the important issues needed to be addressed in this case is whether or not the supreme court case the kaldor should sash demands that several cases and criminal cases be treated the same when using the same statute and what we have in the ninth circuit and just not the ninth circuit alone but many circuits is a differential here's the statute that's what it means and here's a guideline that is different from a statute because they are treating criminal defendants and civil petitioners differently that's what ends up happening and a matter of fact in pimentel flo crime of violence but it also says the guideline requires a felony and a crime of violence and if you read the guideline itself not the commentary but the guideline itself to a one point to be one double i if you read it to mean what it says which is a felony must be a felony and a crime of violence there's no conflict with the i any statute it means the same thing it's when you get into the commentaries that you start deviating what you see what you're doing is you're saying come into flora's is wrong and you're saying the way we know it's wrong is this footnote in lieu of karl case but i don't read and then we had booker which came out and said the guidelines of merely advisory so they've even gone down in authority from what they were before so i understand they are you i'm not i'm not saying  pimentel floors is no longer good line i'm saying that between booker and leah callate has now been distinguished and that there's another way to interpret it is is what i'm really saying here i don't think actually in my briefs i did information what the court relied on this case was minute or eight and then in order as a clerk generated document it is often full of errors and particularly if you look and these documents are listed at exports of record fifty three to seventy one and eighty as listed below are sixty nine you'll see cross tabs you'll see sticky dots on it saying this you have the wrong statute here i should have done something else clerks make a lot of mistakes and as a matter of fact i have to be looking at excerpts of record sixty nine i don't consistently my favorite example is last week i was in court on a case where a defendant had been deported and the issue was whether he could be resentenced and then it's reflected the defendant was present in court so i'd like to be there at the last two minutes well i mean really things let's hear let's hear from the other side and then we'll give you some time not agree that the statute that counsels referring to eight eleven zero one a forty three and defining aggravated felony is not the controlling statute in a terminating with a crime of violence is in two thousand and one they changed the sentencing guidelines simply because somebody who's being convicted of a very serious crime is receiving the same level enhanced months as somebody who received it was convicted of since a simple assault so in two thousand and one they broke out the statute and when you're looking at the guidelines the very first thing they ask you a felony if it's a drug trafficking or a crime of violence it's then then it goes down to a level b then level decided and the government would stand by that that this because that's the immigration statute is different you never get there you see this looking at the guidelines you're not your analysis stops at the definition of what a crime of violence is and and that's basically what got us into looking into the documentation the excerpts of record and judgment mckibben even made reference to it i believe that he called them paragraphs but line numbers throughout the documentation that shows that he was charged with a felony and then referring to the excerpts of record i believe it's at page fifty nine excuse me page sixty nine the language  certain blocks as you know believe is the line sixty five and sixty seven through sixty nine which that also is found excerpts of record page sixty eight and which the defendant  charged with a felony and sit in the words felony are used throughout therefore i think the question of whether or not it's it is a felony or was a misdemeanor i think the documentation was sufficient the court made a finding specifically also you can even though it wasn't necessary the court out of abundance of caution noted for the record that these were certified records that that all the documentation before it indicated nothing else but before to be a we said it so we could get more clear document documentation and that's why we said it over he was concerned that ok there is a misdemeanor it's possible this could be a misdemeanor it's possible it could be a felony but the court gave  sentence that could fall within either category and he had a concern about that so that's why he wanted to make sure that the documentation squared away if the if the conviction itself or the sentence was greater than one year i think that would have answered all questions right there but he was he was concerned because the defendant had only received i believe was one hundred nine days incarceration what do you do with the fact that it was time served and the entire time served was not served in prison but rather in county jail does that make any difference to you no for a felony offense if that felony offense there's not enough time in our in our case over in reno we have had more than i think that's the wrong answer i think our president is quite clear that if in california if there is a sentence served under one of these wobblers and the sentence served in the county jail under california law that means it's a misdemeanor now you know there's another argument which i expected you to make and i wouldn't mind hearing on  response to that and that is but he was never sentenced to time served to me and never stems after to time in addition to the time after the plea so that he was not sentenced in the within the meaning of the california county jail he was only sentenced to time certainly couldn't and put in prison before him before the conviction so for purposes of our case law i think it's as if we don't know where he would have been sentenced to does if he got a felony conviction and then he got probation not answering it or answering it i guess directly i've misunderstood the question i guess quite quite simply according to the documentation there is nothing indicates that this his conviction is anything but a felony there's under the statute there's nothing that says that says this will be a misdemeanor if what he pled to is a felony what he was charged with it was a felony and i guess without anything i guess without trying to put you know trying to prove a negative it's impossible to say ok well prove to me that this didn't happen the only thing i can say that that can be shown is that by absence he is charged w pled guilty to a felony and he received a sentence anything outside of that would be left just so i guess speculation imagination and i i hope that answers the court's question more thoroughly but i guess and some all the documents that were made available that are available in regards to this park conviction indicate one thing and one thing only that he did