the court this is appeal presents a question of first impression under the new crime of violence guideline and we're asking the court to hold that consistent with its usage in the vast majority of jurisdictions the term conspiracy in that guideline requires an overt act to reach that holding the court has to answer two questions first does taylor's contemporary definition apply in this case and if it does does the contemporary definition require an over we turn to the first question of whether taylor applies in this context the sentencing commission spoke precisely to this question in its recent amendment which took effect in two thousand and sixteen we quoted the passage on page four of the reply brief for the commission says for the contemporary definition to apply unless of course it provides a more specific definition somewhere else in the text here with respect to conspiracy use the term alone without any further definition in that according to the commission state hit means that we can apply the contemporary definition and that statement of the commission's intent in seven ninety eight is critical because it undercuts the rationale of the out of circuit cases that the government relies on here all of those were decided before him seven ninety eight took effect decided before the commission made this clear statement of its intent and the statement i'm wondering really the need to go to end all of this business about and and then you go right down to the commentary and it snows crime of violence including offenses of aiding and abetting and conspiring so w have here it is is a is very clear textual god i don't know why we should go beyond that the reason your honor that you go is twofold the first is the commission itself was no overt act required in the past hundred years forty out of fifty four jurisdictions have rejected that contention that you have i mean those are laws and i don't think that this i don't think the state law of whether an overt act was required it didn't say that it could have said conspiracy as defined by how you got into that particular one way or the dollar well i would go to this court's precedent in those are just last year which deals with this exact same piece of commentary satisfy the generic definition of murder but those are says we also have to look at whether the in kuwait offense itself in that case it was attempt and in this one it's conspiracy dozer says we have to look at whether that in co a defense also conforms to the generic definition a particular offense in dozer did qualify as generic attempt but here this offense doesn't satisfy the definition of contemporary conspiracy mr carpenter would you mind i'm sorry i first question is whether taylor's contemporary definition applies in this context under the guidelines and the second is whether if it does apply it requires the overt act and so on the first question of whether it applies in this context this court has a has consistently for years in years said when there is a term used by the sentencing commission in the sentencing guidelines we interpret it according to its contemporary definition and that is exactly what the commission itself recognized in him seven ninety  federal provisions don't but the federal government is just one jurisdiction when we are determining the contemporary definition of terms if you look at your decision or our whole cast in eighty you cite the federal government as one of the thirty four jurisdiction sentencing scheme can be overridden by various state laws and that seems that that seems to me odd because we have a situation of dual sovereignty in which states are allowed to to define their own crimes and to set their own punishments and the federal government ought to be able to as well each sovereign  set the terms of its own spending scheme and it has designated the sentencing commission to do that we have no doubt and no dispute that if the sentencing commission wants to amend the guidelines to say we want to cover all conspiracies regardless of whether an overt act is required it has the authority to do that they and you absolutely nothing about that the but the authority to do that is in the hands of the sentencing commission not in the hands of this court we have to as courts and as litigants apply the words that the sentencing commission has used here they use the word conspiracy by itself they've instructed us when we do that apply the contemporary definition when we apply the contemporary view the problem here to me is contemporary we have done this in a number of context we look to the consensus that has built up among the states because of the there is this is us enhance nothing if not counterintuitive that's a lot of ways so it does appear that there's one way to look at it that leads you in the direction of the commentary looking at conspiracy to commit murder you know in your in for opinion for a pound but then if you if you just look at conspiracy it takes you in the direction of looking at it and the body of state  's going to focus the attention back on the offense which one is conspiring to rather than on conspiracy if you follow that to do otherwise i guess yes i agree i agree and that's what i think those are court was right about how it laid this out that it's a little bit confusing when you have not yet and so but those are breaks it down to make it at least simpler to apply going forward which is you look at in co a defense you say does it contemporary definition then you look at the object and say does it in terms of policy it's important to point out a couple of things that i maybe didn't say enough about in the briefs and that is i think the commission would have good reasons to exclude these no overt act conspiracies from the scope of the crime of violence enhanced but if you look at the recent amendment one thing that the commission did was pretty narrow pretty substantially narrow the types of crimes that qualify you now you do realize you're about on the policy you know the commission took out burglary offenses entirely it took out the residual clause entirely it narrowed the scope of extortion substantially instead of page one thirty one of the supplement to pixie our goal here is to focus these enhancements on the most dangerous offenders i think it would be hard to say that a crime is categorically among the most dangerous when the conduct a no overt act conspiracy is legal in thirty four states and something like forty t jurisdictions now of course what the commission also said we're talking about conspiracy to commit murder and the point isn't the point the supreme court has made  know racketeering activity years of drug activity is something you know not a crime of violence and the supreme court is going in that