the next case united states versus and i me or me not pronounce it correctly m you can adjust you can adjust the height of that if you like good morning or honors and may it please the court my name is ann wagner from the federal public defender's office on behalf of mr mack and henri i'd like to reserve two minutes for rebuttal but i'm going to concentrate this morning on the supplemental issue raised in the party's briefing because it requires mr mcateer his conviction to be vacated mr machen dorie is innocent of the crime of being a felon in possession of a firearm under this court's binding precedent and united states with you that if we apply the reasoning of valencia mendoza you win but that was a guidelines case so you say it's binding is it really binding given that this is a conviction case ye n twenty two that it didn't specifically address that but like two other circuits that have reached this issue it recognized that there is no distinctions to be made especially when when interpreting statutory text it's creating a definition that will apply in multiple circumstances in the future the fact that there weren't really mandatory sentencing guidelines in states at the time that congress originally came up with this phrase doesn't matter because congress congress established a test that should be applied in multiple circumstances of section of the statute prohibit somebody who's under indictment for a crime punishable by imprisonment for a term exceeding one you're to receive a firearm under your interpretation how would somebody ever know in washington state whether somebody who's been indicted is punishable by imprisonment for a term exceeding one you're well  know whether he could possess a firearm or not well he would he would know whether he was facing exposure of more than a year or less than a year he'd know when he was indicted yes he could determine based on his his underscoring the seriousness of the offense it's a very simple sort of calculation that his and his attorney could do for him so his attorney would have to do a calculation to let him know whether he could have a firearm or not i think that the government's because a long as he's under indictment and we don't know what the conviction is if the indictment is broad enough it may very well be that the potential punishment does exceeding here but once we get to the conviction well a conviction may be statute punish says you can't have a gun if your employer has been convicted of a crime punishable by more than a year how would somebody know whether that you know a problem here well it's it's a problem unless one decides that this isn't what the congress had in mind when it passed the statute and it wanted a clear marker if the statutory maximum was more than a year then you were covered whether you received the gun after your conviction whether you were indicted or whether you were employed by somebody who's convicted of something that has more than a year wouldn't make sense for the congress to have wanted there to be very clear markers in this statute which punishes people who are using drugs from on having guns publishes hunter says i think uses the word mental defectives but very very broad range of conduct is it makes sense but congress wanted clear markers that congress could certainly have been clear if it wanted to refer to the maximum sentence that any defendant could receive under this crime of conviction what the person was actually exposed to they weren't looking at this statute that's correct they were looking at the statute congress congress could have been more specific and congress says welcome to amend the statute if it doesn't like this result but i do think that the plain language of the statute and the fact that the washington guidelines we call them guidelines but they're actually statutory so even if it said statutory maximum the maximum well it's the post likely statute is pretty specific so the jury is have just have discretion to make findings but that's in accordance with blakeley judges are very limited in the ways that they  mandatory the whole premise of our decision in valencia is that it is mandatory therefore you can't go any higher than a year and therefore the guideline doesn't apply but well it requires notice on a finding and this specific instances in which the aggravating circumstance were i think if you read valencia it is very clear that is the standard sentencing range that the court is bound by and that's absolutely the same as mr mcavoy is situation so neither of the aggravating circumstances is case that you know so hypothetically for some defendant could have been found by the court were even available in his case so one of the stipulation of the parties he didn't step the other it only you your honors may please the court michael morgan for the united states judge bennett hit on a very critical distinction nine hundred and twenty two g is tied to the crime not the conviction it is not it was it legislated against the backdrop of twenty five years at a minimum of predecessor statutes in which the term crime punishable by a term president to exceed a year had a defined meaning the statutory maximum that was the only there's no reason to believe that the one cannot when congress enacted nine hundred and twenty two g it intended any other meaning even if we agree with you do we have to go on bonk to overrule valencia valencia just overturned the case and has been indoors precisely the position you're taking i understand your honor and the answer that question is no because valencia mendoza was a guideline case purely legal matter that issue is not before the court so as so as an in the in the purest sense it is dick that may be very persuasive dicta but it is dicta nonetheless because the court didn't have the question before it and in particular it didn't have the legislative history and the practice of congress that predated the statute and as the court recently held last week in a rhona the same language can have different meaning in different statutes identical language depending on what congressional intent and purpose was you should have been arguing the last case when we just heard but but but that is in fact true and that is in fact what we have here is we  have a statute and we have a long history of congressional use and we know how that statute was interpreted by the courts we know what congress meant i mean i don't think there's any serious dispute as a historical matter what congress meant and at the end of the day here the question before the court is an issue of statutory construction which is to determine congress intent if congress is