my name is jeff at my table for the petitioner in this case the question before this court today is just a question of law as to whether a conviction  plead guilty make clear let me be clear for what you perceive to be the main issue in this case you got this hundred dollar cost how is it that you sat say that is not view would be that that was not a punishment that i mean that was not a cost that was imposed by a judge right give you some moments to come back in rebuttal here from good morning may it please the court my name is don conrad and i'm here today on behalf of the united states attorney general  as this panel noted the main issue in this case is whether the assessment of one hundred dollars in cost by the north carolina court in response to petitioners conviction for possession of marijuana was a sufficient penalty punishment penalty or restraint to meet the ironies definition under eight u s c section eleven zero one and forty eight a the board held in matter of interpretation of the rare cases that right that the b i e has deference over this to do this that's correct your honor and that's the necessity for that is to have a uniform federal definition that should govern in these cases as to whether the assessment of cost  in this case that this is not a criminal senna's imposition of cost well we would argue that it is it is a penalty to the losing party and under north carolina law even even if not your argument that i'm just trying to arising from what this is on a state law i mean they can't be integrated experts illness that what the state of florida would be rare and what this case in north carolina but even if it is and if you do it in a context of  compare i mean and i'm not arguing that the board claims to be an expert on state law they've proven that they're not but where i focused on whether there are i mean they did look at whether how florida how florida defines costs but florida focused on the fact that there needs to be a uniform cabrera focus on the fact that there needs to be uniform federal definition and so they looked at whether the assessment of costs and surcharges constitutes a penalty or punishment we would argue it's not specifically required to look to whether the state defines it as a punishment  correct but it is it is only imposed upon the losing party and the court clerk can only enter court and her cause following the order of the judge the court the clerk has no independent authority to enter the costs really what does it mean when it says that the clerk shall enter in the case file after judgment the costs allowed by law as ordered by the court it sounds to me just on the face of it like the clerk supposed to look at that statute seven eighty three zero four figure out how much this guy has an interest that does not sound like the judge ordering a penalty well it's following the fact that the clerk can only do that after judgment yeah but it doesn't say anything about that there's nothing in here that says i just don't understand how if the clerk is the one who's entering the costs as allowed by law that that's the judge ordering costs we're not arguing that the judge is ordering the cottage isn't ordering cos who cares of costs or a penalty because the judge has to order it under the eye and say well then i thought that was the whole gist of your twenty eight j letter and there was no new authority in there i thought it was just sort of pointing out look we've got a problem here because the clerk intern right right and we would argue did that concession are you taking it back now no no your honor i mean it is it is our position that the  this north carolina statute still meets that definition but if if the court feels that it does not then this is a case needs to be remanded for the board to look at that at the first instance because they haven't looked at that issue before in this case  comes to northland of tells you write them again the j c is what you're dealing with you know to difference it's not a judgment not a final judgment eish loud knock on the says costs not a penalty and in that particular setting and here judge ordered means it doesn't have to be ordered by the judge that would be our that would be our position that there is room for interpretation and that is just explained to me what does that look like so what do you think it means i think it means it has to be ordered by the judge but you jury the judge finds a judgment against the petitioner that's sufficient because then the court the costs have to be assessed by the clerk so the clerk is only acting after the judge has acted c but that happens frequently in north carolina they award they award it doesn't have to be a final judgment and we're not arguing that this is a final judgment but in north carolina they see the purposes of the time and it was  that's something that first our position is that it is a penalty even though the clerk ordered it because the court's own clerks only acting at act after the judgment from the judge so you think anything that is entered after a judgment counts as the judge ordering some form of punishment penalty or restraint if it is a correct if it fits the definition of punishment peltier strict and you think there's enough ambiguity in this statute that we're under step t chevron and that's a reasonable construction yes your honor restore order or to send up if you if you have question on that then send it back to the board to the board can address that in the first instance because like i noted that has never been raised to the board in this case so the board has never addressed whether the fact that the clerk enters costs in north carolina makes it fall outside pereira was fairly unique and if it was dealing with just correct which is the rare you know kind of like board would well the board can provide guidance on what is what is meant by judge order satisfy my curiosity so you're opening brief before the twenty a j letter there's a big section about how the defendant has waived any argument as to whether the state conviction assuming there was a conviction counts as one for controlled substances under the categorical approach but it doesn't matter because the north carolina statute is divisible can you tell me what argument it is that's been weaved here i'm trying to figure out i just don't know what you're talking about i think our position was there any challenge to it the fact that it's not a controlled substance offense but what i write conceded that it was a controlled substance offense so i think you just went on it so much length i thought there was some really obvious argument that i should be a right right oh your honor i confess i did not the brief so i don't know the exact motivation behind that but i don't think that's really an issue here i was genuinely curious i want to make this a missing something no problem if there is no further questions