is the relative weight given to the same sentencing factor a prior conviction under two different guys lines the guideline for illegal reentry versus a guideline for possession of a firearm counsel we understand your position did you get the twenty eight jail letter sent to us time dated april thinking about the case of united states versus remarriage garcia i did receive it it appears to state a general policy that defendants who return to the united states after deportation should face if your sentences  like all of the cases cited by the government does not address the point that i have made which is that there is a disparate impact and equal protection violation between the two guidelines i'm comparing there seems to be some and remembers garcia congress has made it clear when it amended thirteen twenty six that it wished to enhance the penalties for aliens with prior convictions in order to deter others the sentencing commission simply implemented the intent of congress when it promulgated to a one point two b which increases the range for designed in this century well the court needs to focus on the issue that i've raised which is comparing the enhancement for thirteen twenty six to the enhancement for nine twenty two g very number of cases following the same thing as the case cited by the government in that letter which is that statistics about defendants returning to the united states after committing crimes that case like all the others the government has cited did not address the fact that a defendant who has the exact same qualifying prior crime would only receive a six or ten level enhance as compared to the sixteen level enhanced that was imposed in this case but isn't it clear from everything we take a look at including this case that there's a rational basis for making this distinction your honor it's unclear if congress even considered making the distinction between these two different offenses or if the categories of people and the congress and that within its power to deal with immigration the penalty in order to deter rianne treat people like this the government has also made the point that congress has the power to deter immigration therefore congress has the power to impose extreme penalties that exceed penalties for basically the same unhandsome and under others crimes however the fact that congress has plenary authority in the field of immigration does not mean that that plenary authority should carry over into the context of criminal sentencing you know we do know from precedent what's the lead case that you want to read and believe supports your position before we finally decide the case what's what's your best case that leads us in your direction well on this i have to agree with the government there has been no case that has supported an equal challenge to two different guidelines so you have an analogous case something generally that tells us what we're supposed to do yes one of the two cases i would look to would be backstrom versus herald the more general case speaking of equal protection principles and stating case the defendant had to qualifying priors so let's say he had been prosecuted under the other guidelines he would have been facing a ten level increase for having to qualify and priors so my argument would be that the enhancement for thirteen twenty six should not exceed the ten level increase that would apply to what is what is the just the offense rather than eighteen rather than twenty four it would be eight plus ten because you have a ten level enhanced meant under the one twenty two d guideline six for the first qualifying prior ten once you calculate what the sentencing guidelines are so in this case if the court had agreed or felt the ability to agree that there was an equal protection concern the court would have been starting at a lower point on the guidelines table before departing as the court did on the basis of the  morning your honor sir may i please the court erika frick on behalf of the united states there's no merit to the defendant's equal protection clause claim for two reasons first the defendants being compared are not similarly situated these are two very different  fenses and the punishments really can't be compared so we have the cardenas alvarez case that talks about the fact that under the illegal reentry guideline all felons excuse me all legal reentrance with aggravated felonies are treated  the argument was that there was an irrational distinction between aliens with prior felony convictions and citizens with prior felony convictions that is again under the guidelines for most offenses for a citizen you only look at the prior convictions in the criminal history calculation whereas for both the firearm guideline and the reentry guideline you also consider it in the offense level so for other offenses you wouldn't consider it at all in the end in the offense level held that that disparity which is even greater than here was constitutional because of congress is very strong interest in deterring these criminal aliens from coming back into the country you have time to respond thank you the government makes the point that or the argument that thirteen twenty six is somehow a more severe offense but i think we can look to the guidelines themselves to see the starting point indicates that i immigration by violent felons or found to have serious agitated felonies is considered by the sensing commission and is a very serious problem and that's why there's a sixteen level increase because they wanted to target those people who have been the ported and now i would come back and commit further violent crimes or drug offenses sex offenses the types of things that result in a thirteen level increase that that's what they wanted to target and that they've made a decision that that is a serious problem in the gradient of things more serious than the other one that you mention about and therefore that's the sixteen level increase certainly your honor but particularly in the political climate that we have today for example i think the court needs to guard against the sort of in the videos discrimination that plyler versus doe was speaking to you so the issue is not merely does this crime deserve a severe sentence i think it is appropriate to conduct the kind of comparison that i'm doing and to raise questions about why there are these very unusual consequences for defendants under this guideline alone adeleke does not involve a comparison between the gun guideline and the illegal entry guideline that isn't the reason because they want to they want to tell of people who have been convicted of rape or homicide offenses like manslaughter or serious drug offenses or crime like robbery crimes of violence like that and they now get the ported they want to say those people stay away from here if you come we're going to throw the book at you isn't that essentially what they're saying certainly but i would ask the court if we're talking about a public safety issue who poses a more severe threat and alien like my client who came back with a qualifying prior i would like to make one more point about the distinction between these two guidelines it's a very odd result under the nine twenty two g guideline there is a ten or fifteen years kind of corporate it so that a defendant who possesses a gun and his qualifying more than ten years old or more than fifteen years old he's not going to face the six or the ten level enhanced meant however that cut off is not incorporated into the thirteen twenty six guideline so you can who returns with a qualifying prior even where what we're seeing with the rehabilitation no serious type it was a small drug sales so to speak or that was a long time ago you could the part on that ground right that was built into the guidelines certainly but i think if it would be in a much better position if the starting point were lower because the court was able to recognize that there is a ten to  year cut off that should be the fifteen twenty six guideline that was another issue i raised that was not concern persuasive by the court because there have been no rulings in this area by the ninth circuit no offense meant to congress but there's an old