added this honorable quite good morning and welcome to our session which is being conducted by telephone we were all supposed to be together in miami this week but obviously the virus's had other ideas so we want to thank you for being with us as we try to do this remotely judge pryor and judge branch and i would like to welcome all of you those d who d are listening in on to let you know when you've got a couple of minutes left to go on your argument and then i'll keep time from then on and let you know when you've come to the close of your time but it will be careful to try to not cut you off given the difficulty both parties the government and our sound in fact agree can be resolved by looking at the statutes plain language are major point of disagreement and the crux of this appeal is how we go about conducting this plan language and hyper literal endeavor which requires stripping the provision down to justice words and reading those words with blinders on in other words this court read the statute ignorance to realities but under this literal reading the provision loses its meaning and force imagine a defendant who served twenty five years in prison for murder he gets out fifteen years ago and only a few months later commits an armed robbery leading a ten year sentence upon release he offend again this time a drug offense which lands him in prison for four years the guidelines say each of these offenses is a quote prior three point offense he has nine to points for violent and drug related crimes undeniably he's got a byline history but because he doesn't have a prior to point violent offense meaning he was never sentenced to a term of less than one year and one month and greater than sixty days he would be eligible for the safety valve under the defendant's reading the statute was designed to allow nonviolent low level offenders released from mandatory minimum sen not those defendants like these this is why this court and the supreme court have long held that context matters that interpret as statutes plain text is actually a holistic endeavor one wh requires reading a statute in view of context both within and without the provision at issue mr dionne you or your position i take it is essentially that the word and which connects subsections fifty three f one as an uninterrupted sentence in other words if you say if you take away it's structure and punctuation and beat it you know just as a sentence then yes the word and the the context clues including the structure and punctuation effectively allow you to read it as the defendant does not have a more than four criminal history points does not have a prior three point offense and does not have c a prior to point violent offense so when we actually look at the context clues here that's how the provision should be read if if we were to read it just doesn't un sentence stripping away stripping away the structure and punctuation of it then yes the word or it would be more appropriate there but no no go ahead go ahead please in a structure like this should operate in and the way that were were saying above but the reality is when you look to section twenty three and four it becomes clear and clear  and so for example in section for the safety valve that if the defendant was not an organizer a leader a manager supervisor and was not engaged in a continuing criminal enterprise then he may qualify so these contacts close like the way that four hundred and thirty two are set up really require us to read the  they describe a statement that is a negative proof they call it and they say when a negative proof meaning there is a not in the conjunctive form within and then basically the sentences to be eligible you must prove that you have not a b and c and that that means the defendant must prove that he did not do all three if we read the statute as a conjunctive negative proof doesn't that senses does not have and then there are three elements connected by an end it's supposed to be read as the defendant has to affirmatively prove that he does prove that he does not have all three meaning he does not have those are all set off by an end at the end and one of the district court that has ruled contrary to your position says that we need to interpret those t o in the same way you can interpret the and at the end of the list of subsection f one way and then the and that links a b and c under subsection want to different way what is your response to that my response to that is the cases that they cite that we put for example davis the supreme court case that we presume the term isn't being used consistently but this is over rebuttable presumption and our position is that the context here clearly supports the government's reading that and effectively means or with and sexing on moreover if if the and is supposed to be read as this as a conjunction meaning it connects all elements of the government again believes that the does not have language should be distributed such that the within section one the three will be connected does not have a does not have b and  me there seem to be two reasonable ways of construing this you can construe it literally as you said or you can construe it in the way they used to just with a little bit of policy backdrop in the mind to suggest that congress would not have created a statute that read the way that mr garceau not the case so why isn't the statute and big us leading to a possible application certain results all of these things really clear it up for us so to the extent that there might be some ambiguity meaning there could be two plausible constructions of the statute is lisa branch just to be clear i did not take it that you were arguing that the statute was ambiguous i took it that you are arguing that once you start applying the canons of interpretation you're going into the plain meaning of the statute am i incorrect no you're correct our position is that under the plan meaning analysis using these context clues there is only one correct and appropriate reading of the statute rewrite the statute correct correct where again this is at worst sloppy drafting but we read the plan language of the statute using context clues of generally textual ism to be looking at legislative purpose to figure out which canons of construction to use well i think even the most extreme view of  different from literalism and we are point and that we can't just read the statutes words literally without looking at least elsewhere even within the provision  points to make him a garza government's argument but i'd like to start with some real world examples about how reading this statute in the conjunctive is makes perfect sense and one of those examples if let's say you have a client with a loan three point violent offense that client does not have four points and it must have an additional conviction in order to get to four points but let's say also that it doesn't include the two points because for example they only served probation and i'm not making these examples up what i'm referring to is the united states sentencing commission's office of education and sentencing practice manual and in that manual it has several real world examples of how a defendant can even have a criminal history points but still be eligible for the safety valve and in fact you can have a defendant as a career  supplemental authority if a court would like i want to turn also now to this philia gardner argument it was raised by the court we have to do a little bit of a deeper dive into scalia and gardner treatise they say that some things that are listed individually are permitted but cumulatively are prohibited and a fine example that they give is drunk driving you're not allowed to drink and drive that doesn't