upward adjustment if prior to the defendant's first deportation he suffers a conviction for which the sentence was a certain length with a degree of the adjustment depending on the length of the sentence the fifth circuit recently in fran gelfand correctly recognized that a sentence actually input a sense must actually be imposed prior to the first deportation for it to count for purposes of this provision the post deportation cation sentence does not count this court should reach the same conclusion as explained in mr hernandez's briefs all of the canons of construction that are political here point to that interpretation was adopted by the fists or given on the other hand the government's contrary interpretation is based entirely on the sense of commission and its unexplained failure to carry over one phrase in the definition of sentence imposed when it completely overhauled section two one point two last year that was this was that resolved a circuit split correct and saying yes we think that this is imposed has to be before the deportation and can't be something that springs up afterwards that's considered this issue the new version of one point two and what it said there was you know what it is it's a mystery at we we they didn't say they didn't say why they removed this language and sometimes as they put it sometimes silence speaks words but it doesn't speak in this case because what we when we look at the scenario and we look at the fact of commission when this was the sole issue it addressed back in two thousand and twelve it put a lot of thought into it that was the only subject of the and then when it came up with these detailed reasons for coming to this reason conclusion if as the government contends the commission actually intended to reverse course just four years later we would expect to hear a clear statement about that but we don't and that's why the fist rick i think wisely said we are going to read as much as into that silent omission is a government ass v and i think it's important to realize that the recent and then the two to one point two was part of the major overhaul of the guideline that was really focused on different things primarily getting rid of the categorical approach splitting these things things up so now we account for both preedy partition history and post deportation history their attention was just on other matters so it's  understandable why this issue wasn't here and as a fist circuit noted they just might not have realized that this issue was still going to arise even given the way they restructure the guidelines and they might have just missed it contrary to what the government claims doing what they did with taking that language out of the sentence imposed definition is not quote utterly meaningless because that language had either come out or be changed in some way now that the word sentence imposed is not only used in sub section b two which involves previous partition criminal history but also in subsection b three which involves post deportation so it's not true that in every case now you would only look to previous language and so that would if i had to guess that's the reason they struck it out they just had and they did not anticipate the consequences that once again this issue that was fully resolved four years ago is now coming up to the courts again for it to be fore his first deportation did he suffer a conviction for which the sentence imposed was x the only natural reading of that is that both the conviction and the sentence hast to be what was in effect prior to the deportation the government tries to get around that by saying we will we could just split it up let's just say that it only refers to the first part of the clause not the second part but as the courts that were on the the majority circuit split side pre teen and twelve whatever decision the court renders in this case they will probably say oh you know we missed we were we were focused on of things we missed something maybe we should put that comment or something like that back to clarify this position but what i do think is is would be unreasonable is to say that that that reflects as the government wants the court to think a deliberate and conscious decision to totally reversed course from the prior position you know we've cited cases that talk about like with legislative history most talked about here is legislative history to go against the plain language it really has to be clear and unequivocal legislative history and certainly unexplained silence of this kind is not the kind of thing that i think can trump the plain language and as i said resulting change because the the judge also determine that it's criminal history is over rated so we put him in category one with the higher adjustment the offense range was twenty four to thirty months it would go down to twelve to eighteen months and what he g sorry prior conviction for illegal entry and when judge carter gave him the eighteen months he said i'll never give you twelve months and a day i'm not going to give you the same thing that you got last so even if i think the court goes the other way i'm not sure that he ends up sentencing wise where he wants to end up but many  entire argument rests on the faulty premise that this was not an intentional change that this was just sloppiness by the sentencing commission and i think that there's a couple things that i'd ask the court to look at that i think really rebut that first of all it is a longstanding principle that when there is a textual change that that generally is intitled to some meeting certainly it's not conclusive but i think it's supported remake of the entire guideline you don't read the relevant provision here as ambiguous i think that the provision here says any and as this court has has has held any for purposes of statutory what sentence was imposed before deportation how long was it and i didn't see them backing off from that policy issue re reconfirm that which suggests that the sensing admission did intend to only look at the length of the sentence that was imposed before deportation what why isn't that show that the syncing commission regardless of whether the ambiguity creeps back in  cited in our brief is that the definition of sentence imposed this is same definition that appears in chapter four and so what i think you have in two thousand and sixteen by the sentencing commission is an effort to move the chapter to guidelines that they're consistent with with chapter four and they do that a couple different ways one in the twenty fifteen guidelines you could have no criminal history points but still get a bump for a prior conviction for immigration purposes and i think that so in two thousand and sixteen they changed that so if your criminal history washes out you're not going to get an additional bump under chapter two and i think that this is part of a larger process of moving this in conformity with chapter four which i thin the sentencing commission would say best rap best recognizes the risk of recidivism chapter four the sentencing commission obviously has substantial research and says you know this is when we assign a criminal history this is a pretty good indicator of the threat to the public that an individual represents and so i think the goal was to