the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court to give their attendance and they shall be heard god say the united states of america and this honorable court court is in lemon please introduce yourself for the record and proceed with your argument good morning your honor as i'm attorney kevin learning on behalf of and how they look cruz with the court's permission i'd like to save two minutes for it but you may have it thank you defendants relief from mandatory minimum penalties it is broadly phrase that every turn referencing offenses and or entire sections of title twenty one including is relevant here section nine hundred and sixty dollars the plain text inquiry comes down to whether the st step act was enacted bias by a separate congress that's true to get half decades later so the key to looking at the intent would be to look at the original our congressional act and the inclusion i don't think much can be interpretate well i think you're on shakier ground when you say that because congress went to some pains to of what to put this provision in the st step back on to the category of legislation and definitely most certainly broadened the inclusion of various categories of criminal history so broadening could very well be referred there and there is already cautioning looking too  deeply into the title of legislation mr alarm and i think there is a more fundamental problem which is by the d c circuit employing court passion of construction to come up with the argument that you are now making i doubt that congress at that time that they st passed this statute had in mind that some day a court would do what the d c circuit has decided  i would respond with two points the st is that looking to the meaning of what offense under meant at the time that the the at the time that safety valve was passed a broader meaning of offense under is evident from two things supreme court precedent and the use of the term in the guidelines at the time why does it matter what was going on in the guidelines at the time because the background of two d one dollar describes quantity ranges and because the probation focused on on the penalties that were included in nine hundred and sixty dollars congress one have needed to specify and congress is presumed to know the state of the law at the time the nd would be would be supreme court precedent which courts were kind of confronting in the three courts that came out in the opposite direction were confronted with the with the axiom that offenses are defined by the legal circuits in any case in any case i'm sorry are you so certain none of that was to argue those circuits it's true the opinion is stone circuit that decision the th circuit had an unusual precedent that it was following it it already decided there wasn't any ambiguity in three thousand five hundred and fifty three f and even though it hadn't confronted that question and beauty is really a key concern here and i'd like to just finish and my my time is about to run out if there's any ambiguity here then the role of my duty calls for resolution in mr de la cruz is favored here in this circuit it's been the law for two that's correct all right thank you you have two minutes reserved around have been tempted to not make this safety valve available congress now makes it available to n d l e a n c we also know that it takes a fair amount to be eligible for the safety valve and here this particular and b l e a different and is eligible so how is a group that fact here i there a way you know if you when or if you lose it would seem to be it's a small group your honor it would just be people who were sentenced before the st step back who would otherwise be eligible for the safety valve because they qualify for the five criteria the safety you know what simply were not given as if you know because of the legal that i thank you very much for that concession it's a very small group of people that's what i would have guessed but practice maybe it's one maybe it's two maybe it's  greater involved is congress is what congress meant by this statute and any question of statutory interpretation or goals to try to determine congress intent and the text of the statute clearly indicates that if congress same act congress added that it was on lawful to smuggle into the united states a firearm in connection with a list of specific statutes and in that provision it specifically listed the maritime drug law enforcement act  you could turn to the text of nine hundred and sixty and help us understand your writing on the short i take it for example for a look at subsection eighty three a reference to nine hundred and fifty nine yes i do i do i the purpose of the safety bell then if we have another statute that says that other statute shall be punished as provided in b why doesn't that turn that into an offense that's under as provided in the safety though because there's no indication or honor that that's what congress meant when it when it put the language offense on or not six getting well on right now i'm not looking for other things that congress i'm just looking at the text right and mechanism have the same effect when included in the suit in the sick in the end because there's no indication that that's what congress meant by the wording offense  under like i said the congress has specifically referenced the n d l e eight in other lists when it wants when it wants to in addition congress didn't use the wording offense under in the safety bill says or instead of penalize under or punished under as listed and that's your point i would read offense under as it's specifically contains that that offense or the conduct that's criminal interpreting tells us that is an element of the offense isn't it and that is correct but the fact that it's an element of the offense all that means is that it needs to be for put forth before a jury and proven beyond a reasonable doubt it does not shed  well your honor the key point is that it is an element of the offense so it needs to be proven to a jury but that doesn't mean that when congress used the word offense under that it meant to include any statutory provision that provided an element of the offense there's simply nothing to indicate on asking a simple question is the drug quantity part of the offense if we define part of the offense says something that contains an element  specifically by name and in reference to title forty six in multiple other instances in the us code show that it was not congress's intent to subsume the m t l e a under section one hundred and sixty dollars in addition if we look at the mr d other question given what congress included in the safety can you think of any reason any substantive reason any purpose that would have led congress serious international problem and a specific threat to the security and societal wellbeing of the united states drug trafficking onboard vessels often includes people who are bringing the drugs in the st place in the country and they're usually you know correct your honor but but in any event you know i would say that for whatever reason congress viewed the only eight offenders as somehow being worst offenders that should not be valve eligible and i would point out that the safety valve is an exception to the rule right the rule is that you have a mandatory minimum sentences the safety valve is an exception to the rule and in carving out that exception congress was clear in that it only wanted certain offenses to fall  exception and again the text of the statute and the way in which congress has used that throughout time to refer to the m d l e a makes clear that in this case they were not referring to the correctly and you specifically mentioned eight hundred and forty one dollars which is drug dealing narrow housing projects and schools that congress did not want to give a safety valve we would be opening the door to if we were to adopt the d c circuit ruling here if i may before we before he answers this judge so you're still on the line i can't s within ten days of oral argument to submit ladders to us as to other statutory prohibitions that you think will be affected by adoption of the d c circuit opinion each of you your brother also has that can date period a broadening of the safety of our statute and it had congress intended to make the safety valve eligible to any and delay a fences no matter when they were sentenced it could have easily done so and it could have made that provision retroactive and it's pacifically to why congress chose not to make it retroactive there is no obvious answer which is not burdening the court system with a bunch of petitions but beyond that is there a substantive reason that was given and the legislative history i don't know one off the top of my head but i'd be happy to add that to the twenty eight j letter if you'd like please absolutely of course your honor so at this point if there are no further questions since my time is up we'd ask that you please affirm the district court's judgment and sentence thank you thank you learning on behalf of mr de la cruz i'd like to respond st to the government's point about whether congress meant something about the and the only game when it was mentioned specifically in the same package of legislation a reference to the m d o in completely different prohibitions of law does not render the playing language any clearer here in fact the government conflates the stages of analysis the court only looks to the broader context of legislation if the plain meaning of the text is unclear but if you're the one who argued earlier that there was a lack next the argument there is that there's a perfectly good reason to reference to m d i in narrower language when applying to other statute at the time congress created defenses and the requirement to use much more precise language would have been present for example to add as nine hundred and twenty four dollars c predicate but here context is everything in the car and this was a remedial statute meant to be read broadly with a focus on penalties and hence the bit in the broad reference by the house of representatives that this was for a narrow class of defendants those who are the least coble in drug trafficking schemes just connect from the hearing at this time