wanted to retain the option to sentence him to more than one year in prison the texas court informed him and made a binding binding on itself that in the interest of justice twelve months or less as such he was never able to be sentenced to more than one year in present if the texas court had sentenced him to one more than one year in from years three years before the supreme court and lockett all of which said that this court and district courts should look directly to the record of conviction when determining how long the sentencing court could have sentenced the defendant at the district court level oh it those cases also rejected a hypothetical approach that actually cleared up the question and it cleared up a circuit spritz split where differently all of those courts had said that the charging decision and hypothetical defendants determined what a defendant could have faced at sentencing the supreme court for everyone has been is the th circuit and as a result there is still this remaining state jail felony versus misdemeanor punishment dichotomy coming out of the th circuit and which has found itself here in this court at scientist in the texas law this procedure statutory procedure that permits the judge in his discretion pursuant to a legal standard to conclude that only misdemeanor penalty is warranted and doesn't operate to convert the crime from the state jail felony punishable by two years it's still a state jail phenol to a felony punishable by two years he's just making a discretionary determination that the case warrants only a misdemeanor amount of punishment less than one year  but the nature of the conviction doesn't change that and the fact that if the judge changes his mind at sentencing the defendant is titled to withdraw the plea that doesn't alter the nature of the conviction in year felony that's not how we speak of convictions well he wasn't convicted until a judge entered an order on his convicting him of the two year state jail felony correct two years t the citation didn't change he was convicted of the two year right tell me a felony for misdemeanor under the mist america right that's just a discretionary determination about what level of punishment is warranted a permitted by state law but it doesn't change the offense of conviction it's still a state jail felony well if the if the discretionary decisions in the findings had not been made the judge in texas would have informed or most such and he would was convicted of that state jail felony and the judge exercised just his discretion pursuant to the negotiation to impose only the mr meaner duration of punishment well you are as a as i see it the in the you're in prison but it's but it's of a statute that theoretically of least would allow punishment of more than one year in prison i actually think that that situation is  applicable to this one specifically for two reasons one it is the ability to withdraw obsolete before a final before finding is made on that agreement in character i also think it doesn't apply and even statutory options for the sentencing judge are limited based on the specific findings so if the judge in in federal court i guess the parties  could raise an agreement that certain statutes do not apply and so certain sentencing ranges are not available in that circumstance i would think it's very similar to a secret but in mr dozers case simply put the judge made a necessary finding a binding finding that had real consequences otherwise there's no need for the findings and the judge could have just said i'm going to give you nine months which is what happened here without having made a finding so explain to me again how you think whether you think your reasoning would apply to a federal eleven c one c plea for a let's say a month in month sentence because that's what the judge that's presented to the judge take it or leave it you know as you know if you if you accept it as the judge you're bound by the terms of that agreement to sentence according to does that fall within the water could you were human or not  spoil good morning or good afternoon your honour's may please the court my name is catherine boyle on behalf of the united states judges i think you hit on what for the government is one of those failure points here much as this is just a discretionary determination that the defendant only warrants a punishment of less than one year that doesn't mean that he wasn't exposed to a possible punishment of more than one year at the statute in relevant case law here fully support the district court's decision and require affirms by this court mr dozers prior conviction for cocaine possession a texas state jail felony qualified as a felony drug offense under the plain language of section eighty thousand two hundred and forty four because it was punishable by a term of imprisonment of more than one year what is the state judgement of convictions say the state doesn't a conviction says that he was kicked out of the state jail to state jail felony but the punishment was reduced to it's mean or what's statute was he convicted deals with this similar sort of subject the furnace charges with a low level felony and pleads to a high level misdemeanor you would agree i take it that in that situation  felony i think the right answer is that what counts for federal law purposes we're talking about is whether this qualifies under the federal statute as a conviction for a felony drug offense is what offense the defendant was actually convicted of so in the plea bargain where a lesser offense is agreed to by plea bargain and that's what he was convicted of in fact the defendant's conviction of a misdemeanor offense and not a felony that it takes it outside of the federal statutory definition it doesn't matter what the exposure was in an abstract sense what matters is what offen the defendant was convicted of fish and what punishment that carried us whether or not full extent of it was imposed and what i see on the judgement is degree convicted of state  i don't believe courage shorey courage her involves a very different situation and that's a case where there was a question that the defendant in that case never faced a sentence of more than one year from prison because he was never charge noted was more importantly convicted of a crime that was punishable by more than a year from president and right judge hamilton before i forget i do want to turn back to your question about what the possible benefit could be this is not part of the record but i was curious and  if you are convicted of the misdemeanor you can serve your term in county jail versus a state jail facility and you also potentially could get different good time credits so that let me explain it partially because texas disenfranchise so on but but i would think in a situation like this would be a pretty good argument to take the rule of lenity and say before we impose these much more severe criminal penalties on something we ought to have more clarity than we have you know what texas law provides us here it was i said look at the judgment and i don't see the word fil convicted of a crime punishable by say four i think in one of the cases it was four dollars to fifteen dollars present four years being a minimum and the state court instead chose to and to impose punishment under an alternate st under statute conduct the sentencing statute is twelve forty four and that's what the judge through its binding finding store gave herself the opportunity to use we recognize this even in this very case where under section eight hundred and forty one dollars a we have the conduct for the controlled substances act violations but it's a forty one dollars b in federal court that has the sentencing so it's a those there are separate statutes statutory provisions and that's was very