good morning may it please the court lea tucker of the federal defender's office for mr hall on their mood as some i will attempt to reserve two or three minutes i'll keep an eye on the clock when we look at the plain language of the provision  issue here we look at both the text and the structure and we see that the roll of the phrase at any time is intended to decouple the timing of the conviction from the timing of the offense conduct that gave rise to that conviction the offense conduct is time to either before under b to the st order of deportation or after under b three the st order of deportation and without that phrasing and the use of at any time the guideline would be subject to the gap that this court identified and us view martinez so in martinez we were dealing with the two thousand and sixteen provision which stated that before the order of deportation the defendant had to have sustained a conviction with a felony conviction with a sentence of greater than two years the defendant in that case had received a felony conviction but only a one year sentence not a not more than two years but upon revocation after the deportation sentencing creased so in and in a response to that gap and then martinez the defendant was given relief because of the ambiguity in response to that gap the sensing commission through amendment eight hundred and nine brought us the current version which this court is now addressing the only difference i for our provision is that the phrase at any time was just moved to the leader in the in the provisions are right that's correct ok and i so i just in terms of interpreting your argument seems to me it wouldn't matter one way or the other whether it's remained the place that was or if it's now or it is right i think that's that's probably correct your honor and i think the reason i am speaking about it is because we see that it was it was introduced the way it was in b three to me or b to so b two needed to have that change made to close the gap be three just as a matter of symmetry echoes of that would be three nothing new was entered with the twenty thousand amendment it still would pose the same problem for your client as it does now that's all i was trying to is that not if it posed a problem for our client which we don't think it does at either time  because we see that through the text the structure and certainly the purpose as we see in amendment eight hundred and nine that the use of at any time is meant to just tempore only distinguish it from the requirements of the before and after triggers hearing in this case your honor i am because at the time of the illegal reentry at the time of the federal offense that would be in the moment at which we would look to see the final status of that prior conviction and at the point in which mr mood as came into the country and committed the offense the status of that the final status of that conviction was as a misdemeanor what do you see in b three that tells you that we look to the time of the the  it's less what i seem to be three and more what i see in the case law that tells us that we don't look to any time that if the change has been made at that time that's what we look to so that point let me understand  how do you define what is a modified correct your honor so it modifies the occurrence of the conviction not the status of the conviction as a felony or misdemeanor the status would be you know marks the occurrence of the conviction correct courage led to a felony the occurrence of the right but it's not modifying the felony status it's just modifying the occurrence of the conviction so here also if we look at the purpose of the guidelines which and in particular chapter two is to capture the seriousness of the offense and the sensing commission and the courts under the direction of congress have to look at state's assessments of the gravity of the prior offense in order to determine the appropriate federal receipt of asst enhancement and another question convenience it's only the priors that made it a felony correct though could you say that the criminal conduct itself did not result in a felony it's only a prior the criminal history the result caused a felony that's a good point your honor i your argument and if there were a misdemeanor and it were there after deemed a felony would the state be able to change the sentence imposed the ten level in the hands you mean sort of the opposite of  believe that would probably prison ex post facto well wishes to minute if in fact your argument is that what would be the bad what would be the why would that be available if in fact you're saying that if any time they change this then the sentence can be imposed differently why is it that that we go up why would we be able to then change it i mean ex post facto isn't going to deal with the well though i believe it would because the protections inherent in a misdemeanor proceeding would not have been those inherent in a felony proceeding i  don't think it could go that other way also i just wanted to come back to judge comment if i may and your sister judge in the eastern district of new york recently dealt with an analogous situation with the drug reform law act of new york and the application of i believe it was aka and said exactly that that when the state legislature has recognized the best not the point i was making the point there was making is that the criminal conduct that was resulting in a felony was really not resulting in and i agree and i do think that is a great argument but if in fact we look at the sentence itself it says it gauged in the criminal conduct that it anytime resulted in a conviction for a felony offense this criminal conduct at the time it happened resulted in a there is a time when the criminal conduct in this particular case resulted in a conviction for a felony of fans it's not another illegal reentry and it was a sentence which was imposed to five years or more to apply that interpretation would subvert the purpose of the guidelines and i also want to point out the defy word to subvert purpose because the purpose of the guidelines is to reflect the gravity of the offense conduct and i  did reflect the gravity of the events of conduct at the dime the sentence was imposed the ten level enhancement is the highest enhanced men available under two all one dollar and that  enhancement for people whose priors are armed robbery aggravated sexual assault etc it is unfair and inappropriate to put that same enhanced went on mr beer mood as for attempting to steal two beers and then finally i just wanted corrective the severity and frequency of the prior crimes correct state had a different regimen and changed it correct and that's exactly the point chapter four addresses the issue of  m and deterrence and chapters of history correct your honor thank you there's one more question that is my main problem with your argument my understanding is that we are supposed to treat convictions for purposes of this enhanced and