you would thank you your honor and i'll be glad to answer any questions on the other two issues i felt like the arguments and the record were sufficient for those and the government asked for oral argument on this issue one twenty one it provides that the determination of whether there was a conviction will be determined under the jurisdiction of the law the jurisdiction and which the conviction was supposedly sustained so here that would be a state of tennessee law when the cake the case went to trial mr moore was convicted by a jury the judge following the jury conviction considered reconsider the defendant's rule twenty nine motion and agreed that it should be granted that mr moore should be acquitted of the one thousand and two g b because the government had failed to prove beyond a reasonable doubt that mr moore had a prior right he went to prison for well your honor he did not actually go to prison the the judgment the written judgment that came down gave him a three year sentence to serve eleven months twenty nine days which in fact he had already served so he was released when he was when the written judgment came down yes or in the state of tennessee  a judgment of conviction consists of three things and it's not a judgment of conviction unless all of those things where they are the defendant has to either be found guilty there has to be a verdict of guilt or or a ple guilty he has to have been adjudicated guilty by the court and he has to have been sentenced by the court this is what judge carr year found some of the cases he relied on for this principle were state cents the original of argument was made in this case the tennessee supreme court issued another case ruling in a in a case that bears on the as it is rodriguez v state of tennessee two thousand and fourteen west law one three four seven zero eight five i cited it in a twenty eight j briefing and that dealt specifically with whether a defendant who appears in court and pleads guilty and open court but then it receives judicial diversion and there is no adjudication of guilt or sentence whether that person has sustained a conviction and the supreme court ruled it did he had not sustained a conviction because there was no adjudication of guilt now a diversion no your honor but the tennessee supreme court made the ruling based on the fact that it can be a plea of guilty standing alone does not constitute a conviction conviction has to include the adjudication of guilt in the sentence now the rodriguez case also referred to as did the earlier vasser case both the informal definition that is sometimes used of conviction which would be say in the newspaper when a jury find the person guilty of a crime and there's a verdict and the paper might say he was convicted rodrigo's refers to that as the i think the popular definition but it said that the technical definition of a conviction has to have all of those elements and the transcript of mr moore state sentencing hearing or his plea hearing reflects that he had three indictments against him he entered into a plea agreement the agreement was one indictment would be dismissed outright he would plead guilty to one charge in the other indictment which would have constituted a felony conviction carrying a sentence in excess of a year and then the third indictment he would play guilty to three misdemeanor counts the judge went over all of his rights the judge went over the terms of the play agreement and then when the sentencing hearing portion of the proceeding there was going to be a present report so when she launched into the sentencing she said she accepted his pleas of guilty and she a judge him guilty of the three misdemeanors and she impose sentence on the three misdemeanors which is eleven months twenty nine days suspended then she finished up by saying all other counts were dismissed when the written judgment came down shortly thereafter the three misdemeanor counts were properly recorded there was a fourth judgment came down it reflected that she had to judge him guilty that he had she had judged him guilty of a misdemeanor and that he had received a sentence well when you look at the sentence it either the sentence was illegal or it was incorrect to say that she had just been guilty of a misdemeanor because it was a three year sentence on which she received probation after service eleven months twenty nine days in addition to tennessee case law saying that a judgment of conviction conviction consists of the play be the adjudication in the sentence tennessee law is quite clear that if there's a discrepancy between the judgment order which is merely a memorialization of what happened during the sentencing proceeding and the transcript of the proceeding the transcript controls fam some of the cases that set that site to that principle are state the crow one sixty eight south west third seven thirty one stately jones one ninety eight weslaco eight eight six five six seven and state the xylo six twenty eight southwest second thirty nine all of those state that the transcript of what actually happened at the sentencing proceeding controls over either the written judgment or the and the reason that is you're on is because the written judgment is supposed to be a memorial ization of what occurred at the sentencing proceeding in this case not only was the written judgment invalid on its face because it indicated that he had pled guilty to and been convicted of a misdemeanor it was invalid because it memorialized something that simply never happened mr moore  of guilty but he was never adjudicated on the felony charge and he was never sentenced on the felony charge so under the law tennessee mr moore does not sustain a conviction that would support the essential element of nine twenty two which is that he be convicted of a crime carrying in excess of a year that judge has to go through that and can t have in a case such as this and under nine twenty two g the defendant doesn't even know he has to have been convicted he doesn't have to know he sustain a conviction it can be an unconstitutional conviction and it still well be usable for nine twenty two g the only thing the government has to prove is that the defendant had an actual conviction in that jurisdiction and that in this case is what the government cannot show beyond  what your honor that's an x x y question and i know that that's exactly what their procedure it is your honor but a collateral attack first above acknowledges a conviction and all of the cases that the government will cite it's going to be a situation where a defendant comes in after having been convicted having agreed he's convicted and then claiming for some reason that the conviction was invalid it was either void or it was unconstitutional honor the fact is that if you look at that judgment there has to be something wrong either he didn't plead guilty to a misdemeanor or he can't have received the sentence that he received and i see my time's up on