mean that you're not allowed to drink or drive because each you know you can either drive or you can drink but you can't do it together and in this case if you look to the structure of the entire statute which i believe that the government would like  acknowledge that that has to be so but then at the same time the government would like to say that as amended as one cannot possibly mean and and there are several other real world examples for instance you can have a person according to the samples from sentencing guidelines who was convicted of robbery which we all would agree is can be a violent offense but if they only got eight years probation then they don't have a two point violent offense and so therefore that particular robbery would not count as stage if you if we look at legislative purposes it's hard to think of why congress would have put these three conditions together as opposed to coming up with the really other conditions that might work a little bit better these me it's fart it's hard to think of these working in tandem that doesn't mean that i don't agree with your statutory argument but if you're looking at legislative purpose it doesn't seem like these three were meant to operate together your honor only a small number of people with multiple serious violent offenses will be disqualified under f one but the more high level organizers leaders who use violence or weapons or those who participate you know as organizers and leaders and maybe aren't truthful with government they're all still embraced within the safety  organizer and we can't lose mind again of the fact that there is a drafting manual that's in place for it's called the u s senate legislative drafting manual it was actually published in seven and that drafting then manual says specifically on page sixty four that the use of or between next to and the last criteria should be used it should indicate an inclusion or more of a criteria and the use of end indicates that it should be included only if it meets all the criteria and again that is the senate office legislative council drafting manual which this is not a statute that was just born out of some sort of necessity i mean i think we saw that was cracked we thought it was a few other laws that in retrospect we might say well we were a little bit hasty passing those laws and we've had to adjust them and change them we haven't actually congress that of the use of and or we know that because it's used interchangeably within this same statute and also you've got the drafting manual and you have several years of debate over this particular provision example is a case in which they said if we don't interchange and or then a statute is completely meaningless it's completely let's say absurd but again if we go back to school ia and gardner they talk about absurdity and they say it should be limited in two ways it should be limited in situations where the disposition is there no reasonable person could possibly have intended this disposition and inserting supplying particular phrases including or in knitting particular phrases then a statute can be considered absurd when there's obviously a technical or administrative error we don't have that here we have a situation three points you've done something wrong in this case this statute worked exactly the way congress intended it to work judge kahn st of all found that it was not ambiguous so we don't even have to go to legislative history whatever was said during the passage if we look at the pure meaning of the law itself we can see that in this particular situation it worked exactly the way it was supposed to work mr gore saun had no qualifying chapter for convictions other than a possession of a gun by a convicted felon and that was three points but it is current crime which was narcotics related was not violent he had a terrible childhood we and he has not committed a did a new crime in thirteen years thirteen years judge con use discretion and that is what this statute is meant to do it is meant to give judge's discretion and it does that it ga question and it's meant to give other judges discretion and how they want to sentence somebody there's nothing to say the judge con couldn't have given mr gross on sixteen months it would have been an above the guideline sentence it would have been a variance yes but after looking at all of the circumstances of mr gore son's life judge kahn used discretion which is the entire purpose of the revision of this statute to give mr gerson what he considered judge all five so we have em dashes we have semi colons throughout this entire statute and again i'm sorry ok i'm sorry i thought someone was trying to ask a question again if we look to the drafters we look the history of this particular statute and i'm not talking about the legislative history we don't have to go there because it is unambiguous as found by judge kohn what we have to look at is is the overall purpose and i hate that because it can be construed and misconstrued as legislative history but we know that what was happening is congress was trying to only punish and deny safety valve to the most violent offenders  and the most let's say receipt of this among our defense defendants and again all of those people are still grouped in the safety valve and are ineligible for safety valve because of the other provisions in the safety valve but there are real world examples and which subsection a f one excuse me subsection f one can be applied and get the kind of result that happened in this case and that congress intended so i don't believe that a literal reading of the statute results in anything but accomplishing the pursuit of congress and again we have to presume that congress knew what it was doing there's a drafting manual they have to lead and garner treatises as well i'm sure so this is a situation where the government doesn't like the result and i think that we can identify that premise when we look at the government's brief and in the brief the government says well it would be best and i put that word in quotes to read it the way we want to read it but that's not how we interpret statutes not comes out one side or the other we don't let judges rewrite statutes because they're in artfully drawn what we have to do is interpret them literally and if it's a result that congress did not intend we presume that congress knows what's happening in the courts and they'll fix it and so that that is where we are today we believe that judge conn was correct that his interpretation was correct and that just court should uphold his r conjunctive negative proof fundamentally appears to be eligible you must prove that you have not a d b and c this is used in legislative drafting to require that the defendant also told us that it's not enough that hard and objectionable or ab cert consequences are the result of a literal interpretation and that if that's the problem the remedy lies with the law making authority and not with the court that's from griffin versus o c n to contractors in one thousand nine hundred and two supreme court case why isn't this a case for the use of that cautionary principle  congress may have intended something else but they wrote something very very different we should interpret what congress wrote not what it intended and let congress fix it if that turns out to be  not frivolous if the defendant had a prior three point offense and prior to point by an offense those things are mutually exclusive and if you have those two you automatically have more than four criminal history purpose to be is severity and privacy is violent offenses we would agree with that congress intended this to cover only the nonviolent low level offenders but to require that help thank you