go ahead please the court was about daily on behalf of the defendant leon ireland and with the court's permission i'll reserve just two of my minutes for rebuttal this appeal asked the court to resolve two issues regarding the correct interpretation of section nine twenty two in which makes it a federal crime to receive a firearm while under indictment for a crime punishable by imprisonment for a term exceeding one year first a defendant who has received a conditional discharge in oregon is no longer under indictment with the meaning within the meaning of nine twenty two and so how do you distinguish your opinion in the united states v hickey where we help that an original indictment remains extant even after a superseding indictment statutory text in nine twenty two and requires that the defendant remain under indictment not simply that the indictment not have been formally dismissed or extinguished what the supreme court said in dickerson is that the identical which we submitted to the court by a twenty eight j letter is that an identical deferral proceeding was equivalent to a conviction and decker send the supreme court consider the i o i deferral statute under which just like in oregon a defendant would plead guilty the court would place that person on probation and only after the period of probation would the court enter a formal judgment or a formal formal judgment dismissal or of a conviction in that case the supreme court said just as we're saying here but the guilty plea is final but it irrevocably extinguishes the trial rights it determines the matter of guilt and that if the indictment expired when the state court entered an order of conditional discharge what would be the jurisdictional basis for the state court subsequently entering a judgment of dismissal or get all the statute in one thousand and two and doesn't focus on whether the indictment is extant or whether there's jurisdiction in the district court it questions whether the person is under indictment which is defined in the statute as requiring a prospective import a document under which the defendant from the definition of the firearms provisions because before those amendments that status was a conviction after those amendments congress sad we want to recognize state  a chance if you don't get any trouble during this then it ends up being to mess part of the reason they don't get in any trouble if you've got something hanging over their head and if they get in trouble it doesn't go away right it's still hanging over their head yes just as in the situation where a person is convicted and placed on probation the condition conditional discharge is a mule you are to have statute that does not continue the prosecution of guilt it's an the prosecution of guilt and leaves only probation like conditions that dickerson is just equivalent to a conviction so do you agree that mr ireland was charged with a class c felony under oregon law and a class a felony carries the maximum sentence of five years under oregon law do you agree with that i agree with that ok so then why then are we not bound by our opinion and united states versus morello and that to reject your argument that we may look to the actual sentence a defendant faces rather than the statutory maximum the statutory maximum for a class felony does not define the statutory maximum for the offense of unlawful possession of a controlled substance in oregon and the oregon courts have explicitly told us that this is true limited i mean there's i'm not particularly from a with the oregon system was there ever a time when your client was subject to a heavier punishment than what the oregon  produces i believe the legislative history would show that after the apprentice and likely rulings that the oregon legislature changed the statutes so that judges said that more formal procedures were required before an aggravated or mitigated sentence could be imposed before departure sentence could be imposed before that time the departures were subject to a finding but those same procedures requiring advance notice and proof beyond a reasonable doubt of aggravating factors didn't exist before blakeley now those procedures just like a charge of a crime itself are required to be put into the charging document or in some circumstances notified to the defendant with a certain time of the indictment they must be proved beyond a reasonable doubt and there's no permission for an aggravated sentence without proof beyond reasonable doubt a finding on the record so your position is from i take it the filing of well that was it from the the indictment or whatever charging document was used in oregon from that moment on unless it was amended the maximum potential the maximum potential punishment for your client was limited to five now forgotten what but it wasn't five years in this case that's correct because no matter what aggravating factors were even noticed by the government the maximum sentence would be twelve months even if so called double barrel departure for proven aggravating factors existed on the record itself with no aggravating factors the maximum sentence was thirty days in jail aggravating factors that could lead to twelve months could have come up later was what would have have taken to go from twelve months to something higher we can't have that in this case because the plea of guilty has already been entered in the defendant's gridlock has been defined as criminal history gridlock i and a friend serious level one which is the lowest it gets on the scale and that criminal seriousness level of one is defined by the legislature and a statute it says for unlawful possession of a controlled substance the criminal category how shall be one and it distinguishes for example substantial quantity of possession which in oregon is the same unlawful possession statute but it requires that the charging document alleged additional quantities of drugs and that case the statute says the crime category shall be six before i run into my rebuttal time i want to point out that the government's only position here is but they would say that character you resigned the itself the supreme court vacated the judgments of the fourth circuit in simmons and vacated the judgment of the tenth circuit i'm sorry the eighth circuit and halt a winger and ask those circuits to reconsider that precedent in light of character he reasoned out so i think we can infer that the supreme court itself at least considered that territory