cannot amend or add prohibited conduct to the substantive guideline text this rule was announced by the supreme court instance and it is an important tool a guideline interpretation in this case the district court and forty one dollars a or b the application or interpretating that guideline text actually adds conduct it's not explaining or expounding upon what the language means but it's adding force through rendering someone unconscious or involuntary intoxication that is an ambiguously what the statute for him but the guideline in referring to that statute therefore on ambiguously prohibits a sexual act committed by those  one so there referencing different statutes so if that's not an ambiguity it should at least make you scratch your head right or it's going on here right or wrong it appears to has involved conduct described in and that is different than the similar language in three point one a one where  conducted under correct i'm sorry three point one is for sex criminal sexual abuse yes it says convicted under correct say that the court is likely correct that they would not there are crimes that are twenty dollars to forty four dollars that would not receive the base often its level of a one or two but i would also suggest that is not really th question before the court this morning that the question is about has the commission appropriately exercised their power and using guideline commentary to amend and change the pla noted also that the guideline is not ambiguous and on this point i would agree with them that the guideline the plain language of the guideline is involved conduct described and that reference as a statute so that is a simple statement of fact which says ok we have to have the conduct of the statues and when we go to that statute we are who we get the clear conduct that's her have it which is the sexual act committed by force a threat of force rendering a person unconscious or this type of involuntary intoxication described and that is that the earlier version of the guideline but if the guidelines said changed that language was changed from by the means set forth in to involve conduct described here and if you look at the sentencing commission's amendment that does that there's no indication in that explanation that they were changing the substance of the garda commission thought that was only a stylistic change i think was a lousy one but doesn't that count for something they thought it was ambiguous that they didn't they didn't think this new language changed language that would clearly apply to your  well they don't indicate that they that i don't believe that they indicate that they're intending a substantive change but i don't know that they indicate that it just means the same and so we're left w no in some circumstances i think yes they do explain that but then we're at we're left with this question of why make this change the language that is doesn't actually say what they mean the for i agree with the court that the  st language is better and it it clearly directs you to the conduct that's her hit and then they change it to say involved conduct described in and they don't give us a lot of indication from for why they did that but it but now the government is saying well what it actually means is what it said before so what is the point for that change well one reason they might not have a mind of thought well there's no way it's going to be read the way you are reading it now because then it would have no purpose whatsoever it would never apply so it must mean the the means that for as opposed to the whole every element of the statute the st question as as we started from the beginning the st question is whether the guideline it's ambiguous because the supreme court reminded us recently in  is that we do not get to an agency's and her station on their regulations in this case the guidelines interpretive commissions interpretation of the guidelines unless the language in the text is plainly ambiguous and our position is that here at this time this language is not plainly ambiguous and it may be that if the court grants what we are asking that these higher brace off and slow bills will not be used for sexual contact crimes which is what mr  reason that it's constitutional in its exercise of its powers is because it is the language of the guideline text that is approved in ratified by congress and so we have the language that was approved and ratified by congress in th saying if the oftens involved conduct described in statute that on ambiguously refers to a statute and all of the elements of that statute there's no indication that the got a line well with all we're saying i think use if the obvious interpretation of the language makes no sense it leads to really absurd results and we then there's an ambiguity created sorry i'm sorry i just thought of this case just now so i can't give you a cite i'll probably get things wrong i think was the cemetery laundry case by the supreme court are you familiar with that you're smiling and  the judge murphy is filing and he knows a lot so he'll probably say straight me i'm finally that was a case in which the rules of evidence used the word defendant and said you could use evidence of misconduct by the defendant must something happen and in that case it was a plaintiff in a civil case and the supreme court i think still it may have written the opinion said we just cannot accept that it means what it says it can't possibly refer to just defendants it's got to mean that doesn't work when it's a when it's a civil that they included this language to essentially eliminate that provision of the guidelines we have to focus on the fundamental rules of the guidelines and in the guideline construction and so we have to st start with the her they are the perpetrators d treated more harshly under your interpretation then one perpetrator whose victim is under twelve years old that is a result of your interpretation right there is an enhancement as there is still a specific oftens characteristic enhanced then for age of the victim you know but if you if you apply here's your case i guess i don't think that that is the case because the involved conduct just drive and twenty to forty one a or b is not involving the age of the victim it's hearts was referencing the commentary in question read the same i think the fact that there was an amendment in and of itself means that there's some kind of change and that this language was added to various portions as the government points out in its answer brief was the language is added to five different guidelines and in every other guideline except for this one in all the other four it's talking about a sexual act committed by force of threat of force or the two other options so although we may be talking about you know an absurd result if if the commission erred in revising the guideline then the commission can fix the guy lied to the proper channels by having the substantive language ratified by congress act that it was done by force and it has been universally interpreted that this language has been force conduct and not conduct of actual penetration in like the act of a sex act it has been and you're in twenty to forty four because when you look to twenty to forty four it incorporates the language of twenty to forty one into the conviction because each subsection of twenty to forty four references back to a different crime of it clear don't have to refer to items outside guideline in the statutes are used and when you look when you go to that next level analysis is keyser exit page two thousand four hundred and fifteen then you have to exhaust the traditional schools of instruction and so while it is not as clear as it should be once you do that next level analysis it is not ambiguous to where you have to move to the next level of like our analysis it is it becomes more clear when you take that next on house version reason why i asked the construction or appropriate and that the court rather sorry the guy could have been more artfully written but i don't think it needs to go to the level of calling it completely adopting the factual findings in the guideline range in the p s or a doctor this force was used so even if even if it's read to the sex act was necessary the court would have read that it was a sex act with d force  defense makes it seem like there was never force read into this but that's because the potential is overlooking that mr paterno himself in the district court records that as part of the police hearing transcript which is not part of the record on appeal but the court to look at this honor i want to just say that the the government says we have given no source of support for this guideline being interpreted as a sex act but the the playing role of stimson is that the guideline commentary cannot add prohibited conduct intoxication and also there is no case where the government can point to no case where someone has raised the specific issue of the language where court has ratified this language and if the language is incorrect and flawed then the commission can fix it for the restraint issue i would only say that that is a finding of fact that we need to be made by the district court that's a sentencing in chapter three enhanced meant and it would be more appropriate for the district court to make that finding