good morning your honour's may it please the court my name is there are any i'm here on behalf of petitioner fernando here as i'll keep track of my own time here and i'm going to try to reserve about three minutes for rebuttal if there are two main points i'd like to cover with you an argument this morning first you should reverse the determination that my client was convicted of an aggravated felony sufficient to render him removable because the government has not and cannot meet its burden to prove or movability by clear and convincing evidence due to the irresolvable conflicts in the conviction documents some of which are unreliable and those include the criminal complaint and the police call it second you should not remain to the b i a for a determination on the controlled substance ground of remove ability there is no need for that here and that would only further prejudice mr game gutierrez who has been bent detained for nearly four years due to state court convictions for which he would have only served months in jail possession of cocaine base would have and let's assume that was a clearly established conviction would he be in the same situation as in today no your honor a be a bit different there's a separate california statute eleven three five one point five which specifically criminalize this possession for sale or purchase for purposes of sale of cocaine base and with that statute the court and the agency would apply and be categorical approach rather than the modify categorical approach why is that because it's argument here is that the irresolvable conflict i understand your argument that he was your argument is we can't tell where he was convicted of one or the other and therefore the government can prove its case and my question is what if it was the other wouldn't he be exactly  same situation he's in today and if by clear and convincing evidence it was the honor to be the other your honor it would be an aggravated felony right so under reading of the california state court record he was and we would submit that that's not shown by clear and convincing evidence the charging document is unreliable that's the document that references cocaine based because it my client pleaded to account that's not referenced in the charging document he was convicted of a crime with which he was never charged the please call it quits self which the government submitted to the agency during re man did proceedings is unreliable because my client never specifically confirmed a factual basis nowhere in the record does he confirm a factual basis for his plea and shepherd teaches us that that is required shepherds holding specifically says that a plea called me is reliable when the factual basis is confirmed by the defendant during the plea call  that did not occur here this case is more like a doll versus gonzalez or gossip versus holder and medina lara versus holder where remember would be necessary and appropriate because the government won't be able to develop additional evidence on remain and what do we do with your clients admission that he was convicted of possession of cocaine and before the state court your honor before the immigration he how he responds to the notice to appear but under eight c f r twelve forty point ten feet if he concedes remove a billet which he did not here do so here the immigration judge would proceed no for no further instead the and if you look i know it's not sufficient that's i want to ask you how asking could you consider it now works where you've got you say you've got a state court record it's not precisely clear you did judge since your client in effect of it it is basically the immigration judge is asking him what occurred in the state court in his pro se brief to be i a c even referenced that he was convicted under eleven three five one point five relating to cocaine based so it's in the proceedings below where my client was pro se it's unclear if he was he was even clear what he was convicted of because he was a convicted of a crime with which he was never charged so california has this doctrine of informal amendment to the information so the fact that the information was different than what the defense and pleaded guilty to and what the minute order reflect consistent so california doesn't put seem to put much weight on the information so why does that make a difference do you think that makes a difference in these proceedings your honor because the government has the burden to prove by clear and convincing evidence he pled guilty to the possession for sale of cocaine base and that's all consistent with the minute order and the like and with his mission before the i j a and the only thing that's different is the information which california doesn't put too much weight on because they say so and people these and all you can make a change in the plea so so why why should we put any weight on that why does it make a difference if  and it's as a contest guilty which is what the and order reflect so so we have everything correct as we do in other cases where we say it's reliable and the only thing that's different is the information that california that's not that's not significant and i believe in this the recently decided decision that indicates that you look to the charging document when the defendant specifically confirms that comp teaches us that statements during play calling ways by defendant can be inherently unreliable they're hesitant to rock the boat of a deal that may have been confirmed by the public defender in the state court judge in chambers they don't want to question what is said this is further shown by my client pleading both no contest and guilty when the order of probation reflects that he possibly meant to plea no contest to a broad divisible controlled substance that is there anything suggesting that he thought he was pleading guilty to cocaine days other than the the indictment or anything that actually is confusing here other than the indictment yes your honor the plea call quits self the state court judge appears to court correct just correct me in the end i think you like to save the rest of my time thank you good morning katie angeles for the government cases like this involving the intersection of criminal and immigration law tend to be very complicated and interesting and cause a lot of cases to be heard in a lot of jurisprudence but this case is not one of those cases here we have a series of reliable shephard compliant conviction documents clearly demonstrating that petitioner was convicted of possession for sale of cocaine which is a federally controlled substance specifically the record contains as we've already noted the wherein the defendant explicitly pleads guilty to this specific cocaine offense and we also have the minin order as we've already talked about and we also have a probation order all which indicate that the conviction was under this cocaine if you i guess it's not of the two he was convicted of contrary to the argument you're making now just assume that for a second there's a make a difference i don't believe it does make a difference he's removable both as an aggravated felony and on a controlled substance offense both cocaine base and cocaine are in the federal schedules as a controlled substance there's really no question that they that he is removable under both of those grounds whether it's cocaine base or cocaine so no i don't believe that there's a distinction her deals with that sort of circumstance where you can tell from the state court record whether somebody was convicted of one removable offense or another well sure it was one of the two there's ample cases that have been cited in the opening brief where there isn't and you know a little bit of not clarity between clarity or i don't know it with three words but where you might need to look back to the charging document for example to get the actual conviction but this isn't one of those cases i don't know yet i don't know i was asking about a different thing no the answer is to try to make my own job easy which is that if you could cite me a case that said if the records are unclear but it's quite clear that both offenses were removable you don't need to worry about it and i just haven't found such a case so i don't i don't know of any i didn't contains no information that my client confirmed a factual basis sufficient to show he was convicted of any crime that calls into question the entire clique called please call a query under shepherd under the controlled substances act cocaine and cocaine base are sentenced differently for crimes of possession with intent to distribute the supreme court has specifically addressed in de pierre what the definition of cocaine based is as judge what did your client plead guilty to or in your view sorry  did your client plead guilty to in your view obviously your client pled guilty to something in state court what do you think you plead guilty to yes your honor and in state court i believe what my client may have been trying to do as indicated by the order of probation was to plead guilty to a broad divisible controlled substance offense or offenses under eleven three five one eleven three six six point five without identifying the specific controlled substance what evidence of that is there oth probation order the order of creation and the minute order which actually references no controlled substance and the lack of a factual basis in the plea called quiet self if he had been intending to do so without identifying the controlled substance involved that would make him non removable because california law criminalizes a whole host of substances that are not criminalized under federal law and judge her which as you indicated fifty fifty here is not clear and convincing if if if one removal of fans or another the government still has the burden to prove by clear and convincing evidence that my client is removable work with two that's my question let's assume that i regard this as clear and convincing evidence that your client either pled guilty to point one or point five why isn't that clear and convincing evidence of these removable well the the proceedings below indicate the confusion here i know but you're now you're changing my hypothetical let's assume that i think the evidence is clear and convincing that either pled guilty to possession of cocaine or possession of cocaine base but i can't tell which why it's not clear and convincing evidence that he's removable since both crimes would make a mo because you're on a there's there's not clear and convincing evidence as to the controlled substance involved and the conviction documents that you're using to to try and surmise that evidence half of them are unreliable not good by my hypothetical question to say when i asked your opponent which is let's assume that i'm clear that he was convicted of a removable offense but i can't tell which one what does the law tell me under those circumstances and we would submit that it tells you that's not clear and convincing evidence judge markey has dissent and bontoc indicates that the clarity and certainty of the decisions in this area of the law and i see my time is up in flames and might finish are sometimes more important then the rules announced by the decisions themselves the defendant