this is a unique and remarkable court in my opinion from that perspective the two brief observations before we get started with the first case which is the united states versus guy smith  for those of you who are unfamiliar with our lighting system and our timing system you'll notice that we have a timer and a clock and we've got green light means of course that you can proceed amber is a two minute warning and red means that your time is up and when that light goes on i would be much appreciative if you could bring your remarks to to a conclusion it doesn't mean you have to stop dead in the middle of sentence but would be much appreciate if you bring them to a conclusion and proceed second observation as you proceed with your arguments you may safely assume that we've had a chance to review the briefs the record excerpts and in some instances we've had a chance to read the transcript the record itself so feel free really to go to the heart of  there they believed there was to still envelop convictions august twenty sixth november twentieth but that's incorrect but in any event i think that letter represented that those were removed from his record is that right understand factually as i understood it from the testimony of mr holly and tell me where maybe i missed when they had four qualifying prior convictions which yielded for the parole commission a score of two with a with a base of two hundred forty months there was one in october tenth sixty eight convict for mr minor traffic offense t there was a june twenty first one nine hundred seventy concealed carry convict three there was a firearm possession conviction june eighteen seventy two and four there was a reckless driving mr mean a charge in seventy five october of seventy five which was apparently converted into an obstruction of justice factor what there an argument and we would submit that the district court played the wrong stance and that was the that's where their error and that the district court looked at these these factors with regard to the salient factor stated that you have to show a present harm that is more than incidental and so where the court erred is its focus on its analysis on just the same factor score who would submit that mr smith records was that they consistently in two thousand and two and two thousand and twelve relied on three prior convictions mr foley came into the hearing and said that based on her review she would count more but there was with a vacate sure of this conviction and go i would like based on the ministry i have the opportunity to present new information and signing to document twenty eight dash nine district court relied on exhibits were not very legible but the commission stated that it has no information or has not received any information that has been gathered or present that would warrant an adjustment in ng at the time that mr smith had his two thousand and thirteen here he had nothing to show under the ministry of rule to allow the commission that can talk to essentially at the novo review of his entire parole previously the commission what it does conclusion that the district court reaches is plainly a legal or a determination or a mix question of law in fact that we would review didn't over all but he says and i want to quote what the district court says he says even if granting the requested relief did change the score smith had failed to demonstrate that this and then would amount to a substantial change in the score nor would otherwise entitle him to an earlier parole here is not fact finding your honor even if the conclusion that he drew from that was a legal determination or at least the next question  reducible finding of fact if that wasn't a finding what findings did he make in your view that we're entitled to deference and only clear our review we go to the last paragraph the district court incorrect finding by the court there is no doubt you i guess my i'm not making myself clear you may come back and say that finding of fact was clearly erroneous b might be right but i'm asking a different question i'm simply asking whether or not it is a finding of fact to begin with to say that the  k let me ask just one other question if we review that finding for clear a there's a call a quick very interesting call look we between the district judge and if in essence i were to agree that that conviction was unconstitutional and had to be set aside would that be enough to get them a new hearing talisa and they spar for four or five questions tali says not necessarily then the court says or a new date entirely says in this case if we were presented with the information with one conviction gone it would not impact his in fact a score the court could they consider it and give him an early hearing tali i suppose they could it's not probable the court you mean you don't think they would do it but they could tolerate really i mean this is a minor conviction we're talking about and it doesn't change the salient factor score so we would not in other cases we had convictions overturned  new information you know we had to put them back on because you know that show you in fact to score the court so if it doesn't affect the salient facts score then the likelihood and i'm speaking of probabilities is that the commission will not it would not affect anything it's reported as a statement but it's really a question tali that's correct and then i would say based on the last interview they had with him and the reason stated for his extended interview they wouldn't consider anything really or the district georgia does judge obviously relied on that and reached his own finding as to salient factors why isn't that entitle to clear e have the commish you document without it being an official record here sisterhood there wasn't what the commission relied on that in saying there is no word of a new review was it was that the form of the papers brought before them that they said made it in inadequate they just simply said we don't see anything here that warrants review look commission can only consider what documentation they have before them actual records history provided the f which had no impact on the the seven zero four conviction she only stated in the email that the conviction was invalid now but it was still valid and it still appeared on is n c i c report it's that's the that's the impediment this is mr smith's golden ticket essential without any other opportunity mr smith can't come before the commission and ask them to conduct it come you it'll always