think the issue in this appeal is relatively narrow and straightforward and it's whether enhancing a conviction for assaulting a spouse by strangulation because the offense involves assaulting a spouse constitutes the kind of impermissible double counting that this court has warned against well let me ask you this just the fourteen point base offense level under section twenty two a two point two a that the guidelines apply  mr harrington's case the basic fence guideline that we're looking at sweeps and a whole bunch of different arms conviction it does your honor but all of those crimes are aggravated in some way and that's why they fall under the ambit of that aggravated assault guidelines assuming i think that all of them are equally aggravated as it were that the sentencing commission is determined they're all created equal and that's not the case well your honor that that actually is my position that they that they are not distinguished from one another by different degrees of culpability they're all aggravated they all have something bad in them but the guideline after specifying the base offense level of fourteen goes through almost  one different variations of assault and different levels depending on which one it is that's true it hasn't had spent for use of a dangerous weapon for the severity of the victory strangling and so on so the base offense level i'm basically following along on the questions of my colleagues here it seems to me that the base offense level is for generic aggravated assault without yet taking into consideration the precise mechanism of the assault or the consequence of the assault i think opponents have tried to make similar types of arguments in previous assault cases and they failed i think for that precise reason but i think the distinction here is that the court or the district court in sentencing and hence the sentence for the very elements that constitute the underlying offense of conviction in a way that's different from other cases that have come before your argument then is that this is a base offense level fourteen and nothing can be added is that that's your view no no that's not our view because in coming to a plea agreement with the government we stipulated to an additional i believe seven levels on top of believe it has a life sentence it certainly has a significant sentence and i think the the guideline may have been enhanced because of that but we do have going for you is the crime of conviction is incredibly specific the crime conviction is basically assault convicted of assaulting your domestic partner by wrangling it's ok to enhance pursuant to this guideline for injury a serious injury which i think you you haven't even objected to that that's clear what you are objecting to is  further enhanced meant for assault by strangulation think that that's correct and i think it goes back to what this court and others have said about different guideline provisions targeting different kinds of harm or different kinds of conduct and the reason i don't have an issue with the enhancement for the severity of the victim's injury in this case is that that enhancement speaks to a distinct and unique type of harm rather than strangulation it's going to sound bad to say but you can strangle someone or attempt to strangle them and they may not suffer a great degree of of personal injury it's not something that's necessarily inherent to the offense of or to the to somebody it's ok to add the enhancement your problem is your client was convicted of strangling something that's true that's where the double capcom's if that's true and much of that is a function of joey in the other cases stating the rule a little too broadly well i would respectfully disagree as to as to whether the rule stated too broadly in those cases i think it stated in the context of the facts that were presented and joey for example i believe that was the case that dealt with a a conviction under twenty two sixty eight for committing threat i'm sorry but  best double counting argument there is not a way to commit the offense of assaulting a spouse by strangulation without incurring the enhancement that was applied here and i think if it was the sentencing commission position that the offense level should have been raised that it should have been essentially seventeen instead of a base offense level of fourteen it would have simply said so it would have established you really did that judge much as point arguably did because the commentary says that your particular a defendant is convicted of certain statutory violations namely one eleven b and section one fifteen increase the base offense level by two so i think the commissionaire is specifically saying that well for those those two offenses we need to raise the offense level and it's also said in the commentary i believe that the chapter three a one point to enhance moment for an unofficial victim should be applied cumulatively i see that i have two minutes remaining and i would like to reserve those two minutes  please the court time and when appearing for the united states morning morning eight hundred nine states code section one thirteen identifies the federal stoltz misdemeanors and felonies pursued the chapter two of the guidelines we then have the two provisions one for misdemeanors a two point three and then one for felonies to a two point two as has been highlighted by the court the commission did not identify a specific base of and slow will for each individual felony assault rather every felony assault whether it's  causing or resulting in serious bodily injury assault with a firearm or so in the commission of another felony offense has a base fence level fourteen the purpose of the guidelines is to punish the defendant for their full context for what they did in their particular case so the commission counting first i would point to a united states which is recent circa one thousand nine hundred three that was a case involving the oakland housing authority police and in that case they talked about double counting and they also referred to a first circuit case which was united states versus newman and that was a ault resulting in serious bodily injury and then that of the defendant also received the enhancement for serious bodily injury and this court looking at that case cited the holding which was the use of fact that defendant victim suffered serious bodily injury both to trigger application of briefing and since council also addressed it was the recent eleventh circuit case united states versus britain and that was the only thorny that i was able to find that built specifically with this string elations statute most likely because it's a relatively new statute but the argument that was raised in that circuit valuated the statute they determined just like this court has a multiple occasions the sentencing commission understands the double counting is and they explicitly don't include that when it's not warranted in this particular provision section to it you point to  we've got about two minutes maybe you want to distinguish happy square your position with the race certainly i'll do my best reese was a case involving civil rights violations and in a conspiracy to deprive victims of their civil rights so the court the sentencing court receive guidance from the sentencing commission to apply the guideline that's most analogous to the offense of conviction i think the analysis would have been different in that case if the guideline had said enhance by three levels if the offense involved civil rights violations or if the defendants conspired to violate civil rights of of their charges argument in that case was that the application of the enhancement at issue here whether the offense involves strangling especially strangling a spouse and the enhancement for the degree of the victim's injury that those two enhanced months together constitute a double counting but and sort of sounds like he was wearing a red shirt instead of a blue shirt and that's how you're distinguishing it they sound pretty similar it is similar i would concede that but i think the difference is the reason why  appeal and why mr harrington should win this appeal i don't think mr bergman the defendant in that case made the argument that the strangulation enhanced meant necessarily duplicate of an offensive conviction i see that my time is running