the this interpretation was adopted by the second circuit in the united states against ortega and for good reason it makes good sense but the language in that case may have been broad enough to support your position but facts in order to go really don't counsel but it expressly disclaimed reliance on that fact in considering the guidelines question acknowledge that the constitutional question was tough but turned instant to the guidelines russian and that is a situation that recurs in the cases cited by the government what is it about a defendant who intentionally decides to give up his right to counsel that suggests that that case should be treated just the same as someone who through no fault of his own is  counsel for purposes of scoring these convictions because your honor the criminal history scoring attempts to estimate the seriousness of a person's prior criminal history by reference to their the length of the sentences  and there are situations when that's an unreliable proxy and situations like this one where a person receives the rare term of imprisonment for a misdemeanor without the advice assistance and advocacy of salt but he but he made a conscious choice not to he did not challenge the validity of the waiver your honor but he does have a low average intelligence he has the reading level of creator and in any event the fact that imprisonment was imposed is very rare and even if someone knowingly and voluntarily gives up their right to counsel there is still the situation where the judge is not present and the arguments on the person's behalf and a lawyer could have presented at arguments in mitigation also could have argued for a one day less which would not have scored lines if mr holley had received twenty nine days of imprisonment instead of thirty he would not have received and his lawyer could have advocated either for a shorter sentence or for a hybrid sentence that included a shorter term  decline to squirt convictions or sentences that are constitutionally obtained for example and for a one point two ease sentences that are imposed more than ten or fifteen years ago sentences that are imposed as a juvenile there's not necessarily anything constitutionally absence of a lawyer that reliability is missing and if the district court believes that some injustice is crane yes indicated that you were he was your honor and we don't contest the constitutional committee but we believe that it's a situation like these i don't think so your honor because if the district court believes that there is an under representation of a history score he or she could certainly take that into account under thirty five fifty three and or use it as a basis for an upward departure under four a one with the guidelines and and my colleague cited the proposed amendment to the proposed language of this amendment that we're all talking about today and that used constitutional language and so a stent simply if the commission had intended to include all constitutionally obtained misdemeanor sentences it would have said so and in fact why doesn't well when we look at it see you know for a one point two  ordinary case yes and you also agree that if i understand you're not challenging it here but if you had a case where a defendant challenge under curtis and our decision and hondo the the constitutionality of that park conviction that that's a challenge it's a vailable even on a collateral attack some say yes that's right so you're only talking about the example you're only talking about is uncountable in the sense that is plainly constitutional it's included in the you know broad instructions here in for a one point two c but you want to exclude it based on the sort of negative implication of the background come yes you honor but i do believe that for a one point two c is a powerful signal that the commission recognize that a thirty day sentence for failing to wear a seat belt and giving the wrong name to an officer is an extraordinary thing and he got here i'm sorry which he which he received that's correct your honor and i think it is as the as the defense where at the just in the district court mention that kind of sentence raises an eyebrow it's not to say that there's necessarily something wrong with it but it could it is a very long  kind of an offense which the commission recognized by generally excluding sentences for that type of offense but including only those that are for terms of imprisonment of thirty days or more are more than one year of probation  if you look at the defendant's family history this was committed by he was on probation for multiple different felonies in the state court and the thirty day sentence actually was ordered to be run concurrent with much longer sentences that he already received and i also wanted to briefly point out that at the time the sentencing commission adopted this amendment in one thousand nine hundred there was a lack of clarity about whether and to what extent counseled misdemeanor convictions that didn't receive imprisonment or to be clear in light of this uncertainty that i'm counsel misdemeanor convictions the where the right to counsel not attached are to be counted on that we would rest on our briefs thank you very much ok you have a few minutes