federal three strikes law based on to underline predicate felonies that have been reduced to misdemeanors for all purposes under california state law after reviewing the pleadings here as two points that i wanted to clarify first of all why this court's decision in united states versus diaz is not controlling here i think simply put united states versus diaz as a case about statutory interpretation of section eight forty one it holds the proposition forty seven but as a pure statutory interpretation case custis johnston leval even the word constitution does not appear in the as at all here this case is about whether or not that interpretation and application of eight forty sentence depends on the validity of the predicate underlying priors here those priors no longer exist the federal law clearly requires that the priors be felonies they are no longer felonies the felonies have been a race that's out of california state law interpretation of proposition forty seven furthermore leval held holds that if a prisoner successfully challenges a prior state conviction in state court he may he or she may return to federal court in order to have a federal sentence reduced that's precisely what's happened in this case here the other pick the other point i want to emphasize actually is how similar this case reminds me of ramirez versus castro had a worse criminal record in criminal background than mr spearman currently has no court no state the federal government has never upheld a life without parole sentence and it was this court found that it was objectively unreasonable for the trial court to have determined that the sentence was constitutional in part because of misunderstanding  convictions and the severity of those prior convictions here we have a similar although an identical situation where those prior convictions have been reversed retroactively in state court for all purposes those are my basic points and that's the court has any questions i'll reserve the rest of my time court arson on behalf of the united states and actually i would like to point out that the defendant had four prior convictions three of them were subject to proposition forty seven one was not so it is undisputed that he had one prior felony for possession of cocaine base for sale which was not affected by proposition forty seven the basic premise of the defendant's claim here is essentially that  convictions have been reversed they have been reduced to misdemeanors retroactively for all purposes that is a false premise the plain language of the statute  proposition forty seven makes clear that california has not made relief retroactive to individuals like this defendant whose convictions were final the plain language of the statute and this is code section eleven seventy point one eight and says that relief under proposition forty seven does not abrogate the finality of any other conviction so proposition forty seven has granted a limited form of lenity that lenity does not apply to any conviction like this one that has become final there's no due process violation there it is well established that distinguishing for retroactivity purposes based on whether conviction is final versus non final is certainly not a violation of due process so i would submit that the claim just fails at the outset because proposition forty seven has not granted retroactive relief to this defend conviction that the statute specifically says in subsection and that the relief on that that is granted does not abrogate the finality of any other conviction so it is not retroactive to basically from without all of those convictions for which this felony may have been used for enhancement purposes it's not clear that it applies retroactively at all the defendant relies on the for all purposes language and that language and other california statutes has been interpreted to be pro prospect use only and there are a number of cases currently before the california supreme court looking at whether proposition forty seven is retroactive to non final convictions in various circumstances but none of that really applies here because the statute very clearly excludes individuals like mr spearman and that's because it does not affect the finality of any other conviction and it's undisputed that this conviction is final i'd also like to make one other point which relates  to defend its claim that diaz is not controlling and the defendant relies on a number of supreme court decisions that arise out of the arm career criminal act which does not allow for that for challenges to prior convictions at the time of sentencing there's a very important distinction between the arm career criminal act and section eight forty one which applies here and that distinction is that there's a different definition that applies in each of those cases under the gun control laws and specifically under section nine twenty one subsection eight twenty of title eighteen any conviction that has been expunged or set aside is not counted for purposes of the armed career criminal act that is not true under section eight forty one there is no such car found out for expunged convictions for convictions that have been set aside as this court held in norbury and has every other court and circuit in this country has held for purposes of section eight hundred one only convictions that are set aside based on illegality i would also point out that custer's johnson the value of the cases that stance relies on these are procedural cases so as a procedural matter if the defendant does not have a right at the time of sentencing to attack prior convictions and those convictions are successfully attacked in the state he is proceeding then the defendant can bring a twenty to fifty five but all of those cases have said we are not making any determination on the merits we're just saying this is  procedural vehicle here it is clear that the defendant wouldn't be entitled to any relief on the merits under diaz finally with respect to the east