move things into conformity with chapter four and certainly the bottom the second paragraph page one fifty five says the definition of sentence imposed this is same definition appears in chapter four and if you adopt the defendant's position here you create an exception that takes it outside of chapter four you create an exception where under chapter  four all revocation sentences count in this would be an exception an exception without any support in the text i also think from a sheer policy standpoint which i don't think the court needs to get there but i will say that that is a lot of what the fifth circuit in my view focused on they focused on a policy argument that said that when we assess the risk of harm by somebody who comes back illegally into the country we look at that initial sentence that was imposed by the sentencing judge to approximate that and i think that the sentencing commission you know rejects the proposition that the sentence imposed on the day a sentencing is all that matters and we should ignore everything else in it and i think that that the logic behind only taking into account the sentence imposed on the day a sense ignoring everything else doesn't hold water and i'll give you an example you may have a district court judge that you know sees gives a guy three years gives a defendant three years and another defendant who gets a term of probation for similar conduct because the district court believes that maybe this person's going to go solve their drug problem or their life is on track i mean specific offense characteristics that go to to less of a likelihood to receive aid and that person then violates their probation and you know they're back in front of the district court judge who says you know i got it wrong i took a chance i was glad i took a chance but i got it wrong this is somebody who's not going to be in the court he has no respect for law he's going to receive a well that defendant who breached the court's trust who's back in front of a court is treated differently he basically would only get an eight level if for level  different as the judge has treated them differently and it turned out that the judge took a chance it didn't work out but the assessment of the two judges with the two different offenders were the visually were differently a reasonable judgment that goes the other way that we really do have a difference of assessment at the time of initial sentencing and that is not implausible that the sentencing commission thought ok let's look at that makes life simpler it's pretty good proxy so i'm not sure i agree with you that your example compels us to say we're just on me so i don't think it compels it necessarily i would say that there's another side of the coin with respect to the fifth circuit's policy arguments i'd also note that that case  is the government filed the petition for nonviolent rehearing minder standing in council can correct me if i'm wrong but the fifth circuit ultimately hasn't published that and basically largely relies on their prior their prior decision and pena as the basis for that decision and so either way you know i think that there's likely to be a circuit split because the second circuit came out differently third sides you see it's not published it sixty four if there are three three eight in your honor at that was that was when i looked at it last night i didn't think that it was but i know there's a petition pending writing i think i've got with my luckless give me the s decision certainly the other side of that is the second circuit decision and then also judge courses now justice course which is dissent and dissent as well as judge comments dissent in there talking about trained twelve when they were looking at the the original ambiguous i had lines that the sensing commission then resolved against them that's that's that's correct and i think that our position is stronger here today than it was then given that there was a textural change here if if the court were to conclude that there is an ambiguity do you agree that the rule of lenity ought to play i think that we don't think that the court needs to get there in light of the textual change number one into now but i think if there is a finding of ambiguity do you agree do you concede that the rule of lenity has some application i  think it's that the last stop on the road and i think that there's things that that the court can get to before there which i've discussed during the argument i think the only final kind of comment i see that i'm almost or i am out of time is if you look at the history of of this particular language i don't think it's tenable that this was somehow a mistake or sloppiness certainly the sentencing commission statement in their own primer confirms that this was an intentional change and we cite that in our brief the second thing is it wasn't lost on the sensing commission that this created a circuit split in two thousand and twelve and not only a circuit split but the real meaningful impact in the lives of defendants who are serving different terms in the second circuit versus the fifth circuit because of that and so i think the court needs to consider that and i think that makes it less likely that this was you know some sort of accident or mistake that there is now a separate section for in the guidelines for post deportation sentences is that right there is a separate section in the guidelines that creates an offense level bump if you come back in the united states and commit new criminal conduct yeah so do you think that supports  hernandez martinez's construction i don't i think it's in a type of type entirely different analysis that would be new criminal conduct this would be a probation violation which may or may not be a new criminal conduct thank you thank you reading of it it seems to be based primarily presenting information for the first time of the government in its brief about this immigration primer the commission puts out which is actually in the reply has no weight whatsoever on reflecting the commission's inten t so i think that that that should not cause the court any pause i'd also like to address the government's comments about the recent memory being directed at make incorporating  not chapter four generally and those provisions have no temporal component to them whatsoever they just define generally what a sentence is therefore when you then have to apply that in the context of two one point two that does have a temp position that's what controls here so nothing about chapter four overrides the temporal requirement that into a one point two itself and then the just the final point is the government and i do agree that the rule of lenity only comes into play if the other canons do not lead to a result i happen to think that they lead to a clear and unambiguous result that's consistent with the circus decision but if not if the rule does come into play then i think the court has to adopt our position because clearly paul plausible as reflected in the circus decision and it's the most defendant friendly version of the possible versions and let's court as you know the questions i'll submit your timing was perfect thank both sides for very helpful arguments the case of united states vs or not is more just now submitted for decision