necessarily why are we not with respect to the pre re entry that that's a good question and i do think that the case of adult lackey does bind the court as to the pre reentry convictions because the guidelines with similar  think that this court should extend the reasoning about  longly because it did not account for hansen being about some want hansen tells us that when it's not congress making the decision and when it's not the president making the decision that we cannot rely on a blanket overriding national interest in immigration and naturalization in order to justify any discrimination against aliens here we have as the sentencing commission making the decisions such as a commission as an independent rule making body is located in the judicial branch which when we look at the similarities between this sentencing commission and the civil service commission in the hampton case the there are a lot of similarities but because it's in the judicial branch that's even one more reason not to give it the deference and in this area discriminating against ailing and after the supreme court upheld the constitutionality of the delegation of congressional authority to the sentencing commission why hand the hanssen case in that case to the civil service commission regulations that it promulgated the court looked at whether congress and the president had acquiesced in those but because they had been around for almost one hundred but the court record in the civil service case talked about the fact that there was a missed jointer of responsibility for immigration policy enforcement and administrative regulation of the federal civil service rules here we have a specific entity that congress has created in order to assess the uniformity of sentencing and the supreme court has  discrimination against aliens based on the blanket overriding national interest and pass constitutional muster the guidelines to either be explicitly determined by congress or justified government articulated a rational basis for the discriminating against on the basis of alien it did did you see where they did it and if so what was your what is your they looked at the reason i think they only looked at the they presumed that the sentencing commission may have concluded that so i forgot to protecting that regard if you want to an extra minute on her bundle i'll give you that so you can get through your two minutes without interruption this morning attempts to distinguish delicacy on the ground but it did not address the current version which applies to both pre and post deportation apply although if the the guideline is different it's still to be here or even just garden variety undocumented aliens it involves illegal aliens who returned the united states after having been deported and who committed crimes before or after the deportations and sound policy which which i itself focuses on the illegal status of the person entering the country and being present in the country illegally so that really that really you know because to the point i'm trying to make i mean they're already been punished for that but guidelines extensive data collection analysis and public comment regarding immigration offenses and immigration offenders and comments from judges and border districts and the commission explicitly said that the commentary explains  for that because well they may have committed the same crime in terms of violating section one thousand three hundred and twenty six but i would submit that the offense concept is entirely different when would just simply have a size right up front that you know in light of the prior precedent rule this court really shouldn't even be considering the proper this panel anybody should be really considering the proper whether or not adeleke got the standard of review right cases that addressed equal protection claims but but didn't involve the sentencing commission or the sentencing guidelines he also bases the argument on the fact that the sentencing commission has no general authority over immigration and naturalization matters  and for the pre conviction the the pre re entry once i can see that for the post pre entry one i can't really see that because in some cases that may certainly be true that it would deter somebody after they've ranter from committing another crime but in other cases you know they if they had come to the united states without the intention to commit a crime they were here and circumstances  deter them in any way from coming illegally into the united states so i don't see how that particular rationale and justify the post i think i'm sorry  to the st deportation so when someone comes back after having committed a crime and then having been deported and then commission another crime i don't think that the the additional deterrence is directed at just you know maybe they want to be family or something and they have no intention to commit a crime but for whatever reason they happen to commit a crime and once they are here i do not see how imposing post entry conviction enhancement would deter that person from reactor you understand what i'm saying that that rationale doesn't work to me that's not to say that i can't think of a rationale that would work but i don't understand how that rationale works here maybe you can explain that to me or if not maybe you can explain if you think there's some other rationale that justifies well i think i think that the the that's certainly the rationale that the sentencing honor in that it isn't simply a question of deterrence it's a question of reflecting the seriousness of this and it certainly is rational to your i'm sorry you're saying that it goes to culpability and that is one of the criteria that the commission depended on in their statement of reason is that you're saying yes and i think there's a there's a well i'm not sure that it was been and sort of fleshing out that concept i think it's because there is an inherent difference between someone who only commits a pretty poor dish and conviction in terms of offense conduct and someone who also commits a post conviction crime and again it's really it's really accurately describing the defense conduct which of course as i said before is what the specific defense characteristics are intended to do time but doesn't do any further crimes once they're here i'm sorry there's something worse about someone who does do for the crime once they come back in commits a re entry crime a nd of whatever time then there is about somebody and it devolves to the offense itself the nature of the facts changes with the nd conviction ok i'm going to protect your two minutes here ok thank you so much your honor we agree that the government hasn't really until this morning advanced any any punishment and that's just those are just punishing reasons and this is why it compounds the acts for punishment that is being given to the elite and in addition to the criminal history there is no rational reason why these criminal convictions should count what as judge rosen law was suggesting when someone when we're talking about the posts we enter a conviction because they happened after the last free that we imprison these people and and the fact that we don't go count their criminal histories i guess that there's no rational basis or rational connection between that and deterrent or between bad and the severity of the legitimate basis and rational basis for discriminating against aliens into one point two is finally the equal protection principle and if this court has no further questions we would ask the court to follow the framework and hampton which lays out a very good way of addressing this issue given that it's the sentencing commission not congressman price or the president the one other thing i would point out  hansen is there was a an interest in the ministry of convenience that was put forth at the supreme court rejected and part of the reason why they rejected it was because they looked at the procedures used by the civil service