good morning may it please the court my name is evan greenberg and i represent the appellant every leaf franklin thank you for the reminder about watching my own clock i am planning to reserve two minutes of my time for a bottle mr franklin received ineffective assistance of counsel when his trial attorney stipulated that he qualified for a career offender designation based on two california convictions that did not qualify as career offender predicates now and try mr greenberg at the time the stipulation was entered into was the law clear that the controlled substance convictions in california included conduct which did not fit within the generic elements of a federal control substance act because this is a hey view this case not direct appeal that's correct so the california convictions that issue do extend to conduct that's not covered by the controlled substances act because the difference between the counterfeit requirement in the federal legislation and the in lieu requirement california that's exactly correct that the federal control sudden says act applies to offenses that actually involve controlled substances and that's what they mean by controlled substances or that involves mislabeled controlled substances which are the counterfeit controlled substances and the state offenses don't involve any controlled substances all at all and that's exactly what happened in mr franklin's case is the issue of whether there was defective performance under the the focus of system counsel we don't think so your honor because the california statute issue applies only when there is no controlled substance it's an offer to deliver a controlled substance and then the delivery of something else in the loo of that so there's no way to to look at the elements of the california statute and assess whether it's whether it's divisible because it always excuse me it never involves a controlled substance so it would know it would never fall within well if the counterfeit controlled substance didn't involve controlled substance either you know you're on it under the controlled substances act  honor that's not correct under the federal definition in title twenty one eight zero two seven can a counterfeit substance is defined as a controlled substance that is in this labeled so in your example the aspirin that's delivered that it's labeled cocaine is not a counterfeit substance under federal law and also that term counterfeit substance is a term of art that under the federal controlled substances act under the uniform controlled substances act under california law and according to judge genesis dissent and printed adopted by all fifty states the term counterfeit substance always means a controlled substance that's mislabeled to misrepresent and then your facts are the only place the only instance in which counterfeit substance means anything else is in the other circuits that have decided this question against us but uniformly apart from their counterfeit substance always involves an actual controlled substance and if you look at the original version of the career offender guideline it said that a controlled substance offense involves violations of various statutes and with the very first one listed was title twenty one u s c eight forty one and eight forty one and refers to both controlled substances and counterfeit substances so when congress enacted sorry when the commission drafted their career offender god line they did it to implement congress's directive to ratchet up penalties for violations of eight forty one so the commission simply mirrored and adopted the language from the controlled substances act they have the controlled substances act refers to controlled substances and counterfeit substances and the guideline refers to that same thing and then a few years after the guideline was first adopted the commission amended it to adopt the current definition but did so only to clarify the law so the current definition where it reads counterfeits controlled substance or counterfeit substance was definition he also laid out the compelling argument that counterfeit substance is a well known term of art so it's not a scenario where you should apply the dictionary definition because it's not it's not it's not a use it's not a phrase commonly evans was a case that if you read it it's only a half page per curiam opinion it doesn't really specify what the conviction at issue is but it did the evans opinion did cite fraser from the eleventh circuit in which district judge i'm sorry circuit judge godbold laid out the arguments for why the florida in lieu of statute or simulated statute didn't qualify so before he entered the plea he was given notice that this is an open question in the ninth circuit and that other judges have disagreed and to the extent you know counsel had he read those he would have had a strong argument for the court to adopt the the persuasive arguments from the other dissents or at the very least to apply the rule of lenity because these these split decisions from other circuits suggest that there is some ambiguity and one of the cases that the government sites is hudson the seventh circuit in two thousand and ten another case that decided against us but the court there acknowledged that there is ambiguity it said for all we know the commission intended to adopt the controlled substance acts definition of counterfeit substance and then it just didn't say anything about apple applying the rule of lenity but if there's any if there's any ambiguity about whether counterfeit substance should adopt the plain language meaning in the dictionary as some of these cases have or the or the definition in federal law state law uniform controlled substances act the rule of lenity requires adopting the defendant friendly interpretation the sum and substance of your argument as i see it is number one it was an open question the ninth circuit but he had some authority said there's nothing strategic about that we contend it's not a strategic decision as a matter of law and apart from that on the facts his entire sentencing presentation was about trying to underline the effect of entering the stipulation in the first place he he he he focus all of his attention before the district court and on appeal on getting away from the stipulation that he entered which caused cause him to have to make that argument the first place and i'd like to reserve the rest of my time to give it to ok thank you court my name is in the l anthony and i represent the united states in this matter the question before the court is whether there are grounds to affirm the district court's decision to nine defendants twenty two fifty five motion this record decided after reviewing the record the entire record that defendant had not met his burden his burden of overcoming the strong presumption that his counsel provided competent representation other words the district court determined that the defendant didn't overcome the strong presumption that defense counsel made an objective really reasonable strategic decision in not contesting the defendant's career offender status as a matter of law instead choosing to contest it as a matter of fact by minimizing the significance of defendants predicate offenses and contextualizing defendant's criminal history when the case law that defense counsel knew at the time was overwhelmingly against the defendant defendant's counsel today argues that if the defense attorney was trying to walk away from the strategic decision that he met met made at the plea negotiation stage but there's no evidence of that and everything indicates that defense counsel and the strong presumption that the district court employed suggests that the defense counsel made a strategic determination that the best course of action in light of defendant's extreme criminal history was to try and can textural eyes that criminal history for the district court because his claim how the record was developed at the district court with regard to this strategic decision that was made if your honor's question is about whether it is about the record at  sentencing there's a clear what's clear on the record is that defense counsel knew from the plea pre report