good morning your honors may have please the court david mclean and i represent mr norwood in this case this case is different than most because it involves pill the government's response to the government's cross of pill and their response i would submit that the main issues in this case are the minister argument and and the eight fifty one argument my introductory a pill because mr norwood was successful on the dismissal of the fifty one information below so that was the government's appeal my introductory appeal just address criminal history and whether the guidelines for correctly applied but if i don't succeed on the move in a star game and if i don't succeed at least on that argument first or if i don't succeed maybe a little bit more but just as interested as you are thank you your honor well this case is about where my client mr norwood was charged with possession with intent conspiracy in possession to with intent to distribute thirty three grams of crack cocaine he had a prior conviction for possession felony possession of seven grams of crack cocaine in the state of california he was convicted of that subsequent to that conviction in two thousand and fourteen nov two thousand and fourteen state of california passed proposition forty seven which redefined him reclassified felony convictions for straight possession of narcotics as misdemeanors instead of felonies so mr so the government after the indictments filed filed what we know as an eight fifty one information that's a charging document which doubled was for my client from a five year mandatory minimum to a ten year mandatory minimum so pretrial he was facing ten years we decided because we wanted to make an informed decision whether to go to trial or not in this case to file a pretrial motion to dismiss that eight fifty one information based on proposition forty seven because since california reclassified mr norwood's prior felony conviction as a misdemeanor for purposes under age forty one in a fifty one twenty when you court and so because that was part of what concerns the d a s court because they didn't want people to come and years after they had their cases finally decided in federal court and been sentenced years later to file reduction in state court and then collaterally attack there conviction in federal court this case we directly brought it pretrial and the judge dismissed it pretrial in our case it information or how in this particular instance you know what's interesting about all this is that the federal law tells you to look at the state law because under eight forty one it says if you have a prior felony conviction under twenty one u s c eight zero to forty four it defines a felony conviction if it's a felony under state law and it was a felony under state law and he pled guilty with it it was a felony but then it was reclassified and what's different about it was a felony under state law and then he had a chance to appeal and the appeal was over is that correct i mean he tried to appeal or he did try to appeal but the case was final and  look at our case law tells us that we have to look to that factor for the perfect knowledge is that not the case your honor dia's was a novel case and and do you  itself said that this is never been before the court and what i would say is that this case of mr norwood has never been before the court because what happened for m norwood is that he had the information dismissed at the time that he pled and you have to look at the new government objected to it and he had no anality on that in terms of surety that there would be an appeal on that issue yes the government did object but the court also said that the eight fifty one information is not before the court and what you have to remember about this case is that the only reason mr norwood pled guilty is because the information was dismissed his guidelines if you went to trial was less than the mandatory minimum he had no reason to to not go to trial except for the information was dismissed is that government it was that in the plea agreement where the government preserved its right to appeal there was no plea agreement in this case the only preservation is the end of the colloquy that place during the the  that well that might be my position is had you can't preserve it because it's very clear and sparrow and i would ask the court to read spero because what you can only enhance a is file at the time of plea or conviction maybe this case was wrongly decided under dia's but at the time mr norwood played guilty there was no information on i just want to be clear about your argument my argument is that it was unfair it is if the government had withdrew the eight fifty one information prior to mr norwood pleading guilty then trying to refile it after the fact because it was dismissed by the court see this is why this case is so different than dia's this case the information was dismissed prior to him pleading guilty or going to trial so this faced with a situation where d s wasn't even decided by the time of our case we may have made a very different choice and gone to trial the d s was before us but mr norwood was faced with a situation where the authority in the central district was in his side so he was expecting that this case he wouldn't be facing this information whatsoever despite what the government said at that they were reserving the right my position was and i think it's clear under a fifty one that the information has to be on file at the time of plea or conviction they had the option to take an interlock atory a pill because they didn't take an interlocutory a pill they slept on their rights and they had the discretion to do that now just think about what's going to happen in this case if the government succeeds and it's a pill mr norwood will his case will be remanded sentencing there's no choice his guidelines are below the ten year mandatory minimum he's facing a ten year mandatory minimum he has to ask the court to withdraw is plea and are a fair and reason and he has no idea what the district court's going to do the district court could say you're stuck with the ten years the government of by two you might get ten years but when he was making that decision at trial and it's unfair to him he was looking at i can save myself a lot of time by pleading guilty because i no longer have that information and so that's what he did and based on the state of the law at the time it was a rational decision decision to pursue that route now if this case is reversed he's going to be stuck with ten years with no right to even a trial in this case that is an unfair result when the government could have could have filed an interlocutory appeal state the district court decision he would have entered a plea and then it could have been decided by the court and then he would have known whether to plead or not that's how he was prejudiced by the government acquiescing and the fact that there was no information on file when he being advised that the government could potentially appeal his right you basing that on the colloquy that took place before the district court because the district court made several statements here that call into question that very statement that you're three or four pages where the district court is continually trying to inform the government you're not saying that's not it is sure you can't be saying that he won't he wouldn't be able to come back and withdraw the plea there's no clarity on that there's no agreement at least from my review of that colloquy is that what you're basing it on no your honor it's not that it's taking a step back on the moon is claim section eight fifty one simply requires that information be filed prior to the time of trial or a change of plea and is this court made clear in severino and en banc opinion section eight fifty one is a procedure statute the facts and long determine whether an eight fifty