its face the judgment of conviction from state court in this case presents a valid conviction for a crime that carries a penalty of more than a year whether mr minor a felony on  face the state court conviction satisfies the element that the united states must prove to show that the defendant was convicted of a crime punishable by term sitting one year  that gives legal consequence to finding of guilt here there is a look there is a judgment and it imposes a legal consequence of a finding of guilt for a term approach of a crime punishable b term of imprisonment for more than a year so frankly i don't quite see the holding of rodriguez is helping the defendants argument here rodriguez says that the technical meaning of conviction refers to the final judgment entered on a plea or verdict of guilt and what we have here in the record what we have that was submitted to the jury as governments exhibit one is in fact the judgment that present conviction to a new form of collateral attack the clear holding of the supreme court is that the district court should not have allowed this collateral attack but it did and  judgment of conviction from the state court is not perfect it doesn't fact to find the crime a conviction is a misdemeanor but for the purposes of showing that the defendant was convicted of a crime punishable by more than a year in prison the judgment of conviction satisfactory it sufficient as a matter of fact first the error that the defendant pointed to that the defendant was it in court when the court orally pronounced the same as the state court orally cannot system it is a rule of procedure it doesn't rise to a level of constitutional magnitude for that reason the state court law says that that conviction is voidable not voided it is voidable and so the court has the opportunity gets the opportunity to correct it and of procedure and he claimed that it was a speeding so speedy sentencing issue but what the state court said was it was an act of inadvertence and the state court said that the rule that there was no relief the conviction that the state court imposed at the defendant's plea was the conviction that the state court meant to impose and for that reason where the court where the defendant goes back and asks the court to void the judgement in the court system that the state court asking in the fact of the matter is that where the court makes a procedural error any court that makes a procedural error deserves to have the opportunity to fit and to go back and undermine the state courts  y would not be appropriate here the defendant has a valid conviction for a crime punishable by a term exceeding one here the government proved its case and on to never review with taking the proof in the white most favorable to the united states draw here we have a state court who has made a ruling and followed its own wall in the siding that this is a valid conviction looking briefly at the state court proceedings what happened as the defendant went into court on his aggravated burglary conviction is that he prepared a written plea agreement in which he pled guilty to the aggravated burglary he bargained for a which she failed to impose the the senate in the defendant's presence but remedied that with the judgment that was an issue immediately and it's the fact that that judgment is now under tac brings us full circle back to the point that i'm trying to make in the first place the collateral attack here was not appropriate under louis the united states we should never have looked behind the judgment of conviction in the state court in the first place subject we're largely here and we're asking the court to remain and all three counts of conviction for senate thing before the district you your honors again we are not attacking a judgment we are asserting that mr moore did not have a state conviction prepared that court was already rejected your honor we did not go to court in state court asking for an amended judgment or correction of judgment we went to court asking for the judge to sentence mr moore the judge declined to sentence mr moore and indicated she felt what she had done was adequate but all of that occurred after mr moore had been arrested and charged with the federal offense the point at which your honor at the point at which the determination has to be made of whether mr moore had a state conviction is at the point when he was arrested this court as it did judge karr year is in a position of looking at a state law definition of what constitutes a conviction and at the time he was sentenced i thought he had me at the time he was arrested had he been convicted that is the determination that the district court had to make taking state law and applying it to the particular circumstances in this case and to see how it fit the requirements of nine twenty two g all the state court judge did was make her own interpretation of the same state we do not have to rely on a criminal court judge's interpretation of a statute the federal court is in the same position in regard to this statute and how it applies to a nine twenty two state law well your honor she was making her decision months afterward she was aware that her decision would affect whether or not mr moore was going to be prosecuted in federal court that determination should not be the final answer to this question the district court was required by nine twenty one to decide whether there was a valid state court conviction he determined there was not that decision should be upheld by this court thank you  whether months passed days passed or a year passed the state court had in front of it the same transcript that the court now has to review of the state court proceedings she made a ruling interpretation of state court  and as the defendant is trying to avoid the clear holding of lewis by claiming the commission doesn't exist the exhibit one the united states presented as evidence clearly shows a judgment of conviction that was in effect before the defendant possessed the farming that's now under view the state court said there's no dispute in her in her order she said there's no dispute as to the terms of the police agreement and so the the effect here that the different is asking for to vacate the state court conviction because of a violation of a rule seizure of its form over substance because what we have here there was a defendant who wasn't present sentencing matter fact he didn't have counsel present at cementing either in the bennett opinion said that that isn't even in that situation it's not a it's important to note briefly that the district court judge colliers memorandum in order on this issue did not even mention the luth case the lewis case is the most directly on point case for the court for this panel to review and the fact of the matter is that lewis doesn't allow a quadrille attack but that's what happened here respectfully that's where the district court erred and that's the grounds upon which this panel should