excuse me the preplan report defendant's extensive list of criminal history a criminal history that included twelve adult criminal convictions twenty seven additional arrests that's forty contacts with law enforcement entities in a twenty year period resulting in twenty one criminal history points that's an astounding number one they quote almost double the qualified him as criminal history category six as defense counsel here pointed out defendant's counsel at sentencing and during plea negotiations also was aware about the case law that was against his client's position the case was solidly against his client's position fact no case at that point no case to date has decided that to apply the c s a definition of counterfeits stub since to the career offender provisions so in terms of the record that is what the defense counsel knew at the time of sentencing and this court and the district court must employ a strong presumption that defense counsel performed reasonably that strong presumption means that the court has to assume that defense counsel performed with reasonable competence a reasonable attorney in that situation would research the law a reasonable attorney would consider those facts and that is the presumption of the defendant has to overturn here or you're drawing inferences from that sentencing hearing  i guess the question would be at the twenty to fifty five stage the district court should never d'etre hearing have been held to develop the record with respect to the decision making of his defense counsel the record could be further developed your honor that's certainly true the courts certainly could remand to the different court to do an evidentiary hearing but we don't believe that that's necessary here that's for there's basically two reasons that we see the court could approach this the first is a technical approach the second is a more practical approach under the technical approach yes we agree that the record could be development could be developed further we believe that there may be some open evidentiary questions but such as the nature of defense counsel stipulation as defendant is defend is repeatedly pointed out as briefing he calls a stipulation the record indicates that and the plea agreement indicates that it was a reason that it was a reasoned decision to enter into the plea agreement it was in the stipulation by defense counsel it was an agreement by the defendant upon recommendation of his counsel that's what's in the plea agreement but under that technical approach may be some open questions in his reply brief we don't believe that the court needs to answer those open questions because we believe under a practical approach the case law is solidly against the defendant so as a matter of law his counsel's performance could have been deficient and second that even looking at the record as it stands now as the district court reviewed it the record is sufficient to conclude that defense counsel performed reasonably and defendant hasn't done anything to overturn that strong presumption well he mentioned at least three cleese was three mentioned  why do you say well just to be clear your honor the government's position isn't that the law was clear there certainly was no ninth circuit case directly on point that being said the law was overwhelmingly against the defendant's position so it wasn't unreasonable for the kitten defense counsel to make the strategic decision that rather than making an argument that would ring hollow to the district court to instead agree that defendant was a career offender legally for the purposes of the career federal guidelines but then argue it factually and it's important to point out that defendant's counsel was successful in convincing the district court judge that even though the defendant had this extreme criminal history a criminal history that the district court observed was and i quote horrendous defendant's counsel convinced the district court to very down one criminal history category during his sentencing presentation so to suggest that that was ineffective the record doesn't bear that out but to turn to your honor's question about the applicable law the law that the defendant's counsel here cites is is the law that the defense counsel at the time knew was applicable all those cases were decided in the government's favor but looking at the looking at the actual reasoning is important as well and we believe that this is a relatively straightforward matter of statutory interpretation as the court well knows undefined terms in the sentencing guidelines much like undefined terms and statutes are given their plain meaning under the rules of statutory interpretation so the term counterfeit substance isn't defined under section four b one point two and so therefore should be given its plain definition unless that would lead to an reasonable or impracticable results here we don't believe that there's a credible argument that defining counterfeit plainly as meaning made  imitation with intent to deceive would or it would lead to illogical results in any way in fact this court didn't think so only of a go when it observed and a panel of this court observed that although controlled substances was a term of art counterfeit the word counterfeit and the term counterfeit substances had end quote in normal everyday meaning that we all understand so there's a distinction between controlled substances which was a term of art and counterfeit substance the word counterfeit has a plain meaning when i say that you know the overwhelming law of the others for five other circuits looked at this we're dealing with counterfeit and here  a section eleven three fifty five has the in lieu of language which is not quite the same as that which was looked at at least one of the other statutes had similar in lieu of language your honor i'm forgetting the name of the statute i believe it might have been  the case it might have been mills but i'm forgetting the exact name of the case but i think that that is respectfully a distinction without a difference because all of those statutes criminalize the same same action which was selling selling a substance such as aspirin in this case instead of selling a narcotic and importantly importantly the interpret the plain meaning of counterfeit is consistent with the purpose of the career offender guidelines which is an important point your honor the purpose of the career offender guidelines is to punish repeat offenders of violent crimes and narcotics offenses defended suggestion that the c s is definitions and soley be imported would leave us in the situation where where manufacturers and distributors of mr liebeler pharmaceuticals would be punished more harshly than persons who sell imitation narcotics that's not a situation that i so you're expecting that to be decided here yes we are your honor i want to just trying to address five points the government made one is that we're not looking for reasons we're not looking at the district court's decision and looking for reasons to affirm it's do novo review so the legal question of the side the novo as far as it being a strategic decision by defense counsel judge said well you asked about how the record was developed in the twenty to fifty five the government never mentioned below before the district proceeding that this was a strategic decision they relied soley on the conclusion that has not been reached in this circuit and that that eleven three fifty five does qualify as a counterfeit substance of times they relied on that assumption as a matter of law to say that there was no merit to the argument so they never raise it as a strategic point and therefore the district judge never took evidence on that question and also government said the trial counsel was aware of this case law against him we think that's unclear the point is the pre please report advised him that that case law was out there it's either counsel didn't review those cases and just took  reports word for it and then didn't raise the issue or he reviewed those cases and stipulated anyway even though it was an undecided issue also the government says there's no stipulation if you look at paragraph twelve of the