convicted of smuggling importing possessing and placing on a ferry explosives we're only contesting one the effect of the decisions which interprets the earth pose in our direction in that in this matter with would be to reduce the low end of the guidelines in this case the fifty one fifty five years rather than the sixty five years that we're all assuming apply currently the argument is our argument is that in order to be convicted a forty four age to an individual who carries explosives during the commission of a felony there must be a nexus between the explosives and the commission of the instance the underlying expense here the underlying offenses we know well with respect to plain meaning your honor our argument is that the meaning of the statue of plane or not depends upon the contest and that's what the supreme court held in bailey and they went on to sa particularly when interpreted in bribes or elastic terms so the court construe language in this context and in light surrounding terms so our argument is that even within the slave beating of the statute there is necessarily a relationship between the explosives and the underlying felony which is precisely what the supreme court held just last year in the arthur andersen case where they read the end that's different i mean that  reform and that's not the issue here so i mean if you let's make let me maybe i can make my question clearer by saying assume that the statute doesn't plainly on its face and mi idea that if you read it that anyone who's carrying an explosive and is committing another offense that even the lawful possession of those explosives in relation to  was after the decision and still are that's correct so therefore if the congress was reading my think was the only case on the subject at the time they one is no reason to put this language in the in relation to language because we already know that it's there was happening unlawfully they said they were doing this in order to bring eight forty four into conformity with ninth twenty fourth seed which already have this relationship i think was somewhat different questions i beg your pardon i have a somewhat different question it is a one way street and for sure the false statements true that the explosives and mr response guideline calculations took that into account he was in effect punished for that in the sense that the guideline calculations for the  scoring john mccain united states attorney to the government i would like to reserve five minutes for my time for rebuttal in will keep an eye on the on the clock and i think the court through that the government requests that the twenty two interpreted almost identical language almost identical situation and said what the relational requirement has been in the stands you all want and if that's true for nine twenty four  it would be kind of absurd to say for us to say well but it's not true fairly decide we haven't given stuart but i think there are important distinctions here in trying to literally apply stewart in this case first of all the difference between the one twenty four statute issue and stewart is what it felt was the total relational requirement reason to have clarified it was already there and similarly there's no reason to clarify it forty four because by its plain meaning it requires only that an individual commit a felony while hearing an explosives  congress is free by the structure of its statutes and by the language that it supplies to make the penalties for carrying explosives while committing a felony different from from the penalty for carrying a handgun and that certainly is the structure and point out the structure underneath forty four which has two provisions one of which does have a relational requirement and the other one which is not sections one and two if we were to read in a relational requirement in the section two it makes both well you are i think simply it is the plain meaning of the statute itself it is a different statute it is a different crime and the plain meaning of this of this statute absent an amendment by the congress would not apply wanting to conform to that is not a matter for me to well i don't think that's correct your honor in terms of the in terms of the penalties that congress intended to apply for curing explosives versus carrying a firearm and it simply says that the th the penalty for committing a felony will carrying explosives is going to be different than that of the requirement that you carry a firearm in relation to the underlying a second felony that's just simply not present here and so that is that  simply that the government's position that that the structure of the statute of eight forty four the fact that we're talking about different offenses and the legislative branch is free to either have a relational requirement or not have a relational requirement and they did not choose to a perfect example of why there should be such a requirement mr reese almost hearing exposed as well committing a felony two week wire the government if that were the only charge to be brought for example to require the government to prove that he curate explosives in order for t point out if he if running the other direction he was giving a false name in order to facilitate kerik sponsors rather than the other way around that's correct i mean i think it's one could presume even though this was not the fact that there were included in the jury instructions that there was a relationship between his giving false name and not declaring the explosives that's that's rather obvious he would not declare that going in that direction but to require the government to prove the connection between explosives and the felony it's not something congress intended to do and that is clear from the plain meaning of the statute and the structure of the statue if i may i'd like to turn to the question of the reasonableness of the sentence in this in this particular of innocent people in one of our world's busiest airports los angeles international men women and showing one year before his admitted comrades inflicted the horrors of nine eleven the destruction of the twin towers of new york in the pentagon record cannot under any exercise of discretion support a twenty two year sentence for song left on the server this sense would leave who is thirty nine years old today released in approximately fifteen to what the district court said and what the record reflects in terms of how the district court we step position i think that's implicit in your question to me and in our positions of the district court first there are a number of areas first the district court obviously improperly relied upon pretrial negotiations of sentencing and repeatedly referred to discussions about an offer made pretrial interest which were clearly inappropriate secondly the district court just explicitly rejected the government's evaluation of the value of her son's cooperation to the government and he made it clear that it was not the government's own discussion of the importance of the cooperation of the courts and that the court would make the decision as to the value