be an interview please the court karen hartmann for the united states your honors i'd like to address three main points that were just brought up during argument the first was focusing on the fact that this is a factual finding in the crack standard of review for addressing it the second is the fact that defense counsel is now bringing up an additional burden or and factual finding that he would like this court to address which i think is outside the scope of this court's mandate but regardless was already addressed by the district court and resolved and the third i'd like to touch on judge e mails question about this i find it very interesting i had the same question i do not think we have a mutinous problem i think that this is still under the rubric of the continuing consequences but i'd like to  talk to return to the factual finding this court certainly did view this as a factual matter that was the entire reason that this court re managed in the first place at oral argument the court was very concerned that there had been no eviden finding even though there appeared to be a factual dispute and so this court sent back in a mandate that was wider than what was addressed a question as to whether as a matter of fact the defendant couldn't bear the burden of proving such a continuing consequence such a heavy burden from his fifty year old misdemeanor conviction that the district court should set aside all concerns of finality and address for the very first time his constitutional challenge the sachem underlying that action was troublesome that that was the thing that quite explicit remand that the district court never came back and said here's what the salient factor is and here's how it's affected and this is my judgment of what it reads i mean we got some conclusions from the district court is no problem but it was very frustrating with that explicit reman tell us about the salient fact we don't have a specific phrase do you think that's an adequate response to our prior mandate i think it is your honor and i think that the court actually considered and constrained itself at the very beginning of the hearing the court specifically asked the parties what it was there to find and after a back and forth between the parties turned to defense counsel on page seven and said so what is he saying the harm is after another back and forth the court says so it is the salient factor score and counsel says yes your honor at that point i think the district court was quite clearly narrowing its consideration to whether there was an effect on the salient factor score which was the original factual finding that was brought up at oral argument it was the additional findings or the additional supposed consequences that now are now being brought forth were actually worked and i suppose a little bit says that there is going to be no other effect as well this talk of substantial factor is actually under the florida procedural rules that defense counsel brought up at the evidentiary the argument became that regardless of whether the salient factor score changes because it became quite clear that it was not going to lunch mr lee took the stand identified four other convictions and defense actually did not introduce any other evidence so didn't even attempt to carry their burden simply attacked the evidence that the united states was putting in through his tele one of those four that mr lee talked about was this traffic offense misdemeanor that was on probation are you comfortable with the court be comfortable that that is counted when it gets downgraded to just a probationary consequence the court should be comfortable your honor because a petition from his is not the correct arena to be challenging regulatory and procedural matters that the florida commission will be addressing and once we have actual evidence from the trainer for the investigators who works for a commissioner saying this is what would happen these would be counted i think that that fact is sufficient for the court to find that there will be no effect on the salient factors people was made was made in the context and understanding of how that traffic offense was handled i believe so because ms tolley said that she would be the one who would be analyzing this and had analyzed it for the commissioner the second part a consequence that defense counsel is now raising is this consequence of an impediment to an earlier hearing this is a bit difficult to follow because mr smith already has a hearing scheduled for twenty twenty the argument seems to be that the the possibility of gaining a new hearing at which new evidence will be looked at if there is any evidence is some sort of sufficient significant consequence to attack this can and that's not correct for o that hearing because we know that the salient factor score will not change so the only consequence from setting aside the conviction if it were to obtain an earlier hearing will have no alternate consequence on parole possibilities or the sentence the second is because he has already you have a defendant who was sentenced originally to death and then was changed to life by the court of appeals who has a prism to perl date of twenty forty two which was originally calculated in two thousand and two those hearings do indeed mean very little what they do is they look at the intervening actions of the defendant while incarcerated so they'll look at whether he has racked up additional disciplinary infractions for the portion of the prism to parole date that is dependent on that  is your answer to judge marcus that all they would be looking at in the twenty twenty in the in the twenty twenty hearing is just his prison performance and they wouldn't go back and recalculate or even allow what the they were your honor we know that the salient factor score will not change that's not my question he is the other these hearings only look at prison conduct during that intervening five times or is the hearing does he have the opportunity at this i don't think there's anything to support that but i think the thrust of the question that we're both asking at a hearing of this current whether it occurred in twenty twenty or in twenty eight he would be free to argue and the commission would be free to recalculate the salient fact to score if they deem that appropriate they could go right back to what they had done in two thousand  and redo it based upon an argument he made if they in their discretion thought that was appropriate right correct your honor they're not