and i think to just kind of my and the way analyze this i think we should start with facts we can agree on and i hope you'll agree all three of these washington possession convictions at sentencing guideline ranges of twelve months or last in all three cases the sentencing judge did not make findings of fact and conclusions of law as required to exceed the guideline range and the statute that was  case the court added he and some criteria for mitigating circumstances and aggravating circumstances but the operative language which required that any sentence  has to be within the guidelines range unless the court makes those additional findings which and there's stance on compelling reasons justifying an exceptional sense that was the law in washington at that  these cases were dealt with under washington state law washington did a blakely fix their sentencing guidelines on the statute in two thousand and five and then they set for some additional procedures for mitigating really exceptional sentences including some requirements of the jury trials as required in blakely which applied to print the soul though that i think is the loss of the but the bottom line argument from our position determined in accordance with the law in effect when the current offense was committed and that law came in to be in two thousand and so that's the state law and then we get to the government's argument about rod rodriguez which is a two thousand and eight u s supreme court case in that case the court was determining different language the language and in our case in valencia mendoza  henri case all those cases talk about whether the crime is punishable by in prison for a term exceeding one year i don't think there's any substantive difference in the definition of twenty one u s c don't to some forty four considering the purpose of this chapter that there are substantial and compelling reasons justifying exceptional sense and sub three indicates a court must be written findings of fact and conclusions of law in support of  unless the court took those steps the guideline range was binding that's washington law in effect at the time vol three of these convictions and and i don't i can't see an argument around that conclusion sentence would be determined but back in the in the time frame of these three convictions that wasn't the case and the amendment that took place prior to the rd conviction in this case those aggravating and mitigating factors were illustrative they were binding on the court the court could do use whatever basis it wants to do but the bottom line is in all three of these convictions and the way i read the current status of the law in the  circuit is you have to look at the state law in effect at the time and what happened with the each of these cases and bottom line is this particular defendant was not sentenced over twelve months nor could he have been since those findings were made and so that's that's i think what it comes down to and frankly the government's position on rodriguez if you look closely at rodriguez and as i pointed out in my reply brief the  was sorry could i could i ask you i want to make sure i understand your kind of what is your best argument ok and i think i hear you to be saying the following and correct me if i'm wrong i think i hear you saying that look under the old guidelines system in washington and under the new got mind system the judge must to go above the top end of the guideline range make specific f and in furthermore both under the old washington guidelines system under which your client was sentenced and under the new system as part of making those  findings the judge will be exercising some discretion right i mean is that even under the new guidelines there are things that the judge has to decide like whether you know the defendant is being punished enough by the by the the top and guideline sentence or whether weather needs to go higher and so in both in both instances the old in the new system the judge has to make findings and the judge will be exercising discretion in making those findings and therefore in the for whether you're talking about the old system or the new system if the judge hasn't made any findings then we should look back and  treat the maxima as being the top end of the guideline range is that is that the essence of argument yesterday as an if you're talking about the new and the old system i guess the new if the new system is the two thousand and five law but that as i are as i indicate that was only states everything that went on here but if you're talking the new as being now i know you play a system oh i think it's the same thing i apologize i was referring argue now the it's the same issue unless those extra steps are taken in the findings made washoe law at the time says the and still does the sentencing guideline ranges binding unless these additional procedures are followed and on an on it intuitive level i have i would say that i have a lot of sympathy for your point just that that you know why should it matter how much discretion the judge something both cases in both systems the judge needs to make findings and in both systems the judge you know can exercise discretion in deciding whether to go above the guideline range and so f the sort of from a fairness standpoint from an analytic analytical standpoint why should it matter just how much discretion the judge has but with the problem you have is this this the land mendoza case right which is actually analyzing the washington guideline system and comparing the system that your client was sentenced under to the system that that exists now and explains in in in some detail how much more discretion was given to the judge previously and how much that matters for purposes of identifying you know the the the maximum sentence to which the the defendant was exposed and so i guess what i'm saying is does matter intuition i understand your point but as a matter of law looking at what glenn c of mendoza said and how the lens in mendoza compar the two guideline systems and how the valencian mendosa describe the road the importance of the rodriguez decision as a matter of law it's i'm i'm having a hard time seeing how you win and so i just want to wanted to pose that question why i think what my argument would be is when you look at whether something is punishable by more than one year the court must examine the elements and the sentencing factors that correspond to the crime of conviction not a hypothetical situation in one of these