to turn her to the sentencing challenge at issue and this concerns the legal status of application no one on the career offender guideline now that up occasion which is in the nature of commentary adopted by the sentencing commission without need of public comments or congressional review has been held by two circuits in the last eighteen months to be without legal fact because it's contrary to the text of the guideline itself but what do we do with our didn't really relate to deference they relied on the the stinson case which has been abrogated by kaiser i think they're apples and oranges don't you think no i think it's very i think that perspective your hightower did appears to be on its way to showing up in the guidelines proper have any bearing on this at all i don't believe your honor right there might be an ex post facto issue there's no imminence to that becoming a change because the adopted yet but i think also this situation exemplifies and even see turning around and changing things once courts decide to interpret the law and say what it means we've got to the circuit court decisions within the last eighteen months saying you can't just declare that this tax which is silent as to attempts actually covers attempts and you know it may be you clearly do it on if you want to you clearly could undermined some of them things discussion and since i was a page forty four that even an ambiguous guidelines are properly clarified by the sun's commission commentary well that's that's something th you if we've spoken clearly subject you leave that subject in place unless and until we overrule it go say we've overruled stuff subsoil how how do we manage that kind of by precedent from the supreme  it's a veterans administration case coming out of the federal circuit's got nothing to do with criminal law so for you to say clearly all rules does and i mean i'm afraid you're going to strain hamstring here making that argument it's too much of a stretch so why why in the face of supreme court precedents as we all are old stuff why would why coop would we or could we just on the basis of regulations as the most we have we don't have and agencies regulation here do we well i believe the role of stenson is that commentary is to be treated as the equivalent ambiguity much less genuine ambiguity and that's at page one hundred and four dollars hightower where it says so assume it's right it is what it is right high power says what it says it binds this panel unless kaiser opens the door the way you're suggesting right if if we were to disagree with you about what kaiser gives us the running route to do this point would be over for you because hightower strictly to the trial record what was before the jury so you can't turn for a pre sentence report that was prepared after the fact and then say ok because of this we know the jury would have found differently you have to look at what evidence was in front of a jury o did not even permit in inference that mr must have the requisite knowledge it certainly didn't prove it beyond a reasonable doubt and there certainly wasn't overwhelming evidence of it because the parties didn't think it was an element of the trial so a lot changed and it's very clear that if we just look that the other courts have come down the other way and there's not a whole lot of case law on here but it would be in effect subst if you're providing an element as having been proven when it was never even in the indictment let alone in the jury judges of the court which said that simply omitting an element from the indictments is probably structural error here we have not just the element here in arguing structure error as compared to insufficient evidence being struck tonight and therefore the court held it was structural error this is similar neither the indictment alleged it nor did the jury consider it nor did the proof show it it just wasn't part of this trial so be imagining a different trial altogether for reviewing court to come in and offer a thought as to what a jury would find to me has direct application in a case yet appears to rest on reasons rejected in some other line decisions the court of appeal should follow the case which directly controls leading to this court the prerogative of a ruling its own decisions as your honour's already observed analysis right that we we should give the cometary controlling weight even though the language doesn't show up the headlines so it's because we should be deferring to what the sensory conditions says and it's its own legislative rule but since i'm recognized at the sentencing commission it was different and that the b deference due to the commentary of the sentencing guidelines is even different than the  traditional seminal rock our deference due to an agency's interpretation of its own legislative book and we know that it's different because stinson says rather commentary explains the guidelines and provide concrete guidance as to how even ambiguous guidelines are can be applied in practice there so we stu circuit court said that you can't you can't get there from here look at it that way which you can't read you can't properly read the commentary is supplementing or providing information because it's just an audit with what the guidelines say and even stinson's say you can't have commentary that's inconsistent with the texas absolutely your honor and that is that insurance and that is not at odds with hightower hightower but accurate it is if you buy what the d c circuit right i mean they're pretty clear about saying that inconsistent and you can import in coate from the commentary into the guidelines when it's pretty clear that it's not in there so it goes to the point of whether whether it be in code offenses are inconsistent with guy the guidelines for b one dollar i believe a judge cryer's decision in united states v lang is very is excellent on this point it notes that the the definition of controlled substance offense does not say controlled substances and is those offenses that of distributing manufacturing prohibit possession with intent to distribute it says those offenses that prohibit that that expands the possible crimes that might fit under that definition that attempts to distribute our our offenses that prohibit distribution should we be waiting for the sentencing commission process which is just the guideline and so i believe that this court can follow the examples of the seventy eight dollars and nine dollars circuits we've all reached this decision again coast kaiser and up held their own precedence and up uphold hightower as still binding as for what the sentencing commission other cases in which the supreme court has clarified the law and then and there's there's more there's an example of the government not putting in evidence of that offense i believe is quite has not held held that it's structural activity of problem because we're on direct appeal then how can it not be structurally or to convict somebody when there's no evidence of one of the elements of the offense on the insufficiency of the