weapon otherwise the defendant conduct could very well be innocent and the statute was intended to punish wrongful conduct now before hate was ever to find i did miss morale was up was convicted by a jury of a section nine hundred and twenty two geophones when there was no evidence whatsoever in the records about her knowledge of her status as somebody who had been convicted of a term of imprisonment exceeding a year there was a stipulation in the case but the stipulation only said that she had been convicted of a crime that was punishable by a term exceeding a year it didn't say anything about her knowledge of her status it's a seriously affected the fairness integrity or public reputation if you didn't feel proceeding and why the lack of evidence in the record that mr morale is had any knowledge of her status and the relatively tame nature o know where a defendant isn't sentenced to a term of imprisonment for more than a year then that's the presumption in middle or it doesn't apply and you know they specifically say in johnson the fact that neither of johnson's two felony convictions actually resulted in prison sentences more than a year ways against the government and in favor of concluding the job that might not have pleaded guilty absent the error so i think this would be the nd case while johnson arose in the context of a p considered together with didn't it wasn't she sins together for this offense with the other and doing offenses so that if we reverse this conviction it wouldn't necessarily change the sentence t you know there were concerns that this is a case where there were it sounded like you said the only remedy would be sentencing well it would be you know at the government's discretion to decide to retry the case you know i think  the evidence in this case i would certainly urge the prosecution not to go down that path but i do think you know if the if the government decides not to pursue this particular charge then sentencing is looked appropriate if there's well there's no mandatory minimum with regard to that sentence i mean this is a hypothetical sentencing argument but i think that we could make you know in the future if she were to have a chance to you know both that assume that she's going to family it doesn't really give much relief well you know every sentencing the court consider new factors that of a reason since the prior you know since she's been morales stipulated at trial that she you know she had the prior conviction there was no objection to the jury instruction that the devilment didn't have to prove the status of her f well because you know why did the prosecution bring the charge if it was irrelevant to the just to the court's considering or to the jury's consideration of both her guilt and the other offenses the sort of piling on of those issues and to the judge i have i don't know why they brought the charge i can get some reasons but my guess is irrelevant what i'm asking is how does leading a concurrent sentence in place that is legally insufficient and factually insufficient is there a collateral consequences to referenda from that other conviction and if she were to report  that she's going to do that well i think that you know somebody's criminal record is certainly a very important part of the criminal justice system if she wasn't actually guilty of that offense that we've got on our record certainly but it could potentially have collateral consequences for her please the court my name is jared leto i'm an assistant united states attorney in the southern district of new york and i represent the united states in this appeal as i did before the district court the defendant's arguments here are without merit i would submit that the key issue before this court on the merits and there's there's really twenty one is whether in new york state criminal defendant who is correctly informed in the presence of counsel that they are pleading guilty to a felony and fairness issue ads whatever gives rise to some question the fairness of the of the judicial system for a sentence to get held that is completely concurrent with other sentences and would not in any material way  massive heroin distribution conspiracy that crossed multiple states and involved numerous acts of violence and a ten year consecutive sentence for a shooting for an attempted murder in which the defendant was a participant in spending one of the primary analysis and turning briefly to the issue of mr leno before you you turn there let me just ask you is your argument that in substance and i argument so judge it is critical to our argument that mr morales fully understood based on the entire record including the supplemental records that the court does before us relating to the   and as i mentioned in my opening remarks one of defendant is told with counsel right next to them that they are being convicted of a felony and go be a convicted felon i think it is the ordinary understanding that anyone would actually imposed but i think the court did make crystal clear so this is different from the case that this court has heard where someone actually served more than one year in jail and we can see that this was not that case but you know i think it's i think there's kind of three facts i would point you here that make clear to mr morales knew precisely what she was pleading guilty to the st is just the fact that she didn't fact have his conviction and i'm not relying not alone but i will note that the miller support stated that it was it would be highly improbable just even without any other evidence for some of the plead guilty to a felony and not know so i think that's kind of the baseline restart here what the plus factor here what we have that's in addition to the johnson case which which defense counsel mentioned is not only do we have a fact a felony conviction but we have a transcript where that person was told on the record you going to be a convicted felon so it's in the transcript and not only that but counsel is sitting right next to her and there's another couple points the transcript is