of cooperation and it's the dismissal of the government's view of that cooperation including most significantly the end of cooperation his failure to fully cooperate which the district court seems to have ignor gave him three months at the initial sentencing hearing which came forward to be sentenced the district court recognized the importance of his failure to fully cooperate and as the briefs reflect his decision to not fully cooperate as he had promised to you know the reasonableness standard is there it is present and while and while departures and while the sensing guidelines continue to be extremely relevant the court still has the current law of the circuit is that the court would review the sentence for ultimate reasonable minds and it doesn't make much difference as a practical matter i suppose whether we set on it or the district court sits on it it's going to be sat on it for you right you know well so five years who said that he gave this sentencing more attention than a given anything is twenty three years in the bench that he was marlee searched as a result they didn't explain himself very well however and it is difficult for us to review was reasoning process because he didn't really give it to us sentencing case under current ninth circuit law and those doing clued his failure to adequately account for the failure of cooperation of her song it feels to a court the government's well i would suggest that fairly read the current ninth circuit law it would require the court to take a look at the sentencing guidelines from both parties that myth for purposes of this appeal it would be light to the low to low range of sixty five years  fifty three and so the government's recommendation of thirty five years could be deemed to be quite generous under that calculation and i think i think that it did fairly hold give him credit for his cooperation but he didn't no wish to perform neither she nor any other potential terrorist who is in the custody of the united states should believe that by giving partial cooperation they were cheap such a serious serious departure from the sense in guidelines it's not district judge obviously didn't touch any of the bases in fact i don't i mean the bottom line here is he picked a number out of the hand even to the point of then turning to the government in saying  law mix and others say it's actually that that us an appellate review we would like to have a record that indicates why these sheets you've got here in this record is somewhat terse in that respect but what the judge did say and i think it's important to pay attention to that the words he that he was given ranged from twelve and a half years to thirty five years which i think highlights again that the tether of the guidelines is not hugely relevant in this case even the government is way away from the guidelines so he's given a range of numbers that th parties argue are relevant his sentence is right in the heartland of those numbers there's a twenty two year sentence which takes into account both those the notions of deterrence a and protection of society but also cooperation of mr mackay rhetorically argues about what occurred on the border in december one thousand nine hundred ninety nine that we call twenty months later this same man was on the stand in new york city testifying against so something happened here it's not the same person who came over that border which the court also took into account is that he's not cooperating i mean that's the whole thing that got him down from sixty five to thirty five now the question is how do you get from thirty five or twenty five or twelve and a half to twenty two with that that we don't know and certainly one of the options you have this is to ask the court to give a  well with respect to plea offers the government offers you no authority whatsoever of the vacuum to take into account because it always it is on me a somewhat regular basis parties go before the court routinely to say we want to five years offense the seriousness of the offense and you know recommendations that are made by parties necessarily take into account their view of what the seriousness of the offense this so it that's happen continuously i think what the government has done this time that you conflate an offer with a judge's involvement in plea bargaining that didn't happen in this case with respect to the government's opinion as to what that the cooperation was district of new york he invited andrew hamilton who was one of the trial lawyers for the government to come forward and talk and he invited fred humphries who is the special agent in charge to come up at the end talk so we took into account the government's have control over the extent of the departure once the government makes a motion and that they can assess that that is within the court's discretion at isn't an abuse of that discretion to make that particular call so i think the disagreement here is with what the court reconsider your decision about testifying against doha here because i'm the person who controls this sentence not the government it wasn't a situation where he was minimizing what the government's point of view is but he was trying to  that could have taken the case outside of the guideline range court didn't talk about that at all and so that is an issue that's before the supreme court also but effectively looking at the record in this case terse as it was judge  hit three nails right on my head he talked about you know the need for public safety and incapacitation the need for deterrence and the importance of a message in this particular case and the importance of  sense given all of it given the recommendation that was made by the government can give them the five k i think we see that it's out there so we're not going down well i'm going to give you ten years for the intelligence five years for their how some of these issues are going to play out but it and certainly at the outset of this case it would be difficult for me to say that we didn't since this might be coming we asked for a limited rematch allow the court to give more specific reasons for i think it should go right back to the courts in let the court then have the benefit of the jurisprudence that's going to be coming out of the ninth circuit in the supreme court in the next eight or nine months and  right live at forty four seconds if i may just take them take take them quickly i know we have a number of brave law clerks here and someone's going to give the answer to this but i think that the issue under eight forty four is that there never was explosive unlawfully during the commission of a felony i mean this is right right out of the state as you have missed it just that clearly wrong and i let me let me just go back finally to the under the reasonable this argument i was not i didn't have the opportunity to about enemy combatants about matters that were not before the district court in the sense in her song and that we do know from the record we do know that that was incorrect and the court should not miss this opportunity in a terrorism case to clarify that for this