so with that i'd like to highlight that the purpose structure and language of the sentencing guidelines are what the manual says a page twelve of the current volume of the commission established a sentencing table of forty three levels they've guidelines weren't helpful in resolving the issue of whether it went above forty three somehow and they constructed or put forth a hypothetical sort of disparity between different offenders i would simply note that  high and beyond who go to trial one goes to trial and want to solve the case by plea they would have the same guidelines sentence nearly twenty years later the supreme court in missouri versus fry's stressed that please are resolving ninety seven percent of our federal cases and that they serve important interests in both preserving prosecutorial resources and also in giving defendants a benefit for accepting  five case from the eleventh circuit there the hauser court said the guidelines were instructive in resolving the issue and they focused in particular on guidelines one b one  characteristics and some three any adjustments in sub for any grouping and then some five says apply the adjustments as appropriate and defense acceptance of responsibility six talks about other adjustments including chapter for adjustments that can affect offense level return to that in a few minutes seven i think it is critical and it says determine the guideline range in part a chapter five that corresponds to the offense level and criminal history category determined above so i believe that one b one point one seven is telling us that the offense level has been calculated before you ever get to the table on chapter five which comports with what the beginning of the guidelines in section one a tell us that there's a grade from one to forty three levels but let me ask you this counsel i'm going to jump ahead a little bit to the case that the government cited this reinhard case and you know there hasn't been any extensive briefing on rinehart and whether how it applied to the offense in this case but let's assume for a moment that we would want to send this case back to the district court to analyze whether or not that underline state offense triggers the enhancement under the statute in question i think twenty two fifty one what would be the harm to your client if at this stage i think it content in custody for a long time no matter what we do in this case sure if we were to send the case back to the district court to analyze whether or not that trigger should have been a factor in the twenty fifty one well i think that would be appropriate i think it's critically important that in doing so this court with the sentencing guidelines issue and whether the offense level after acceptance of the total offense level here is forty or forty three is the dischord health and i take it your position is that because the guideline range regardless of what the stat max is the guideline range is still go potentially at forty three which is why we would need to resolve that well my position and i'm saying that but that's a possibility which is why you want to resolve it now and that's why i alluded to it essentially being harmless error if you don't concur with me on that well but what if we were to send it back in the district and i'm not recommending this is what the district court judge does but having been in your guy's position once upon a time there are often times where cases where remained in the remain on the district court judge would sentence to lower when i was a prosecutor i didn't like the acts i said there's no reason to do that but they would do it anyway if that were to happen in this case that is to court we're resentencing to sentence your client to a lower level because there would have to be a full reset and you would agree yes then why would we need to reach the  all call the forty three issue why would need to reach that in this case so if lionheart does indeed kind of take the statutory minimum off the table the twenty five year level it is not a floor that the court is bound by the court imposed thirty years here and the court said it would do that so i think it's absolutely important and if you if you look at the guidelines and you look at the table right and if we look at forty three which is where the table ends it is only if some that's i'm correct and you apply a full three levels for acceptance which is what mr dunlap got here then it is only in criminal history categories of one and two that the top the guidelines is below life  comports very well with the language of the guidelines and the last point that i want to make that is i think very important and i began by talking about one b one point one seven the sentencing table in part one a says the commission has established a sentencing table that for technical and practical reasons contains forty three levels now yes at sentencing the court should identify all the specific offense characteristics and adjustments that apply to a case but when that arithmetic process exceeds forty three the result ends at forty three the top of the guidelines which the guidelines tell us at page twelve of the current law you congress could have made guidelines they want to forty six or  hundred forty six but they did not i just talked about sort of the meaning or the import of what i said and that it only taking the top of the guidelines below life at forty four criminal history categories one and two but let's return to application no two of chapter five because that's the only place in this book where there's any reference to the guidelines possibly going above forty three and so i think it is really important how it's been discussed at length in the briefing and i don't want to reiterate all of that but i do want to highlight that the commission and congress established an application note to a difference in the second and third sentence first and has the problem that it could in sort of theoretical cases be below line or above forty three but they've already told us it's one to forty three for below one they began with total offense level below one result in an offense level of one however they chose different language for the third sentence saying an offense level of above forty three result of the fence the level of forty three now that's a term of art total offense level refers to the offense level after acceptance is applied offense level before as a rule of statutory construction when a court or i'm sorry a legislative body uses different language there's a reason for that and there are now this case that the party site talks about that  that with the language of the guidelines and in general the background section of three a one point one that talks about why the guidelines for good reason and satisfy legitimate social interests a defendant who clearly demonstrates in this