good morning your honour's my name is melissa salinas and i'm with the office of the federal public defender and with the university of michigan law school and i am here today to supervise brittany nash and would like to introduce her to the court thank you  in applying a sixteen level enhancement under section two a one point two of the sentencing guidelines for a prior offense committed when mr nash was only a sixteen year old boy and he was removed from the juvenile system point two but it seems that the calculation that you make is dependent upon for a one point two do you also trial hundred for i one point two yes we challenge both for a one point two deals with criminal history point and both statutes it's well under he was sentenced under both and was given and according to its p s are he was given points under the criminal history points as well as the sixteen level and hansen under two a one point two because of this prior offense that is at issue because it was the district court made the determination that it was an adult conviction so both of those provisions are before us brett i'm going to focus here today on two reasons this court should reverse in re man for re sentencing first florida has a unique system when it comes to the judah cation of juveniles and under this unique system mr nash's prior offense does not count as an adult conviction second in the alternative the term adult conviction as used under to our one point two is vague in its meaning and pursuant to the eleventh circuit seems to seems to be to be right on point seems to be persuasive so why should we go the other way well the reason why we should go in the other way the reason we should go the other way is first the this will not be necessarily creating a circuit split there is i'm sorry a circus with r t exist at this moment and the second circuit has also been presented with whether or not the florida youthful offender statute is an adult conviction under section two  one point two the second sort second circuit case is us v orlando maina in that case they they did not create a blanket determination that the youthful offender statue is always an adult conviction to look to apply a consistent meaning across the guidelines and that if we are interpreted in one provision of the guideline with a certain definition we are to apply that same definite definition everywhere else that we use that phraseology in analyzing the guidelines yes that is correct insert under chapter four adult conviction is also a use the term adult conviction is a term of art  under section five hundred chapter four as well as under chapter two the way that the they're using the term adult convect adult conviction is to increase the guideline range one is for kind of history points the other is the sixteen level unhan ulcer the same exact fundamental purpose of increasing an individual's guideline range based off of prior offense under chapter four adult conviction has it explicitly says that you need an adult conviction in a conviction for it to count for the purposes of the criminal history points additionally the term adult conviction has multiple meanings particularly the word conviction itself has multiple meanings in the dictionary  and a couple of questions for you get too far down that road just looking at your citation to orlando men on page fourteen of your brief doesn't seem to be cited in the reply brief so i think we only look at it in one spot you seem to be confining your discussion to that's the second circuit case to that question that you've been talking about with judge branch and that is what's the in a relationship between two a one point two and four a one point one but i gather you were using that case for a different purpose or earlier in the in our discussion by saying that they're essentially imposing a different test of what factors to look at than the eleventh circuit did so therefore there's already a split is that it yes did you make that argument someplace else that i missed  different you then went on and talked about mason the fourth circuit case my understanding is that hasn't been followed by anybody else there are actually quite a few circuits to go the other way on that so as anybody followed the second the the un the  under section two a one point two if we were to go down their road then you have to convince us that this was actually a juvenile sutton's and to do that as soon they were going to take what the sense was into account versus the conviction to do that then you have to convince us that the way it was categorized on the state's own documents was a mistake yes i did get around that so the dot what is the basis for us looking through the language used by the state  looking at the states document it must be taken into look in light of the fact that there was between one thousand nine hundred four when there was an amendment of the youthful offender statute in florida and between that period in one thousand nine hundred seven with davis v state  there was a period of confusion and the sentencing court at that time in the state census in court when they made the when they made the notations adult sanctions it was they believe that they were following the law as they thought it was at the time but in  there any evidentiary support for that in connection with what this judge meant in this particular case unfortunately these are the only documents that are available and they're very full of point as you see there wasn't much it's just kind of fill in here fill in there wasn't much space provided for at the for the trial judge to make because we have a lot of cases that basically say we don't go back and look at the underlying state court documents except in the absence of counsel so how do you get around that you may be absolutely right but how do you get around her case loads as we don't do that i think this is a very unique situation where we do have to look at the document itself but we also have to look at it in light of the system the florida system and section two a one point two does direct interpret in courts to look at the jurisdiction itself to determine what is meant in regards to adult convictions or anytime there's a there's an enhan court is required to basically research what the underlying practice was in the in the other state court and determine if they really meant what they said is that the argument you're making i would say probably not in regards to the documents itself from the sense in court what the court is supposed to look at is the law itself unfortunately the documents do not really reflect the law as it actually was meant by the legislator when they made the minutes of the florida statute and because of that we do need to look at all of the circumstances surrounding that document to understand those notations because technically so freeze it another way and it would be the obligation of district court  to check to see if the way the conviction form was filled out was with the owner outside the statutory authority by the court in the sentencing state  it would probably it out though it would be like extra burden on the district court to look at the additional to look into the actual how the reasons behind the statutory reasons behind why a trial judge me right i don't sanctions to actually make this a fair system and to make it where we do eliminate any kind of possible possibility of disparities i think it is important to look and see what the reasons behind why i just may have wrote adult sanctions are there my right that are cases that you only essentially collateral you're only allowed to collaterally attack another conviction in the case of the absence of the right to criminal justice system in general is very unique and the fact that a prosecutor was able to remove mr nash and place him into the adult system but the judge did make a determination that he should receive a youthful offender statue sentence is what is important here because that is the first time the judicial officer made any determination as to whether or not mr nash should be treated as a child or should be treated as an adult and i would like to thank you  was an adult conviction for purposes of the advancement the six hundred to one point two and the government would maintain that the analysis should focus on whether or not it was a conviction because the commentary on point two defines a conviction or defines a qualifying offense for a conviction