ahead thank you so i think i think it makes sense to begin by noting that in this case we are not writing on a blank slate there are of course this court's recent decisions and tab and richardson that concern many of the claims raised in or before the supreme court so i think that is absolutely part of what we are doing and i agree that this panel because of the recent decisions in tab and richardson is in something of a bind and i think that certainly this panel again bound by the decisions in tab and richardson ident we've identified in our written submission the existence of what this court is called the many on box procedure that would permit this panel after circulation to the entire court to reverse those decisions but ultimately i do that is a form of unlock decision the other form of relief would be a full on fox so it is and it's not where i should know this that i  circuits some of which are going one way and some which are going the other way would somehow undermined and they just expect me not you know not very plausible and again i'm not i'm not taking issue with your right to and you're correct that in some ways these arguments are made for purposes of our bach and supreme court review that said i will note of course there is a claimant an important claim of substantive and respond this year but also still still sticking with this issue on the issues in tab and richardson i think that again what we do have these panel decisions we are in an unusual circumstance of having to panel decisions and no mention of the governing supreme court decision keyser be wilkie that i think really governs the analysis here both i'm sure of that mr maguire i mean these decisions for the state kaiser and it certainly seems to me that the discussion very strange but it's hard for me to understand why the panel makes that argument except for the fact that in the where so i think i disagree with with that characterization of what the court did in richardson i think that what richardson said was actually quoting stenson choosing to look at stance and then not the kaiser is emphasized simply that application one is not put in consistent with or plainly erroneous reading a section for b one we have nothing in either just such an suggesting that the court that this court has grappled with cuts and i think what's important to kaiser is the decision the hell's courts they need to look not at at the guideline in the commentary together and sort of do what has been done in the past and kind of decide whether they roughly match up instead what kaiser very clearly says is that the court needs to ignore the got the cometary look only at the tax examine the text closely using every interpretive tool that the court path and then with the court can't figure out independently without falling back on the agency interpretation in the court even look to that got it and i think that in this case we both haven't richards and there's no indication that that's what the court did i think that is what the court did and wince that inhabits and in the rd circuit briefly to addressing the issue of this is the nd issue that is a procedural issue concerning the question of generic conspiracy a mostly rest on the creeps i do they want to note that the issue with generic conspiracy kind of  strates what the commission perhaps shouldn't could have done the commission had placed the conspiracy provision in the guidelines itself perhaps may have had some interpretive commentary in their comments that explains generic federal definition of conspiracy in essence that definition is incorporated into every provision that doesn't have its own conspiracy statute it's a means to or not violating the the other statute but is in a matter in terms of subject matter it certainly is the closest but the question is what does the commission mean by the term conspiracy and in reviewing that and again allude to that i think there's a understandable focus on the federal law and why would it be that the commission would say conspiracy ins and have something that doesn't match federal conspiracy then the reality is this is a provision that is mostly about prior offenses and most decided the primary question advanced in this appeal as set forth in the government's briefs jackson tab and richardson already decided that a prior federal drug conspiracy conviction qualifies as a controlled substance under forty one  application no one is valid i can rely on my brief with regard to this focus of the when appeal unless the courts have questions but today it implicitly rejected those arguments and it is here to the jackson case which relied on stenson this court as i informed the court this week in our twenty eight day longer has held repeatedly since cabin richardson on at least three occasions in summary orders in the united states st game united states versus o'neill and united states for clinton that it out held have and richard  further this require point out that some other circuits have gone in the opposite direction and as tab however the majority of the circuits have taken the nd circuit's lead and have followed the jackson and in fact in kaiser they listed the many supreme court cases that they were saying were undisturbed if you look at footnote three of kaiser listed stenson as one of those cases even if you were to consider that kaiser unsettled jensen it's a reasonable reading it reinforces the principle of deference to agencies and their reasonable reading of regulations be including in covert offenses is consistent with that legislative intent and what the guidelines as pointed out in your questioning of mr mcguire and finally the requirements that were listed in kaiser the application one meets all of the requirements of a reasonable interpretation that it must be the agency's authority to have that role if they're explaining and have the expertise and that it reflects parent considered judgment again i'm going to sound like a broken record i haven't richardson and jackson should be followed by the court i don't think there's a reason to