right our sixth case for this morning is united states against foster is would to actually present a fairly clean issue about whether that reference to relevant conduct at the end of application you know for has pushed aside the earlier  one bomb number two you know they number three correct and i and i think that that is that edition in two thousand has pushed aside the different underlined conduct standard that this court used in white and that's based on three things first is the plain language of application for the prohibition against enhanced mens for either the offense conduct or relevant conduct is not unlimited in any way is it clear that the relevant conduct preference in application for refers to relevant conduct of the underlying offense as opposed to the ny twenty four c conviction because this is this note is found it's an application of to to pay two point four dealing with the ny twenty four c just i think it is clear if you look at the committee commentary and the reason for the amendment that was propagated by the sentencing commission they have said that they actually cite a ninth circuit case united states versus well it as an example of something that was wrongly decided and conviction and so i think that that makes clear that they are firm to the relevant conduct in the underlying offense rather than the night when you foresee conviction so is it your position that the last part of that paragraph of application  says if the defendant is convicted of two armed bank robberies but is convicted of the one twenty four c only in connection with one of them a weapons of enhancement would be appropriate for the other bank robbery is it your argument then that though that would related conduct the two bank robberies i think i think that in that case you could have a weapons and huntsman first second bank robbery based on the plain language of the application out and if we look at  in addition to the plain language about the patients for i think the other way that we can tell that this is this different underlying conduct standard has been effectively overturned by the sentencing commission is its language like focusing on a gun and so the fact that the the sentencing commission specifically took willet and said hey we think this is wrong i think should have we're not the different instrument but we don't have a we i mean i i don't actually i think of it as a fake bomb myself as well but there's no there's literally no fake bomb right there's no fake bomb it's a it's a statement i have a bomb and i'm going to blow the place up that's correct and the government argues and its response brief that because it is just a threat it would not fall within the ambit of that application you know because he doesn't involve any use of an explosive one anyway based on their revised language in two thousand however every circuit including this one has rejected that argument catalytic involved a threat that was a threat relating to a gun but there  core sad that you know a threat despite the fact that the studs and commission took out specific reference or specific cite to to be three point one b two that threat still qualifies as an explosive or weapons and here it's meant under the new application so to just break that down you can include making a threat with right so use of a gun could be i'm going to shoot you even though you're not pulling the trigger so so use threats are a form of use and your argument is dead i suppose much along the lines of you know you could be using a gun even if it's a plastic gun that you bought of the child's toy store that still uses the gun right that's correct and i don't even i don't even think we have to get to the fact of whether a truck qualifies as because the application note states that any explosive or weapons and handsome and it is is it is not just based on to be three point one b two a true that language weapon it gives the language of possession brandishing use or discharge of an explosive it's much more specific it does and that but then it does go armed to say that any explosives are it that a sense under nine twenty four c accounts for any explosive or weapon here it's meant for a defendant's underlying conduct or conduct that would qualify as relevant conduct so i believe that that does though this change in the guidelines with which we have only imperfectly caught up i mean those are not our non presidential decisions are a bit all over the block speaks of relevant conduct and that's a very well understood concept under the times binds and it's a broader concept allan a separate offense conduct idea was which might have been a fine idea but it's not the one the sentencing guidelines a dopted with the sentencing commission chose to adopt so at a minimum it seems to me we need to clean up our law on this and i think you know we need to deal with relevant conduct  the defendant cites from the ninth circuit which says it now in compass is all relevant conduct that does not square with the application of so and so's any unhandsome that would apply based on conduct for which the defendant is accountable under one b one point three and i you know that seems pretty straightforward to me and especially given the consensus that one way you might use a gun or of or a night you for anything else that you have is you might wave it around and threaten with it might not waiver and might like have it in your pocket and say i have a gun in my pocket i'm going to use it if you don't do what i say they don't know really really have a gun in your pocket or not that the law says that that that's enough of a use and your honor i think that the sentence or the part of the sentence that you're on there to spread to the end of that paragraph needs to be put into context so that paragraph starts by discussing specific offense characteristics right and i guess what i'm looking at use i mean yes i there is the next sentence which most would been pointing out yes and i think that the next sentence which kind of generalizes those as any explosives or weapons enhanced  where the threat or death is kind of intricately interrelated with the use of the firearm so for example somebody is wielding a gun in a bank and in conjunction with