case the underline issue i think that is essential for a determination of this case is whether or not a r s thirteen six zero four applies in this case i say that because that is that if that is the reason the arbitrator found that mr cannot have been convicted of a whether that the fact that i'm trying to use some sort of federal standard i do not i think that it is appropriate that the fifteen it is a state centered under five u s c seventy three seventy one they have to look to the underlying state's matter for for a definition of a felony however i disagree with you in terms of whether or not under the facts of this case mr canady would have been subject to a felony offense under the statute thirty six or four aired it requires as as we just discussed that a person be convicted of a felony for it to be applied my argument today is that under the police in this case even if thirteen six zero four eight did not exist this plea would be valid and in force of all without reference at all to the statu and let me walk you through this plea agreement if you go to the joint appendix on pages one sixty eight and one sixty nine if i walk you through that the specific language of this plea i think the court will ultimately come to agreement with  the arizona supreme court justice smartphone reference a case where the predecessor statute to thirty six or for a applied it was thirteen seven zero two in that case this person who had been charged with a class three faffed ultimately pl to quote a classics open ended felony unquote that is the difference between what the with the agency is arguing and what the arbitrator relied upon and what we're arguing so i'm from thirteenth so for and when they decided that they had that that five u s c seventy three seventy one applied and the fact in fact let me let me let me touch on a couple of things it's a plea agreement under thirteen six zero four which allows a felony conviction or not the plea to be not designated probation is for phillip and it will be transferred mr mayor you don't need to do any of that if you're is convicted if they are convicted of a felony or misdemeanor and this is this is what i think i was trying to get out and i'm not sure who first of all thirteen six zero four doesn't seem to contemplate the situation you're talking a felony plea your honor that this is a decision by the prosecutor and the superior court to allow not only mr cannot have a law enforcement agent but also an entire classes of other people lawyers accountants pilots who if they plead guilty to an offense under arizona law that is a felony they are now convicted of that offense and if they are convicted of that offense that can have huge consequences on their ability to continue in their chosen careers ability to do this is pursuant to arizona rules of procedure seventeen point four which is very broad that the supreme court has said that the parties are able to negotiate on and reach agreement on any aspect of the that would be subject to the federal statute and this is operating in the same exact way because he subject the felony penalties by the terms of this if he doesn't complete his probation i disagree your honor this court above all other court deals in precision words have a meaning this is a contract if the if the if the count in here that he pled to said felony as it does in state versus urana which are not we wouldn't we wouldn't be here can this this is the same thing this is a conditional plead that could subject him to felony your honor the five u s c seventy three seventy one mandates a felony it does not mandate and designated offense it does not designate you know a misdemeanor for the continent mandates a felony it contemplates conditional please don't do not by its words ok but did you look at the list for the history of your honor i looked at the statute in the words of the statute while i was looking at the please the court before delving into the intricacies of the arizona law in this case i'd like to start by explaining why under federal law mr cannot as offense is quite plainly a felony and that's important because federal statutes like the mandatory removal statute are typically interpreted under federal law pursuant to the supreme court's decision in holyfield's and the general reasoning for that presumption applies strongly here we want to have a uniform application of federal laws and there are law enforcement agencies and law enforcement officers in all fifty states and there's no reason to think that congress in this case in this statute wanted removal to turn on potential anomalies or idiosyncrasies in state law certainly the mandatory removal statute is meant to be triggered by state convictions but nothing in the statute says that congress wants the term felony specifically person yes and the focus in answering that question is what we tried to address in our twenty eight j letter that the focus remains on the time of conviction which as this court explained in mulder is the time that the  guilty is entered or when the jury verdict of guilty is issued so the question is at that time when the plea was entered was that offense punishable by over a year of imprisonment and under federal law as the ninth circuit i don't think that that would be if there perhaps if there is a finding it in a sense that would be tantamount to being reversed on appeal due to a finding of innocence but but the uniformly federal courts in interpret ng for whatever reason  well your honor the problem is that the mandatory removal statute refer refers to the point in which the person is convicted of a felony and that is when the plea a plea of guilty occurs and after that happens the agency is required by statute to remove the person five days after they receive notice of that conviction and as this court held and mulder conviction is different in sentencing the statute doesn't say the person must be should be considered a conviction well i just wonder are you trying to distinguish between situations where somebody can enter a guilty plea sort of a sherry period and then in some states instead probationary terms that allowed the convictions he later vacated perhaps that's one way to answer this question is to address what other federal courts have held when it when interpret ing the term conviction in other federal statutes as i mentioned the united circuit explained that the convictions that have been deferred expunged or even dismissed are still regarded as convictions for purposes of for example sentencing enhanced men but presumably there would be a different sort of analysis if this was a big if this was overturned on the basis of an underlying defect or innocence in the actual plea of course in a plea of guilty there are certain protections that it may not happen providing that it's not even eligible for potential misdemeanor treatment for the full three years i would imagine that it has not yet been altered in any way in this case there really is none of that concern presented in this provides that the offense is punishable the maximum sentence is one point five years the aggravated sentence is two years so this is certainly over the one year limit that under  the federal statute that would qualify as a felony and this court again to cite to mulder in footnote three of mulder's a court again did not resolve whether state or federal law applied but it did note that it doubted that congress would have intended state law to define the issue in that case and similarly here the best result is to interpret this under the straightforward alice of federal law and just one more note about mulder is that the court repeatedly relied on dictionary and determining the ordinary meaning of terms in that statute and here the black's law dictionary certainly favors the ordinary meaning a felony as an offense punishable by over one year now fine they all turn to unless five circumstances apply none of which are mentioned in the police remit and if these five circumstances if these five facts apply then it can be a class one misdemeanor these are that the victim is released voluntarily by the defendant without physical injury in a safe place before arrest now none of these facts are mentioned in the plea agreement and as the court has already noted instead the plea agreement refers to this as a class six and designated offense have this dichotomy between conviction and sentencing mr canard was point really is that we have to wait and find out what the what the is going to be sentence for before before the agency can remove him under this provision but again the mandatory removal provision focuses on the conviction not the ultimate sentence and both under both federal and state law the definition of a felony is the maximum possible offense of the mass in a possible term of for for this court to uphold the decision in this case this court actually has to find a r s six zero for a actually apply because that is the basis by which the arbitrator found that mr cannava was convicted of a felony you know and again getting back to this language there is a difference that the arizona supreme court found that in that particular case state versus urana it made a difference when a person actually pled to a felony as opposed to and as a good offense words matter be true that if that if he had pled to something that was actually called a felony but because he pled to something that was that was an designated it's conditional and in fact if you look on the other side of the page there's the misdemeanor statute as well we're not arguing here and i'm not arguing here today that in fact all this must be a misdemeanor because the misdemeanor provisions of sentencing are included within his plea agreement that would be inappropriate would be inappropriate because what he pled to was something that was not designated it's only at the time that it's provisions the state argues that there was no factual findings regarding eris thirteen thirteen zero three in reference to to this being a misdemeanor that's that it actually is important to argue that we're as thirteen six zero four often provides the statutory basis in which a a classic felony by definition can be considered a misdemeanor in this particular case this statute that the finding that the offense itself provides for it to be a misdemeanor now the agency fault us for not having factual findings within the record just status that it is a misdemeanor but the fact of the matter is that if you look at the plea that the police actually incorporates by its own reference the factual break basis provided by the defendant and removal they did not do that and and lastly i would as this court to consider the presumption of regularity if you have questions regarding what took place in the underlying in the in the underline proceedings the presumption of regularity suggest that you must give credence to what you see what is what is plainly said in the documents themselves thank you