is a long time was a long time permanent resident of the united states who pled guilty to mayhem in a state court in las vegas nevada in december of two thousand he received a suspended sentence the forty eight convictions and it's certainly not binding on the state court judge when he received that he had the option of discarded out or falling down or doing whatever he wants well yes  sheppard saying when we talk about record or conviction in two forty c three bin we the same record of conviction that was used in taylor and shepard you're right i am not aware  and under two forty c three being we're trying to find out what the government did to this person the government in this case being state of nevada one of the agreed to in this case is very clear that and when we made a motion to reopen in this case this gentleman in our estimation stood convicted of a misdemeanor not a felony well your case would be better if he hadn't given the maximum sentence to for the months and three years  day there was a final motion to reopen that was granted or it reopened the case but then i'm sorry they did accept the motion but then they declined to reopen the case documentary sentencing before the a prior to that time no sir and in other words had you filed timely and had you filed your fee and so on it was an appropriate subject for reopening assuming that the document did as you said that it  any without that motion you know now you're running overtime the got me nervous about that when all the songs we've got questions it's it's our problem and not yours let me ask you the following i'm trying to figure out what the meaning of the judge's decision on the fourth on the fifth of february two thousand and four he comes in for a hearing for a violation of probation let the judge reinstate probation and he also does what he calls second amendment judgment of conviction he does a different stance and i'm looking at the original judgment a conviction on pursuant to the plea of guilty which is on a our one seventy four  that judgment is entered on october sixteenth two thousand and two and the sentence imprisonment suspended probation for an indeterminate period not to exceed three years now three years from october sixteenth two thousand and two is of course two thousand and five at the time the judge allowed puts in the new sentence we are in february of two thousand and it strikes me that it is very improbable that in two thousand and four february only a year and a half into the probation he's going to thing other than we can state the conditions of probation i do not see anything in his order february of two thousand and four that says you have fulfilled the conditions of your probation he simply reinstating and with the additional condition that there be cooperation with immigration therefore i don't see how this cost possibly can could be evidence let me ask you this ok let's see how much we are in agreement on and then we can figure out what we might be in disagreement on my understanding of the law is that if a court for category and i want to give you a lighter sentence so you'll take it out of the felony category so you won't be removable that does not count as an expansion am i right on that that's correct your honor so if this is truly just a change of sentence because the the judge here in nevada in two thousand and four wanted to avoid the harsh immigration consequences that's exactly what he did correct so long as it's not mismanagement well even a change  if i'm right that what nevada trial judge was doing in february of two thousand and four was entering a new conviction now a misdemeanor conviction and the reason he was doing it was he was trying to help at least so far as i've gotten is favorable to the petitioner that is to say let me state it clearly to make sure that you and i are on the same page a state court judge may change the conviction or change the sounds to make either one of them a a pre sentence report however on reopening when you're reading the issue and when the order perfectly tallies with the pre sentence report it's clearly a rehabilitative action immigration constitutes condition does not correspond to any substantive or procedural defect in the judgment that was the question yes and they said if the judgment is changed for that purpose that the new conviction is what you've got to show that somehow this new conviction the misdemeanor conviction was entered pursuant to rehabilitation or expungement correct yes ok what my problem is with dates i cannot see how that could be an expansion or rehabilitation upon successful completion of probation because he's got another year and a half to run but then your honor that's the problem petitioner hasn't sho when he comes back into court on a hearing for violation of probation the judge quote reinstated to probation adds a condition of probation that he cooperated with the gamma gratian authorities and he changes the sounds how can that possibly be a change as a result of the successful completion of the conditions of probation years to one and a half years than they've been the first and the judgement that's the problem we just have that we don't have that in the record i mean and it was asked for several times and kept saying i won't bring it and he never did we have that we also have the fact that there was probation doesn't make any sense given what the judge might say as for the second amendment he says he came in on a probation violation that's adjusted the probation is still in effect exasperates so it's not been terminated but that's the problem i on that day he was on probation it could have been successfully short now the government there is the responsibility of showing why the case was subsequently changed i don't think they did that i don't think they can do that and i think we should have an order requiring that the board reopen this case so that we can either terminator pursue relief under section two forty eight and i would thank court for its time and wish you all the day to thank thank you very much this case is now submitted for decision