want to bring out for the court's attention the one that's at the beginning of  transcript defense counsel says you know matches what about the possibility of a mistake and that's quickly pushed aside as not going to happen as as not as not a viable option here and so then the the felony is entered so st of all the notion of a misdemeanor is raised and rejected in front of them and front of the defendant then the defendant is told repeatedly she's this is a felony count and you will have a felony record and the court at that proceeding repeatedly asked or something along the lines of in multiple iterations you understand the words i'm using you understand either thing i've said and she repeatedly said yes and also another critical part is there is one moment where the defendant said she didn't understand something and i think this kind of more than any other part of the transcript cuts in favor of showing that she did understand it because it a break was taken and she had the opportunity to confer with counsel and then when the break ended this morales them changed her answer and said judge now i do understand what you're saying and so we have a very clear record in this case that we don't have in the johnson case that that more than a year in jail and more she was not of your honor pointed out sentenced to more than one year in jail it was still clear on the record she was told you know you're going to be got a felony conviction and i just it's the ordinary meaning of that word this court right precisely just but and i think that the create the key question for this court is what did what were the defensive understood when she's told you're going to be a convicted felon because of this plea and i guess the point is you know this court in everyday usage it is kind of uniform i would submit that it is commonly understood as this court understands it as i think frankly everyone knows or understands about a felony means imprisonment for more than one year there are a couple scattered cases that the the defense points to saying well in some cases you can have these exceptions but the key point is what miss morales understand the fact that there is for example this two thousand and nineteen once or case that creates new law you know and i don't there's any original argument that mr morale is would have been aware of a case that have even been decided would be decided for another six years and that opinion itself acknowledges you know this is something we're creating something of an odd interpretation here that conflicts with ordinary meaning so i think the the record here as supplemented by the transcripts is clear that mr morales was clearly told she'd be a convicted felon but we know without any sort of exception to that that warning meant she that she would have certainly understood that and then again there's another point that i want to come back to that even putting all these this is this notion of side of her clearly the construct of this point this felon in possession count was fully concurrent to the narcotics conviction conspiracy and the kid the trial in this case we really essentially a sentencing trial it was whether or not the enhancements for an overdose death and for the attempted murder that the firearm discharge  it very very clear that mr morales was being sentenced because of the large volume of heroin the fact that the judge found an overdose death resulted from that the fact that this warehouse was involved in numerous acts of violence including attempted murder these are all the facts that drove the sentencing and i think on the sentencing record is very very clear that the felony possession count was really not was not a factor at sentencing and  so as as the court you know going back to those questions that the court asked the defense counsel you know there really is no material adverse effect on this morales in terms of her she's not going to serve an additional day in jail because of this conviction rebuttal hear me yes no we can't ok right so let's just briefly discuss the transcript that the government invoked it's so clear that the trial record has no evidence of the status of a miss morals knowledge of her prior conviction exceeded a term of one year that the government seeks to go outside the record which is far more than the court in miller did to try to expand the record and when the government did so  they presented an incomplete record to the court in to try to discern mrs smith's morales's understanding of the status of her own conviction so for instance when the court said you would be a convicted felon you know you would be a convicted felon do you understand that  one year so in turn in terms of her understanding of what the potential damage from that conviction was if if anything the current transcript proves miss brown's this case so i don't think you can rely on that transcript to find to  firm conviction but i think that it shows that there is a trial issues here about whether or not she had any knowledge that her convictions amounted to or her convictions could have been punishable by a term exceeding the nd thing judge to make that determination and i would know that in previous cases when the court has been confronted with you know multiple can convictions and we cite some of these cases in our brief you know united states be black to be black men clearly the government intended to sort of pile on these convictions to have an effect to have an effect on the jury and have an effect on the judge in terms of sentencing and miss morales should have the opportunity to argue that you know when you take that presidents have made clear that there's a there's a conviction on the record that you know can't be justified anymore after a few and i do think it's important for you know to clear her record so for those reasons and the fact that you know there is room to be argued on a current sentence that you know somewhere between fifteen and twenty years this conviction could have made a difference she should have the opportunity to make those argument and to thank you