the power to decide whether to cooperate with the united states there's no reason that congress would have wanted to limit this power in such an arbitrary way as a factual matter the certification couldn't be more clear and the certification is conclusive your honor i think the alternative argument that the government me is that a foreign nation can grant consent only as two of us all but i don't think the m t l eight requires that i think rather there's nothing in the very explicitly said you have your if the vessel missed you or your debate is about whether people had to be on board or included or off the ship but as to the vessel itself it was quite particular case i don't think it limits the substantive power of a foreign nation to decide whether to grant consent as to their particular and to use or to deny consent as a particular entities i think the government's arguing explained that the focus of the jurisdictional provision is to avoid friction with foreign countries and i don't see why congress would have wanted to limit that to require nations to grant or issue blanket consent i don't think already committed this crime that is that their boat was subject to the jurisdiction of the united states so when colombia granted extradition it was effectively on the representation by the united states that colombia had already consented and so i don't think you can read the are subsequent extradition as somehow being of the consent within the meaning of the n d l yeah and also i think you know subject matter jurisdiction needs to be established at the initiation of a case and so i think a necessarily in communication with each other plus i think the extradition treaty is that you know premised on the idea that there is already a crime committed and so i think it would be very strange to somehow understand that to to protect the nation's interests in the way that congress intended the the nation's interest be protected through the actual crime itself through defining the crime itself if i may if if the court has no further questions on jurisdiction i would turn to  the statutory text because their friends is punished by nine sixteen and also because greater offense than the forty one or because it was simply a sentencing enhancement those are not appellants arguments and again i think of the schemes the punishment seems an eight sixty and the n t l eight they are sufficiently different that are here and would absolutely not extend dispositive distinction between a statute that says that and the statute that we have here i know your i think of it said that if it said the punishment shall be effectively wholesale what is providing a forty one b then i think so the the mandatory minimum unless another unless there would be a higher minimum under age sixty i think the supervisor lease term and assign are also different but suppose all it did was was and i must say this is really wrong i'm just wondering about the implications of your argument so suppose you just had a think that would have been an intent by congress to create a different penalty scheme so i think there is a meaningful distinction between an offense that says this is the punishment scheme entirely effectively and one that says here take this crime of which they're convicted here i'm just not sure why why you say alternative why some pick or nine sixty be here as part of the elements of the crime which they were convicted of i think that is absolutely a reason why we're entitled to relief i think that if you know even if the court were to define offense more narrowly or or not see that as an element of the crime under the statutory definition of offense here we would still be entitled to relief because those managements be punished under statu thirty or adamant put a minimum minimum of fifty years if they have two prior felony conviction in that situation with that would that be different than the situation here where when they say punish under nine sixty they're actually adding in element and aggravated crime would be different i'm sorry i'm not sure i follow your honor does it does that what they said in the lien is that when you have things that are labeled sounds in factors but in fact change the mandatory trigger or change the scope of a mandatory minimum those become elements of the actual crime of offense they are part of the crime and as to those that do that so that's one category is nice it's easy if you definition of under that it means that if it least includes offenses punished by i don't think it would be punished by the nine sixty in that case because it would double the if the punishment but it focusing instead on the definition that undermines defined at least in part by as long as the six i think that that would apply to age sixty correct i think you know that may be why the court would if the court is concerned about that and concerned about the case law regarding need to see it i think that would recommend so regardless of age forty one and sixty which i don't think have any any similar statutory history i think it's clear that there was no intent through the c v t valve to deviate from that policy and i also think there's no basis prosecution under the n p l yes to individuals on board as well as coke conspirators who are not on board and there are other mechanism most chemical overman what control does the government of colombia here have over the scope states under the n d l e eight to prosecute the individuals now there are other mechanisms to give effect to colombia to colombia's desire not for the united states not to prosecute individuals there are diplomatic measures there are i consent to the enforcement of united states law by the united states to people who are on the top floor i don't consent to the enforcement of united states law by the united states for people who are on the base before well you have a non consent i don't know if that under day i don't consider a special jurisdiction over the vessel in circumstance b why isn't that just it's both it's a consent with respect to the what's within the scope of a consent it's a non consent with respect to that occasional secretary of state so i would assume what would happen in that sort of situation is a bit exactly on the lines of what you were suggesting there would be a process and then we would get a certification that would say the certification would be that background principles that international sovereignty and how much you why would we read that into this to you when you can't point in languages well i think it's actually true that the statute promotes comedy but it's also true that the statute doesn't eliminate potential tension and there are other mechanisms that are well established to eliminate background principle so what are our background principles concerns for a state you want to co kids you can have a car until nine that's not silent as to whether they can