case we go back to the p s r but chapter four and it's four four b one point five b one specifically says even there you reduce for acceptance the guidelines are consistent in and the purpose includes both maintaining consistency and incentivizing please which we see the court ratifying the supreme court in frye and laflin are more than twenty five years after the first of our first of the circuit cases that look at this so again one b one point seven says determine the guideline range in part hay of chapter five that corresponds to the offense level and criminal history category determined above in those mechanical steps so there is nothing about the process of going to book there is nothing magical that happens when you get part of a of chapter five and you see that note that makes the sole reference in the guidelines about above forty three and uses discrete language to say and it's not total offense level in that circumstance so to conclude where more than twenty five years down the sentencing guidelines road there's only two published appellate decisions addressing this issue but today this isn't an outlier case it's not uncommon of sentencing guidelines for child pornography for complex fraud cases for big drug cases to have a mechanical sort of result i urge so where as mr hawke's case the acceptance of responsibility would yield a total handful of forty starting at forty three which is the top of the guidelines it does that and it's only in those smallest criminal history categories that it's going to take it below life and of course that's an advisory guideline under thirty five fifty three the court may do as it sees fit thank you very much for your going today thank you those who please the court kelley's you spent appearing on behalf of the united states it sounds like the courts primary concern here is one of chrissy ger what do we do now i think mr hester and i both agree that there is a reinhardt issue in this case relative to oregon's child litigate we would like to flesh out we need to compare oregon's child pornography possession statute to that in california then and to judge simon i think is the most appropriate mechanism for doing that so this court then has something to calculation and the answer is i don't think it would resolve it so i agree that in all likelihood we will have the same guideline calculation issue what i don't know that we're going to have if this case will remain ended is i don't know if mr dunlap is still going to be at a place where he's going to want to appeal regardless of how the guideline conversation turns out because if there is a complete re sentence saying i can't predict what judge simon will do but i can say mr dunlap may be satisfied with the ruling that he gets from judge simon so i do i agree that this issue about the mandatory minimum is unaffected by the guideline computation question so i can anticipate that judge simon is going to run the numbers the same way again that he did now i think the question then for this court is do you want to provide the district judge with some guidance on that particular issue when he takes up the reinhart minimum issue or do you simply want to remained it for a new sentencing and kind of see where things play out after that and i take it under twenty fifty want to see i mean that the defendant prevails on the reinhart issue and i'm offering no opinion as to that but just to i can understand the math here the stat max then would be twenty five years or thirty and thirty i'm going thirty or so conceivably thank you thirty or so conceivably he could get the same sentence even with the reduced at like true i mean aside from the thirty five fifty three a you know initial calculation that you certainly have to have a crack calculation but if he did feel that a departure or any variance you know closer to the fifteen year range then i don't think we would be here or you would be coming back and that's precisely why i think the probably the best route here is simply remain and allow judge simon to take the right heard issue and then re sentence mr dunlap a new in again although i am to dissipate that judge simon will likely end up back at a forty three level again i don't know once he leaves the guidelines and takes up the statutory question he'll reach a decision that will then compel mr dunlap to want to continue to litigate this forty three versus forty issue i'm if the court would like to hear our reasons why we think judge simon correctly calculated the guidelines i'm happy to address that i agree with mr hastert we have only two cases that were published directly on point but we also have unpublished decisions from the fifth circuit in the seventh circuit everyone agrees in going back to  nine the language of chapter five this remain the same and every court to have interpreted so far has ruled consistently with judge simon here which is to say that you work the guidelines in the order that they appear in the book and the of forty three appears in chapter five well after the court has made allowances for all of the guideline adjustments and acceptance of responsibility that seems to make the most sense it's consistent with the overall intent and purposes of the guidelines and it allows for greater affording if you will of credit for proportionality as a practical matter though the courts always calculate different in this case actually i think this case is precisely like it's done in every case which is true but we looked at the base offense level there were a number of enhanced men's that applied to mr dunlap's case which is why he reached a level fifty three he was then given three levels for acceptance of responsibility and that's all the chapter one through chapter four applications and then it's not until we get to chapter five when we look at departures and the sentencing table that then the district court says ok i've got a level fifty here after giving acceptance commentary to chapter five says i reduce that to a forty three look at the sentencing table we're at life but now i'm going to move over here to thirty five fifty three  and that's where judge simon did i think precisely what this court and supreme court wanted him to do he then analyzed the sentence under thirty five fifty three day taking into account mr dunlap's acceptance of responsibility and his cooperation so i think judge simon this was a textbook application of the guidelines that judge simon undertook here and it's also it is precisely what he was supposed to do under his statutory mandate as  well let's there were further questions from the court the government is willing to submit judge wardlaw me further thank you thank you very much counsel and again thank you both for your argument and the twenty eight day letters we appreciate it this matter submitted will call the next case pierce versus new