the one point leaven the third being appendix a third place in the guidelines you can love and the fourth being the general application principles listed under one b one point good starting with the smuggling guideline point one what we don't agree about is whether the croc ross reference under two three two to three point one ply and what it comes down to in regard to this particular issue is what is contraband me because it says that purpose only applies to contraband items and there are two different definitions for your honour's contraband is not defined anywhere in the guidelines both sides agree yes let me just ask you a grammatical question about that sentence to t three point one if you have it in front of you as i do your honor i read that pertaining not only to contraband and here's why i read it that way tell me what's wrong with other either the importation of which is prohibited or restricted and so just and that contraband ends after the example and that's like what's what's wrong with that nothing you are that's the exact or medical reading evidence that there's any particular instructions on and i dined per se but i think what's important here is that your honor noticed is that some of those two chemicals it is a list to chemical but just assuming which we wouldn't can see that it is restricted and it's for non economic reasons what this essentially as you said there's two different things that they're talking about by talking about contraband such as drugs on the one hand and then things that are restricted from an economic reasons on the other hand and they say that this guideline is not intended to deal with those it does say that however the final sentence of the guidelines says that there's other ways to deal with this you can apply a more specific guideline or you can apply stands above that specified in the sub part and i think that that grammatical difference between what's contraband and the simple things that are regulated for economic reasons comes into play when you read the text which is what we're  asking about here today and specifically only says a contraband i am so used to think that that is ok i understand your argument i guess i just think that  planned to clandestinely imported with the intent to manufacture a controlled substance and we have proof in line of the introductory comments here i would say no your honor just for the reasons that  stated before in terms of their trying to make contraband one thing and i was regulated for an argument by economic reasons another thing and though i think what really drives it is on you that you have to go somewhere else for both of those things i guess that's my issue your honor the  because only refers to contraband and i think this court really needs to decide what contraband it is and the problem that we would raise with the government's definition just let me just because your time is rather limited let me just a short measure if you look for the stats it's most close to what he did i think you have to go to you have to go to ny sixty six i believe which is going to send you to a much lower guideline what about title doesn't apply here because if you read through the one point thirteen title you see that it doesn't apply to the conduct here it has to do with with dress for chemical transactions which he did not do or creating a chemical entering something into a document fairly the entry for the money and there is just none of that in this case and here there's no stress for a chemical transaction and there's no creating a chemical mixture so it's clear that to the one point thirteen isn't going to apply  support roger haynes refusing united states in this matter i agree i think generally would judge travers comment about the introductory commentary the question in this case i think is what is the meaning of the word contraband in to tea three point one and as we read that introductory commentary we would emphasize these words as this park two to three point one is designed to address violations involving revenue collection or trade regulation it is not intended to deal with the importation of contraband such as drugs or other items the importation of which is prohibited or restricted for non economic reasons so is it your position that regardless of how we parse the end of that sentence any time we're dealing with importation rather than rent revenue collection or trade restriction we know that we're not supposed to be here but we're supposed to be somewhere else i'm not  would emphasize the words is this risk is this item restricted for economic reasons that i think is the crucial language and application of true repeats the discussion of trade regulation and trade policies and whatnot the question is whether or not this is the kind of substance that is prohibited are regulated not simply because we're trying to collect taxes but because it is there is some other reason to do it it's dangerous and in this case the reason is that it's a precursor chemicals listed in the in the statutes as a precursor chemicals in the manufacture methamphetamine so let me be sure i understand your position it is any time we get past merely tax collection or trade regulation and we get to importation o something restricted for non economic reasons that's when we stop with this got my we cross reference yes at that point we look to see that that means it's contraband and we then look to see whether there is a more appropriate guideline i you know what bothers me court i think is going to have is that is the question was raised in the chuang case which was cited by defense counsel and i'm very eager to respond to that because now that it's been discussed i think it's important for us today i will do to respond to it chang why should the government be able to charge a lesser offense and then a sentencing jacked up the sentence by relying on a much more severe guideline and the answer i'm afraid is that that is exactly what the guidelines are based on it's the real look what's called real offense sentencing no upheld by this court sitting on bond in the u s versus were struck all in one nine hundred ninety one that's nine forty six first second six four fifty four and even dismissed conduct which was upheld by this court the matter is proved at sentencing the defendant is sentenced based on his relevant conduct what he actually did not what was charged by the government the benefit the defendant receives from being charged with her pleading guilty to a lesser offens in this case at sixty months but he still must be sentenced under the guidelines for his entire relevant conduct and the opinion in chang is absolutely wrong runs contrary to every one of these opinions and wouldn't obviously while trying to address the points in order in terms of the definition that he's using for contraband anything that's brought any legally it would make the word contraband and see total surplusage this argument was started by pointing out that they distinguish contraband from things that are regulated for non economic reasons only the word contraband is in that city which gives you the twenty four level pot so that's pretty huge and as economic reasons ones are into application no two and they say that the guideline so i don't it's never ever been indicated to me i've had this case since the the day the person came into court and it's never been it has made if there's ever a chance that any other guideline with apply just the final thing is there's been a lot of talk about real conduct and how the guidelines charge and they sometimes care about what was actually done and i think that if you look at the introductory commentary and want the one point two it tells you look at what was charged to decide which guideline applies and then from there you can go