the pollock of the federal defender's office on behalf of mr pos reuben has tossed your own has been in custody since october fifteenth of two thousand and fifteen on this case it will be ten months next week that he has been in prison or jail he was sentenced to twenty four months in this case based on an improperly calculated guidelines rage and the government has contended two things in response that the first is that the guideline calculation was correct which i think is blatantly wrong just from the plain reading of the guideline and second even if we are correct that there was an error here that it wasn't plain enough to warrant a remained and both of those contentions are wrong in my opinion and when we're looking at the plain reading of the guideline the purpose behind the guideline and behind the statute thirteen twenty six the timing is if you are convicted of a felony that is deemed a serious conviction and then you are deported it is more serious when you come back to the united states as an aggravated felony that's why the statutory cap for that offense is twenty years as opposed to the two if you have not been previously convicted of a felony and deported that's why the guideline range is enhanced if you are convicted of a felony and then deported and then you come back after because that conduct is more serious the plain reading of the guideline says that you have to have been convicted and to ported and then return in order to receive those enhanced minutes that is the plain language of the application note and in the in the guidelines commentary and i think th reading is pretty clear the government does a very pretty damn trying to get around the plain reading of the guidelines of the fact of the matter is that that's exactly what it says the supreme court has said that when a defendant is sentenced to and  improperly elevated guidelines range the defendant has met their burden under rule fifty two b to show that a plain error has affected their substantial rights that is the definition of this case he was sentenced to twenty four months his range should have been six to twelve months he's been in for ten and the case should be remanded as quickly as possible so that he can be released or at least for the court to consider the new up you do is sentenced to twenty four months which was the statutory maximum and his range would have been twenty four to thirty months as pointed out in the reply brief it just doesn't make any logical sense for a guideline range to apply the aggravated felony enhancement where the statute doesn't it's the same purpose and to have every single person who has ever s had if he qualified so if he had been convicted then deported and then came back the timing would have been appropriate because the financial identity theft does technical qualify for the level of hands that the timing is off he was deported in two thousand and two came back and the conviction for the felony was in two thousand and thirteen so it did not receive the deportation therefore that the advancement should not applied right but the guideline itself is ambiguous commentary clears  may please the court said philip somebody half the united states your honors there is no doubt that if we were here on a dyno standard that the government's argument would be materially more difficult especially in light of the twenty eight j letter we filed in the two thousand and sixteen proposed amendments and that the stated reasons therefore but under of plain error standard we don't get there for the three reasons highlighted in the government's brief and i would like to begin by responding to an argument made in the defendant's reply brief that is that the historical context of the guideline supports the defendant's view that simply isn't so and in fact it simply isn't so as was recognized by the fifth circuit in the navarros bust month a case where in footnote thousand they say that historical context supports the government's view and the relevant change here is from the one nine hundred ninety seven guideline and application to the two thousand and one guideline application though in one nine seven the guideline it's health had essentially definition within it and the application of it used the word the case other than solace case referred to by the defendant wherein this court stated that the purpose of that not only did they remove the definitional section from the actual guideline itself but then if you look to the application note in now uses the word eight conviction rather than not and while on its own usually i wouldn't stand here and say all an indefinite article versus a definite article is that substantial when that is actually changed from a definite article to an indefinite article that suggests that there must have been some ill some reason for such a change in the sentencing guidelines just like statutes the words are chosen carefully and especially when they're changed that has perhaps well the problem i have but that the reading that guideline texts as interpreted by the application now is that the only possible conviction the application of could be referring to is a conviction for an aggravated felony because that's what the guideline pertains to so your argument suggests if i'm understanding it correctly that remaining in the united states following a removal order for any conviction counts which is not what the guideline is all about it's about the chain so in answer your question let me give you two hypotheticals one is the defendant's interpretation which is that we have an aggravated felony then a deportation order that by the way does not have to have any connection to that aggravated felony