thank you your honor scott morning sam callahan and i represent the appellant mr william mccall your honors last week's decision in united states versus tab certainly narrows my client's path to victory but the tab leaves this free this court free to conclude that the guidelines definition of a controlled substance offense by it's an ambiguous terms does not cover and cohen offenses like conspiracy are you saying that regardless of what we just found an issue in tab about the effect of the application basis for holding that the guideline covers conspiracy offense was its conclusion that the court's nine hundred and ninety five dollars decision and jackson fully controlled the question it said quote we are not at liberty to revisit jackson and that was the end of the matter but tab did not so much as mention the united states supreme court's decision in kaiser v wilkie which i submit completely supersedes jackson's approach to evaluating the relationship between sentencing guidelines and commentary and understand counsel just because they mention the kaiser case kaiser that was before this court and the court rendered its decision after kaiser and in footnote eight of the tab the senate in the specific argument that you're referencing to us about the ambiguity that may or may not exist was rejected in footnote eight of the ten decisions so explain why you think we are not controlled by that decision when this exact argument was made after kaiser and was decided by this court i don't see then i don't see any threa circuit and in other circuits that the assumptions that underlie the decision upholding are not binding precedent so to the extent that the court could've found her as he said in the supplemental brief and could have addressed it it chose not to do so this panel not bound this is quite a different situation from what happens following supreme court cases in other contexts where sometimes supreme court will decide an important case and then a subsequent panel will say the supreme court decision has not changed our framework our prior precedent applies in that case the panel's holding as to the effect of the supreme court decision is controlling but here there wasn't even a mention of kaiser it was as if it didn't exist and to get in footnote eight we see this court's prior precedent only traditional rules o statutory interpretation resolve any ambiguity in the sentencing guidelines decidedly against head accordingly the rule when it has no application here your honor my understanding that footnote is that it's saying the combination of the guideline itself and the get notice that at this point in the opinion it's addressing the categorical approach argument which has to do with the effect of application no one so this is not a statement from the court that the guideline is ambiguous and such th can interpret that ambiguity for application one this is a statement that if there's any ambiguity as to whether application one covers conspiracies that don't have an overt act that ambiguity is resolved against  the offended and if i may your honors i think even the government would have to accept that supreme court decision directly on point came down and said you have to apply the sentencing guidelines a certain way and then a panel of this court didn't even mention the supreme court decision i don't think that would bind you know forever more to never apply the supreme court decision in fact that principle is the law in many circuits the circuit had a reason when a decision doesn't address the effect of a supreme court decision well why why are we your honor to the extent you're suggesting harmless error was a possibility here i would start by just pointing to how stringent the standard is and how much it favors my client the standard for how most the extent that the statement about imposing the same sentence could render the error harmless that is foreclosed by this court's decision in feldman it where it says that those types of statements do not insulate sentences from review were four procedural errors and there's an ambiguity the judge said if some of these handsome enhancements are inaccurate i would impose the same sentence and we said that's it's not clear where he sits if some of these are could call it a crime of kindness and generosity if they want so this is as unequivocal as you get and then he did the nd part which is important he insists robotically say that he explained in detail why he would impose the same sentence he talked about what's going to drive this sentence are the facts and circumstances of this crime and he talked about how dangerous these drugs are and then he said coupled with the prior convictions which were their career offenders provision not their prior convictions that he certainly could consider so he independently gave the reasons for his sentence other than the guidelines so i don't i was reading this trying to figure out what more could judge sauls and have done to make clear that his sentences would be the same no matter what what more could have said or got it well few points you have  hundred percent accurately characterize that portion of the sentencing transcript where the judge is calculate guidelines range in saying you know wouldn't matter i do and i'm going to impose the same sentence either way but if you go to the portion of the sentencing where he actually imposes the sentence at page one hundred twenty five dollars of the appendix he is taking that career offender determination as his baseline i'm going to just reading from the transcript it's clear that he was coming he saw his sentence as a downward variance from the career offender designation the court says quote i'm prepared to come below the government's request and sentence of one hundred and eighty eight months or higher that's the career offender range because i think there is a broad range of people who are career offenders i think you are one but there are most that are a lot worse than you most who are probably a little worse so i'm going to give you that  of a break and there's no countervailing evidence in the record that he would have seen in the under the non career offender range that he would have been one of the two percent of district judges in the country who impose an upward variance on a sentence i think the record at least has some doubt and that's all you need to find is some doubt that the error in the determination of the guidelines made a difference in the sentence thank you very much if you serve two minutes of rebuttal we'll hear from the government the morning and made please the court and for the united states your honor the sentence imposed by judge sullivan should be affirmed on on the strength of the tide of cases just last week this court  the reliance on stinson itself the continued reliance on stinson in jackson itself is also an implicit recognition that kaiser is simply in a political here and if i could briefly explain for the court why that is so the defendant's argument here relies on kai's or but ignores what stenson actually said so stinson itself it's said that the commentary to the guidelines is authoritative because one there's a guideline itself that directs that the commentary that explains guidelines and how they should be how the guidelines should be applied there's a guideline that says