morning good morning may please the court my name is jesse segal i'm representing the appellant tyrone felder mr felder is currently serving a sentence of twenty six years as a result of his conviction after trial in this case that eighteen year sentence for participating in a narcotics conspiracy that distributed over two hundred eighty grams of crack cocaine and a consecutive eight year sentence for possessing a firearm  in connection with the narcotics conspiracy he was originally charged with the fire in one to two theories also in connection with the hobbs act robbery but he was acquitted of the jobs that robbery could you address your  a motion for rehearing on bond but i do think that there are there is at least one possible avenue you pursue into which the court could address it and that is what was the effect of sellers on jones  and it's my position it's our position scuse me that a seller's imply edley over ruled jones in that in seller's the court found that a new york state youthful offender adjudication sets aside a felony conviction but there the exclusion specifically says any conviction which has been set aside thirty and under the career offenders guidelines and i understand him the guidelines don't exclude convictions that have been set aside they don't include that language however the career offender guideline refers says that among other things a person is a career offender if he or she i believe it says he but has two or more prior qualifying convictions the argument is that when the guideline says that it means has at the time the defendant is being sentenced as a career offender so if in fact the conviction has been set aside replaced substituted for would the various ways new york state refers to it and then at the time the defendant is to be sentenced as a career offender  he no longer has those prior convictions so i have what i've ordered and it's not that i what basis would we conclude that the career offender designation had any actual impact on this sentence given that judge cooperman me imposed a sentence that was well below not only the offender guideline but below what the guidelines would have been if he were not a career offender and did it in the course of a very extensive and i would say extraordinarily negative evaluation of mr felder it seemed to me as clear as could be the any giving the sentence that she thought was the appropriate sentence under thirty five fifty three factors disregarding the guidelines almost entirely well i guess the first response that i would have to that is that judge probably didn't say that on the record say on the record i would give the same sentence otherwise i used to do that all the time actually when i was a district judge and not everyone does i recall however so i so i assume that a judge can reach a sentence that says that regardless of what the guidelines are this is the sentence i think is appropriate but it's also i would suggest conceivable that the judge could produce the set and she imposed more relation to the sentencing guidelines and basically that absent some more from substantially lower because mr felder was not a career offender then that could have at least conceivably lead to a lower sentence why i understand the record correctly that these arguments were made to her time that particular argument was youthful offender statuses but particularly with respect to the first were processed through the state court proceedings was your client trying as an adult treated as an adult did he end up  n adult incarceration or did you go to juvie mr felder in that case it was i don't believe you went to trial but the proceedings were in adult court in bronx supreme court and he did serve the he originally got a sentence of a six month split six months plus the balance on probation subsequently violated and then did the remainder of that at an adult facility in adult prison and did that take him up over a year it did and that's how we should look at it i mean essentially he served more than a year already served some probation which he screwed up i believe that's correct yes thank it please the court my name is mark and it's just united states attorney for the southern new york i represent the united states on the subpoena and i also represented the united states below the trial will go right to the youthful offender  that this is somehow insulated from review of whether there is whether that binding decision was correctly decided i don't think we need to go to that sort of broad point  on this case here where we're looking at jones we're looking at whether jones was rightly decided here and and to address it whether jones is rightly decided that a i think there isn't anything in the career offender guideline that suggests that it was and i don't think sellers actually casts any doubt on this because it does actually do wondering what effect the plane there are standard has in this case because the short answer is the district judge was correct under the existing law and then the question is is there some issue with existing laws such that powell might suggest there's no i mean it's not pointing to any sort of subsequent supreme court determinations or changes in the law that probably the story ends there even if he was later to think the jones wasn't rightly decided but and if  is a fair amount of opponents are even in particular highlighted in his reply brief is this sort of temporal view of the career offender guidelines and for be one point one a focus on the word has two prior felony convictions  one thing that he didn't do is point out that there's four b one point two which is actually the definitional section for the terms that are used for b one point one and that definitional section which is at subsection  so for b one point two subsection c actually uses language to define two prior felony convictions and in that language to define two prior felony convictions it talks about quote for your honour's the term two prior felony convictions means one the defendant committed the instant offensive conviction subsequent to sustaining at least two felony convictions of other crime of violence or a controlled substance here is a crime of violence so to the extent that appellant is arguing that the career offender guideline is actually different than some of the other guidelines that this court has also found youthful offender convictions should still be  countable it's actually really analogous because it has the subsequent to sustaining conviction just like other ones either say subsequent to or after sustaining a prior felony conviction so we would argue that that both jones is rightly decided and it's consistent argues that that what jones virtually and virtually is the war that's used in the brief virtually insurance that new york to defendants will not receive a fact of the assistance of counsel in violation of the sixth amendment what's your view i think actually there is there was sort of some of that argument was raised in jones right i mean it's always going to be a challenge for every you know state court practitioner to consider what are all the collateral consequences here a if there's an ineffective assistance of counsel claim that should be pursued in the state court not here in this federal court i think what he's really trying to argue is that there is some sort of vagueness issue here and the recently isn't a vagueness issue here the cases dealing with the guidelines are actually completely consistent you know jones is consistent with all of the other guidelines cases that  the court has consider here about whether the youth will find or convictions you know an adult conviction that gets a youthful offender determination could have a consequence for a sense and consequence and this is this this decision is actually completely consistent in jones with with other cases so i don't think that that sort of concern really is is a realistic one here unless runners have any further questions the government will rest on its mission memory that argument comes after twenty years or twenty five years after spending nine years as a public defender in new york city and it is a very real concern and it perhaps it's obvious but just to unpack it a little bit clearly a defense attorney and state court who's client has been offered a plea that involves a youthful offender adjudication is going to tell that client that take it it's not going in considering whether to take it you should know that it's not going to give you a criminal record and among other things you're not going to be a predicate felon as a result of this  adjudication under under new york law but what what would be expected of a competent practitioner in terms of advising inclined about the possibility that might not be true under federal law or under the law of other states in other words if the lawyers said look that's that's a great thing because you would have a record that will come back to haunt you under new york state law but there are fifty other jurisdictions out there in the united states and if you commit a crime in new jersey or california or a federal crime i can't tell you what the effect would be and if the person wants to say we're on thinking about committing a crime in california i want you to look up the research for me and tell me the right answer that would be one thing but i wouldn't expect that the practitioner would be required to research the law every jurisdiction and advise the client as to the risks that you know wyoming has a three strikes law that counts every juvenile everything and that's that's not really the requirement is it for an effective practitioner well it  may not be but what it does do is ensure that a defendant in the bronx supreme court in this situation is not going to know that some day this conviction may come back to bite you in a way that it wouldn't here in new york and it's not even to go on and you never can tell right i mean look at change at some future point as to what's taken into account given in new york there's never any guarantees and i'm not sure that it's essential to the to be an effective lawyer that you give warnings about every conceivable thing that could happen let alone to be to accurately here's the list of you know your where you know maybe this will count as a collateral consequence that you can't get this kind of license or that kind of license and there are just too many things to demand that of defense lawyer if you think or attorney malpractise law that i'm familiar with your honor i think that's absolutely correct however in this day and age where these types of prosecutions are almost routinely brought  now where people who used to be prosecuted for these offenses in state court are now brought into these large conspiracy cases that are brought in federal court then this type of consequence but if that's so if that's and therefore it is incumbent on state practitioners to do this work well then so be it then it's incumbent on them to do it that's a question of what the substantive standard is for effective performance but it just makes me as if you argument that we should interpret federal law in a particular way because we interpret it the other way then a defense lawyer who is not aware of that may miss advise a