those out there most likely way we'll will proceed all right the rules are pretty straightforward the most often validated his talking too low so we can hear you and so that take to get you so please keep your voice and in the mike and don't stray from the podium in that way will be sure to get all that you want to us to know the first case united states versus gordon mr herm the court this case presents two issues first the interpretation of the specific language of the career offender guideline and secondly the imposition of a mental health treatment condition as a special condition of supervised release on the second issue the government and the defendant agree that the district court committed plain error and imposing the mental health condition because there is no record evidence to justify its imposition and no intent occasioned by the district court of other reasons based on the record for that imposition the government and the defendant also agree that the appropriate remedy is to remain on the case to have that condition stricken and so unless the court has questions since we are in agreement on that second issue of proceed directly to the career thunder us to why the mental health treatment condition isn't justified by the defendant's violent criminal history and recidivism going there are several reasons first of all that p s or itself identifies that he has no history of mental health treatment or diagnosis of a mental health condition as for the violence part there is a separate condition of supervised release that required him to seek anger management and so we're not challenging the imposition of that we've agreed that the facts of the case reflected in the p s or justify the anger management treatment condition but not the separate condition of mental health treatment which could be justified for example by a prior diagnosis of sun you don't think it was justified by the th on simply that because there was no other can there was no other information that indicated that he had a mental health condition or that the probation officer was recommending this particular form of treatment as opposed to anger management or anything related to his abuse of drugs but a mental health treatment condition would have been very specific justification for you think that anger management going to handle the problem with his violent past he had quite a history yes your honor it seemed to be focused more on the anger aspects whether it was resisting arrest or in the subsequent other criminal history charges that were reflected it was a it was an issue that seemed to be reflective of anger but there was no indication for example that he had a history of schizophrenia or treatment for any form of mental disease will say yes or no on the career offender issue which is just so hard to give a sense of how the district court came to childhood history of that background like you know issues of schooling etc etc i mean i get it about the anger management course but often you know when people are driven back into school record and so forth there are some indications of something there maybe it was maintained and not in so kind of worries out of abundance of caution and thought that the combination of spirit with you know mental health  problem that something in his background even in school or otherwise somebody said in a mill help and so the district court felt couple ing anger management with mental health might be more of a holistic solution if you one might really find orus burdensome costly it cetera et cetera me zero out some other sort of inherent objection to i think there are three objections one is the additional costs that might be imposed although the judge morally didn't impose payment of costs the judgment itself there in judgment of course did impose payment of course along with payment of costs at the anger management treatment it's a doubling up of the actual commitments that he has so in in realistic practical terms the burden of having to go to an anger management course and go to mental health treatment and maintain a job and maintain his other obligations under supervised release does simply add one more burden and one more possible reason for subsequent imprisonment if you can't manage all of those different burdens placed on a man in the middle health treatment as we stated in previous produces a separate form of stigma the anger management itself obviously in his criminal history has its own stigma but the mental health treatment has a separate statement addition to that the clear offender issue which we are in dispute about is this whether the use of the specific language and under this subsection that phrase under this subsection in section four b one table rather than otherwise a political trough and slope of that to which that rule refers parsing this requires the court to look specifically at that language and of course for b one point one is divided into separate subsections sub section a sets up the rule to determine whether an offender qualifies generally as a career offender subsection c set which was added in two thousand and two sets out a special rule to determine sentencing ranges for those convicted of firearms offenses under eighteen u s c nine twenty four c n n similar often says that subsection i believe or an agreement on does not apply at all in this case the focus is subsection b and it's only two sentences the first sentence sets  and it states except as provided in subsections see if the off into level for the career offender quote from the table in this subsection is greater than the oftens level otherwise a political then apply the office level for criminal history category the sentencing commission again made reference pacifically to under this subsection stating that a clear offenders criminal history category in every case under this subsection shall be a six and it's the repeated reference to that phrase under this subsection a from the some section in both sentences that focus the district court on is the author is level determined from the table under this subsection from the special rule that applies to career offenders because if not the first sentence of the guideline then refers the district court back to the otherwise clickable guideline range but you can see that if we rule your way we would be creating a circuit split you would be but the eleventh circuit in moore say did not consider congressional policy underlying the career of a member guideline and in both of those cases pena and skilling what the court said was if you have plausible interpretations and one interpretation is not plainly supported by the text on either on either side then the really has to be the principle of decision and that rule of liberty requires finding for the defendant in this criminal case that's what distinguishes this case from our say because there was no evidence in or say that the court considered the rule of law and that he in trying to reach its decision and in this case that the interpretation that mr gordon is proposing it is consistent with the remainder of the guideline it respects the fact that there is a