have it done do do we know by the way that that's in fact the way that they can say it was communicated because i thought that the relevant line in certification you have to deal with the persons on board part there's no doubt about that but for our purposes a certification is inclusive and the conclusion of the certification is accordingly the government the united states determined if they go fast vessel was subject to the jurisdiction of the united states i would have assumed that if there is a situation in which the government of the united states in dialogue with another country i was under the impression that the other countries all the present a danger to jurisdiction over the vessel in certain circumstances the way that article sixteen works because this is a a a a a vessel in colombia in under congress plague we negotiated with colombia article sixteen where consent by colombia over jurisdiction is automatic content to colombia for jurisdiction by the united states is automatic when certain prerequisites are met those prerequisites if they are present automatically trigger the consent to jurisdiction of united states and those prerequisites are the united states comes across a vote a vote in congress name in international waters that word has reason to believe it's engaging in trafficking and colombia has not initiated a prior criminal action so if if the united states is the first to initiate a criminal action and it comes across a boat in colombia as waters that's trafficking drugs automatic consent under article sixteen the united states doesn't have to ask for consent to have to we in this case we did happen to just go to the co authorities and say here's confirm that we're we correctly understand that article article sixteen triggered here we didn't have to get anything by the state department the state department certification says yes we we certify that under article sixteen that was the understanding of united states  case and in our view there was consent over the vessel and people not on the vessel at the very beginning through article sixteen and that that was this case if we thought the on board language was not surplusage that we thought there was consent here  to figure out is that granting jurisdiction over the vessel when you say when you're saying that you only have over certain parts of the vessel and i mean so would really depend on the communication between colombia and the united states i think at the current economy would say you have  mentions list certain sections of title twenty one eight forty one eight forty four eight forty six nine sixty and nine sixty three obviously the n t l yea is not listed among those statutes and  here is why it forty one makes it unlawful to distribute or possess with the intent to distribute drugs eight forty six says if you are tempted or conspire to violate forty one then you are punished in accordance with the  penalties that you would otherwise be subject to under a forty one if the if the defense reading is correct congress had no reason to put in a forty six right because it would be mean because they're subject to the penalt establish that the defendant is subject to the mandatory minimum penalties that are triggered by drug quantity but you have to look at the actual language of the safety bell to determine  that's true that everything that's unfortunate for you that my colleagues have pointed out in terms of the indictment the police remit and the judgment doesn't matter because all those references are appropriately to nine hundred and if a statute or a reference and i sixty in actually turns out to be ok i think because of all the references in the case materials are to nice to see and hear why we think that's the case because the statute refers to these various provisions including a forty one for example a forty one a list unlawful acts eight forty one b lists lists penalties and for two reasons that the that provision when referring to a forty one refers to offenses question is under your argument the flexibility that the government would have with respect to the indictment and frame of the plea agreement which the gun which is within the government's control even if the framing of ultimate judgment is now with respect to those if you have in order to trigger a mandatory minimum sentence when charging either eight sixty or if a violation of the n d l you say the government would could use the exact same language it just has to provide notice of there were charging drugs already and that it triggers statute now another factor another that's present is that congress commonly refers to the m d l u k in other statutes and including other sentencing statutes under the i'm career criminal act u we'll give you will give you three minutes things that we're talking about people on the boat absolutely extradition would not provide any protection as to those people if colombia had said we contend to the vote we deny consent as to anyone on the boat under the government's theory apparently the united states would still be able to deem that that's subject to the jurisdiction of the united states for purposes of those people's prosecution an extradition would do nothing to and i wanted to respond briefly to judge than tell the clarify my answer earlier i think there's a difference between a factual inquiry and the legal inquiry that my colleague is talking about if the court were to rule as a matter of law that consent as the vessel operates as to everyone then yes you would lose if you're with me that it's not true consent as a matter right but actually article sixteen corroborates our interpretation of the certification which is that consent only extended to people that from the united states encountered at sea there is an exception that allows a f for people on board it is obviously not true for people not an board so article sixteen does not grant consent by your honor also mentioned the united states reference of the government determine the boat is subject to the jurisdiction of the united states the conclusive proof requirement applies to the consent and it does not apply to the government's determination about whether the boat is subject to the jurisdiction of united states i think the key operative language and the certification is about the scope of complicated answer probably a couple of minutes i don't think in forty six is redundant but i think that it depends on how you read the interaction between the safety valve and eight forty six six people end i think it's sort of a metaphysical question to it in a sense about whether a crime exists with or without a punishment but i think i think i would answer that question know that it needs to be  quantity basically table of drug quantities and the corresponding penalty is i believe the third subsection a subsection b has no quantity so that would be in the sense of the non aggravated offense and th