course in our post argument conference afterwards with that announcement then we'll just take the cases in the order listed on the calendar i know  it's a twelve level enhanced when in this particular case if it qualifies now under this under the particular specific offense characteristic there's a condition present it to that wealth level increase that means there must be a sense of pos but the soonest commission in its commentary which the us supreme court says we're bound to follow defines what's in the supposed means and it defines a specifically in terms of a sentence imposed is only completely probative and that's exactly what happened in this case i mean there's the government side the second sort of procuring decision and mullins which looked at the dictionary definition of what zero was but i think the focus  is number one this is they didn't even address the commentary at all where there was a definition but they're looking at it from back which you have to get you there has to be a sentence imposed in accordance with the definition or who cares whether it was thirteen months  guidelines in section four a one point two fines sentence of imprisonment to mean a sentence of incarceration and wasn't your fellow sentenced to six months of incarceration well yes judge  was as a condition of probation but you're right i mean what why isn't that portion the part that he actually had a certified bars why isn't that the portion that was not probative and the remaining portion of the sentence was well because there was no sentence actually imposed judge i don't disagree since incarceration was there but we're looking at two different aspects that's for a criminal history calculation under for any i mean in this case we're already double counting that two things the type of crime and the spirit of the punishment you know i've always assumed that that's what agood felonies in this context were designed to do and i don't know what you mean by the term straight probation and in our parlance here in arizona straight probation means  california and then suspend it but under this particular procedure in california there was no sinister imprisonment actually imposed that's how i used the term straight probation you got about three minutes left in reserve and yes if i may thank you a court run ratio from u s attorney's office in reno it appears looking at this particular case that the defense is not contesting the fact that there is a felony conviction and you're not contesting the fact that it was her possession controlled substance for purposes of sale starting with that premise we look at the guidelines and the guidelines when they were revised so in prague trafficking of frances in this falls within a drug trafficking offense definition will be treated wanted to wage if you're convicted of a guard trafficking or perhaps you're sentenced to thirteen months or more there will be a sixteen level increase if you are sentenced to thirteen months or less it will be a twelve level increase if it's a drug trafficking the parents there has to be a twelve or sixteen have an increased depending on the sentence in this case probation is certainly a sentence it's a conviction certainly been convicted but at that time but what about you know there's a lot of variation that i mean there's you know there are there are these diversion program for instance right if there was a diversion program is that a ten normally under diversion program sentence is held in abeyance if it's completed our then the conviction would be dismissal there's no sense in that you can keep that on a diversion to move hypothetically hypothetically i would concede that on a diversion program the sentence is not actually well depends on the different state some impose it and suspend it and then they allow a person who successfully completed the withdrawal of the rogue nation in some way to be in between that and what i'll call a straight probation on less some further actions taken by the court is really conviction just a judgment conviction probation is a sentence you know later on and so your theory doesn't make any difference that he sort of my theory doesn't make any difference if everybody just just briefly we have three different classifications aggravated felonies under the age of sixteen point the twelve point eight one now if you look at the structure of the amendment that the that the senate the commission set forth they graded those because they got what they wanted to get rid of the fact that all of the sixteen points no matter what they did they put in the scheme in the place in the taking the two two different concepts one the type of crime and then the seriousness of the crime and that's exactly what the circuit explained in the case that we cited in our brief they laid it all it was a very well reasoned opinion about if you're looking at the context of this in seriousness and so on we're not saying it's not an aggravated felony i mean we can't make that argument but it's an eight significant time and only more than almost double that and i think that's exactly what the senate's commission was trying to do because under the old application no five you left it up to the discretion of the judge to give a downward harsher they wanted to get rid of that because it was working