it sort of kicks the can down the road and we hold there that that's a diversionary debt disposition wise a p j c not a diversion or disposition under for a one point two because diversion eighteen directs specifically that the federal court looks to the law of the state of conviction to determine if a conviction but our wall tells us explicitly that when we are about to apply the guidelines we apply federal law not state mall in doing that and the guidelines here tell us a diversion or just visit disposition after a finding of guilt is a prior sentence i mean i'm sort of with you i'm not sure why that is but that's what it says and that's what i that's what i think i have to apply i understand your argument is that ignore this and look to state law but if i don't do that do you have an argument under sub pled guilty he didn't receive a suspended sentence france my judgment continued go on your medic way there was nothing to do so there clearly wasn't and i'm sorry i didn't mean to interrupt bed i charge to tell when the sentence is your sentence was ending there but if it's a diversionary just position you're diverting from what in other words you seem it isn't a diversion from a conviction well just to give you an correct ok well why don't we have a diversion from a conviction here it's just that it's unstructured your client on the burglary was structured this is not it's not a diversion  before us and i'll give the current examples sometimes if you're driving you get a p j c you know if you pick up another one if there's no condition if it doesn't say don't do this do that they can come back and reopen the judgement so this case was closed if it says not pay a fine or stand of trouble absolutely no could ever but counsel whatever mr miller did what what you just said i think is that either the prosecutor the judge can and did call you very much mr enright thank you your honor may it please the court anthony and write for the united states this record properly assigned one criminal history point to miller's two thousand and thirteen north carolina marijuana offense resulted in a prayer for judgment continued this court was correct in united states versus gonzales when it held squarely at a prayer for judge and continued in the north carolina law is a diversionary disposition resulting from a finding or admission of guilt that is awarded one point under section four a one  guidelines it's basically a quote of for a while that i'm quoting this court quoting for a one dollar f which specifically says that a diversionary just read defines the term prior sentence that's a term that's defined by federal law to include a diversionary disposition disposition may not be a sentence in the colloquial sense but the sentencing commission chose to define it to include any a quote diversionary disposition resulting from a finding or admission of guilt or a plea of nolo contendere in a judicial proceeding is counted as a sentence under section four a one  even if a conviction is not formally entered and then there's an exception for a juvenile diversionary disposition but there's no dispute that this is not a juvenile disposition and i think that is controlling in this procedure i have i have i have seen several statements that it is unique and i've looked and i've spent some time trying to find something that's just like it and i have not had any luck in this area that there is a guilty in the right but nothing there is active there is a guilty plea or an adjudication of guilt technically that you can the court has the discretion to impose a p j c after a conviction or a jury verdict also see it routinely in sentencings in our in our office d and every we have a few regular practitioners from state a g s office and it is a very common term here i never heard it till i moved to north carolina myself but i've heard it so many question what's a diversion from it's a diversion from the judicial process and that's right at the beginning of the statement diversion from the judicial process without a finding of guilt is what that guideline is referring to so it's not enough federal thirty in the federal to them you will have a pretrial diversion program once in a while i'm aware of it i honestly have not had a case that required me to look in any detail about it but i believe there are there are programs continued to me but it's not going to help me to ask you about it if you're not familiar with it is that i read i could tell you i read it but i can i'm not remembering exactly what the dispute was in that case because i frankly i read too many cases on the subject sorry about that we are where it is the maryland code it's it's although i don't know they have a technical name for it but it's a guilty plea without injury of judgment and is a particular statute that sa of material differences with that maryland statute that we already addressed in ninety three and the prayer for judgment continued understanding they're not exactly the same but they were tiriel differences that i should be aware of and thinking about the case i'm not aware of any material differences i think the dispute that you see and i saw in a lot of cases and i think this one too but i apologize your arm a little fuzzier than i wish there were but i what the white is often about whether there was a conviction because there are some there are some diversionary schemes some diversionary schemes in in states and i think there might be some in north carolina where you know you're charged with something and you have some kind of you know you take a class and then there's no conviction and sometimes it's fuzzy and the guideline explicitly calls for d an adjudication of guilt either a guilty plea or a an admission or a conviction and that is the dispute and that is not only does it and i want to say that is the bet is i think a hallmark of all be jaycee's or prayers for judge and continued in north carolina law but i don't even know that the court needs to go that far if it doesn't think that's appropriate because we have undisputed in this case that there was a guilty plea and so a diversionary disposition after a guilty plea even if it's not in every case is enough plan and the prosecutor and the and the agents would just do it all in the in the prosecutor's office and involve the court and they people in washington didn't like these things with the courts wire involved and didn't have the admission of guilt to it you're talking about and they kind of all the brooklyn planner improved on the brooklyn plan and got into what they formally called a pretrial diversion program and but they were i think left kind of am familiar with the existence of federal diversionary programs i am unfortunately and i have this is my failure i'm not terribly familiar with the details of them and i'm i'm sorry about that it's my own lack of experience with them one thing i've learned preparing for this case is that there's a lot of different ways to do it in the various states and in the various jurisdictions and so i think the the guidelines make it pretty simple does it  follow a determination of guilt or a guilty plea and is it a diversion or is it you know the other alternative to a diversion is it's a judicially imposed sentence it's a it's a probation or it is a sentence in which case it's probate prayer for judgment continued was not a diversionary disposition then the rule that would apply would be for a one point two a for which applies where the fenton has been convicted of an offense but not yet sen because that's essentially what happens you have a conviction and then there's a the prayer for judgment is continued so the sentence isn't imposed and let there be any sometimes there's some dispute about what the word conviction means but fortunately the guidelines the find in that very section convicted of an offense means that the guilt of the defendant has been established whether by guilty plea trial or plea of nolo contendere so if it weren't a diversionary disposition it would still get a point and therefore a one dollar c because there's that conviction and i think the idea of a diversionary disposition is simply to clarify that i think the point of point one of is to i don't know if the court has any one thing i want to address just very briefly is the immigration statute the two a one two use the term diversionary disposition and this court incorporated because it's an immigration guideline the immigration status definition of conviction that definition explicitly includes a requirement that the disposition include punishment or conditions it doesn't apply to for one point two because  the decision medina by this court said we're applying a different definition for this section and because the section in the immigration statute doesn't doesn't use the term diversionary disposition there's simply no reason you bad language in for a one point two and i have i don't believe i've seen a single decision that's ever done that if the court has no further questions i'm happy to be able to balance my time back into a judgement because it because the defendant cannot appeal it it is not a final judge it only becomes a final judgment when certain conditions i pose and those conditions for instance  the bench thank you and shake hands with you and and congratulate you on your work in this case will do that next time may be a matter with we'll take this case under vies month and will adjourn the court for the day this honorable court stands adjourned until tomorrow morning god said the united states and this honorable court