limited to simply looking at his behavior during the period of cause i don't believe so you're out but again we know as a matter of fact that the salient factor score will not change we also know because he has a hearing in two thousand and twenty that and earlier he all we know is that it probably wouldn't change for the misdemeanor conviction and if the significant consequences were talking about here is an earlier hearing that's a consequence of no moment whatsoever because it will have no effect and can have no effect alternately on the barrel determination the second portion of that and i'm sorry i said it a couple times but not very articulately is the fact that because he will have a hearing he has the opportunity at that time to make all these arguments so the only consequence of an earlier hearing would be to ask for a different parole consideration at that time there is i would submit absolutely no chance at an earlier hearing would he gain a prism to parole date that changes from twenty forty two to before two thousand and twenty at his next hearing so gaining a procedural advantage in the florida court is going to do absolutely nothing for mr smith and i'd like to touch briefly again on the mutinous issue that your honor brought up indeed when looking at the n c i c s c i see a report which is what the commission looks at this conviction is no longer on the report that means for perp mission for purposes of his consideration for this man who is under a life sentence with a presumptive prole that a twenty forty two action is gone it is no longer going to affect for consideration whether at the two thousand and twenty hearing or any other hearing so it's very interesting that he's asking this court to set aside finality in the federal court to eliminate this conviction when really the only consequence he has is no longer extent it's gone for the purposes of the state and i don't think that's a  you're on i think it's still under the rubric of the parameters very few that this court has set down including a significant continuing consequence but if so so you're saying it's not it's not moving in the sense that he still has real relief he's seeking and therefore it's not moot but the factor that would give him that relief is no longer an xterm factor correct your honor i think that is how it would be l although i'm certainly not certain that been musing on this myself for a minute yes but if we're talking about article three minutes i don't think that we need to reach about i understand to return to my first point rather briefly i'd want to talk about mandating about burden the point being that regardless of what the factual finding is that we are determining it has to be the defendant's burden to prove and so the question that we  additionally with regard to that matter though if it's on the national registry as long as it's not on the florida registry oh your honor the parole commission looks at his entire criminal history is comprised of the number of months to that factor providing and eliminating this conviction allows them to reweigh the weight of criminal history stimming all of that is true is there any reasonable likelihood based on the record we have in front of us and the finding by the district of fashion the result would be different yes your honor and that 's our point by having the committee views file they take an entire look profile let's accept that they going to take another look is there any reason probability that after having taken such a look they likely would have done yes your honor because there's one less conviction the calculation for the weight they provide in the science factor score if you don't object to these other convictions how many other convictions do you agree he has really interested in your answer to that because the record is kind of confusing to me or the historical record in mr smith's case was the three and it was i'm not asking for the historical record what does the evidence in this case k so then three x meaning correct and but there are two convictions and a step back for a second this tell a dignified five in the record one was the very first one on page one  or identify that conviction as one that would be calculated in his in his factor score and again i understand mr kelly countered it however she would not be the one dealing with the condition or the review period when  smith comes about in two thousand and twenty or prior to that because she's currently a trainer she tested she's a trainer she's not part that process anymore with regard to that conviction there was nothing in the historical record it's very important to know that the to be a substantial change with regard to a conviction that mr smith can bring up for with the with the commission and to show that something had changed in his parole profile commission to review his file and basically by reviewing it it leads to immediate release because you're saying that when he goes to the twenty thousand hearing they are not going to give an overall review they're only going to look at his prison conduct is that right right your honor but don't they have the power is there anything that restricts their power to go back and reexamine the salient score in light of any argument he might make a point to the record at twenty nine where the commission states that you've provided nothing to show that we should change your mind so they disagreed factually with your position about whether this is a material statement but i'm not asking about that i'm asking on a a regularly scheduled review like in twenty twenty doesn't the commission have the power if they think if they think it is useful to go back and recalculate the salience score commission will continue to rely on it if if if if if if but of course under a under our standards for review here and call no because he's got to show a present substantial  case they've always relied on whatever mr smith has presented and he's at the end of the road here the seventy four conviction is only opportunity to engage the commission to review his whole entire file why can't he make the same argument in twenty twenty because without the vacationer of this conviction there's no substantial changed that would trigger the commission to it the commission has to have a legal document a court document says this this conviction no longer stance mr smith will not have been twenty twenty when he comes the commission this the seven zero four commission remains on his and so i report and they will continue to kick