of a sentence imposed for a prior felony conviction the specific question before the court is whether about enhancement must be based on a single sentence imposed for a single felony conviction or whether multiple convictions and sentences can be combined and eight months on the remaining two counts of consecutive my argument is that he should ask because i got confused about this was that eight and eight or just want to make it was eight and eight at one point the probation officer i think just made a mistake month individual sentence and not the state level and hence made based on the aggregate thirty two months sentence for all three convictions i want to discuss three things that dictate that result in the guidelines the text of two a one point two but commentary to a one point two as well as both the text and commentary to the criminal history guideline for a one point two first trying to the text of two zero one point two the plain language of that guideline uses singular language when describing predicates for the opposite of when the enhancement that we're dealing with here is for a conviction sentence occurring after a person's full first order of deportation says the singular term indicates that each in its minute should be based on a single sentence imposed for a single felony conviction not the combination of multiple sentences and convictions the commentary a one point two so points that reading the commentary adopts a very specific parts of for a one point two the criminal history guy mine specifically it adopts subsection b and no two from for a one point two and provides that the sentence imposed definition and to a one point two means the same thing as the sentence of imprisonment definition from for a one point two so under those provisions the sentence imposed under two hundred one point two means a sentence a person was actually incarcerated on but was not suspended and means the maximum sentence imposed as opposed to the length of the sentence actually multiple sentences is the single sentence role for a one point two but that is a distinct term that is part of the different definition of prior sentence which is a criminal history specific t that is not adopted by two zero one point two and of course the normal canons of construction do apply to the dotted lines including the principle that the expression of one thing does not means that other things that are not listed are not included so here the fact that two zero one point two expressly a dobbs only for a one point two b means that it does not adopt for a one point two a which is a different definition of a different term with a different purpose in fact the text of commentary two for a one point two also support that the single sentence will does not apply to calculating criminal oftens level and he  but instead is a tool for calculating criminal history points three things about five guideline are important again it's taxed the commentary and as well as the purpose of the single sentence rule itself so starting with for a one point one eight b and c those are the provisions for assessing criminal history points for all of a person's prior sentences so the text of the single sentence rule itself tells us what the scope of the rule is  a tool for calculating criminal history points is it really all that clear when the fourth circuit went the opposite way we are published mark work a says it's far from clear i mean don't we really come down to the rule of when to hear the rule when it is certainly is important in this roll applies to calculating office hubbell and he has been and where there are multiple plausible interpretations of a guideline the court is required to apply the rule of law in eighty and resolve any doubts in favor of the defendant which here would require interpretating to  resort to the language of the guidelines i agree that that's what the court said that it made no assessment of the merits of the question so in the pit that panel did not of the rule of law in this case although i do think it's important to note that it is think it is more clear perhaps than the fourth circuit acknowledged in its opinion because even the commentary to for a one point two acknowledges that there's a distinction between the rules that applied to calculating criminal history points and the rules that apply to sentences that are used as predicates for office level and han under other guidelines specifically there's a no no three to four a one point two provided so even if it's multiple sentences are combined to treat it as one sentence for criminal history purposes if one of those sentences is to be used as a predicate under another guideline it should it must count individually so essentially that note says they might be considered together for criminal history purposes but the individual sentences must count separately for for judging the language of the guidelines which is really to recognize that a person should not get separate points for multiple sentences imposed as part of the same case so as not to overstate their criminal past or their risk of recidivism in the context of making an overall assessment of their entire criminal history it is already the purpose that the criminal history calculation combines all of a person history for a specific time period instead each enhancement is based on a single sentence by single conviction for example there's one possible enhancement bookkeeping conviction and sentence prior to the first deportation and one tool to assist in doing that we have already to trust the force of his decision a little bit but i do think if you look at the force of his decision it gives insufficient w to the text and commentary of two zero one point two itself and simply fails to appreciate the distinction between options level enhance and criminal history points and sometimes appears to confuse those two things in a way that makes high case not particularly persuasive in addition to what i discussed with judge owen which is that the force of it doesn't discuss the rule of law in any at all even though it does give knowledge can't be guilty in the guy so i think at the very least before circuit's decision would support garcia engaged in criminal conduct that resulted in a three count conviction and the california court imposed a consecutive sentence thirty two months total based upon the severity of his conduct this was he was initially