sentencing and now has sort of an additional nine months and so to get back to him the time that he is hopefully you would find mr serve is going to be impossible because it's time served but it is felony even probation but that doesn't mean they're not convicted felon i guess that's my problem judge graber that's true and i agree with that in arizona and you've written the opinion in two of our significant cases our legal cases and with you in arizona the proposition two hundred imposes on the court an obligation to impose no confinement that's greater than a year and a day under the organised sentencing guidelines which mirrors the federal sentencing guidelines the judge is obligated to impose only ninety days in jail with a probationary sentence distinction between what the statute guidelines and your honor that's the step we want you to make here in this case based on the steps you've already taken i say you because you've been the lead are so into those cases but this court in general as the ninth circuit that there is no difference in the in the organ scheme where the judge has to find substantial factors before he can the partner she can depart in the sentencing scheme that just as in  particular accused may be punished for numbers of years because of a second third conviction must be ignored and we look at slowly at the underlying offense in this case was the petty theft one that he had had three prior or two priors and therefore got a three year sentence but the court specifically said with more of those risks it of us just enhanced months and look at what the individual could get for the underlying offense and that would be our argument your honor in that regard again the issue of whether or not this mirrors the arizona statute as your honor has mentioned it clearly doesn't meet here because we've got the sentencing guidelines but nevertheless that is the intent of the people of oregon that certain punishments be given and i think this is significant from this court's prior looking at the legislative intent that if the underlying offense would not be punishable by more than a year and a day under the federal statute that likewise it is not an aggravated felony under the guidelines and therefore we also have that argument  please the court i'm allen girl from the u s attorney's office in boise idaho on behalf of the united states i would respectfully submit to the court that the counsel of ms is mistaken in his statement that the district court judge here looked solely to the oregon state level a felony or misdemeanor and what judge george held was that whether an offense is punishable by more than a year is not defined by the sentencing guidelines applicable to the offense but by the statutory maximum sentence which i believe is the issue here i would point out to the court that  ts case it's not in a really doesn't have a reporter cite yet but it's that two thousand and three was law to two nine six six two six four decided on december the eighteenth two thousand and three that was an apprentice case where they were going supreme court had to decide whether certain factors carried a sentence beyond  the maximum permissible punishment for a pretty purposes and they are the oregon supreme court held that the maximum sentence for a pretty purposes is that described by the statute in oregon categorizing the various levels of felonies which is oregon statute one six one point six zero five not my view or against innocent guidelines and they are the the court stated that the statutory maximum penalty exists outside the presumptive sentencing framework of the guidelines and indeed outside the guidelines themselves so in oregon according to organs own supreme court it is a different situation than what we find in not only made some differences but they changed arizona's drug control policy by treating drug abuse and simple possession as a medical problem as opposed to a penal problem in other words this represented a sea change in arizona law did not it was not tantamount to a sentence in guidelines scheme which was and acted to guide or to restrict the sentencing judge's discretion this was tantamount to a complete change of the statutes that were that defined and prescribe punishment for the offenses i think it's significant that in rootless rodriguez the clearly a felony it was labeled as such and was punishable by up to five years imprisonment now the court there was referring to the bar of the lindo opinion at footnote one where the a bar of a window panel know and i think that's one of the main points here i don't think the congress or the sentencing guideline commission intended this court or all the district courts to become experts in all the states and it's in guideline schemes in the circuits in order to be able to apply our already complicated sinister guidelines of the federal level i think the key is we look to the statutory maximum permissible punishment which in this case is five years we do not look to the guidelines which was dealing with the same arizona law the same arizona proposition two hundred on the federal pronk were the panel look to the term and whether the offense was punishable by more than a year it looked to twenty one c section eight forty four eight did not look to the federal sentencing guidelines it looked to the statutory maximum permissible punishment and then on the states i did look to proposition two hundred i would submit that what we have in the vice clearest release decision and indeed in the road let's try to reduce decision is an implicit acknowledgement that proposition two hundred was not the equivalent of a sentencing guidelines it was the equivalent of a statutory change and indeed the proposition two hundred itself provides that it is a policy change a philosophy change for the arizona fundamental proposition is that we look to the statutory maximum not to the guidelines but then i think that it is significant though it is a distinction for example from the arizona situation that the judge on are the that's different the the rift there were sort of this decision in the ninth circuit was dealing with the federal statutes that under twenty one u s c the the the maximum punishments the statute not of the guidelines but under the statute goes up with prior convictions and the ninth circuit held that well for purposes of aggravated felony we're looking at the basic offense itself we're not looking at statutory recidivist provisions which ratchet up the maximum punishment but i would argue that this reinforces my fundamental point here which is that the long history with the united states courts are very important constitutional issues in the robe least rodrigues of opinion points this out and determining when they defend it must be indicted when it within it has a right to a jury trial when a state must provide counsel all these things turn on whether the fence is punishable by more than a year and historically the courts have always looked to the maximum permissible punishment under the statute of conviction not misdemeanor a state misdemeanor can be the basis for an enhanced months under this guideline by being an aggravator the fans if that misdemeanor notwithstanding of being labeled that can court has already espoused and that part of this is what what the people intend to be that maximum punishment and that the court has on occasions so that the federal statute controls all told because had this been brought under the federal statute he would not have been eligible for more than a year and therefore under the guidelines that likewise he should have the four level reduction are enhanced