reference to this specific subsection subsection b unlike the government's alternative we're not asking the court to have to add language for example both the government in the eleventh circuit stated what the sentencing commission really meant was that every offender qualifying under subsection e or subsection a excuse me subsection a except  everyone who would otherwise qualify as a career offender so the defendant's reading of this is much more limited in the sense that it respects the exact language there without needing to add additional language what we're proposing also corresponds to the congressional policy because in this career offender guideline the policy is set out in the briefing was to raise the clear offender up to closer to the statutory maximum and sentencing commission made a decision that when the otherwise  slidell was higher than that under the clear guidelines there was simply no need to go outside of the otherwise of clickable guideline that same rule should apply with regard to the criminal history kind of glory because if you're already at a higher range than what the career offender  level would provide there's no need to simply add on for two to sleep an enhancement to know to a clear offender criminal history category that's not separately stated or separately set out so once again all of these come back to of for mr gordon in this case and applying the criminal history category that would otherwise apply to him which is criminal history category for along with the otherwise of clickable oftens level which in this case because of the combination says it happened that that often slow was much higher and so therefore produced a higher sentence based not on the career of offender guideline but on his otherwise a political office level which was for alien transportation for all of those reasons your honor that's why this case is different and more say it's different than in the d c circuit court decision in miller which simply relied on on the marsay case and so for that reason they would create a separate yes a separate conclusion but it would be a conclusion based good morning and may please the court and your gold for the united states the district court properly applied the criminal history category rule of four b one point one b for three reasons the plain language its history and the supporting case all i'm going to address each and turn and then after discussing the criminal history category issue all turned to the issues surrounding the mental health condition that's acceptable beginning with the plain language of the guideline there is much that the parties actually read apartments for b one point one is divided into three subsections each subsection subsection serves a distinct purpose subsection a provides a universal definition of the term career offender subsection b provides rules that apply to all career offender defendants except for those convicted of nine twenty four c and nine twenty nine a offices and finally subsection c provides special rules for those career offender defendants who work convicted of a nine twenty four c or nine twenty nine a often see you think that your opposing counsel's reading the rules is plausible i do not your honor you would agree that if it were possible then and the rule of len gordon doesn't dispute that he's subject to subsection b what he argues and stand back to that would you do you agree with him well he said we're creating a service women are really if we were to go is why because the other courts didn't consider  rule of lenity argument but at the same time what would be the end result i mean the end result would be that this court if they were to if this court were to agree with mr gordon then it would be interpreted in four b one point one s criminal history category rule differently from the eleventh circuit the d c circuit in actually the ninth circuit to end on the ninth circuit so the eleventh in d  circuit have expressly rejected his claim the ninth circuit in waters which the government has cited in its brief also indicates that it disagrees with mr gordon's position there are the defendant d one point one which was the base of fence level for the waters defendant after that was amended he came back and said you know based on the amendments he found him motion for reduction of sentence under thirty five  eighty two he argued the district court denied his motion because it said your guideline range wouldn't change based on four b one point one the ninth circuit rejected his argument that the district court originally had it applied for b one point one b it stated that it's decision not to set the often sub zero per for b one point one was an application itself a for b one point one and that gets back to the plain language of the guidelines the often seven rule states except as provided in subsections see if the often slovo otherwise a political as more saying from the eleventh circuit explains that's an instruction to district courts that if the defendant is otherwise subject to a greater of put the ball off and so i will use that often supple but that doesn't mean that the district court has not applied for b one point one b it happens it's followed that express instruction and so then that plays into the next sentence the criminal history category rule a career offenders criminal history category in every case under this subsection shall be category six so two points on that first big into for those not excuse me those career offenders who were convicted of the nine twenty four c or nine twenty nine a often ends who do not receive a criminal history category they simply get a guideline it consisted of a single section there were no subsections there was a career offender definition that matches what it is now there's an often slevin law that matches generally what it is under four b one point one b and finally there's a criminal history category rule that also generally matches what it is now with the exception of the under this subsection wing which i don't think mr gordon w dispute that if he had been sentenced under the previous form of four b one point one that his claim would fail so then the question becomes what happened when the commission added that phrase and they created this t structure we don't have to guess about it there is no ambiguity we know from amendment six forty two it states the reason for this amendment to create the t structure is simply to create special rules for nine twenty four c and nine twenty nine a offenders there was no mention and there was no suggestion that the rules were supposed to be alternative for all other career offender defendants such as mr gordon so the history is consistent with the plain language of the guideline and finally again there's the case  which we've already discussed this court would in effect be creating a circuit split with the eleventh circuit with the d c circuit and also with the ninth circuit beyond the circuit split the sentencing commission knows how to amend a guideline to account for an erroneous court decision we see that from time to time where courts will interpret a guideline unhandsome in