basically the same way they get treated for purposes of calculating criminal history become criminal history category and as i understand it if as i understand actually your client did get three points for this conviction i don't think you even contested that based on the length of the sentence notwithstanding the fact that it's since been reclassified and if that's correct if if in fact he was rightly given you know the full three points under chapter four why would we then treat it inconsistently for purposes of the three so your honor thank you that's would not be an inconsistent treatment by any means so the fact that chapter four the chapter two enhancement only applies of points are given under chapter four but the inverse is not the case the fact that a criminal offense receives criminal history points does not necessitate application of the in hand meant why would why would it be there be a different regime is what i'm saying there are two you get a certain number of tamil history points depending on the length of the sentence right it's more than a year you get the three i think yes you're on it as more than one year right so if the reclassification of your clients now mr meaner offense were given the full retroactive effect that you're arguing for then he should not have gotten three points right if it were going to be treated consistently well that may also be true but the fact that he didn't get the three points and it was not contested does not mean that he should also get the chapter two points there chapter two and check ok are you i'm not understanding i'm sorry i'm saying all of our cases including the case that the government cited that's one a j letter correct basically say there to be treated in the same manner if you get the full if you get majority and as you know there was a strong dissent from judge a khuda and the government has been ordered to respond to the petition for rehearing on bunk the the use of chapter four in that case was specifically directed to the single sentence rule and whether that would apply to chapter two it was not a global what we do in chapter four we do in chapter two but we have other cases that have said basically the same thing don't well if i am happy to do additional briefing your honor but i do not believe in certainly the government has not presented here a case that says the fact of getting criminal history points necessitates the chapter two enhanced ok well if it doesn't necessitate it why should they be treated differently well for exactly that reason because they serve different purposes chapter four is to address criminal history and the concerns of recidivism and deterrence chapter two is to address the seriousness of the instant offense ok so in fact i think the fact that he received criminal history points under chapter four would double counting correct you know x i don't think that's right but so let me just understand this the length of the sentence under chapter four is being used for the exact same purpose that is here to measure its as a proxy for the seriousness of the prior threats and i disagree it's not the same purpose why not why no one is the seriousness of this offense now of the prior i think i think the point is that under two defenses is taken on  grid the most lenient to the most severe of two i think forty two or forty three the criminal history moves you horizontally on the grid to ever increasing punishment but the severity of the offense itself is generally speaking not found and in chapter four of the guidelines is found in chapter two and takes you vertically down good morning may it please the court i'm chris cabaniss from the district of arizona u s attorney's office i think members of this court have hit upon the hit the nail on the head in terms of the plain language of this provision which i'd like to address st as judge smith and i think judge what for noted the plain language does say that if somebody is removed from the united states and here that if it was removed for the st time in one thousand nine hundred and seven the defendant engaged in criminal conduct that at any time resulted in a conviction for a felony offense and we had that here in two thousand and five for which the sentence imposed was five years or more here he got seven years the guideline plain language answers this question and i think that the difficulty the court is having with the defense counsel's argument is that you have to ignore the plain language of the guideline to get there when addition you're going to say that they're i guess i'm sort of troubled by the government's position in this case because of the unfairness that it seems to lead to let's say just hypothetically that somebody was sentenced to six years for a prior offense the conviction became final but it was determined afterwards that actually a big mistake had been made the judge actually had ordered a sentence of six months and they retroactively changed it back and said really sorry we kept you in longer than six months that was a big mistake but you're free to go and we've now reset in studio to six months i take it you would you would say that that conviction gets the full ten levels even though it was everyone concedes it was a complete mistake it should never have resulted in a sentence of six years when you say a complete mistake do you mean that it was invalidated as a conviction because that would be different conviction was valid the judge meant to send the sentence the person to six months instead somehow it got recorded a ten actually your honor it wouldn't be me it would be the sentencing commission the sentencing commission has specifically said exactly what i just read if and what happened here is the district court very downward five levels and that's why i'd say that the  history and say because of different problems we're going to go below the guidelines or above the guidelines and here's the answer to that actually your honor it's the guideline language that says we focus on the timing of the criminal conduct under this provision so it was the criminal conduct that the defendant engaged in not the ultimate even though he got a felony conviction but that's what quite a slope is comes in and that's one of the reasons the government cited it is twenty eight j letter it really focuses on the timing of the criminal conduct and i'd like to point this court to amendment eight hundred and nine which was also quoted in that footnote five of the slope and it talks about there that the two a one two in that case b two but they also refer to the b three mirror amendment in two thousand eight depends on the timing of the underlying criminal conduct and not on the timing of the resulting conviction and that's where the defendant's argument unfortunately fails because in that particular circumstance we do look at the conduct when the conduct was crafted and the defense argument has been from below and up to here that it's all about when he reentered and that's not the timing of