and when we were we were well aware of it except for the identifying information the v i p s decision in this case is identical to the one in the previous case so you have another actually want to build on what was and also on the california state law if being under the influence can only be classified as a misty nina that as being in possession attendee is a shot at transportation and so on so to to have somebody to be punished for being under the influence and not being eligible for the and not for being in possession use and therefore it would be absurd to say it's for personal use and then you don't use it and the same is true in in these type of cases normally people who  good morning your honour's may please the cork banzai line on behalf of the attorney general on the previous case before this and this case as well as basically touched on the exact same issues and that issue is whether when one is convicted for two simultaneous offenses does that will that will in an alien receive the benefit of the federal first offenders act by to express terms the federal first offenders act applies to one singular offense for simple possession in this case we have two simultaneous offenses one for possession and one for being under the influence of a drug which in this case was cocaine and for though it for those reasons because it was not because therefore ineligible for cancellation of removal it's hard to fathom a circumstance where an individual is convicted for two possessions and would get the benefit of and a million ratings federal statute that is meant to  allow individuals prosecuted for the most simplest of drug offenses to ask for the benefit of that stature when they're convicted of two crimes at the same time it ends up asking this court in every situation one individual is convicted of two simultaneous crimes one being simple possession and one being any other crime to engage in a guessing game and essentially say what crime is sad counts out of one incident with i was limit well i first your honor of like to point out that this is a cancellation of removal case when the burden falls upon the alien to prove his eligibility for relief the documents submitted by the alien in this case don't specifically they list the statutory counts if you pled guilty to there was no contest you didn't contest the allegations and there's no testimony as to what exactly the offenses was irish just looking at the effect of your argument on the federal first offender act basically i mean even even in a regular straight criminal situation to argue that that multiple discussed being under the influence is not a federal violations so you couldn't have a prosecutor just throwing that in and thanks well for immigration purposes we're going to just throw in being under the influence judgment is entered under state law does is there a corollary in the federal laws that would also say that that expunged expungement would have taken place if this individual is charged under federal law and the simple answer is there would not have been a expungement under federal law of both crimes if the if congress the congressional intent was to say simple possession and other drug related offenses or multiple convictions the same time congress would have done that  what is your response to the argument that past cases seem to have come up with the role that what congress really intended with simple possession or anything even more puny than that that it's related to the land and that seems to be the state of the law and counsel argues that we can tell that this crime is lesser because it's only a misdemeanor  and the federal government hasn't even seen fit to criminalize it and i know that's kind of a long winded style but you know what it was your response to that line of argument i think that the of let's say a drug possession of drug paraphernalia then that this court has said that's a simple possession case and it would be the absurd result which charges that way if you're initially charged with the simple possession and then if you plead down it would seem absurd in this court's language to say well you can plead down from a simple possession to a lesser offense and that you still want to get the benefit of the f f a way that's what that's what this court is saying and it's always been when you've been charged with just one crime so whether it is lesser in your view or how it is we're supposed to tell with lesser i mean i suppose in this case have there been only one conviction on the position or only one charge and the person had pleaded down to being under the influence so that it was a misdemeanor we'd be under our previous cases or we might be i think in that circumstance where the individual starts with one count of of simple possession as this court state in the cardinal's case and then plead it down to a under the influence that might fall under this court's what's lesser how do we know when when when there's no pleading down involved like this is there a way that we can figure out what counts as lesser you know this is the only circuit within the country that has the term of what lester is and as an attorney for representing the government talks for me to understand what the judicial intent is in describing what a lesser offenses from the plain reading of course decision making it's clear that when one is charged with a felony pos and then pleads down to a misdemeanor then that would seem to be a lesser it seems like seems that your argument if i'm understanding it correctly is that the only way this construct were side by side with a first if the very charge itself is that which is contemplated in the federal first offender it simple possession and that if you figure out a way to get less of a sentence by pleading to something that gives you a the charge with this simple possession crime and then you plead to a lesser crime i mean that that seems to be the construct that this court has set up in this case very petitioner played in criminal court to these this is what the judgment in the record shows that the this individual was charged with two distinct crimes and it would be a very broad interpretation of congressional intent to say that we