good morning writers of god rose from the middle office of the federal defenders of montana i represent javier gonzales i'm going to focus my argument this morning on a forty one requirement that the predicate conviction has become what's the finality rule under montana like we look at all to that well it depends if the court wants to make the issue before the question of federal law a question of state get i would disagree with that your honor of mine you can complete the terms of the next case it's going to be argued before the court that's exactly what happened in the midst of your case no that's so i'm just saying hypothetically it is possible that the state think it was a hypothetical question the question is in your case was mr gonzales eligible for expungement or not yes he was eligible you know eligibility but wasn't there a bench warrant outstanding for  i didn't handle this case blow your honor so i can't speak to that with all that said your honor still his case remains deferred at the montana level there's as i understand it under the montana code the conviction becomes final when the time for appeal to the montana supreme court expires and stop the factual situation with respect to this conviction there is a montana case your honor that says that you can appeal from a third imposition of why defendant would do that i don't know but you can appeal which would mean that is final for appeal purposes time but there's also the supreme court the united states supreme court decision in berman that says it's in order for a conviction to be law if you apply berman so what gets entered i mean we really are wrestling with is that a question of federal or state law but undermines not a law what actually happens when the defendant appears before the montana state district court judge and the prosecution agrees provided by montana appellate rules as far as montana state courts are concerned it is the final convictions there is a montana case that says that if you don't appeal within the pellet filing period you can't later try to have a direct appeal right then the last thing he can do is to get us back to the question we started with the only you can do is to come back at the end of the three year period of deferral and ask that the conviction be set aside because he's complied with the terms of the deferral it's actually a more intricate process just in terms of the initial question the client's understanding as you explain that if you are on probation if you comply with all the conditions you can come back after three years we'll probably be careful with the word cancer because probation has a very specific meaning under federal law that it may or may not have a term of probation is a sentence as far as federal court that is crime just saying how it's explained to the client in terms of if they have been there on this probationary period you got to keep you know yes after three years they can go where they actually asked to withdraw their guilty plea and the case was dismissed because if you look at the dickerson case and there the court the supreme court talked about the plea and the importance of that in iowa which was the underlying state law issue in dickerson when you went through the expungement process you never got to withdraw your guilty plea but in montana that is how a successful deferred imposition of sentence and then what happens the court enter an order vacating the prior period getting back to the fact that when the decision is defer it's not final and i know the government turn can you i think we have that pretty well in mind we can you turn to the question of whether this entire issue is a matter of federal law as opposed to state law for us to apply i think in the ninth circuit that's an open question there's been some language saying that perhaps  that it's a question of federal law still applies we think that if it's a question of federal law eight berman says that in order for a conviction to be final it has to be a sentence in the sense in this case excuse me was and like a verdict of a jury it is conclusive here mr gonzales never appealed his conviction his time for appealing right he has as the third circuit case says the fact the final conviction he actually did this prior crime and therefore his conviction is final under federal law and i think dickerson this clear on the point because it wants to avoid these sorts of issues interestingly as counsel points out in his brief following dickerson congress stepped in and chose to change that status under dickerson congress easily could have done that in the eight forty one context also they could have said we're going to defer to a state understanding of what a final conviction is for purposes of a fifty one and handsomely they did not do that congress let stand eight fifty one and dickerson's and its progeny implication in that case so it is an open question mr good in terms that this circuit has not applied dickerson in a forty one context but i would suggest to this panel that dickerson controls and it's only an open question because this court hasn't ruled on so you want the goal you would limit the congressional action in response to dickerson which it clearly wasn't right the legislative history so that's why we're doing it right to the firearms are read only that's exactly right your honor because they placed of that change in the firearms statute they did not place any similar change in date forty one steps and i think i think even reading a forty one the policy behind a forty one is clear if you've committed a drug crime before and haven't learned your lesson we're going to enhance your punishment when you do this again and for mr vote for both my cases with this issue today neither of these defendants has disputes analysis that under state it doesn't make any difference whether or not he seeks satisfactory completed the terms of the i think that's exactly right your honor it doesn't matter we don't need to look to state law for what it is the fact that he entered a guilty plea the fact that he did not conviction is still there has not been expunged under state law which there is the notion in the case that is there not that that the whatever the states are doing with regard to setting aside or expunging prior conviction for federal sentencing purposes it doesn't wipe out the historical fact of the prior drug traffic and that's exactly right and i think that's the underlying point eight forty dickerson we're looking at what what is congress looking at in the dickerson context we're talking about whether or not a license somebody saw firearms well we'll just look at what the states decide in the eight forty one context where we're congress very clearly is punishing harshly drug offenses and especially repeat drugs have since the question is have you done this before if you've learned your lesson fine but if you've done it before and you're doing it again now we're going to punish you more harshly because we're that's the policy the united states has to go after drug cons well isn't a whole purpose that the deferral as i understood and it is basically to give the defendant a second chance the first time it certainly for purposes of state law montana can control the federal law in that regard it's certainly a chance to give somebody a second chance and you have a lot of conviction of course affects a person in lots of ways beyond just inhance in a later sense it affects all kinds of civil remedies in montana statutes certainly allows defense to have that second chance to get business licenses to own firearms under montana law but that does not control i think this case because it's federal law which controls ok immigration law they congress redefined conviction to include deferred adjudication process and that shows that if congress intended has become final got prior precedent of the ninth circuit that suggests to me that dickerson does his have continued viability notwithstanding the congressional line in the keyword there is suggest i think the court has never squarely between montana and washington shouldn't make a difference should it because what we're trying to do is have a uniform rule that applies nationwide one fortunate that's one of the difficulties of having a federal system and take that up with the framers yeah yeah but still the court has to interpret the language issue and that's what's so important dickerson there was no modifier there was no word final final means something and it doesn't just mean appeal interesting case to the case are you submitted