that commentary is a part of the debate is whether this is an expansion were an explanation right so that guideline doesn't really answer the question at issue here i'm making the more general point that would stinson was doing was saying that commentary is authoritative because there's a guideline that directs you to consider the commentary in addition stinson itself explicitly said we're relying on seminal rock deference but today we call more frequently our but we're relying on some and all rock  as an analogy to what is a unique institutional structure here and stinson itself explicitly said at page forty four dollars that opinion commentary explains the guidelines and provides concrete guidance as to how even an ambiguous guidelines are to be applied in practice so instance in itself held that ambiguity is not a threshold requirement for consideration of the commentary in reliance on that on that sentence and that holding this court in the put drug case which is cited in our in our brief the case says no threshold test of ambiguity need be passed and so supreme court to say if stinson has been overruled as as of course your honour's are aware the supreme court frequently says leave it to us to overrule our own cases so whatever kaiser says in the abstract about our deference about about a threshold test of ambiguity it's up to the supreme court to overrule stenson stinson still is binding supreme court precedent jackson applies that precedent and tab by continuing to rely on and jackson it implicitly recognized that now of course there's also this principle that which the defense evokes this there's this notion of questions that merely lurked in the record should not be deemed to have been resolved in a presidential holding but again as i noted earlier it wasn't lurking in the record in the tap case it was explicitly raised by the parties and the panel ultimately implicitly rejected it so now as to the harmlessness argument so st i would submit that because tab resolve definitively resolves the case that there was no procedural error that's all the court needs to say it doesn't need to get to the harmlessness ruling and it certainly doesn't need to get to the point of saying well if tab didn't control and if we were if if we didn't hold that there was no procedural error we would find that it was a harmful error that is the epitome of of dick does and essentially an advisory opinion because it had controls the case and there's no procedural error but even if the court were to proceed to the harmlessness issue again judge sullivan could not have been clearer that he would have imposed the same sentence what do you have to say to your starting point twenty two dollars the language in his sentencing discussion right so so of course judge sullivan was doing what a district judge is supposed to do he calculated the guidelines and that is one of the th  the language earlier in which he was crystal clear but i would i would point out in particular the parallels between this case and jass so jass even as interpreted by feldman so feldman reaffirmed that jazz of course was binding precedent so feldman interpreted just as essential to require three things one the the district judge has to identify that particular guidelines dispute to there was an acknowledgment in jass that that could go up on appeal and the nd circuit could could very well disagree with me and three and unequivocal statement that the same sentence would be imposed and that's precisely what judge sullivan did here he identified the guidelines to dispute that issue ultimately on appeal the controlled substance offense issue he acknowledged i could go up to the nd circuit and that this court could disagree with him and he stated unequivocally that he would impose the same sentence their argument is at the very end when he was imposing  said you know earlier in the sentence so you want to address that right so again this notion that that continuing to explain one sentence with reference to the guidelines range th calculated that doesn't that doesn't undercut what the judge said earlier he was simply i think respectfully complying with what this court has said so for example the extent of the variance from the guidelines ultimately one needs to look at his statements and again those three factors that occurred in jass as explained in feldman i would point out one other thing one thing that occurred in feldman that contributed to the court's concern there and the reason eighty eight dollars it was right at the top of that higher disputed guidelines range so that was in the another indication to this court that the district court there was actually pegging the sentence to that guideline but again sullivan was crystal clear at multiple points in the transcript that this case was being written the sentence was being driven not by the guidelines but by his particular understanding of the facts his concern about how serious the fentanyl and heroin offense was about this defendant's long criminal criminal history which included nine prior actions as well as nine other arrests and ultimately he gave impose a sentence of one hundred and sixty months that was not pegged to the the particular guidelines range in the way that it wasn't feldman so that fact in it in combination with all of the others counsels in favor alternately of the harmlessness ruling which of course this court does not need to get to at all because error in consistency keyser then proceeds to say that standard is too lenient for agencies you have to look to the text of the agency's rule st to hear the guidelines and determine whether there is ambiguity before looking to what the agency did the portion that my of my friend the other side quoted it's just not consistent with that to say that you can have an ambiguous guidelines and then have the agency interpret them this was presented to the court in even if they didn't discuss kinds who are explicitly can't we presume that it was still rejected roundly in order to have reached the conclusion the tab court reached your honor my understanding of this court's precedent about the effect of precedent is that when you explicitly and that it cites stenson in that it applies a fundamentally different approach to interpret the relationship between guidelines and commentary i would i think if a court today said this guideline is unambiguous and yet let's see what the agency said that is a reversible error i have to reject its reasoning i think you have to apply different reasoning based on binding supreme court precedent that was not addressed in that decision and i think regardless of whether you agree with me you are absolutely at liberty to hold that this error was not harmless that's exactly what the court did and feltman  reach the error so that and instead to find the error harmless it found the error harmless and then found no errors it's not an advisory opinion it serves a great guidance function and the standard for harmless error is whether there is any doubt as to whether the court would have imposed the same sentence the fact that in some parts of the points of the transcript it suggests he may have done the same thing and in other points he's consistently referring to what he's doing is a downward variance and under the non career and offender range would you the next case