good morning counsel good morning your your honour's amy clear on behalf of appellant christopher johnson i will watch my time and try to reserve two minutes for my reply rebuttal the only issue today is whether the the intense argument that we originally raise is now even though we've raised a little bit different arguments were kind of stuck in the sand on that we do believe moncrief is our better argument but i want to start at the very first level of the court may accept any undisputed portion of the p s r as a finding of fact and counsel below specifically told the sentencing court that this was a felony so why doesn't that foreclose the argument that that this wasn't a felony why wasn't the trial court allowed under the the rule to not not just accept this concession but this affirmative statement from defendant's counsel and i don't know what michael should counsel actually admitted to felonies not just one but he specifically referred to this one as well correct so getting back to what my absolutely two reasons defense counsel and her sentencing memo on your pages sixty seven and seventy two specifically stated that the offense that was designated in the p s r as quote a felony was under the rules since counsel stated that your client had been convicted of two felonies one of which was the one that is on appeal here is a felony as defined by the sentencing commission for purposes of four b one point two which is a very specific definition both in the comments two for b one point two which we've appended to the opening brief it defines what is a felony for purposes of enhancement and even if you were going to hold mr johnson to that label defense counsel he more then clearly needs a plain air definition  and being entitled to relief because the parties knew he raised this claim and he's not could hit it from since he raised this claim below that he was challenging whether the government could prove that this was  a an offense that could raise his base offense level which the government always has a burden to carry into establishing the first instance the government was aware that it had an obligation to do so even if there is not an objection by the defendant was there was more than an objection for example page seventy eight of the record didn't counsel say mr johnson received a second felony conviction for assault with a deadly weapon not a firearm for which he received a suspended six month jail sentence and three years of probation under the rules of you know procedure are we don't we have to allow the judge to accept  factual concession and whether this is or isn't a felony is a question of fact depending even in your view of what actually happened at the sentencing right no your honor the court still has to properly apply the guidelines and if the underlying offense doesn't meet the statutory death or not statutory but the guideline definition that's a legal air it's not enough that council called it a quote unquote felony she had already challenge whether it met the definition that's sufficient to raise the claim  california law well it's a wobbler it's a wobble and a wobbler could be charged as a felony or as a misdemeanor and it was charged as a felony then the court has reduced that under seventeen be correct i don't see any indication from the sentencing records that that was ever done well it was looking here and you can point me to the document i'm looking at the complaint is charged as the felony as a felony i'm looking at the plea form that was used he pled to a felony right there at the top you didn't pull the misdemeanor plea form or his counsel didn't hold the misdemeanor plea form on the second page of the plea form under subsection d he pled to count one to forty five a one strike so not only did he plead the felony but he was told this is potentially a strike and handsome and that's a felony and then you look then finally at the last document the sentencing memorandum he was sentenced as a felon in place for on formal probation which usually doesn't happen unless it's a felony offense otherwise it would be informal probation so i'm looking through all the records that you've submitted in this case there's not one record that indicates that it was ever reduced so what is your argument there my argument is seventeen b one which is by operation of law  california nothing needed to be done because he was sentenced after judgment to a punishment other than imprisonment in a state prison under eleven seventy age the government has never asserted that he qualified under eleven seven the age by operation of law this is a misdemeanor and i will note that and i've talked with the government about this this morning it's come to our attention late in the game yesterday that not only is at our contention that this is not a felony but because this would have been the only thing that would have permitted the government to arguably charge him as being a prohibited person because by operation of california law under seventeen v one there was a judgment that program permitted him to be deemed a mystery and under operation a california law that we would ask that the court remand this on an open record because this is his only arguable prohibiting offense there is no other quote unquote felony one in the council and two i cannot explain that your honor but what i can say is an open record in this case is necessary because this man does not have any felony and i think i do your honor thank you good morning may it please the court elizabeth white for the united states good morning counsel this offense was a fact this was a felony conviction or it was a felony conviction for which according to the documents that were submitted in the supplemental request the proceedings were suspended the defendant was granted three years probation and as a condition of that probation spent one hundred eighty days in jail this court's decision in robinson directly on point and what it says is when proceedings are suspended and the defendant is granted probation there is not actually a judgment entered and that the conviction remains a felony even if the defendant is sentenced to county jail as a as part of the probation that is exactly what happened here and so really i think that this case is controlled by robinson and we're done now with respect to moncrief i think that there's  just simply doesn't apply here because the because the statute that was at issue in moncrief prohibited a range of conduct some of which was only public punishable as a felony and some of which was only punishable as a misdemeanor and to tell whether this offense was whether this defendant's conviction was punishable as a felony you had to look and see well which of those kind of conduct did he do did he do the kind that was only punishable as  misdemeanor or the kind that was only punishable as a felony here these wobblers statutes the district court judge or the state court judge excuse me always has discretion to sentence that as a felony and so it is always punished a bowl as a felony regardless of what conduct the defendant engages in if he's convicted of violating two forty five a one that conviction is punish a bowl as a felony regardless of what facts may not have corresponded to a federal felony exactly right exactly and you know i don't mind it was also different because it was specifically talking about this provision of the i n a that wraps in the definition of the c s a and so it's much more complicated punishable by death or imprisonment exceeding one year regardless of the sentence actually imposed and so that's what we have here and i think that that that that pretty much results   i don't think i do think that gonzales resolves the other issue that there is in their appeal and and just to just to clarify what is clear is the last thing that she said it was just she discovered last night and was just brought to my attention this morning that there might be that there is arguably a problem with the other felony and so if we if the defense were to win on this we would also agree to remount with an open record i literally just found this out hour ago so i haven't had a chance to look at any of those document you're not conceding obviously the wobbler oh no not at all you know if this if the government prevails in this appeal then that other issue i think she would agree is moot and so so that's  thank your honor i disagree that the sentence in this case was suspended the imposition the execution of the s as a felony more than one year prison where the other is a possibility but not one for misdemeanor ones for relatives but they're different i actually think wobblers statutes and prohibits them from being punished as crimes of violence because prohibits courts when the statutes for this circuit saying when the box proceedings are suspended it doesn't mean imposition of sentence suspended it means what again ok so under california law if there is if you suspend imposition of se there's no judgement and that's key to applying seventeen be one but if you impose sentence and order x execution be stayed then there's a judgement and the reason that that matters is again to apply seventeen b one and the reason that we provided the sentencing transcript was to show that the state court said is there any reason why judgment should not be pronounced well california law says if sentence is orally pronounce that's a judgment the only thing that was stated in this case was the execution of the sentence so there was a judgement in this case meaning this was a misdemeanor under two forty five a one following operation law under seventeen b one it's a misdemeanor by operation of law thank you