mcdonald authored by judge gilman is still binding not only is it still binding it survived or teen years subsequent to the application no and if i panel does disagree in regard to the a possibility of the note in this situation mr head situation you argue that the application the guideline here resulted in permissible double  counting and thus punishes him or her sights and sights for the same conduct let me ask you this risk having three other circuits already decided that the note is consistent with the sentencing i lie your honor and again i appreciate that question because indeed you did author i think the last six circuit opinion on this pre note it is a difficult aspect of the case i cannot hide that but what i would say is that they can still be wrong at that note does not actually bear the weight that it is that it tries to bear in other words while it might not do what we would say that it is inconsistent still the sentencing guideline of what constitutes a good night emphasized another prior precedent but yes every other court has addressed the issue as to whether it's consists of the guidelines has found that it is consistent this court doesn't need to do that well i'm sure yes i'm curious whether if we were going to apply standards and firearms license see and that includes the three that offs two to the three that's were high and are indicted the rd is the one that the government wishes to utilize as the another felony offense and it was a kentucky that and that is was not included in the indictment as a count it is included in the offense conduct of count one of the indictment possession in in looking at the application note and indeed i think that's where i would need to focus in order to convince you that that is not a flexible yeah i would say that the  cases that we have seen coming from haven as you know do provide a strong opportunity for this court to say that it is the judges who decide what the guidelines mean and not sensing commis guidelines and will hate us addressed the addition of an offense or an addition of a word what we would argue here is that the application note basically deletes a word or word another to the guidelines have changed over time the impact of the actual wording of the guidelines had not and so i think that that's significant to point out that six circuit prosit would support a conclusion that the commentary  section fourteen b is not actually inconsistent with the sentencing guidelines your honour's furthermore in regards to the steps from the kentucky gun shop i think this panel needs ticking needs to remember that the indictments as mr kid had pointed out the indictment includes all three of these offenses is part of the conspiracy that was engaged in by the defendants here what on july nd in ohio green used to break into and steal the the firearms from kentucky and none of those firearms that were stolen of kentucky were then he used on july th to steal anything from the store  port sites to several cases and makes a point that we can't say that that doesn't fire are and having a person in possession of that you're always going to have possibility that something bad or some behavior is going to be done with these firearms nothing's going to change that but we have to focus on what actually happened in this in this case and i  not believe that there's anything to suggest that it's the fourteen b is consistent with the with the sentencing guidelines now he also had raised the point when asked mr kidd about distinguishable from the facts here in militia to cases there was for example in morris the th circuit case the defendants hit stolen firearms but that wasn't the crime that he was charged with the crime that he was and therefore the th circuit was justified in finding that in fact the four when he had that could apply those facts aren't the same as what we have here we don't have it at least in regards to mr newby we don't have a situation where for example he was charged with being a felon in possession you know he was he was charged with that in the firearms in the conspiracy charge and he pled guilty to those of the same thing with crime why i think that those despite the fact that those two circuit felt that mr knew he was easily influenced that he was not as culpable as his brother was in these offenses that his brother appeared to be the ringleader they're all significant factors your honor and for those reasons we would ask for you thank you judge rob painter for the government i'll touch briefly on application note fourteen b and its consistency with the guideline a couple of points there as it relates to this court's prior precedent as well as the subsequent decisions of other circuits interpreting the consistency of that commentary provision with the actual guideline itself with respect to sanders and mcdonald those cases obviously were decided prior to the two thousand  amendment and therefore could not have touched upon whether or not the commentary added by that amendment is in fact so inconsistent with the guideline provision itself as to set aside the sentencing commission's authority to interpret the guidelines with respect to the subsequent case law out of other courts of appeals a number of those circuits the government is identified the rd th and th as having expressly weighed in on whether application no fourteen be in the context of a burglary requires application of the four level enhancement under two k two dollars b six b in those contexts your honour's the rd and seven circuits had previously adopted at least a portion of the jurisprudence with respect to be sixty had adopted the sanders mcdonald construction requiring a distinction in time or substance between the two offenses in order to allow the enhancement to be triggered both of those courts having adopted the reasoning of this court in sanders nonetheless indicated that once the amendment was promulgated and application note fourteen b was added to the guidelines that interpretation as expressed in fourteen b was in fact consistent with the guidelines and i would point specifically to the analysis of the rd circuit in keller indicating that pre two thousand and six there was a circuit split obviously among the courts as to what b six b then b five required in terms of another felony offense the th circuit in the arms staked out the position that contemporaneous conduct giving rise to a state offense could be utilized to trigger the enhancement obviously this court in sanders and then subsequently in mcdonald adopted a differing interpretation of the guidelines emphasizing the need for some kind of temporal distinction or substantive distinction between the two offenses the sentencing commission adopted fourteen b to resolve that circuit split and as the rd circuit noted in its keller decision weighing in on the binding nature of application no fourteen b that ambiguity in the