that is threatening to shoot the use of that gun makes the threat bank and it's a remote controlled bomb and we're going to set it off if you don't give us the money well they don't know they can't run off to the ladies room and see if there is really a bomb in there but it's it's that kind of it's it's a threat to  an explosive device or use a magician know that but that's not relevant conduct to the bank robbery well it depends on what the facts of the bank robbery are so that's the only threat that's made in the context of the bank robbery would never be in the situation because you could not prosecute i think that that is actually pretty square on these facts so you have somebody that's got a gun they separately to make a threat to you is a bomb and that's these facts and it's relevant context it's all part of the same bank robbery it is relevant conduct under one b so it falls within the context of that was something that happened during the course of the commission of the robbery so the government agrees that's relevant conduct but the government respectfully smits that's not the end of the the question is then is it a specific offense characteristic a political to relevant conduct that is stems from the possession brandishing to you when you can diffuse it really are at our homes right you can get a no  where there's actually a gun being wielded during the bank robbery and a threat conveyed threat of death conveyed and we say there are no enhancement under the rule that you propose but then here we have an enhancement where all we have is a reference to a bomb and no bomb wielded so a funeral doesn't make any sense a few notes about that your honor that i think are worth talking about so the first is and what how the defense phrases this is it kind of results in that problem where if there actually was a bomb then you could apply the enhancement but if there's a threat of a bomb then you could and the critical difference and i think it's relevant to thinking about the firearm threats too is that if there was a bomb and if there was a gun and both of them were used during a bank robbery the government would have the ability to prosecute to ninety four c offenses so it would have the flexibility to do that because it would be two separate fire and an explosive device to use during that bank robbery explosive device so use of the bomb there would be a separate ability to seek punishment for that but not for just the right of the use of a bomb and that's what makes them handsome and you know as a as a policy matter as well appropriate under the circumstances you know it's odd because i mean the government's desperate to have this and handsome and even though what the sentencing commission is trying to do so in terms of the guidelines calculation get rid of inflating the guidelines because of all of these extra things you still have thirty five fifty three obviously you'd be you have plenty of sentencing room under these statutes to say this was a particularly traumatic bank robbery for the because they thought that the bank was going to blow up you know i think you need to go above the sentencing guidelines range judges are open to that kind of argument i can appreciate that concern your honor i do think it's appropriate to be calculating the guidelines for correctly and you too this is a point that when you get a message from the sentencing commission saying you know we don't want this piling on effect with things that are relevant conduct and we're not going to read this concession brandishing use or just charges narrowly if you do it's not like we're going to end up with sentences that don't reflect the actual probably you know the actual consequences of the defendant's acts and all the rest of the things under thirty or fifty three and you are correct that it just records for me has the discretion to take into account the conduct under thirty five fifty three and however your this court's decision in this car is certainly sad as i understand it that fake gun had been referred to as opposed to a fake that the enhancement would not apply yes your honor because it was an explosive yes and just under the duplicity rules that are political to having multiple guns during a bank robbery that that could not be you know separately considered to be you know basically a separate fence so it would not make sense i would also point out that if you continue to read application  note for after the paragraph in question it does the city plea referenced threats of death but only in the context of drug trafficking offenses which demonstrates that the sentencing commission certainly knew how to reference threats of death that are made in the course of  expanded the language to say possession brandishing use discharging explosive or now you are worth the ninth circuit has not brought your argument right defense at this application no gov it will at least you something explosive device which is you know in some ways a very unique fact pattern would we be in conflict with the d s case out of the eleventh circuit if we came out you know i would have to look back at that case when i just don't know it off the legislative history which in this case i think is that reason for the amendment commentary that the sentencing commission issued and they said that a case that's close to being off course with this case was wrongly decided  so i think they are you have it with regard to the absurd results that could occur if the government's position is accepted  that if you look to the united states versus eubanks you can see one of the absurd results there you have a case where a couple people go in commit a robbery and the defendant literally beats one of the victims over the head with a plastic got time yet that could not be enhanced wallah sort of an amorphous bomb threat and i'm not trying to denigrate the seriousness of that but a bomb threat where there is no actual bomb could be in here ste and i think that is that is one example that falls outside of the government's discussion and you know a believe five points i get and we appreciate your help and i'm sure you're flying just as well and thanks as well course as always to the government will take the case under advisement