evidence for more the knowledge of status element they were instructed on it wasn't even in front of nobody knew anything about it i mean we're in an artificial universe here where the supreme court is turning well upside down you know you and me and other people might look at justice alit brilliant but it doesn't matter it was a dissent rafe says what it says and it says that the knowledge of the felon is an element and that wasn't ever put before the jury and nobody can say it was because it just wasn't sick at work when it counterfactual world if you try to say that so the question is how do you get around the argument that in a white of our cases like castro we say the prosecution's fair you to prove essential element of the charge of fence does and so could be understood as a miscarriage of justice you know when we said things like that how do you how do you get a way around the fact that you may feel it's unfair the supreme court change rules the game on you but how do you get around the fact that you didn't prove an element of the offense i think what makes this example of her unique is the old chief stipulation this is the only compelled stipulation of its kind in which it's not just that the government did not put in evidence it's that the government was precluded from putting in evidence sufficient but that doesn't work all chief only goes so far it says if there is a stipulation as to a conviction then you can't put in evidence but it doesn't address the situation that we have here where it's a failure a total failure of proof you and you can't kind of bootstrap it under old chief presumably if they had known that this was an element they would have a stipulation to both aspects you can't you can't pretend that the world would be that oh well let's stipulate one and then of course they couldn't put this that they didn't even know they had two so that really doesn't work but haven't we said that the failure to prove you know united states versus castro a fundamental miscarriage of justice exists when the prosecution fails to prove an essential element of the offense united states versus jones affirming a conviction where the government has failed to prove each essential element of the crime beyond a reasonable doubt effects substantial right to seriously impugns the fairness integrity and public reputation of judicial circuits are recognizing is that when they're when they're citing the evidence and p s r it's not that they're looking at the entire record and finding any evidence they can they're looking at what the evidence would have been but what has been you can't convict something somebody on  would have been on the plane the plane air review is very high and it's intentionally high so that trial that the proceedings particularly ones that are not objective below are not done on on the basis of convicted of a felony crime punishable by imprisonment were term exceeding one year in the united states district court for the eastern district of virginia so it does not go to knowledge directly that be construed as his knowledge that he was a fel give me the watchable track think how does it follow i mean if if you know it's snowing outside today there's every new yesterday it's going to snow tomorrow it doesn't always hear some other evidence that you who i mean we're still margin there to rely only on the on the trial evidence of the stipulation of how the guns were found of mr sears other activities that were presented throughout the course of the trial it's it is circumstantial your honor i guess that's where i'm struggling i'm still humming and you keep saying it's circumstantial evidence but i'm not following this is a pure matter of watching how the fact that somebody knows fact a on one day means they knew it the day before or a year before there's there's there's no inferential strength in that at all you could be the very st time you're aware of it there's no reason to believe is there what reason is there to believe that knowing that fact at the time a stipulation means you knew it when you committed the offense we say the case is on page forty of our brief that said timing timing is is important when it comes to inf the prosecution failed to prove an essential element of the church offense how do you how do you get to where you want to get which is no harm no foul play there is nothing well st of  the difference between this case and castro is again the what was what the stipulation was standing in place the stipulation was standing in place details as to the name and nature of mr sears prior conviction he had been convicted of the same felony offense and subject to seven years incarceration so are we back to you can infer from the fact that he stipulate to it that he knew it before i think i'll use the strongest evidence within the trial but i do think that the arguments that the th and the nine hundred and eleven circuit are implicitly adopting is is recognizing that the stipulation matters here because it was compelled it's not an it's not a matter of the government not putting forth evidence the government could not correct that kaiser has rendered high tower no longer gridlock result stinson regardless of the discussion that my my friend accurately stated the holding of then senate is that despite differences between the sentencing commission and other agencies our deference doctrine shall apply that's the rule things and stated now hightower applied that role to a totally different provision and it said that the comments at issue in high tower's words quote unquote expands the definition in the taxed and then after saying that it said and under the rule that we all will defer if something's not plainly inconsistent that's not plainly inconsistent but it is  the supreme court has said hey look even if there's a consistencies you let us over rule or stuff don't chew it over rule by implication i think you look at it you go ahead and you let us let us clean up their kind of mess keyser says nothing about the guidelines says nothing about a criminal law you're asking us to pick with kaiser says about how to apply our deference because our different still applies after kaiser and say that over wools the direct holding instance of how does that work in light what the supreme court has said about since it is still good law fine how does kaiser then over rule and how does it undercut how much our it undercuts hightower because hightower in its own discussion makes plain that the court did not regard this provision of a career under guideline to be ambiguous at all much less genuinely ambiguous it said this application note expands the guidelines and said that's ok i understand but since it is really it's shortha ambiguous the provision at issue in hightower and i did you hear is not generally ambiguous and it's not just me saying that it's the panel in hightower conveying that by stating that this note expands the guidelines so your in that show is our felt bound by the then existing program for a tour bring our but after kaiser we're not bound by that and