't been accused or charged with the crime when they're going into immigration detention but in order to accept your argument we would have to overlook the plain language of the sentencing guideline s right and it's and we've said before and united states versus glover that the only thing we look to is the pronouncement we look to the language used in the sentencing court's judgment period prison it's pacifically while the length of imprisonment is the stated maximum that is criminal history points are based on a sentence pronounced not length of time actually served so it's not going to the threshold this guideline this commentary of courts look to the sentence pronounced is only dealing with time of imprisonment it doesn't answer the question which is the threshold question of whether something is a sentence of prior imprisonment so then going to whether something is a stand ins of prior imprisonment what to look for the eighth circuit cases and glover are all discussing contradictory evidence so what they say is when additional fact finding so what they say is that when the judgment contradicts the outside of events of course we only look to the judgment right so when three which is one of the circuit cases cited case the judgment said the person got jail time twenty you know x number of days but then the court wrote an op to david saying contradicting that saying it should have been different amounts of jail time so in that case of course the courts as we should look to the judgment right the court specified that it would in a g l type institution but then the defendant actually put in a halfway house so again this would be contradicting evidence but in our case this isn't contradicting the face of the judgement judgment said one hundred ninety six days time served so what does that mean it didn't say time served in a jail type institution time served in criminal prison meant it just said time served but to understand what time served means we need to look at the facts and everybody agrees that those one hundred  ninety six days served were in civil incarceration in immigration custody and everybody agrees that that was not because he was accused or charged with the crime at that time that he was picked up by immigration to deport him far better than i do but when i'm looking at the record i see one of the documents is from the florida state court system which was a defense exhibit and it is something that was filed and it shows the original conviction that shows the vacating of  it i don't see anything in here at all about this deferred adjudication other than in the pre sentence report is there any other evidence of the judgment that that is going realigned up on to support the adjustment of the p s r no your honor so the only the only thing in here is is is on explain what happened after i understand what i'm looking at the docket of the florida court i don't see anything in there to indicate that on august tenth two thousand and ten anything happened you know there's nothing on that rock the docket to show what happened so the only thing that we're talking about is the because you're on a probation doesn't have to put it into the record and to rely upon it and they didn't and everyone agreed that there was a withhold of adjudication and it was one hundred ninety eight days time served was the pronouncement of judgment and once there's no objection from either party the parties are bound by what's in the p s r is that right yes your honor and that's why i just to reiterate i mean we agree that the judgment at the time said one hundred ninety eight days time served but that in of itself i would like to ask you the same question that i asked the appellant and and can't you want me to repeat my thoughts on this and you can tell me why you think they're incorrect if you do ok so under our case law we we have said that sentences imposed were due to cation of guilt is withheld do not fall under the definition of quote prior sentence unquote in section four a one point two he won and that's in the case of brockman and right and we've said instead the withhold of adjudication is considered a diversionary disposition under section four a one point two athletes said that in right so then that means we have to look to for a one point to ask to see how to handle this since this is a diversionary disposition and the second sentence there says a diversionary disposition resulting from a finding or admission of guilt or a plea of which is what we have in this case in a judicial proceeding is counted as a sentence under section four a one point one c even if a conviction is not formally entered so in other words it specifies that it's it's counted as a sentence under in particular for a one point one six eight it and by specifying for a one point one c it seems to me that it cannot be counted under any other provision if that's the case then under for a one point one c we would add one point if we added one point that would make this a category one instead of a category two and we would have to send this back for recent saying so my question for you is  whether there is something that i have misunderstood here or there are some fault in how i have explained this theory your honor if the court had previously found that a withhold of adjudication would be considered a diversion plea under for a one point two then this would this would be a case that would fall that we should look at under section see that if that were to be the case but as the governor and that is not the case and that the two points criminal history category point should apply in this case making this a category two why is that are you familiar with the cases of brockman are right no i'm not your  which would then apply section c just to being one i'm sorry just to be sure that i'm understanding