gibson's organ manufacturing and delivery convictions or the statutory definition of violent felony referring to mr gibson's assault three conviction turning first to the delivery manufacturing convictions reason they do not qualify as serious drug offenses under the encore a criminal act is the maximum term of imprisonment prescribe by law was not ten years or more under or more is proscribed by law that used that term prescribed by law that term is not used in any other case that i'm aware of that this court has interpreted whether an offense is a predicate whether for a c c purposes of some real for congress uses different terms in the same same statute different meetings were intended so using language like prescribed by law under basic rules of statutory construction has to mean something law relates to statute them punishable punishable sounds like more actual punishment as a scribe by law sounds like what the legislature decides so if there's if there's a mistake it might be in the other  sentences forty one forty five months this is now for anyone i'm not talking about the particular facts that mr gibson's case i'm talking about the worst case scenario for any defendant in oregon oregon law then says a judge fin defendant in oregon can get for a manufacturing or delivery conviction under oregon law is nineteen months double the presumptive term of forty five months that is the maximum by statute by one hundred twenty months so he is not is not qualified his two prior convictions for manufacturing delivery are not a c c predicate i want to save a little time for this court has already determined that the correct analytical approach to deciding the issues before today in the marina hernandez case which the court has mentioned earlier this morning at least with regard to prior statutory maximum and not the maximum guidelines under the cases that have been cited by counsel as well as the government mario marino hernandez taylor and sheppard courts are required to use a categorical approach in determining whether prior offenses qualify as arm for a criminal act predicates that means that my understanding that courts limit their review of those prior convictions to the fact of the conviction that is the judgment of conviction and vailable and the statute for spying that a fast and courts are caution from getting into the  to abandon that categorical approach with regards to this issue the statutory maximum issue and would require federal prosecutors federal defense attorneys federal district court judges federal courts of appeals to delve literally into the the very arcane and minute details of various state sentencing guidelines in this case we are in a sense fortunate to have a defendant knew that all of this all three of those allegedly predicate convictions in the state of oregon which makes it somewhat easier to discuss the matter but as this court knows many defendants travel from state to state they get convictions in various states and so one could envision having a district court in oregon sitting and hearing about the defendant's previous convictions from oregon california and montana and if the court were to adopt a rule that says the district court would have to come to understand in a way that that reasonable the various state sentencing guidelines regimes from all of those states and it's not just three states it's all fifty states ultimately it would require the court essentially recall that there was such a statute and as i mentioned i'm a special assistant united states attorney which means that i'm a state prosecutor as well as a federal prosecutor today i'm wearing my federal prosecutor ha if and i can think of an exception to this you have a defendant were to go to trial and the state were to plead and crew aggravating factors such as persistent involvement in criminal activity and so on state court jury and the jury were to come back with a guilty verdict on a delivery charge with those aggravating factors the most that the court could impose at sentencing on that charge would be ninety months in prison it would be the forty five months which is an eight day on the guidelines and two hundred percent of that being ninety months however yes if a defendant were to plead guilty and enter into a stipulated sentence the co cold purchases for example he would be facing ninety months on each count potentially consecutively if they occurred on different dates and defended could enter into an agreement with the district attorney the prosecutor in the for any sentence and frankly even that cap isn't really a cap because if the court finds the first dangerous time there are a sexually dangerous offender the court can exceed even that stuff but you are correct that you know oregon the maximum term of an indeterminate sentence in statute still has another way i was thinking about this on the way up here another way that a defendant can receive sentence of more than ninety months on a delivery charge would be if he or she were to receive that ninety months and then get out of prison and on the first day of then imposed the remaining thirty six months so the remaining thirty months on that offender and send him back into the prison system for a total of one hundred twenty something happening in a judicial proceeding it's something happening in an administrative proceeding by a parole board post prison supervision it's completely different mechanism so i'm not sure that that falls into the definition of serious drug of the question is whether the legislature has authorized that in some situations a person actually can serve ten years for having committed this crime and if the answer is yes there are some circumstances in which that can occur why isn't that statutory maximum still the maximum prescribed by law well i just agree with the prime minister and that is that the organ legislature has authorized i think if you look at all of the the different statutes the organ say i don't know why anybody would do that well somebody might do that if they were facing ten really strong charges i mean his point is you might get ninety months time stern and maybe one hundred twenty s better than ninety sentencing statute that was passed at an active at a time when the organ was an indeterminate sensing system a lot of legislative action has has come under the bridge since then and if you look at the entire body of oregon law the maximum sentence for any defendant maximum sentence pushrod by law using the words serious drug offense that congress passed congress enacted the maximum sentence is nineteen months it's not one hundred twenty months and you know  perhaps and that's the last point i wish to make if if there's a question about what oregon law is in this regard i would suggest and ask the court to consider certifying the question your organs  court these are very important cases in oregon u s attorney's office uses a manufacturing delivery convictions in oregon as predicate offenses not only mr gibson but i have three or four other clients who are only subject to the enhance in the arm for criminal act if organ priors count and if the court doesn't feel that the organ loss settled enough to answer this question it seems to me that we should ask you work in court for an answer because it affects the