one enhanced man actually applies age fifty one doesn't change that outcome the defendant in this case made a tactical decision to challenge his eight fifty one  dismissed prior to and trust dismissed and it was dismissed and so he was no longer facing the ten year mandatory minimum he had a five year mandatory minimum fire understand and he decided to go ahead and plead  right without a plea agreement it sounds like you all were hanging on and trying to say well he can go forward but we still have a right to you know if something goes wrong we have a ten year mandatory minimum how can he possibly have made an informed decision or knowing that that ten year mandatory minimum is not what he was facing well at the time of sentencing he wasn't facing a mandatory minimum sackler but it's a legal issue on what as as as i mean the  the court found that the government had with the wrong on a hundred fifty one information based on its statements both at trial and to the probation office and in that case the court held explicitly that the government frustrated the purpose of the notice requirement under age fifty one as i was saying your honor they fifty one notice requirements based on due process it's not it's not a substantive rule if i think what's happening here to be very clear to sum it up in a single sentence the defendant is completing an eight fifty one being in the fact at the time of a change of plea or trial versus an eight fifty one having been filed and i understand that it had been filed in the  district court said no so you filed another information the other one was the one was dismissed is that right that's correct and that happens one in place was the five year mandatory minimum is that  correct on that that's correct on it at the time the defendant was sentenced only time he pled that's correct there wasn't a ten year mandatory minimum when he pled that's correct he was now how can that one  to act for purpose for purposes of this point and that is that if something happens with that plea then automatically he would get sentenced to ten years that's your piece of of course not your honor and that's the distinction is it need not be in effect at the time of the plea or trial it simply has to be filed at that time and that's very clear in severino a number of these and hamilton for or go to trial when it goes back as the district court pointed out at the change of police there would still be a question of whether the defendant can collaterally attack his the age fifty one information it's two separate questions one whether an eight fifty one information applies and second and that's why a defendant can only be advised of possible outcomes because even if they fifty one wasn't dismissed at the time of change of plea it's still possible in a fifty one wouldn't apply at the time of sentencing why is that because the defendant could argue for a number of reason that would he be able to go to trial on the fifty should he be able to or would he both he should not be able to go to trial on the eight fifty one because the fifty one is a collateral issue that has nothing to do with the fact with the facts of whether he's guilty of the underlying crime he's charged with a two drug offenses conspiracy and distribution they've fifty one has nothing to do with either of those crimes it simply sa e because i guess let me ask you is that significant that at the time of norwood's federal sentencing his state fence had been reclassified as a mean misdemeanor so i mean that's pretty trial pre sentencing where is india's it was post sentencing so why isn't that distinguished all the reason it's a baseless distinction your honor is because diaz tells us when the sentencing enhanced when implies namely when the defendant has a prior felony drug offense the enhancement applies period and as this court pointed out that prior felony offense had occurred five years ago before his sentence or before he the pretrial exact date your honor because the offense was committed here february first two thousand and twelve ok so that's the time of the instant federal offense for purposes of d s so the question is india's essentially i'm just saying let's just do another case even if it's not dia's ok sir or this case in this case if mr norwood had gotten his case reclassified to a misdemeanor five years ten years before this point i see would you argue and submit to the district court that he should that should be considered a felony no your honor i wouldn't ok and why is that different than what we have here sure because the trigger under diaz is at the time the defendant commits the instant federal drug offense so eight forty one and forty six that happened here on february first two thousand and twelve five years after the defendant's conviction in two thousand and seven became final prop forty seven comes out in twenty fifteen nov fifth twenty fifteen literally three years after the defendant commits the instant offense right so it had and his redoes nation came some time thereafter to sum it up again in just two sentences i have a minute left here the defense is this whole prospect of versus retrospective application completely misses the point of diaz it's not and that distinction to defend its credit is based on state law some state intermediate courts have macneil specifically leaves open the situation that we have now where a state subsequently reclassified as an offense and makes the reclassification available to defendants previously convicted and sentenced to that offense so what's your response to that yes your honor i see my time is one second up can i respond to your question judge biases it's ok ok so your honor is referring to the footnote in mcneil that left an open question it didn't crack indias because they attribute the panel there a chip in the core we did attributed the reasoning for the decision indias that ultimately we're looking at right now based on a question that mcneill did not decide it left open may respond that your honor ok so it's important to reiterate that d s is not based only on mcneil in fact every circuit not only does consider this issue but every circuit literally has considered the issue of whether subsequent state changes whether it's dismissal expungement accept or of all ters a prior final felony conviction for purposes of a forty one in a situation like this in a situation like this i understand the sentencing guidelines that looks after because it looks like you're trying to give retroactive effect and so i understand that but i'm it gives me pause when the reclassification here occurs prior to trial prior to sentencing it's been reclassified as the miss to mean and the government proceeds to say we're relying on that as a prior felony i think that neil answers that question and  it's in the context of the equal protection discussion mcneil says it would be patently unfair to treat two similarly situated defendants that had the same underlying criminal history committed the same federal offense on the same day but to treat them differently based on the date of the sentencing as your as your honor pointed out this this case was filed in two thousand and thirteen in india as for example it's the same facts forty seven comes out after the federal instant federal indictments filed the only difference is when the government and the court was able to get to sentencing in the federal offense that shouldn't decide whether someone subject  that is not a rational discussion i'm looking at neal and it says as the government notes this case does not concern a situation in which state subsequently lowers the maximum penalty applied couple to an offense and makes that reduction available to defendants previously convicted and sentenced for that offense we do not address whether or under what circumstances a federal court could consider the effect of that state action that's correct the the supreme court