have a a par felony conviction and as defined  had a if all that we had was a minute order and that's all that all that it was depending what is in that minute or every jurisdiction charges and sentences defendant differently all but the defense point is you signatures that are placed placed the pin here and it becomes a part of the official record i think even you can't break out one piece of paper and look at it by itself you have to look at sort of a totality of the circumstances what other documentation taken together in of by itself supports it the previous leader the school this court has issued that abstract in of by itself is not enough to show whether or not conviction or whether it's a crime of violence you need something else to go along with it now just because one one of the pieces of paper is an abstract doesn't mean that you have to ignore you have to toss it all ignore it because this court has also listed that an abstract when coupled with other documents will make what will support that same finding this because the california courts use a minute order when when as a part of their records to show what received as a sentence then than that shouldn't be an issue in fact a judgment of conviction coming out of a federal court doesn't have a definitive signature on the judgment of conviction should we not  signature that's true that's true but but then that that the it is still becomes an official court record and that's and that's exactly what's most important thing we're not asking a court clerk  come in to to issue the sentence and actually there's nothing in the record that says that it's that this that this this minute order was not prepared by the judge but but the if the minute order is a part of the findings and a part of the court record to establish if the defendant was convicted and what he was convicted of an established is also all the information to show i guess that the transaction of the court history than it should be convict it should be considered is not what sheppard was concerned about was the use of police records that were basically tied into everything else more a police record is clearly not a court record a the police reports is what was what was the greatest concern under shepherd now of in that i think that ny stuck in his long before shepherd made it clear that a police report is not going to be does not want to cut it for the purposes of finding a conviction under pre sentence investigation o your honor it's one of those things that was not produced by the government very interestingly it was a judgment that's because no judgment was ever issued in this case if you want to rely on the minute orders the minute orders and on  sixty nine say that pronouncement of judgment was withheld there was never a judgment entered in this case so how we can say whether it's so there is a problem right there so we're not really sure if he pled to what he was charged whereas obviously if he pled to what he was charged with the judge probably would have found that  and not given him three years probation like and people versus a lot of us which was a very early similar case and it's interesting because in legal cal they were very concerned about the word use the use something as a deadly weapon as were the caliber as was the california supreme court in people versus a lot of us where the woman shot the person five times and they said but was it a use of the gun and they went into a very as felony what does that mean that means there is no judgment and what does that mean is i mean he's not been convicted of it's like it's the judge did not enter a sentence and then suspend then there is no sentence there is no judgment reason i think judgment was withheld i can only speculate i am guessing there was something wrong with this case to begin with that maybe the victim or i don't know what happened in the case but in any case the judge even on official supervision he's not a very limited supervision i think it's basically stay out of trouble for the next three years and that your case is gone it's usually how it works with withheld defendants are sentenced to a none of those are checked at all and then you get down to that the defendant cheryl and i serve one hundred ninety days in the san bernardino county jail credit for time served a matter of one hundred nine days basically it's once he pleads to just tell me there is no more time there's no more time you know there's no there's no time served after his plea we know that right but i don't quite know what you mean what and withheld means in this context that that there be lovable if any person convicted of the violation of paragraph two of subdivision they are section two forty five which is what we're dealing with here eight section two forty five eighty two it says it shall be a condition or that he or she be imprisoned at least six months but then it goes down to say that that shows that that's all apply except in unusual cases where the interests of justice would  weapons explosive devices or materials to make this false has vices is not checked that was not a condition of his probation he did not have to relinquish his right to have a fire i guess you are the i i can't i can't give you a definition of pronouncement of judgment withheld as far as the felony block is checked simply put what i guess what the defendant is now asking during its rebuttal is for the for the circuit to do fact finding it was not objected to below it wasn't discussed it was even raised in the briefs until the rebuttal so i guess at this point is that there's nothing that indicates anything less other than her asking asking th his wondering are you yes sections that federal and state law prohibited convicted felon from possessing firearms that that would i believe would would cover that he was obliged to lead in the five which is this is five fact that he's being told that he's not being told he can go up possess a firearm isn't part of the punishment i think and i stand the argument although it's your wording was a little weak because there's no box that says you can't vote here there is a box that says you can do a firearm  it's not marked that i and i would have i would agree on but i think that's a term of condition of probation for for if the conviction was for something else say a misdemeanor that would not prohibited from prohibit him from possessing a completely mistaken but i do not recall there ever being any question as to someone objecting say ok i actually have a transcript of yes yes no but my my my my recollection is that there was nothing in there in what the discussion for not possessing a firearm was not checked and that should be taken into consideration but my thought was and i you are more learned than i am by far was that if it is too too ambiguous on the record for the court to make a decision my alternative suggestion would be to send it back for the government to produce more documents at the district court level that's all thank you the case united states versus the as our great is now submitted for decision we think counsel for their arguments that concludes our argument for the day and for the week we are now in adjourn