revisit it at this point and i will unless the court has questions with regard to those arguments i will move on to the other claim that mr wynn makes news appeal the district court in this case acted well within her discretion when she said and so the defendant to seventy eight months some of the focus that  the brief and claims that are made in winfrey are that she made some comments on the record in relation to why he had the gun in the trunk i went back and read the  sentencing transcript and i can focus the court's attention to specific facts but looking at the judge how do you have the circumstances and everything in context which is what i think is missing in the arguments put forth by the defendant in this case  several family members spoke and told the court that the defendant was a good father and that they needed him to be in his child children's life and i think when the court was making comments she was focusing her attention on the fact that this was a defendant who has a prior criminal history this is his rd conviction that's related to having a loaded firearm and that he places it in the trunk of the car loaded for anyone you have access to the midpoint of the sentencing guidelines as pertaining to when he pointed out his offense conduct that he was carrying a loaded firearm with ammunition in the chamber that he was smoking marijuana while driving a car that his actions are extremely dangerous to society and she went through his extensive criminal history and the fact that he had sold marijuana that he had had a pistol illegally on the state conviction that he had so in the st degree where he shot someone in the leg  violation of supervised release in which he continued to violate the conditions of supervised release so he had not only done that with the new arrest and the new conviction but he had not been providing information that was necessary to probation she had sixteen times failed his drug tests he had not been going to his treatment plan he wasn't he had been given many opportunities and so i think when the court used her discretion and was making those another for the rd time a loaded firearm and he just throws it in the back of the trunk you know she so i think when she was discussing that this is a uniquely serious case she was trying to impress upon the defendant that  his actions were very serious and that he was placing society in danger and she used as an example you know children may have access to your trunk this defendant happened to be on state probation and on federal supervised release so if there was reasonable suspicion that he had a firearm a probation officer could have been searching his trunk and happened upon a loaded firearm anyone who had access to his car and i so i think when she was making the comments about the this is a serious offense this isn't something that you know your job smoking marijuana in your car you're driving around the city of new haven with a loaded firearm in your trunk so i think while she made that comment  serious but in fact she didn't give a uniquely serious sentence that i would say she gave a middle of the god one sentence which is i don't know how it is in connecticut in the southern district new york it's relatively unusual to give other than the bottom of the guidelines back in the days mandatory guidelines when i left was doing that but it's a myth it's a guideline sentence it's not even the top of the guidelines let alone in the  when she was speaking she had this defendant that just kept violating conditions and had a serious criminal history and she felt like she needs it to hurt him from continuing this behavior and she wants to explain to him that this was serious conduct and  the supervised release violations and that i didn't read the brief as attacking the consecutive nature of the sequences and i'm missing something there i think you're correct i think that he's he just  that seventy eight month sentence was but i think in part of his argument he's saying well she calculated the guidelines wrong so that's one of the reasons that it's not appropriate she did receive a fourteen month sentence consecutive to the seventy eight months george consecutive next you're right that's correct this is an appeal from the primary sentence that said i do think the existence of the fourteen month consecutive sentence does matter in context and part of why that matters is that  government to send mr wynn was someone who was on supervised release and i think a fourteen month consecutive sentence more than amply addresses that aspect of the pace well mr wayne had been on supervision for some time and yes  struggled with substance abuse but also had been engaged in ongoing treatment including including through the courts tropes of corporate program and what ultimately say is other than that fact of supervision that is addressed by the fourteen month additional sentence there isn't anything here that really sets this case apart from sentence that cases in which the defendants receive much much lower sentence the concern here is that the district judge weighed very heavily factual assertions or speculations that are not borne out in the record particularly concerning speculation that mr wynn was engaged and other criminal conduct particularly selling drugs there simply isn't evidence of that the government hasn't claimed he does certainly have a prior record as many many defendants do as is in fact a requirement for being a felon in possession think it is notable that those prior offenses took place within a pretty short window of time mr quinn was in his early twenty's they came before the court he was thirty years old and so i think in a different circumstance but generally in a circumstance very similar to many other defendants that there was not the aggravating circumstances present that i think  to drive higher sentences you know ultimately said that the court did select what she recognized under the circumstances to be a uniquely serious sentence and it simply was not supported by the factual realities of the case