this morning as you know we have two cases that are consolidated united states versus indias and united states versus lopez mr zepp is representing the government on both cases and in the  a lot of snow you want to save any time for rebuttal yes your honor i would like to reserve five minutes for revival they will try to help you but keep your eye on the clock if you will please as it please the court daniels if on behalf of the united states that is correct as well yes right it seems like it will also ask us to disregard congress as legislative drafting manual and to what it states specifically in the draft emmanuel similar meaning and not just throughout the sentence not the statute but throughout the sentence correct yes your honor ok so it seems like there's kind of a hill to climb here for you and you say of those points you mentioned weigh against our interpretation of the law this court is clear that statutory interpretation is a holistic endeavor and there are a number of what we believe to be stronger canons of statutory interpretation that way of the language that congress added to be without meaning out of the gate without even looking at legislative history or any extra all sources any time you have a defendant who had a three point our offense and if you point i went  offense they would necessarily have more than four criminal history points and all that is true and i do i do agree with the way your interpret in that but isn't that congress fault they wrote this we didn't write it you're suggesting we need to perform a verbal contortionist action by rewriting mustachioed is that our role no your honor and we're not asking made this imagine but we're not asking the court to rewrite the statute versus fisk ace and continuing all the way up until the confederated tribes case of last year this court has repeatedly recognized that on this particular issue of interpreting and or that those two words as as odd as it may seem to people in the us were not in statutory interpretation world those two words are often used virtually interchangeably and with a certain laxity that that ask this court repeatedly to to do what we're asking  to interpret the word and to mean or i would say the the court's decision just last year on the confederate tribes or is yakima the court in that case i've interpreted the word and in the disjunctive to mean or and it did so for one reason only it said that only one interpretation of that word and is plausible because only one gives meaning to every word in the statute the same is true here only by interpreting the word and to mean or does that st subsection that congress added have any meaning otherwise if they're all read together there there's no reason to include a four point requirement on the outs that the reason you have the statute the way it is is that people said well we don't want violent offenders so they put in the to violent to point violent  part and then somebody says well we don't want a big offense they put in the three points of fence and then we don't want somebody with a whole bunch of them and they put in the more point terminal history and this nobody sat down and made this in my view rather abstract surplusage argument because what you've got is people wanted to loosen things they clearly wanted some people out and then they came up with this slightly strange amalgam with what we have here but we have to read what we've got if i could follow up on myself i'm sorry the best thing for you as i read it is the contemporaneous what i call the content brainiest instruction that is you have you make a point about this points from the judiciary you have the sentencing commission's a write up probably from some staffer and you have these district court cases all of which people act as though it's an o of with you there but are any of these ones where people faced up to the issue that is the things that you put in on those points seem to me to be pretty strong suppositions do you have anything where somebody before now has faced up to the issue and taken your side other than that district court in the adamic case no and we acknowledge that the legislative history in this case is not the strongest in the world we have sort of a few statements from the senators on the floor describing this as a modest change and one that would apply to nonviolent offenders skis that rule only comes in to play if there is grievous ambiguity ambiguity or uncertainty in the statute and if after applying the other canons of statutory interpretation of the court must simply guess at what congress intended here  the mere possibility of articulating a narrow narrow construction doesn't make the rule of lenity applicable here so in our view the rule only comes into play at the very end of the process if after consulting a commentary form or for a one point one makes but two dollars and three dollars point offense is mutually exclusive essentially what the commentary to the nd to the two point offense says is that any offense that's more than sixty days but does not qualify under subsection a meaning those not more than thirteen months a day but for a one point one never mentions the phrase two point  same time met the definition of three point offense if you look at the commentary it says an offense of at least sixty days not counted in for a one dollar so but but there can be overlap under the safety valve otherwise so that if you refer to the guidelines they in the commentary say that a two point offense is limited to the sixty day to thirteen month window and that's leaves the absurdity of a constructive interpretation anyone who had even a sixty month violent events would be precluded from safety valve and then similarly someone with a three point offense would be precluded or four or more each of the factors that judge fox just mentioned earlier that sort of focus on recidivism one focus on violence one focus on more serious felony each of those independently would preclude relief it's only by reading them all together into the same defendant that it leads to the i guess even under the disjunctive language that it does provide a modest expansion of the criminal history requirements for many years we've operated here in a world where even having even being on probation or having to one point offenses would have precluded you this expanded modest leads to so that someone you other than someone with a three point offense that you point violent offense or a four total criminal history points not counting one ago you don't think that's the kind of person that would have been they would been contemplating relief for i think he he it was a vandalism offense but he served sixteen months for it if the score is within the honor i would like to reserve the rest of the time and and yes i it's hard to imagine a single marijuana cigarette resulting in a thirty month sentence but if if that did in whatever district it would be that that would fall within the disjunctive language  but that also is the that's and that's another odd result from your review and i know you're questioning the result from the reading in the conjunctive that that's an odd result in the destructive and i'm just having a hard time you know understanding or believing that congress got together after years of discussing criminal justice reform modify the safety now well repeatedly say on the senate floor give district below the mandatory minimum they can still go up above the mandatory and it's what this one this one statutory provision there's still the other steps of the other provisions are that take eliminate any violent offenders so i'm just wondering if we're too hyper focused on this