my name is rebecca and now i represent mr hugo still morning you have your voice isn't real loud and we don't have real good so if you can keep it out that will help everyone thank you i will try the first issue that i want to noriega lopez versus ashcroft determined that the statute of conviction which penalizes possession or purchased with intent to sell controlled substances is an aggravated felony but in reading that decision that's not what the court really got to the parties just assumed that that conviction was for possession with intent to sell in fact in the background portion of the of that decision it talks about that the conviction clearly was one for possession with intent not purchased with intent to resell so that's just simply wasn't an issue discussed in that case the question then becomes what is purchased with intent to resell meaning and is does it mean something that is covered by the controlled substances act in the decision that was in my brief armstrong versus a period court the court a california court indicated that a purchase doesn't necessarily result in possession and of course that would only make sense why would the statute contemplate either possession or purchase if the two things were different in some circumstances and they contemplated a sting operation purchased person may purchase drugs but never have any sort of constructive possession over the drugs because there were never any drugs there or the l noticed in reading the statute that the purchase portion was difficult to put in as an amendment in one thousand nine hundred five so the legislature in california clearly put that in as something else it can't just be superfluous otherwise why have it it must mean something else documentation the government has the burden of establishing what type of felony it was there are some documents from the case regarding what the conviction that the court documents as far as the physical documentation that there wasn't a transcript and that would have been the government's burden here are to put forward i can go on to the second issue which was the downward departure asked for a downward departure based on the minor nature of the prior conviction and specifically going to the facts surrounding a probation violation that my client received which caused his sentence to exceed thirteen months if you had not gotten a probation violation a sentence would have only been six months and in the hospital he didn't report to probation for two months so mr ellis the government needs breathing argues well the probation violation would have been invalid if you accept the facts proffered i don't think that's the case i think that once he was out of his coma he certainly had an obligation to still report to probation and could be found responsible for doing that so it's not to that ask us to go back and we hear the facts of his probation violation no i'm asking the court the district court as far as that the district court could look at that fact and determine whether or not that was minor in comparison to other people that get a sixteen level enhanced meant my argument is that the district court can look at the circumstances surrounding the probation violation this is going to the nature of the violation not the validity the nature of the violation and it turned and that was minor nature compared other types of offenses that could lead to so much time in addition to looking at how old the probation violation was my client was only eighteen years old at the time since that time he has not had any other drug trafficking offenses the court to look at all of those things and make a determination about whether or not this individual falls within the heartland of someone receiving a sixteen that one solution likely versus getting records from california and that's historical problem that we have also a probation officer and the defenders and my office practiced criminal law there but my reading of the way to development that statute was that this language purchased for the purpose of sale was to cover what you indicate you are stating a reverse what we call reverse and a you got an attempt but you don't have an actual purchase that's the holding of armstrong's i understand and so you may have a solicitation that is counsel described but that's not a purchase you may have to reverse the goes bad we never actually violation of the california  raise the fact that that made mr navarro violate his probation she wants to raise the issues about her his attorney could have done a better job but to me those are all matters which we say may not you raise an attack on a conviction and i'm willing to answer any questions the court may have with i think our position is easily understood and i don't waste your time on most of our questions does not appear that the panel