a particular way and they come back they amend the guideline and they say in the reason for the amendment the reason we're doing this is to essentially reverse these decisions the sentencing commission has had three the d c circuits decision and finally in two thousand and eleven after the ninth circuit's decision it hasn't done so and that's yet another indication that mr gordon's interpretation simply is not plausible so based on the playing language of the guideline its history and the case law the district court properly applied the criminal history category rule of four b one point one all briefly address the issues surrounding the mental health condition the government in this case agrees under the unique circumstances that the imposition of the mental health condition constituted reversible plain error judge clement you've asked about was excuse me you know what is there you know why based on his violent history  is that not a sufficient basis the government respectfully based on the government's position is simply that because of the anger management condition which was separately impose that and which mr gordon has a challenge that covers at least the violent history component of it the government also follows although this court of course is not bound by its unpublished decision in the garcia case which the government side in its brief under it's very similar circumstances to this case this court found reversible plain error if there was something in the stewart you were asking about this if there was something in the record that could justify the mental health condition the government would be making a different argument and we have in different cases  we did not see anything in the record that's not to say that upon remains and if there is a more detailed record created that would say goes back to mr gordon school history that point set out then it might be justified but based on the record before the court which was simply in the pre sentence report the government doesn't believe that that was enough to impose the anger management seize me excuse me yes the mental health condition i apologize if the court has no further questions we respectfully request that you affirm the judgment of the district court with the exception of the mental health condition right thank you  your own of the government says that our reading is implausible but yet we focused on the exact words of the guideline itself and pointed you to this distinction between when the sentencing commission used the phrase otherwise a political and then the repeated reference not to this guideline not to other subsections of this guideline but to this particular subsection of this guideline which set a specific table and then made reference to another was a political guideline range the government's propositions depend on the court looking to the other subsections of the guideline even in this argument the court the government said that the criminal history category rule is really just a reference to subsection c saying except as provided in subsection but that's not what this particular subsection b says that would have been a very easy drafting issue for the sentencing commission to have taken account of if they had wanted to do that they certainly did do that with regard to the sentencing table in subsection our reading of this is not contrary to the plain language it's simply a different interpretation of that plain language and it's an interpretation that doesn't require the court to add other words that no sentencing commission has added during this entire time period and that's the importance of the rule of law and that is well in a in a vacuum we may not be right certainly the sentencing commission and its amendment in two thousand and two could have explained why it was changing this particular rule and we know that the overall policy context was to take account of nine twenty four c but the government either in writing or here is pointed to specific wording in the reasons for amendment that give an explanation for why the criminal history category language was changed or objections and it was argued to the district court as a reason why the district court should impose sentence with exactly what we're proposing now that was in the written p s r objections that were made at the district court level so we've been consistent in presenting that argument throughout both at the district court and now here and it was presented as a response to the government's arguments as to why our interpretation was not particularly correct and in terms of the circuit split if there is a circuit split that we developed in terms of the actual implementation of for b one point when the as the government pointed out the sentencing commission on a yearly basis amends it's a men's it's guidelines if there's an issue that needs to be amended if the sentencing commission feels that this is not the appropriate answer sentencing commission is equally capable but doesn't that cut against the fact that we've had three cases a relatively long period of time and they haven't changed it so they i mean the rule of lenity wouldn't be the decider on them they they just are you wrong and if they thought it was wrong after three circuit said this thing they should have amended it so why should we stumble waiting to get it wrong to then make them make it more clear in your view more clear i  wrong in their mind even if the rule was clear there's no other plausible reading but the circuits interpretation isn't what they intended then they could change it they're not hampered by whether they are a lawyer raise the rule of lenity that's the point i'm making it's not that i don't understand the rule of lenity is i'm saying they're not hampered by what did the lawyers argue to the circuits there is looking at what are the circuit to do and go whoa that's wrong let's fix it and they haven't done that so that's what counts opposite  only one circuit that's the eleventh circuit that really had a reason and the d c circuit looked to the eleventh circuit and the ninth circuit's opinion i'm not even sure if you can properly characterize what they said as a holding or as a rule that was applied the eleventh circuit was very clear about what they were doing but it was on clean air they didn't apply the rule of law there's perhaps not a reason to go out and make a wholesale change for one circuit that's going to give a reasoned opinion about how they rule applies as we know from other contexts in the guidelines the sente commission waited for example on issues for example under two hundred one point two for forcible sex offenses for a number of years when there were different interpretations sarmiento from as being one of them from this circuit where the sentencing commission didn't take action until there was i guess  a mass a critical mass of decision and so in this case that's what that's what this court would have and that the rule of law that is that very important principle and i didn't mean to be disrespectful but i just want to want to say that the rule of law that he has a just a higher level of importance than