cases and the case were supported by that additional finding and i don't think i think when she amend those are the court obviously wasn't drilling down on heard those provisions are binding on the court the court can do an exceptional sentence for other reasons those are illustrative so it didn't it didn't cabane the discretion but until the discretion it the and alister so used to decide the facts on the case that was before them this one has a little additional twist but it's it's if you have why the rationale from the supreme court as a sport did in  the i'd suggest to you that that makes that that the bottom line is these sentences the guideline ranges all were calculated properly under washington law on all of them the guideline range was less than one year and i i don't know how the government gets around that they can say whatever they they want about the differences the additional factors but i don't see how those two thousand and four under washington's former openended guidelines system and that guideline system the court could depart up from a theater range based on an open ended potential if and if that are factors that were never determined or assigned by the how guidelines systems usually work and the ruling hinged on how guidelines systems in the united states typically work not now and it didn't specifically in john how the washington system worked at the time there second he argued if the focus properly is on the firm of the defendant that the senate actually face which we now know that's where the focus should be or if the guy loses control because us in kind of a difficult position because we we have to look to the guidelines right we have to look to the states guidelines system and we it seems like we almost have to ask how much discretion does the system give the do this very stark distinction between washington's old system washington's new system and maybe we're stuck with that i don't know but i'm not quite sure that that was correct i mean i think under the new guidelines system it's it's true that the judge can only identify for aggravating factors that would support a sentence above the high end of the guideline in finding those four factors i guess i gather the judge can exercise a lot of discretion right i mean there are references to you know whether the whether the the guideline calculation punishes the defendant enough based on you know the number of offenses the defendant committed in a in a group and and things like that and so it seems like the judge is still exercising quite a bit of discretion in deciding whether one of those aggravating factors applies and therefore in deciding whether the defendant should be sense to something above the guideline range and so we really are going on on some level i think the defendant is right that in both systems the judge has to make findings right the judge has to make specific findings about why the sentencing the defendant to something above the range and in both systems the judge has  discretion on whether to do so or not and on what things to to take into account in deciding whether to do so it's just a question of how much discretion and so now we're sort of stuck in the situation where we have to analyze all these states the guidelines systems i don't know if that's i mean if it is that really true under washington's current guideline system i mean there seems like the judge has a lot of leeway to consider and find a lot of facts in deciding whether one of those aggravating factors afs so i think it has the legislature really you know identified the facts that are necessary to i mean i'm not sure if they're i'm not sure what we can do about that in  ended then that the maximum is not defined by the top of the guidelines but if if it's if there are just a list of specific factors that the judge will find then and then the maximum is  it and that's why blakely found a problem with the past system to watch the law and what is sufficiently discretionary or mandatory system or statutory purposes of what congress meant when he knocked up for  to designate and characterize a fast or a maximum as opposed to a guideline baby and assessment for instance on affection ok i think we i think we take the point we're overblown and i think and i think we understand you think the legislature assigned the guidelines that were used in the prior three convictions and the statute was there the fact that this the prior statute gave the judge between as here statutorily defines the actual circumstances and as in rodriguez which is the old washington system under which your client was convicted an open ended inquiry into any potential factual circumstance is important because it defines the maximum possible punishment assigned by the legislature in italics and it seems like that really is the distinction and and it whether we can have an argument about whether that's that distinction is accurate but it's it's right in there i mean i don't know you know what we can do with that well i think i think what you can do with it is you can apply the law that was in effect when these three convictions took place and when you look at if you if the court follows what it's decided in valencia the next step logically and my argument is you if you're going to look at what the state statute provided whether it's an open ended inquiry or not without those additional facts findings and following the procedure making findings of fact inclusions of law that's that was the maximum sentence under under the law and i i do ask you to reverse the case for a fresh three sentencing and be arguing the st step back should apply them and you can i don't not saying that right but i think it's it's an extension logically from what the courts ruled in the n c a a and the makah dorie case that when we look at if we're going to apply the state statute sentencing law that was in effect at the time again i'm not i'm not a difference i mean hypothetically even under the new system the judge can give the person the maximum of the statute five years and so under both systems of the court have that hypothetical potential to do it and didn't and in our case did not do that now under washroom law which was binding on the on the courts at the time that determinant sentencing law those the bottom line is the maximum sentence in all three of those cases was twelve months or less than that i understand i understand the language in it and when she but i'm going to argue that that shouldn't preclude you from from this this