amendment claim that i think this is an as applied challenge it looks at all of the circumstances when you look at all of the circumstances here i would say i would submit that this case is well within the cases that have been upheld under the eighth amendment  the defendant and harmaline was a first time offender he did not have any prior convictions and yet the supreme court upheld under the eighth amendment his life time without parole sentence for possession of cocaine in van when wrote this court upheld against an eighth amendment challenge a life sentence where the defendant had three prior convictions for cocaine possession he did not have a conviction for drug trafficking as this defendant does and the court upheld that conviction in most sollie this court upheld the conviction in a stash house robbery sting where you didn't have any drugs so i would submit that given that there were fifty nine grams of crack here the defendant had an  y forty seven assault rifle and two guns he had a  and eighty forty seven in two handguns at the time that these drugs were found in his home he also had a prior conviction for cocaine trafficking and he was on probation for that felony when he convicts when he  committed this felony and he also had in his criminal history a robbery and a horrific gang rape so when you look at the totality of all the circumstances and compare it against those cases that have been upheld against if amendment challenges the government submitted there's no eighth amendment violation here unless the court has any from the questions i would submit  appropriate to account for that recidivism so i'm just wondering if there is if there is a way to carve out forty seven since the states and clearly has expressed its the is and have these crime says very explicitly that the punishment that mr ewing received his third strike offense was not based or propped up on the fact of his third strike offense but actually appended on his prior serious and violent felonies and that was why his life sentence was not grossly disproportionate by the way mr ewing also had an opportunity for parole here we have a submerged more severe sentence right life without the possibility of parole and furthermore the underlying predicate felonies that were propping up mr sentence have now been taken away or raced in the parlance of the california supreme court i mean excuse me california courts of appeal the california courts of appeal have unanimously held that proposition forty seven relief  much broader than expungement or dismissal under twelve a four point three there's recent cases as the government alludes to but it's consistently held the prop forty seven relief is tantamount to a racing expunging wishing away as if it didn't happen the felony convictions the with the sole exception is that you're not allowed to have a firearm and if we were to reverse this under the eighth amendment slash  send mention to us absolutely furthermore he does have one prior drug conviction which would automatically kick in a minute to a minimum sentence that would just would not be life without the possibility for all i would also submit that the court would able be able to understand and six here all of the wonderful things that mr spearman has done to rehabilitate himself in prison over the past twenty years besides that aside from having i sentence so just as much as the guns in these other uncharge around convicted conduct i commend all the other good stuff i think would also come in the sentencing consideration before the the district court by the way the district were who sentenced mr spearman in the first place thought the sentence was a disaster he didn't want to i and he had all of the information he just was felt constrained because of the mandatory sentence and was undisputed that he had his prior felonies now they're misdemeanors no court nobody has ever held against at the moment challenge of l wop sentence can be supported by underlying misdemeanors just as it does not happen the other thing is that harmaline government always likes to fight cite harmaline comes to drug cases because it did affirm a life a nonviolent defense based on two predicate felonies that have now no longer exist they've been reversed for all purposes absolutely retroactively according california court of appeals interpretation  county supreme court now as townsell said there are several issues before the california supreme court that touch on this i suppose if your decision in this case turns on the  understand there is a case before the california supreme court that's actually fairly similar to this case called vallon swale i don't have the citation in front of me where the question is in california you have  year sentence and handsome and if you have a prior or one year excuse me a one year prison prior answer then if you served a prior prison term correct for a felony now you come back for a new crime and that one year sentence would have a one year dance that would have ordinarily applied envelops well i believe the issue is if that one year sentence has been reduced to a misdemeanor kit if that prior crime had been reduced a misdemeanor can you apply the one year enhanced meant on the new term it's a slightly different do you know the status of the case they've granted review the california supreme court is not the swiftest we've had a case there pending for two years before but i'm happy to also submit a twenty eight jail letter at least as far as as far as i understand i have to look at balance well again i don't know if you're familiar with that but again if it's not and this court's opinion turns on that you know unanimously have held that it's a race the felony is a racist that it's broader and more extensive relief than expungement of dismissal relief under california statute twelve of three point four and that the only reservation that is held is this fire exclusion ok why don't you unless you hear from us for the contrary submit to us a list of