underlying guideline indicated that there was no inconsistency with the interpretation that the sentencing commission had staked out and that interpretation obviously indicates that in the mind of the sentencing commission or the collective sentencing commission that the risk of violence in gendered by possession of gun during a break in or burglary warranted application of the enhancement even in a context where the there was a total identity of facts between the decision guideline commentary that was completely at odds with the with the underlying guideline in this case there there is no fundamental inconsistency which is what is required under both hey this and the supreme court there are two conditions under which a guideline remains a guideline commentary is binding on the court's not withstanding prior decisions st obviously if that guideline commentary is illegal or contrary to the constitution there's no indication that's the decision as well as the prior supreme court precedent instance and and so here the argument your honor is that the guideline itself does bear the construction as the courts of appeals considering this question posed amendment have indicated there is nothing in the guideline that indicates that contemporaneous conduct cannot give rise to the other felony if that's what's required and the words do bear this construction is that some other felony offense be chargeable the guideline does not actually require a conviction be chargeable based on that conduct and so that is a construction that the language of the guidelines does bear and that's how a this would be distinguished here same transaction with the being a felon in possession of a firearm and could have been charged in kentucky and state burglary charges then you're saying no fourteen b would apply and is not inconsistent with the underlying sentencing guidelines that right correct one question that i had for your opponents and i ask you now can we apply the preexisting exported cases just to say that is four point enhancement should be added in other words do we even need to get to the question of the applicability of no fourteen now this court does not need to reach that question should it so desire under sanders and mcdonald what's required is a distinction a temporal d or substantive distinction between the two sets of conduct and the reasoning of the court in those decisions as your owners are aware having participated in panels of announcing or applying them is to make sure that there is a separation between the felonies here and i think it's important to draw a distinction factually between the current case and sanders and mcdonald both of which involved single episodes of conduct there there was a total identity of fact someone broke into a gun store stole guns that conduct was the basis for the offense of conviction and the enhancement it took place on a single night in the present case there is actually a spree a series of separate break ins showing a distinction in time between the the episodes now there is one overarching conspiracy count that form the basis of count one which indicates that this conduct was all related it was part of one single course of conduct but that doesn't change the fact that each episode was itself discreet so count two of the indictment and count three each substantively charged single thefts from two of the gun stores in ohio peterson's and peabody beginning july nd ending i believe  taking the marks gun store burglary from kentucky that offense could serve as a discrete other felony visa vi either count two or count three so the court could apply sanders and mcdonald here to find that the application rather to find that the enhancement does in fact apply because that temporal this that temporal distinction is present here i just think of your seriously in charge for each of those counts was two k two dollars so if the court were to engage in the exercise of saying well each of these offenses gives rise to the same base offense level let's take count two as the lead count there you have a discre in time offense of conviction and then looking to the relevant conduct under one b one point three a you then have a course of subsequent conduct involved in the spree and you can take the july th burglary of mark's gun store and utilize that as another felony offense to trigger the enhancement now if the court were not inclined necessarily to take out too i would think that even even utilizing count one is the offense of conviction there has to be some allowance for the fact that the charged discrete underlying offenses which are the overt acts in the conspiracy are themselves spread out over time so while the count does technically the encompass each of these acts the concern of using one simple instance and time to enhance itself it falls away even when there's a conspiracy that involves discrete overt acts let me ask you another question and i think they're claiming also some double counting you're right between be be  yes judge i believe that the st circuit has addressed this very argument recently so with respect to double counting obviously double counting while held out as a bugaboo is permissible if it specifically contemplated in the guidelines so the st the top level argument would be application note fourteen be clearly contemplates that this and hands meant what appliance or stances like this but the court need not even reach that argument because in this case in this instance the two enhancements i think that are there highlighted here apply to discrete aspects of the conduct and therefore do not punish the same thing twice so the st enhanced meant the two level enhanced meant for possession of a stolen firearm does not itself punish the act of breaking in and possessing a firearm in connection with another felony offen that could facilitate that offense or increase the risk of violence in other words any individual who possesses a stolen gun say an individual stopped on a street who is found to be a felon and possesses a gun that has moved in commerce and was stolen five years ago that enhancement would apply in that case and that is to discourage the movement of these stolen weapons the enhancement the four point enhanced been under b six b includes an additional punishment for the fact of possessing that gun in a context where the risk of violence be it due to police intervention or the proprietor returning to a business or a home owner coming back to a home is elevated so there is no double counting here with respect to those two enhancements because they punish discrete aspects and then again even if there were some double counting there would be expressed contemplation of that double counting within the guidelines themselves and to that point that would direct it then you did asia next when you say express contemplation in the guidelines how do you see that other than the fact