convicted in two thousand and eleven he received a three hundred sixty five day probationary period he was sentenced again in two thousand and twelve he received a sixteen month sentence on count two he was sentenced and thirteen and that's what we're here looking at today your honor and that's when he found the receive the consecutive senates so the issue is how to treat this twenty thirteen conviction with consecutive sentences under the revised guideline to a one point two and the commission tells us how to do that at in the amendment in the amendment a go to to a one point two and it specifically sa that perception to and b three of two zero one point two you measure the seriousness of the prior conviction based upon the severity of the sentence imposed in the sentence imposed approach and i quote from the reason for the amendment is consistent with how the criminal history is generally scored in chapter four of the guidelines manual that straight out of the reason for the amendment so in this case to  the very first time they were addressing it this was a major overhaul to two zero one point to where they were advocating for eliminating the categorical approach making things simpler less complicated doing it in a broader manner but the commission did specifically at pages one forty seven one forty six to one forty eight and in the quote i just read with the specifically referenced that this sentence imposed approach is consistent with how the criminal history is generally supported chapter for the guidelines they're telling us that is where that is a example of how how the seriousness of these prior convictions are to be measured and it's it's consistent with the four circuits approach that the guidelines are to be read in a cohesive integrated manner instead of picked apart by piecemeal and that's also and one b one point one one of the guidelines if you start technically dissecting each little piece of b three that it works the intent of the commission which was as i said to eliminate the categorical approach and account for prior conduct in a broader more proportionate meaner so in this case the district court did all it could do at the sentencing hearing at page seventy seven seventy nine the probation officer actually told the court that she had contacted the senate's you commission on this exact scenario on this exact issue and  guidelines the limit the rule is in a political in this case your honour's because that only applies to the tax the structure and the purpose and the intent of the guideline is so in big us that we have to guess at the sentence was is by looking at the fact that it was imposed consecutively it was a harsher sentence officer i don't i don't know if she did it on her own my i highly doubt that your honor i'm assuming that the court perhaps told her to do it but that's not clear in the transcript but in this in this era of this completely revision of two or one point two or things are still you know there's not a lot of case law out there yet it would it would make sense to do that and i think the court did the prudent thing in discussing medicine and say well it was just a curiosity question because you know you in your office of these different counts they could they would try to say these you these are all on the same day but if you had some that were running consecutive there on different days you really hard to write that account for the twenty thirteen to twent so i think that the way it's written after the first deportation the defendant the gauged in criminal conduct that's what we have for we even get to a conviction he engaged in criminal conduct and that's exactly what he did on august third two thousand and eleven he went on spree of these burglaries and he gazin criminal conduct that's very clear that resulted in a conviction that's what we have one conviction three counts it's no different than a wire fraud with conspiracy counts that are join if you know applying because we do infrequently you know resort to the rule linearity as a basis you know for our decision as opposed to grappling with whatever we have in front of us  looking at the plain text looking at the commentary perhaps looking at the reasons for it the minute that the government pointed out they did none of those things are result in clarity then it would be perfectly appropriate to approach apply the rule of way to do you agree we should today i think not applying the single sentence rule to often struggling incidents is perfectly consistent with proper for the single sentence rule itself says that it is a tool for calculating criminal history points the commentary to chapter four so makes a distinction it's so honestly i think the amendment just does not add clarity if the court is not already convinced that it's clear the i did want to briefly address the engaged in criminal conduct language because guy is very clearly addressed that a different issue which is there's an enhancement for a conviction sentence prior to the first deportation and a separate possible unhandsome it for a conviction sentence after the first people cation the engaged in criminal conduct language is in the ne the enhancement for the after deportation enhancement to just to clarify that it cannot apply to someone who perhaps engaged in the criminal conduct before the first deportation but then for whatever reason is not convicted  that that's the purpose of that language the sentencing commission hotline issue there is a hotline that you can call i think it is not it is not the first time i've seen that happen but the hotline has a very clear disclaimer that it does not represent the position of the commission and is not binding so obviously is not any sort of interpretation from the commission itself and i think if you look at the sentencing transcript you'll see i think the district court also thought it wasn't us because the dis initially agreed to the defense position that you would look at the single sentence and through discussion the probation officer saying that she had reached out to this holiday and the court obviously changed her mind and and brought the other way but if you actually look at the transcript as a whole i think it supports that at the very least the language is the ambiguous and that it would be appropriate for the court to apply the rule of law in eighty in this case and resolve that doubt in favor of the defendant i