please the court i am are back occurs arguing on behalf of mr edward merit this morning mr merrick contends that his prior conviction for conspiracy to possess with the intent to distribute cocaine under twenty one u c eight four six cannot be used to enhance his base of and slava because it is not a controlled substance defense as that term lose defined in guideline for b one point two the government's primary argument is that this issue is controlled by this court on bank opinion and mendoza figure so i'd like to start by addressing that case  the holding of mendoza figaro up is a narrow line it's narrower than the government asserts that case concerns the scope of the sentencing commission's statutory authority which is different and distinct from the issue that mr merrett raises concerning whether the commentary is merely interpreted in the guideline tax or if that is actually inconsistent with the guidelines the government to argue that no one is a plainly erroneous reading of forty one point two because that issue was never raised by the defendant and that it was never decided by the a court 's holding is determined by the specific issues before you know i have now subsequent panels haven't necessarily seen it that way i think it is a bailey and neal that is true others is true and there never decided the issue that those cases say it aside the court specifically said in mendoza we do not reach that issue they see through in gratuitously we don't think he could  argue that it's that the commentary is plainly around us but that's not a holding in order to interpret mendoza figaro as the government guys you would have to say well and on bank opinion of this court can control an issue that was never raised never briefed never argued never mentioned other than the single sentence that i just read in that opinion that is far far too broad to give to that case that i agree with your first statement more so that it's a logical reading but in my reading of it it is merely an assumption th windows a figure rocor to simply saying look twenty eight u s c nine thousand four age is not the only statutory authority under which the sentencing commission can act it is saying that there are larger more broader powers under sections nine ty four a through f i think it was and again i just go back to the specific language in the case where it says we are not deciding this issue it was not raised by the defendant so it can't possibly be the holding of the court although i do fully agree that other panel decisions have interpreted that way detail it's i understand what you're saying it's kind of this tacit underlying issue lurking there but if but if the defendant does not say look i'm contesting the conspiracy cannot fall under the controlled substance offense definition but if i think no one is inconsistent with the commentary the court's not been even consider that  is not inconsistent with also i would want to point to the court's decision in united states versus bell well now that portion of which said missouri second degree robbery not rise to the level of a force clause of fans that part has been overall but bell also held that the offenses previously in the not automatically just convert them into enumerated offenses it said there has to be a textual hawk there must be something within the tax that is  ambiguous that needs interpretation the same applies to no one with respect to the controlled substance and the text is is very clear it sets forth a finite limited number of offens that come within the scope of controlled substance of fence that textual language guideline text as a controlled substance means an offense that prohibits the manufacture import export etc means the supreme court has said that that specific word is used in a statue it excludes any meeting that is not stated not stated in that definition is that conspiracy offenses are other in co it offenses also apply so there is nothing that the government does not point to any word any particular phrase in that definition that somehow needs to be interpreted or clarified by commentary contrast that with the arm career criminal act when congress uses the word includes or involves or related to this point putting forth a list of examples that is not exhaust that the statute holds in in code offensive by using the broader language involving as opposed to saying is the guideline does controlled substance offense means and less finite crime of conspiracy to distribute controlled substance is a crime that prohibits the distribution of a controlled substance the plain language of the guidelines defines a controlled substance  crimes that prohibit the distribution manufacture exciter of controlled substances the the operative language here is that word prohibit and a conspiracy to distribute can controlled substance can substance prohibits the distribution of controlled substances just as much as the substantive offense and so the language here i know that mr maritz made an effort to say well there's nothing here that's that's ambiguous there's nothing here that needs interpretation there's no language where the government's point you in our brief we make it very clear that conspiracy to distribute controlled substance it is a very good analysis of what prohibit means under this guideline section it means to prevent to stop in of course the federal crime of conspiracy to distribute a controlled substance permits to distribution of controlled substances it stops the distributions of controlled substances it punishes the distribution of controlled substances it prohibits that act and so one of the plain language of the guideline conspiracy just like attempt just like aiding and abetting are covered by the plain language of the guidelines all that the application note does then is clarify that the plain language of that what plain language the guideline says conspiracy aiding and abetting are also  it says you know there are four ways in which the commentary wouldn't be a thorn eight authority if it violates a statute or if it's in the two operative ones here or whether it's inconsistent or clearly erroneous reading of the guideline section and that was exactly the issue that was decided to those of figaro so i do think mendoza figaro's does bind it binds for the reason you know the court's mention while the question came up in a different context while the ultimate holding to be decided in windows of figaro was a different question the reasoning was exactly the same those of figaro looked at stenson and took stenson instead and applied to the stinson to this the exact same commentary section and it said that the commentary section was not inconsistent it said that it wasn't a clearly erroneous reading of the guideline and that's exactly the holding that the court needs to make in this case that's the controlling holding so that that started with and it comes from primarily a case authority in the d c circuit and what i'm going to ask this court to do in this case is follow mentos a figaro and let's not repeat what happened in the early ninet with the guidelines section and so in price they said i believe price was attempt but it prices had well tim did drug traffic time wasn't a controlled substances offense under this guideline a conspiracy case conspiracy distribute marijuana to conspiracy is a controlled substances offense and they get rescinded i just talked about the price case then twenty five years later whether or not they actually themselves were princes that prohibited the distribution of a controlled substance in this circuit and every other circuit to look at the issue the case was different and so i think we just looked at the d c circuit as an outli guideline attempt was listed in the crime of violence guideline the court knew how to whether or not to use attempt or not and that argument is just simply it's based on a category mistake and if you actually look at the is refers to elements in attempted element of the attempted use of force that is referring to you know use of force or tip use of force is referring directly to those federal statutes that  you didn't try to carve out and say well the puta crime of violence section has you know if them uses the word attempt uses the word tipping entirely differently and so the result is that you get there is let's look at carjacking carjacking has an element