received prior to the age of eighteen as you know if there is an adult conviction under the walls of the state of jurisdiction where the conviction occurred here in florida there apply definitions consistently throughout the guidelines your honor i think there is different now for the definition in chapter four versus chapter to chapter two dealing with specific offense conduct here with someone who unlawful in the country they were moved they can be a violent offense which is why they're removed and then they come back to the country that there's a serious you know that's a serious person and i guess we want to deter that we don't want to hear chapter four deals with recidivism so that aren't both of them focused on how do you look at the history of a person when you determine what sort of punishment you're going to give the person and in one we haven't expressed definition we have a definition that says it has to be an adult conviction in an adult sentence and if we want to be consistent throughout the guidelines then why wouldn't we use that in if if the overall goal is consistency i think you would use you have to pick which one you know to use whether it be the conviction and the sentence or just a conviction here that there obviously is sentencing commission thought that there was a reason for having differing definitions under chapter two and chapter four chapter two simply just an adult conviction they're looking at just a conviction chapter four it's the sentence as well as a conviction i guess i don't have a better answer than that that the sentencing commission has different definitions under chapter two that wouldn't be any more it wouldn't be an in on the district court if the district court already has to determine whether there's an adult conviction to also look and see whether there was an adult sentence would i suppose if it would if that matter was clear just be additional documentation i think in this case if you look at the conviction or you look at the sentence i think both support the finding that this was an adult conviction and sentence i think the record eighteen dash one page the commentary to second to a one point two i think clearly defines the circumstances here for the sixteen level and handsome it for an offense which occurs prior to the age of eighteen is being you know whether it's an adult conviction in the jurisdiction in which the conviction occurred would require less work from the corps in that it would have to go look for sentencing documentation for example this case is quite old it was very difficult to find the documents and even get a decent copy the chapter two definition is pretty was a farm fence very prejudicial to defendants in many cases very prejudicial to this defendant for example in chapter four you not only look at the conviction you also look at this so in some instances you would be ignoring that a person  eighteen dash one which is part of the sentencing documents halfway down the page it says it is sons of this court and there are two x s marked on the defendant is committed to the custody of the department of corrections and to winds down it says the defendant assumes as a youthful fender in accordance with four florida gave them the option or another tool in the tool box as i believe cortez from six circuit from the eleventh circuit made reference to that it was just another tool that they had to sentence offenders to you know work kind of maybe in a transition period between being children or juveniles and being adults and then finally i would point out on page eighty ninety five that it does say that in the judgment adult sanctions imposed and in this writing and then after the amendments they did it said that they should be in writing or they must be in writing but if they don't there was a presumption that it would you know apply they don't sanctions would apply but i don't think in this analysis you have to go to the sanctions it's just good legislature authorizes this youth sentence therefore that's what this guy got even though the judgment seems to say something different literally is there anything in the florida law that requires the juvenile to have gotten the juvenile sentence after having been convicted of an adult crime or it's is it simply as you say an option on the part of the court you're out i'm aware of no requirement that there be a useful sentence imposed there is a statute is there any factual information we have about that other than this guy thinks apparently got a youthful sense i think your honor it would be the term of prison he serves in the  corrections would be the only i thought you were going to say is yes but they sent him to prison that's not a youthful sentence but responses yes but there are camps which is what the useful sense apparently would be within the prisons and that's where he was so do we know anything about that one way or served he was to serve eighteen months in the four state prison but you know i don't know that there's anything from the record that i have that tells me how that sentence was served out or where it was surveilled so there's no documentary support for the allegation that he was actually sentenced to a camp believe from chapter four it says you need one more year or more for it to account for the sentence has to be at least it has to be a juvenile sentence and has to be a year or more i believe according to chapter fo the commentary in there from mr nash he did receive eighteen months he received eighteen months which year and a half and with that prejudice him it if there if we if we imported the definition of adult conviction from chapter two into chapter four in which the doc of action only meant adult conviction despite the fact that that term is not really defined in chapter two but if we were to look at it and it was only be treated separately and different and also takes and account that from jurisdiction to jurisdiction what is a juvenile is different so it is a lot more elaborate definition of what it all conviction means  why does the fact what's the evidence that checking the box the way they checked it was an ear if in fact this guy got on adults or so once that once a child is removed  indicates boot camp which is a youthful offender youthful offender sentence and it also indicates the fact that he will use receive four years of youthful offender probation sequential statute everything that is that in the case the fact that he actually receiving youthful offender sentence if you ignore the fact he was sent to prison for eighteen months that was actually boot camp it was eighteen months boot camp and it was housed actually did so under what so no adult can be sent to boot camp so under the under section one fifty eight it actually indicates boot camp for youthful offenders in the fact that they are housed in the well let's assume that that's correct can an adult be sent to a boot camp be honest i'm not necessarily certain but it does from my client said that he received the camp in the youthful offender boot camp and that it was something that you have to believe your client we don't so what else do we have that the fact that he received the splint since the split sentence under nine fifty eight which can include incarceration and i can include the probation and since he received that that indicates in a says written explicitly you that indicates that he did that the judge was using section nine fifty eight of for statute to impose the sentence on my client and that he wanted if he was intending to do that there is a box to check saying you're doing without any looking at terms ever written down and trying to determine whether or not this is what it says or doesn't say but we do know that he did write the term youthful offender and that it does have it does have the characteristics of a split sentence under section one fifty eight and that mr nash was housed in a separate facility from adults and was treated as though he was a youthful offender and under davis the state it says that under the you distinct category additionally there is chapter two and chapter four is it out of curiosity was there an avenue to have gone back to get this juvenile conviction if that's what it was the juvenile sentence of that's what it not so sure this was over sixteen years ago it was a very long time and as the government said it's this is it was hard being able to even get these documents that we do have here today unfortunately