rosendo would be relevant to the question of what term  imprisonment is a state crime punishable by when the guidelines prescribe mandatory sentencing range all right you want to see a balance for rebuttal thank holder undermine our opinion morale while they want to start with that since we just sort of left off there is certainly our position is that morello controls and there hasn't been it hasn't been abrogated it hasn't been overruled and i think immigration so i think you're looking at two different things how is that really changed things because the categorical approach is used not just in the immigration context but in this context i think in this case we're talking about a statute the oregon possession of a controlled substance where on its face the maximum is is stated as five years these cases and some of the projects that have followed spent a lot of time  discussing if a case has a gaping or aggravating factors and also what it takes to i think the discussion in simmons is actually instructive if there's a convoluted sentencing scheme there's issues related to notice as well that is if there's a somewhat again convoluted sentencing scheme you want the defendant to have notice of what the potential sentencing can be and if there's additions and subtractions based on prior behavior i think that's something that's completely separate when it was aired jury it kind of rejected the use of a hypothetical federal prosecution not in first that the circumstance  not identical to those hypothesized by the government and second that the government's position failed to give effect to the mandatory notice and process requirements of federal law which bars a simple possession charge from being a felony unless the federal prosecutor first something specific to carry to as you're looking at a texas law where you're taking two misdemeanors and trying to combine them to make a felony in this case we're starting with a class c felony i mean it's clear in the p petition that what the statutory max is and there's no question that it's a felony and if we look at again i think morello controls also just i'd like to point out that judge clifton noted in s versus albino really i mean he was referencing moncrief in that case but he was talking about how it's limited to in the end in that case it was sentencing unhandsome it's looking at those are specific to immigration cases and that's separate than what we're talking about here with a criminal case in the criminal stat me ask you because i'm not familiar with the oregon system do you have any different view on what i heard from defense counsel as to how the oregon system works in  federal statutes and the state use of most states that i am more familiar with so that potential maximum sentence is pretty high even though the reality is that actually impose sentences don't reach the ten year or twenty year or whatever year level but you could devise a system differently and what i seem to be hearing is that oregon is devise a system where they stake out a potential maximum but showing up with a statute that says but you get you can get to that point only if these other things are established as well which is where the analogy reference to the prior conviction that would have been necessary to reach a higher level i'm not saying it's a perfect analogy but i'm trying to figure out how the oregon system works in order to see how great the difference is so i really come back to the question is my understanding based on what i've heard this morning of the oregon system correct or am i missing something i should say my impression is that the charging document that was lodged against defendant here was not one that would actually have permit as it's a five years but would have permitted to sentence no more than twelve months is that true i would i would say that's generally correct and i think that the distinction that i would make in talking about the statutory ceiling first is the grid system is one of administrative and regulatory verses statutory your statutory limit which again is argument is still a law under morello is something set by the legislature there's a separate body a regulatory commission that could change at any time what that grid is going to be  is the grid itself a function of statute that is the maybe not the particular numbers but is the grid itself something that statute has created it's the statute created the commission and so the commission creates the grid and so it's something that that could change at any time and so we look at the ceiling in this case the statutory maximum is something that controls and if there are no other questions for the reasons articulated in the government's brief that judgment should be affirmed thank i'll start with about where we left off with that last point our guidelines are required by statute to be promulgated by the commission but they're legislatively adopted they're promulgated by the oregon has has adopted or a stamp is approved and without that you don't have a twelve month maximum absolutely that's clear in this case and in the sentences in the district court's decision it said we agree that the maximum statutory maximum sentence we should interpret the federal laws here to give deference to how the state has chosen to define its offense and this is not unusual because the courts dealt with that frequently and relation to other state statutes sentencing provisions that differ depending on different contexts like the california wobbler regime where i sentence might be punishable as a felony or it might be punishable only as a misdemeanor but we don't know until  econds by asking a question one of the things that gives me pause here is that it's been what twelve or thirteen years maria low and it seems odd to me that in fact if the oregon scheme has been in place for all of that time and if other states may have similar schemes the issue hasn't come up as to whether  least sense her a jury which was i think like two thousand and ten has been superseded it seems odd for eight years to pass before that questions even teed up how come well hypothetical stash the maximum for a non charged offense the offense here is unlawful possession of a controlled substance and the oregon legislature tells us what the maximum sentence for that is right thank you for your argument thank you write this matter stand submitted the next matter and calendar for argument this united states of america versus johnny our race