twenty months down to seventy months or less my argument is essentially that there's no sense imposed are the by the juvenile court the government's argument that the four year maximum term is an in  justice jurisdiction time under that's under section of the welfare and institutions code seven twenty six and i'll quote that for my argument in any case in which the minors removed from the physical custody of his parents  imposed upon an adult convicted of the officer officers which brought or or continued the minor under the jurisdiction of the juvenile court that for years has to do its jurisdiction is not the stance imposed upon a minor as i made him my argument in my brief is that the california juvenile code permits to determine its sentences eleven seventy the california to determine whether this is a sentence of over sixty days and that you look at the maximum in an indeterminate sentence for the term and that so if the maximum is over sixty days that's  not the length of time the vaccine he served in this case there was no term imposed upon the minor the state can impose can't community placements a year is committed for six months you're committed for a year you're committed for thirty days they did not do that in this case it is playing the in the right line is there was no sentence imposed now  wasn't sense to that was the sense to that if they're going to do it we're going to apply these these draconian ways for safety valve and satins there has to be an imposition of sentence in this case there was no in position in every single juvenile case in the state of california states there to maintain the jurisdiction over the minor it's not a sentence i that he was eligible for the safety valve exception what happened was that the pre sentence report i'm only recently awarded three criminal history points based on application no five to u impaired the trial or side need not determine whether a defendant was driving under the influence only whether he had the specified blood alcohol level or conviction for driving with a point zero eight percent but alcohol level good morning that place the court honest united states attorney carol peterson and i represent the united states in this matter what the court's permission i would like to address the issues just raised by mr sikes with regard to mr for at the outset a mentioned there are two issues before this court the first being whether or not being convicted of driving with a blood alcohol content of point zero eight percent or higher is a similar offense not the same offense but a similar offense to driving under the influence and  two three one five was not the same offense not the same offense and the court is not required in this case to make that a term that determination whether or not is the same offense only whether it's similar that's right your honor and as mr slice pointed out he is correct that this action was an acted so that the government or the district attorney's office would only have to prove a straight blood alcohol level of point zero eight percent or higher the district attorney's office would not have to prove that in fact the person was intoxicated however when the court looks to the legislative history of this particular section it's clear that the section was an acted to accomplish the same sorts of goals that driving under the influence was to protect the public from people who drink alcohol get behind the wheel of a car and place themselves the people in their cars and others in jeopardy so i was to much of a court that is similar i would also note  that by the terms of the sentencing guidelines themselves there's no way that this particular vehicle code section can qualify as a minor traffic an infraction because under one b one point nine the application not one states that an infraction is any offen for which the maximum authorized term of imprisonment is not more than five days and in the present case since conviction resulted in a sentence of thirty six months summary probation a thousand six hundred sixty three dollars fine for seventeen days county jail far in excess of the five days perscribe by that particular note so based on all the foregoing i would submit the district court properly calculated this is a similar fence incorporating it go if this court finds that that conviction was properly cooperated in his criminal history the safety valve is statutory obviously three five five three f and whether or not the district court felt like  book or perhaps a different school history was over represented and perhaps should have fallen in criminal history category one it still would not have the discretion to to make a departure under that statutory term so  we would submit that booker does not apply statutory mandatory minimum sentences in this particular case with regards to mr scott now's argument the issue in this particular case is  whether or not the district court properly applied for the history points at sentencing based upon the prior conviction a juvenile conviction for possession of marijuana for sale and the record in this case demonstrates that the court that handled case made explicit findings that the defendants offense was a felony and they should not be held in physical confinement for more than four years and the sentencing guidelines for a one point to be struck sentencing courts to look at the sentence that was actually pronounced not to link the time actually served now mr stanmore has argued that in fact this was not a sentence that was actually prescribed that it was more of an indeterminate sentence i disagree with his contention but even if  that even if he is correct about that i believe that the case of united states versus birch which is a test circuit case addresses his issue because in that case the court found that although the actual time served should not be considered the sense of confinement so the time that the person actually spent in confinement isn't an indicator of their criminal history points the time served is evidence of the actual time served in cases where the sentence we don't think we can rely on that as an indicator which the government submits the court should rely on but if the court were not the fact that one hundred twenty days is an indicator under bush to this court that in fact he did start greater than the sixty days and it was properly counted of the juvenile sentencing system is is rehabilitation of the of the particular juvenile with particular care given to the probation officers and other people who are directly contact with the juvenile to see if the goals of that confinement have been met is a juvenile rehabilitated is a juvenile able to successfully go back out into the public and live a law abiding life and so i think that the court recognized that this was a serious offens committed in his eyes and set forth a felony term of not to exceed four years the whole point of the juvenile justice system was to leave it to the discretion of the underlying juvenile confinement  until the age of twenty five i believe and so courts that have looked at this particular issue including united states versus davis and united states versus in the cases of indeterminate sentencing when there is no outer reach