it or when it's read designated a misdemeanor it's what was the conduct that resulted in a felony conviction and if so the plain language i posed because the conduct is exactly the same he just it's the sentence that he got it that causes the problem here right well number one i would say that that hypo is not what we have here which i know you know you just mentioned that we don't have that and i'm trying to figure out what the commission intended here that's why i just don't buy your argument that well variance will fix all this we're trying to figure out what did the commission intel know i think that the commission said what it what i don't know what it says i don't know what this means well it doesn't say oh and by the way be sure to measure the length of the sentence you know the time that their criminal conduct occurred i guess i would respectfully disagree i think the plain language says what they meant that if there was criminal conduct that at any time resulted in a felony and this dovetails to your argument it is very common anti thetical the person did get a sentence of six years at one point in the history of the world he had a six year sentence it was a complete mistake it should never have been six years it should have been six and under the underlying conduct if i look at the time of the contract the conduct of the same he should have only gotten six months then he should he shouldn't have ever had six months it seems to me the effect of proposition forty seven is basically the same the state has recognized by wanting to give this retroactive effect that this should never have been a would he get seven years again remember what the actual length was so it should have been six months or whatever right here i guess all i can say is this court  has repeatedly said it analyzes federal sentencing looking at the plain language of the guidelines the beginning plain language is not unclear and we would submit it's not unclear here that that's the language that applies and here we have a defendant who create who act engaged in conduct that resulted in a felony offense which at any time i think the language is at any time resulted in a conviction for a felony and the criminal history comment your honor is not a it's not a subordinate one it's actually very relevant to this because this court said it and i think that's why judge hellerstein comment about the timing of when it was designated a misdemeanor is the grabbing men of the determination it is when the conduct is committed the timing of the underlying criminal conduct conduct that was committed was a misdemeanor it was only the prior history that caused it to be a felony your honor i guess when we look back at the cases again that the government cited but also just the plain language of this as the district court said the plain language is to conduct itself was a misdemeanor stealing two bottles of beer your honor as a relying on the timing of the resulting conviction with regard to when it was  misdemeanor no i would have i'm relying on a definition of criminal conduct escalated by prior history that's not conduct i respectfully disagree i guess your honor i respectfully disagree i think this guideline is crystal clear it says if you commit criminal conduct after your st removed that at any time resulted in a conviction for a felony offense where the sentence imposed was more than five years you get ten levels that is the guideline not the government that is the sentencing commission determining that this is the enhancement should apply in addition quite a slope has said it makes sense for a prior offense to be treated in the same manner under both sentence rule should apply in that case but if you look at the dissent there interpret in the plain language the same way in terms of finding for example at the end of the descent says under the plain language the dissent would argue quite a slope as does not have a conviction for a felony offen for which the sentence it was imposed for is five years or more that's how even the dissent interprets the statute the dissent is only in quite a slope is concerned with whether or not in that particular circumstance in the way the convictions came down whether it fits but the plain language is the plain language there's no getting around the plain language we would respectfully submit and that when that happens and considering the parity there is in the analysis and also this court's decision in quite a slow pace we would respectfully ask this court to affirm the sent and they're citing on page one thousand and sixty eight it makes sense to treat priors in the same manner when they're used to determine the offense level under two a one two as when they are used to determine the criminal history category they're citing ortiz gutierrez one of this court's decisions here because it is what it is unless the court has any more questions for me i would rely on my brief thank you very much but two minutes on the clock  for thank you your honor and your honors just to wrap up and i want to start with as judge watford said when you said your honor i don't know what this means that sums it up at at best this statute is ambiguous and once we determine that the language we believe it's plain in our favor but but clearly there is some ambiguity that the court has seen and once we get to that ambiguity then we go further into the statutory interpretation and we look at amendment eight hundred and nine we see what the purposes the statement of reasons and that informs our or standing of what that language is meant to accomplish we go further and we go to the rule of lenity and that  result in favor of mister i also agree with your honor that the example you gave of the six month six year six month mistake is essentially what happened here california made a big mistake and when they finally admitted that mistake and  and rectified it they made clear that this never ever should have been a felony and finally i would like to go back to judge hellerstein point which i think is is terrific and i regret that i didn't raise it in our briefing which is that if you look at the offense conduct that is not what triggered that original sentence that is tucker our conduct is infused with the fact that is a rd crime and that you can't measure shouldn't measure just the act itself but the act infused by the history before it it would not be the only time in the guidelines you have that kind of a condition that's her argument i think general principle that was stated there i think cuts across it's not unique to the single sentence rule your honor it's not unique to the single sentence rule but it's unique to that particular question before in other words it might apply to other issues but it doesn't apply broadly between chapter four and chapter two and i will with the court's indulgence provide supplemental briefing on that point i don't think we need a supplemental briefing if we do it some way to a point will certainly let you know but for now