when you're considering the modest reduction in your argument your honor and certainly there would be many defendants who still wouldn't qualify but i think with the focus of this argument has to be on the language that congress did amanda and what they changed and all they changed in this case was the criminal is true choir ments and our court ultimately has not but it's you know that we have any sort of policy disagreement with them expanding at or that that they should have expanded at last our point is simply that if you look at the three subsections and they added it's not logical to conclude that they the sort of haphazard collection of violent nonviolent sentences of certain plants so ultimately yes and i think to answer your original question an expansion from a merely no more than one point f his requirement to eliminate defendants who have three or more points for a more serious felony that they serve more than thirteen months in prison was the modest change that congress was was attempting not the sort  natural reading of this actually is on hand if they have never suggested the end of briefing or today that there is a natural reading of this language that is this junk or that there is somewhere else in the statute that you can look at us and as a destructive or or were they you know every time in thirty five degree they use or it is in fact history so that's there's no ambiguity there and i think i would i would but to what justice  try and figure out where the other statutory construction norms are perhaps extra special concerns like legislative history which of these two equally possible readings is the one that congress intended but they've never actually version that said something about the the judge could find the criminal history overstated and that was taken out so that's kind of make white argument let me give you one other question which everybody just acted as though it was or a bullet point summary the sentencing commission which grant granted was staff but they're relatively smart people and quite a lot of district court cases  and the man so case granted it was very brief but that's some smart th circuit judges sainz things that are completely saying that it's or that any one of the three knocks you out is that just th t you guys were smarter than everybody else before or is there some way the same question i asked the other side is did anybody ever face up to this until adama no no no when did  the best explanation i have for getting consistency between how people apply the statute and how it actually reads is that person perhaps the intuitive got response based on the fact that we've we've all practiced in a world w cases where somebody might be included in eligibility in a way that conquers congress and say well that's not really the people who want to be eligible those people are going for visionaries and says what would be absurd and i think the problem in a congress is trying to fix was certainly not the state of things beforehand where somebody just by virtue of being under probation but never having spent a jet a day in jail before would be precluded from eligibility and subject to mandatory minimum and we think also to the extent that you're going to the mandatory minimum well perhaps saying look maybe we're going to make some people eligible that have really extended criminal histories but at least in that case the judge will have the discretion to fix it when you say somebody is subject to a mandatory minimum that means the judge cannot fix it no matter what they want and i think the clear purpose of congress is the only thing we can be sure of in terms of the legislative history given that it is so scant they didn't really show their work is that they  has that which is if all only one of these two possible readings of the end of us actually makes sense then you go with bath but generally you don't take the you know counter then isn't that it's the bird flu is that you're including three point offenses not just you and my response to that is this we know that this provision is is targeted at identifying only the most aggravating from history that might be unexpected or unfair in the eyes of anybody the question is do they have a facial problem and it makes no sense that in every single application of part see a person would be precluded from safety california workers must complete twenty five hours of benazir only every three years didn't they must complete at least twenty five hours but of course that's how i understood it i would have been upset if i had twenty six dollars or thirty hours luckily i have more than twenty five hours reading of that goes right along in this ng fairly consistent with that intent in fact to do so is grammatically and logically the norm especially when the list involves a list of negative prohibitions as it does in this case also uses the same conjunctive construction as section three thousand five hundred and fifty three f one so to basically argue that this part of the statute should read the exact opposite of the rest of the statute would be observed in our opinion the drafters of this particular subsection had every opportunity to use the word or and could have easily done so because it's pretty clear from the remainder  statute they used the words or the word or several times but declined to do so within the section three thousand five hundred and fifty three dollars i want and i think that that says a lot about the statute and the construction of it and finally i wanted to leave the court with this quote from judge your situation that the recent case of the last supreme court term when the express terms of a statute gives us one answer and extra textual consideration suggest another it's no contest only the written word is law and that's our position on this briefly griffin vs oceanic contractors the supreme court said that interpretations of a statute that would preserve produced some sort of result are to be avoided if alternate interpretations consistent with the legislative purpose are available  and what we have proposed in our brief is an alternate interpretation and that's one that reads the words does not have before the em dash of the beginning of the statute to modify each of the three following subsection its so that a defendant  similarly situated defendant with one serious felony offense and a misdemeanor violent offense not qualifying while that same defendant if you had a more serious offense would qualify but you're clearly asking  right we're asking this court to interpret and as or as this court has done many times in the past and to to look at the various canons of interpretation  to sort of essentially read it as a disjunctive whether that's rewriting or interpret ing i think doesn't really matter at the end of the day what we're saying is that the the rule against supreme surplusage the rule against an absurd interpretation and the legislative history that there is also pour sort of relatively easy lift as this court has recognizes recognized of interpretation and as war when that's plainly what congress  rule necessarily applies to every word in every case that simply reading the plain language is the end of the analysis as this court has held many times but i view if i understood you correctly alternate construction that applies that does not have the each of the subsections and limit the reach of this matter that alternative facts right it's an alternative interpretation and i can all agree on the facts here all new do any of my colleagues have any additional questions for the government thanks we thank all counsel for your argument in this interesting case we recognize this is an