one count of distribution the offense consisted of selling twenty oxy coating on pills to an undercover police officer all other things being equal he would have been sentenced to about two and a half years on that  unless he was sentenced to seven years the extra four years came from a has a the say so of someone known as c the two thousand five hundred fifty five pills that translate into those extra four years were seen learn no police officer and it was seen by no judicial officer we're not appealing the the court's credibility determination and c i three testimony but we are appealing the judge's ruling in the sense that the judge construed guideline one b one point three two broadly the danger of a broad construction of that guideline is that it allows people to be held in prison for a very discerning will amount of time because you can see the time on the sentencing table were very discernible amount of time  something which they were not convicted that situation seems counter intuitive you seem to be contending that the comments are planned limited to other than the foot no which indicates that these different words have different meanings and the statutory construction canons indicate the different words should be taken as having different meanings and these are the standard common scheme or plan is reserved for those situations where the defendant is being sentenced the question is  something that somebody else has done in a conspiracy or some other joint action action situation should that be held against the defendant so the defendant is sentenced for what the other person did and then the question is well did what the defendant do is that part of a common scheme a common modus operandi this involve common victims with what this other person is codefendant did and the a commentary on the guideline question of whether something else that he did should be something that his sentence for is determined by whether there's something else he did meets the language of a single course in the commentary under single course of conduct creates an example of somebody who's been acting along a unilateral action which it seems is a matter of reading statutory construction not to mention a footnote in u s we would that these two parts of that phrase a single course of conduct or common scheme or plan are meant for two different situations and to take this second the common scheme or plan and apply it to the first results in a bad fit there might be some similarity some concerts will similarity in the sense but it's the wrong word  plant and part of the same course of conduct so since he found that it met both why do we even care whether he was right on the first half of that as long as he was right on the second p criteria he's using to make this decision he says and twenty one quote the sensing guidelines in the first circuit have pointed to a number of factors the nature of the offense common victims common accomplices common purpose similar smoke somewhere modus operandi those are those words that gloss comes from the common scheme or purpose half of the standard isn't to see commonalities between what the defendant did on june twenty sixth so in those twenty pills and a lot of other things that he might have done because there are commonalities they could be seen to be commonalities same person same area in the state of maine because that's where he lived so anything he did there would be good or bad would be done and in that part of the say you know the seam drug oxy code on the same milligram of pills which is determined by the pharmaceutical company of course so there were commonalities and if you look at something in a high enough level of generality you can find commonalities in lots of but aren't they all valid cancer every single one of those things you just mentioned relevant to determining whether something is part of the same question and no well let me give an example of selling guns on one  day another day i'm selling stolen cars when we say that same course of conduct but if i changed it to say selling guns on one day and in common with that i'm selling guns on the second day isn't that more likely to be part of the conduct using the wrong standard i would see that would depend on how closely one looks at ten languages it would depend on how closely one looks at the similarities because you can look at depending on all those all a certain sense in that scenario to many on how closely one looks at those factors you could find dissensions i'm sure in the  closely you look at it comes down to how closely you look at it in this case there is a defense of conviction is a street level sale to somebody  not a high whole seal deal it's not a fronting deal it's a sale to a customer one time seal later the two thousand five hundred fifty five well if i may be there are two points one is that the judge used the wrong standard as a practical matter it could make a difference because there are different standards page twenty three the factors that he cites as to why this two thousand and fifty five hundred fifty five pills are relevant hard are six of them come from the other relevant conduct only one of them comes from the offense of conviction united states if i may at first make a factual clarification which may help bring this case in perspective and that is to explain why the seventy six grams of oxy code on our on charge conduct rather than charged conduct and it's a matter of timing this defendant was arrested in the summer of ninety two thousand and twelve he was indicted in october two thousand and twelve but c i three who was the basis of the information for the seventy six grams did not begin to cooperate until december of two thousand and twelve and in fact her counseled proffer was made two days before the defendant pleaded guilty so that explains why this was never charged second with respect to the claim that the defendant now makes that there is a significant difference between same course of conduct or common scheme or plan and the judge what cock relied on the wrong prong of that in the government's reading of the record that was not the defendant's claim below the court will read the record for itself but as i read the record his claim below was that c i three was not reliable and that prompted a thirty three page written opinion explaining why she was to answer judge dyke's question about whether they really are different as of a different standard and one operates to the exclusion of the other i could find nothing in the case law that says that conduct must be cubbyhole into either same course of conduct or common scheme or plan to the exclusion of the other quite the contrary the first sentence in an application no nine to one b one point three says that the two are closely related concepts second this court's opinions have basically treated that phrase as a single phrase said in one breath i have read no opinion that splits them out and says if it's not one it can't be the other third your most recent that's less opinion judge as i understood your interpretation of the guideline it was to say that there must simply be sufficient link between the relevant conduct and the charged conduct so that is not the narrow statutory construction argument that the defendant makes that the government interprets to be a much broader standard which makes sense in light of the of the circumstances that applies to the overall fourth there are other circuit set of interpret the same guidelines and they have specifically said that the factors that relate to same course of conduct may be applied to com or plan in other words they can be transposed against each other finally i would simply like to summarize the factors that are detailed in the government's brief with respect to the commonalities similarities links whatever you want to call them between the conduct that was formed the conviction and the information from c i three it was involvement by the defendant personally in all of the transactions it involved the same problems in the same quantities twenty pills at a time in the same dosage as thirty milligrams for the same price between twenty six and thirty dollars in the same geographic area in the same timeframe of a six month period in two thousand and twelve by two people who both know the defendant by the nickname b b and by two people who both described b b as a significant drug trafficker in in that area of maine and that is looking only to the commonalities between the charged conduct and c i three it has nothing to do with c i one c i for c i thirty five eighty two or the anonymous caller but when you put those totalities of circumstances together there benefit of reasonable doubt trial is that is that what we have well a part of my answer just troy is why i thought it was important that the court would know the timing of the other information in this case second that i think is what the relevant conduct guideline contemplates third if this defendant had really wanted personally to challenge the authe the guidelines everything about the guidelines is a preponderance standard not a proof beyond a reasonable doubt standard so the objection that i understand you have is the objection that was they are thinking about this they may end up with an