i wanted to focus my argument on more as ineffective assistance claim i think all would agree that the th amendment right to counsel is only worth something if counsel provides competent representation in this case counsel failed to seventeen if the clear offender guidelines did not apply then more sentencing range was eighty four dollars tangram five months and almost fifty percent reduction in the range ultimately applied by the district  qualify as a crime of violence the government in its opposition belief makes no argument to the contrary as to that argument in other words what appears from the record in this case to have been defense counsel's motivation in w for was glowing his career the challenge has been implicitly conceded by the government have been mistaken since the government makes no argument that the offense is a crime of violence he seems you have one where m thank you this leaves only morons so with conviction we've advanced to reasons why that conviction was inadequate st as two members of this panel have been united states versus pena a complaint case completely ignored by the section categorically a crime the violence is an inadequate basis for district court to conclude that it isn't so based on ten alone we contend with him and that necessary but even assuming the p s a is enough to conclude that moore's assault conviction was otherwise a calm the violence in this case it was inadequate based on the plain language of the guidelines as reflected and for a one dollar under that rule where the cendant has multiple prior sentences that are treated as a single sentence as here you only look to the longer sentence which in this case is the criminal possession of a weapon that definition is specifically incorporated two says not to apply the guidelines in this manner for purposes chris and the guideline you can whether you can use either conviction but the government fails to take into account the supreme court's decision instance that they based on the record alone here if you look at the record i think it's a seventy one it's very clear why counsel seemed to have withdrawn his argument he just he didn't understand  the guidelines as it applies to criminal possession of a weapon and so i don't know that we need to hear from counsel and thankfully if it is necessary i think that all can be done on women because says that the commentary is a binding interpretation of the guidelines so long as it's not claimed the erroneous or i mean consistent i mean it's not clear to me why the sort of point accounting system for purposes of assessing a criminal rescore is inconsistent with our contradicts the treatment of a crime as a predicate offense for career offender you're simply relying on the fact that the language of the guidelines yes and it's i recognize that government has you know they make a policy argument and i think that's implicit in your question job sullivan how could that be right but the point is that's that's why we have you know either the sentencing commission or the legislator to act and to bring about a different result but the way the guidelines are written now this is the way it's written and you know sometimes sometimes yes there may be situations where it's kind of an unconscious result but that's kind of that's incorporated into forty one dollars point until it's it couldn't be clearer and that's why i think it's not just to determine what the number of points will be cracked right if it's if it's a single sentence with two underlying crimes you're going to give it a number of points based on the longer of the two sentences but the predicate offense provision for career offender is not really about that but that same deafen i'm sorry that's a definition that is incorporated into the into the clear offender guidelines as well well let's see what the government has to say about that you reserve two minutes for the ball  parties agreed that moore would not challenge any sentence within or below the stipulated guidelines range of eight hundred and forty two thousand one hundred and eighty eight months in prison that year he received a sentence of one hundred and fifty one months present because waiver is enforceable even if the district court committed an error in the guidelines calculation with respect to moore's efforts to circumvent the appeal waiver by arguing ineffective assistance of counsel that should be rejected for two reasons st the record clearly shows that he did receive effective that he did receive effective assistance he was originally charged with a firearms count the carry thirty year mandatory minimum council negotiated a plea agreement without a mandatory minimum and even though the court found more to be a clear gender the court still sentenced more to the low end of the career offender guidelines calculation and credited the fence council nd victim mission with respect to moore's background which the court records in opposing sentance  judge sullivan with respect to the guidelines issue here again we think that any challenge to the sentence is precluded by the appeal waiver but i think the guidelines are crystal clear in this respect the commentary provides color as to what you should do if there are multiple convictions imposed in a single sentence that it prevents the guidelines prevent a bootstrapping of sorts so that one thing the nd cannot result in say for this reason cited with the six circuits interpretation that the defendant should not get a free pass on violent or controlled substances underlying expenses so the government can figure rest on its commissions happen answer any ordinarily we would send back or we would wait for this to come up as a two thousand two hundred and fifty five asserting you know effective assistance because you want to have a fuller record but this seems to be a straight legal issue that just an interpretation as to whether the guidelines commentary contradicts a guidelines provision and so if that's all it is your what is the advantage of sending it back what would what record would need to be developed your honor again scenario but then we ought to address it now if it's a purely legal issue so i guess i'm not sure what you're saying when you when you say about the waiver so i mean can he wave ineffective assistance and claim that in other words he had a waiver that said i'm not going to challenge a sentence  within or below this range and his lawyer then is woefully ineffective in making an argument that was carved out of this is a hypothetical woefully ineffective in articulating an argument that he's allowed to make he just you saying that the waiver prevents an assertion i mean effective assistance related to that i think if the waiver does not the court can reach the ineffective claim and deny it on direct appeal if it finds that it in any event frivolous based on on if you're a legal question from the guidelines i don't know if i've seen frivolous but we i mean if we can resolve what is a straight legal question now point is that this guideline issue is raised but it's sort of peripheral on it's not it's not really joined it's not there's not a lot of everything calibrated prefaced his st question by saying i'm glad you're focused on this because that seems to be because his call th circuit had granted a twenty to fifty five based on the plain language of the guidelines which frankly reinforces the argument that there is a stinson problem because the plain language of the guidelines says what it says that you don't count getting a good deal anyway i did not argue it and that would be enough for us to say that counsel acted reasonably if that as a strategic matter before we ever get to the legal that they sent back rather than to send them back rather than to simply affirm and then require them to bring the twenty to fifty five man this way he could have counsel and the