that you are just missed in the guidelines is there is there some indication you say express i'm just curious where the express indicates you're correct your honor the indication is that both of these enhancements are listed and it's plain from the face of these enhanced bonds that breaking in and take it well  i would say this that in application note fourteen be the sentencing commission clarifies that in the case of a burglary you're going to get that an answer but if you break in and take guns during the course of the burglary if you possess them even if you do nothing with them and so that commentary coupled with the existence of before as a would indicate that the sentencing commission had contemplated that and i would just clarify it's not brave it is the break decision out of the  circuit the nine hundred and four f rd decision and the court there concluded that the concern addressed by b six b is unrelated to whether the weapon was stolen during the burglary or at any other point that concern relates to possessing the gun during the burglary creating the risk and then before a addresses the prior theft without regard to any risk that that gun might be used in further and subside other criminal act so the st circuits analysis a break i would urge this court to adopt with respect to the double counting aspect because it clarifies that there are two discrete risks that are entailed by those separate and  do we need to look at the commentary fourteen be in order to accept that point another one s i don't see it in b six the sentence in the language of the six  well you don't need to actually look at the commentary because underneath the sick bees six being itself deals with possession in connection with another felony offense of any firearm regardless of whether that firearm is stolen so the court rather the sentencing commission there is contemplating the heightened danger that's evident from the face of the guideline provision itself possession in connection with another felony offense meaning risk of further harm possession mere possession of a stolen weapon is itself punishable under before and with a two point enhanced it does not require any other felony offense being committed literally the individual could be seated in a car in a living room doing nothing other than possessing that stolen gun by contrast b six b which distinguishes itself from before  requires that another felony beyond the possession be taking place so the burglar in this instance would be additional conduct that is not penalize by before a but that does in fact trigger so which would be hard to know alleged substantive and reasonable and unless the enhancements don't apply then of course the range would be much lower right that's correct in order to set aside either of these sentences on substantive unreasonable grounds and i think only appellate newbie is making a substantive unreasonableness argument the court would need to find that the three thousand five hundred and fifty three a factors necessitate an even lower sentence given the downward variance imposed by the district court and in this case that downward variance was warranted and appropriately calibrated given that mr newby had in his prior criminal history a crime of violence that mr head did not have so the court balanced in imposing one hundred dollars a month sentences on each defendant the fact that although mr newby may have been more prone to the offense in or predisposed to the offense in the district courts terms he nonetheless had a prior felony that increased his base offense level under two k two dollars so with that prior crime of violence on his record the court determined that the downward variance to one hundred and eight months was appropriate and unless the panel has any further questions to to judge moore's point the arguments on the double counting would apply to i do think both individuals mr newbie was not charged with substantive possession offenses he was charged only with the two theft counts as well as the conspiracy count but i think that the rationale for imposing both the before a and the b six b enhanced mintz applies equally to him given that as part of the theft he necessarily possessed the weapons which were stolen triggering the before a enhanced meant and in addition to that by possessing them during the commission of a burglary the b six be enhancements which requires separate and distinct additional conduct also  and everybody thank you your honors again i would like to point out just briefly that not only out are the firearms that were taken from marks included in the card being stolen firearms but they're also in and be wined see they're actually counted make out the six dollars has not from the total number of firearms possessed so again there is multiple layers of potential the court again addressed the the issue of the conspiracy to the government's counsel and why why should that matter him and we would say indeed it does matter very much the conspiracy  my client in mr newby the seventy four dollars if we were just looking at count two or count three so when the government says that this would constitute another felony offense even with three application president we would disagree this we have a felony conspiracy charged and then we have the government trying to utilize another felony being that which is already counted which is already included in this your honor just again i know the fact that other circuits have weighed in does make this a challenge i would say that i believe and preserved at the trial court it's well before you right now again i would simply remind the court that it is you where you are the judge to make this decision as to what the guidelines on and whether that includes necessarily a double counting here and our position is that it does it does how to double counting in this in the stack sat and i think that we can look to the actual language  appears on page four hundred and sixty four of that opinion i think we need to keep that in mind here the indictment you can read through that that's been well established by both defendants here that all three of these these burglaries and that the absent these firearms from these three stores has that he considered and already weighed in and factored in calculating the sentencing guidelines before we even get to the court level he has been under  look before eighty is punishing the possession of stolen firearms that's what we have here the possession of stolen firearms from these three stores that's been that's been assessed a two level enhancement there  that i think that the only interpretation that can be get it given here is that that is completely inconsistent with what the actual language of the sentencing guidelines is and it doesn't lead to double counting this is not a situation where these firearms you all for your argument and the case will be submitted