and then subsequent remaining in in some way so take that as one hypothetical and the other hypothetical somebody who commits lesser crimes gets convicted of them is then then given a deportation and started then given the deportation orders decides to stay but remains in anyways then commits an aggravated felony and then continues to remain in under those two scenarios those would be two types of criminals that we would think would be treated equally or at least that the second one is as bad and the use of the word up conviction could refer in this case for example to the defendant's  drug and the influence which he had i think four of them including one that he did he was sentenced to three hundred sixty days and if we're looking at the reason why would a sentence why would the guidelines change from using the i'm sorry the patient used change from using the word the law to using a word the word that is possibly an explanation for why it would expand because going from that to is certainly an expansion and so the reason could be that when for example this court said that the purpose was this sort of narrow circumstance that it stated in one thousand nine hundred seven that then looking forward to two thousand one and then it at the same time i think of this those two hypotheticals actually illustrate a problem with one of the other arguments raised by the defendant which is this question of how long does it take to be remaining in defendant gives these what if five minutes what if they're what if they're getting their affairs in order before leaving but the answer to that question doesn't turn at all on the government's interpretation that that question still applies if the defendant's interpretation holds true of the defendants interpretation is that this unlawfully remain only applies when there is an aggravated felony followed by a deportation order which again doesn't need to be connected and then some sort of remaining in that question well how long is remaining insufficient still applies and and i think all of this needs to be looked at in the context of the just the terms on lawfully remain and as your honor pointed out the guideline itself is ambiguous but i would say it's a little further than that if if all that was a play with a guy was the guidelines help him what is the ambiguity you see i'm sorry what is the ambiguity you see on the end of beauty that was highlighted and depends argument was in the context of the guideline text itself whether or not unlawfully remain would apply to this but under the plain terms of those words on lawfully remain this qualifies if i told you that the somebody you want to be cation somebody entered your house and then stayed there you would say that person's on the hopefully remaining in my house it wouldn't require the police to come and tell them hey i'm actually you have lost you and i thought at the critical cause or if the defendant remained to the united states following a removal order issued after convict so you had described this defendant situation yes does so the text of it is of the application at which your honour's referring to is felt that they have a r order issued after a conviction certainly we had that he had convictions and then he had to remove it can be a conviction for anything yes it can be a conviction for anything so what happens to the  conviction he was released and he stayed in the united states in fact he stayed long enough to be picked up later on an aggravated dui so he satisfies that that problem that he remained in the united states after an aggravated felony and then the other prong there is that all of that happened after a removal order issued after eight conviction that's the other problem did you ever move order issued after a conviction he did he had a removal order issued after his various convictions for driving under the influence in fact including the one where he served essentially a year so those those conviction came about after he we entered an awfully correct but before he remained in the united states as that would be commonly understood but that conflicts with the guidelines application now if we understand the relevant conviction to be a conviction for an aggravated felony that is so yes if the defendant's view is adopted which is that a conviction referred must refer essentially mean the same conviction that is the aggravated felony then certainly that would affect this but it's also worthwhile to know that that would that because of that it's a different use that what he did he unlawfully remain here both because of the simple understanding the plain terms of the words on lawfully and i see that amount of times but he was deported before that right  error in this case was plain if you look at the language of the commentary on the guideline read together if you look at the purpose behind the statue in the guidelines you look at all the other appellate cases cited in every circuit including this one the definition is that you have to be convicted of aggravated felony then deported and then come back that is not what happened in this case the fact is is that when you are sentenced to twenty four months when the most you're supposed to be looking at is twelve that is a plain error that affects the integrity of the system it keeps a man in prison for a year longer than he is supposed to be it affects the integrity of everybody involved and what happened was a mistake it was a missed by everybody at the your extra in prison makes a difference so it does talk about whether this is plain enough under the commentary the language is clear it's quite clear and this case should be remanded thank you ok thank you very much