your position you are agreeing in this circuit says that  honor it's the government government's position that it does not fall under that section your honor and that the district court in this case did correctly calculate a defendant's criminal history category points and your honor that's because when we look at as the court has heard us sentenced to six months in a jail type institution the defendant at the district court level said well i was actually in a halfway house and the district court judge did not rely on that and specifically the eighth circuit one of the fund industry citizen stated that where the sentencing court's written judgment and the defendant's evidence describe the nature of the compiler meant differently a rule that relies on the language used in the sentencing court judgement will better promote the purposes of chapter four of the sentencing guidelines additionally witness court in that decision in united states versus glover cited united states versus drake which is very similar to what we have here in that case when  defendant was attacking the number of days that he actually served he presented an affidavit from the different district court judge and the judge said in a district court ruled that it cannot rely on the affidavit that the district court must rely on the sentencing document and because of that the decision circuit affirmed and stated that in the most authority the most authoritative record of a prior sentence is a state court judgment not the state court judges affidavit stating the sentence he would have imposed and so your honor in this case when a district court judge relied on the sentencing document that's what the sentencing guidelines required that's what the law of this circuit is and if not then we would essentially be having many trials at the sentencing hearing in these types of cases but because the district actually followed the rules that are set out and the law of th circuit the district court properly calculated the defendant's criminal history category points your honor cannot in a state court judge sent someone to civil detention sentence in this record we know that two days was spent after he was arrested you know he was initially sentenced to forty five days in the work camp followed by the two years of probation so he did serve time in the forty five days and the two days so how the judge calculated the hundred ninety days we don't know but what we do know for sure is that the judge issued one hundred ninety day sentence and how that how the judge made the determination for determining that the defendant had met that requirement is for the just for the state court judge here we simply go to that sentencing document in order to make that  pronouncement of the sentence it is discussing only the length of term of imprisonment it's not discussing the characterization whether or not it's a prior term of imprisonment and there boos who stated which i think this quote is is very helpful it says the need for additional fact finding is diminished when a district court and higher courts written judgment to determine the nature of a defendant's prior sentence and that's the point here especially even when the government was discussing all of these other cases the use the term differently they said it was the opposite of what they actually imposed those things show that there was a contradiction right so that the judgment itself and all of those cases was sufficient for a finding of imprisonment it was a sufficient for a finding of a prior sentence of imprisonment but in our case the judgment itself isn't contradicted by any of the evidence that were bringing forward it just said one hundred ninety six days time served but say it didn't say in a jail type institution they didn't say an incarceration it just that one hundred ninety six days time served so this outside evidence that we're bringing in or the facts in this case are contradicting everything so additional fact finding again as you said is diminished when a district court can rely on a prior court's written judgment alone but here they can't hear it's not sufficient because the hundred ninety six days time served was immigration customs now the government is now saying that we're speculating where those days are coming where those one hundred ninety six days came from but it but we're not there was evidence presented to the district court that on the day that mr baptist was detained by immigration which is also in the p s i i and then we entered into evidence our record from immigration counsel in the east which show that that was exactly one hundred ninety six days now this was reason objection in the district court if the government at that time wanted to put in other evidence at a judgment in from the state court to show that it wasn't referring to immigration custody they had that opportunity but they didn't and once we reason objection at sentencing the burden shifts to the government so this isn't even our burden to carry a stablish that there was a prior sentence of imprisonment this is the government's burden to carry and they simply didn't do that there were not the documents present that were required the judgment was not put into evidence and again all we have on this record is the p s i i which says that it was one hundred ninety six days time served and on this record we know because it wasn't challenge by the government at the sentencing nor in the brief where this time in custody was spect it was an immigration detention pending removal it wasn't based upon an accusation or a charge of guilt that a withhold of adjudication is a diversionary disposition and therefore it should be controlled by for a one point two f and b one and only be one criminal history point if there is nothing further i think we have an argument