intent is clear that's the end of the matter i mean if congress is what happened congress was legislating against a historical backdrop in which this term had a fixed meaning and we presume congress legislates with knowledge of that not only history but you disha interpretation use in congress wanted to give clear notice that there were a long laundry list of persons who could not get guns because congress was concerned about serious gun violence by people who shouldn't have guns and that is correct and it was again it was a classification it's like we determine that a class of individuals should be prohibited not individual defendants who have specific backgrounds that make their criminal history a little worse than someone else's that's not what congress was doing they wanted bright lines and as the court pointed out nine hundred and twenty two dollars d of all involves the sale of a firearm so the purpose of the pretty conduct is the sale or transfer to a person under indictment so the criminal act happens when i make that sale the fact that that person later on down the road maybe gets a conviction and and then turns out his guideline range is lower well that doesn't change the fact that at the time of the criminal act i i view i'm guilty of a crime because he was under indictment and since we know that like you can't know a person's guideline range until sentencing happens for the very reason that we don't know if the jury's going to find an aggravator although your colleagues in oregon didn't seem to feel that way well i don't i don't pretend to understand i don't know if the organ system is exactly the same and i i would also point out that my colleagues in oregon i mean they i think that's the key here is that the contest is can textually you need to effectuate congress intent and i would submit to the court that the pertinent precedent to rely on is the read regas case because there the court was considering the though is limited to its context of the guidelines and as a matter of law it's legally incorrect to be frank the reason being is the following under the guidelines system that obtained in rodriguez while i district court had broader discretion than he does today he still had to make findings and give notice and in rodriguez the district court did not depart upward that was not an up or departure case it was a guideline sentencing case so the fact that a court did not depart and that the in fact the guideline range continued to tain was irrelevant the supreme court told us it was a relevant is that the fact that the court had the ability to depart whether or not exercised in a given case was the dispositive factor counsel is your is counsel for the defendant correct with regard to his i think those three convictions that there was no possibility from the beginning in any of them he could be sentenced to more than a year i can't speak to that authoritatively for the following reason one of the reasons why a judge can depart upward is if he decides if he finds that a criminal a defendant's cruel history stories understated mainly because he might have had a bunch of misdemeanor convictions didn't count or other educations that don't they didn't score now at the time of his most recent felonies adult felony he had two prior felonies that didn't score now i don't know as a matter of washington law whether two unscored convictions would be a sufficient basis to depart upward so i can't see the judge have to give notice of that before the the judge says this is understated so i'm considering departing upward and giving the person a sentence of more than a year yes and i'm not i should be more familiar and i was a while back but i'm not one hundred percent sure that that notice has to be any time like substantially before sentencing i think you can come up at sensing and say you know we've got a pre sentence report i find i have i'm concerned discriminators understated counsel you know i want to hear from you let me try and pin this down to the extent i can are you taking the position in this case that in fact he could have been sentenced by a wash and judge to more than a year i am not and i'm saying that i don't know you want are you conceding then the what the other side is saying that he could not have done i am not i am saying there's a mage you're not saying the opposite ok i'm saying you know position i'm saying that's not of them taking a position it's that as a matter of state law i'm not confident i'm not confident or  to say yes or no that these two are not sounds like you're taking no position well i'm saying it's a it's open legal question and i should point out that the courts have discretion so it's entirely possible that a an appellate court in washington would say in this particular case it was an exercise of discretion it was probably in a different case it might say differently because that's kind of how those things work is it in the record is the record in this case a stab as a matter of law he could not have received more than a year i don't think that it does and i don't think that it says one way or another because it requires a finding by the court that his problem among other things that a finding by the court that his prior the discrete history was understated due to unscored convictions and again i'm  other thefts the retail theft had not occurred and there had been no sentencing at the time he committed this crime so they couldn't be his predicate convictions because it was just a gun the question is whether he committed a crime ok fair enough at the time  i understand the tension between the government's position and valencia mendoza but i would expect lee smith that it's not binding and since it's not binding and we have a clear indicator of what congress intended the meaning of nine  the government has referred a couple of times to the understated criminal history provision the washington courts have held that that provision is unconstitutional and i would direct the court to hugh's cases the hughes case salts which is cited in our brief rodriquez is it has a different it doesn't have punishable by imprisonment for a term exceeding one year and the landsea distinguish rodriquez both on the statutory text and on the fact that  washington guidelines are mandatory now not just question ari the organ system is functionally identical to washington's in all relevant respects and the government conceded in its supplemental brief that he was not exposed to more than a year that's their supplemental brief at three so i think that they've already made that concession and with respect to my friend cannot walk it back at this point thank you so