direction with cases like why xen where he says that you don't need weapon and hitting somebody over the head it can the crime of violence can contain a lot of predicate steps and that's the sentencing guidelines ways and so we have you know this court's eddie in decision recognized that in the one particular context conspiracy carried this common law meaning and because of the presumption that the supreme court had set up that absent contrary indications we apply the common law meaning here we have you know not the context of congressional legislation to the context of the sentencing commission and we have those contrary indications where the commission itself has said you apply the contemporary definition carpenter set first of all sentencing commission's amendment that he relies so heavily upon if one reads that it simply says courts apply it doesn't say we intend it's actually just a statement of cour conceded that murder qualifies so that guideline commentary that he relies heavily upon really doesn't speak to this question and as to the broader point that mr carpenter made about how the guideline was narrowing the definitions they didn't narrow the commission narrowed to the definitions of those enumerated offenses some of them although robbery went notably from the commentary up to the guideline text so in some ways the guideline broadened and made it clear others ways narrowed but they kept conspiracy there was no narrowing of that particular part of the guideline that was left alone i mean i'm the difficulty i have with the starting point and you heard me express a little bit of my frustration question and to mr carpenter it seems to me that we are to some extent boxed in by what we have said we analyze the commentary provision under taylor under till it seems to me that the contemporary definition of crimes comes from stainton we've done that in a number of cases so the language of nine hundred fifty nine  states doesn't believe that we need to get to the generic cut definition but let me also make this point taylor applied the contemporary definition because that definition we hear there it was but i want to address and that's right your honor but i would like to address what taylor said about what the generic definition means taylor used the contemporary definition for a few very specific reasons which was that the common law definition was narrower and it really didn't make sense it was obsolete was the language that the court used in taylor taylor did not say from henceforth every time a court determines the generic definition it should be the contemporary definition that's not that that's what taylor said and that is not what is required in this court's decision and at c n n look very specifically at why one would not apply contemporary definition in the context of the word conspiracy because to do so would render null and void at the sort of the purpose so the purpose doesn't go away taylor used the contemporary definition because it matched the then one would not apply the overt act requirement because one third of states and the vast majority of federal statutes do not include an overt act it does not make sense and taylor was premised on common sense it was premised on a conspiracy to murder a federal commission sentencing commission says conspiring to murder is a crime of violence and we have a central offense that gives says conspiring to murder and that offense doesn't include  one of the factors that has gotten everybody twisted into a pretzel is this generic and you know and what is the generic and all the rest and i'm wondering more severe do we even need to get into this generic inquiry and start counting up the number of states where it when the tax of the guidelines  whole series of them but murder starts there isn't a person anywhere in rich the city of richmond of the united states that we think murder or trying to commit of our of conspiring to kill a millionaire is not a crime of violence and then you go and to make sure the sentencing commission in commentary number one says that it's not just murder but baiting and abetting it counts and apply the generic definition tailor began with gee this is the plain language doesn't answer the question the plain language in this case the intent is clear but i would like to concede that it doesn't have to be says any fool can make something complicated it takes a genius to make his sample fair enough your honor and i but i i'm going to i don't want to think too much about that in this area of jurisprudence where i start thinking that we have a lot of foolish question how would you have us get around a couple ways well first of all i don't believe in that case that the united states at argued what i'm presenting today which is you don't need to get the generic everyone assumed you did but the more important we get it you don't have to get around to sure you can apply it if the court wants to apply a generic definition there is a generic definition the question is doesn't have to be contemporary and it's very interesting to me the courts use this word contemporary but that doesn't necessarily mean that that's what the generic definition is the only reason taylor used the consumer very definition was because the temporary contemporary definition accorded with the intent the purpose that if one didn't apply the contemporary definition then we lead to an absurd result whereas an answer yet in this court noted that if you apply the contemporary definition of conspiracy to require an overt act then we in the intent because we get to where we're carving out a federal statutes that have to have been intended to be included so you can see i'm sorry i don't mean to interrupt you sort of see i'm picking up two tracks question why does sure taylor red together have to give us pause oh i understand why the dream just i can honestly i think i do believe that i don't think taylor should give the score possible first of all because cheney were goes through the reasons why it applied the generic definition and if one looks at those reasons not me why i'm right and in fact what this court explain in next the end was tailor rejected common law presumption because the common law definition of burglary was obsolete and inconsistent with the statutory purpose that's where taylor began we have a guideline that if interpreted by its plain language as this court held an act and the same language in the immigration naturalization act that that i contrary to common sense and it would be obsolete if this court were to apply the contemporary definition based only on jurisdictions and that's another point i want to make i mean  this no i don't believe so i mean does your did it did interpret attempt and did it use the generic definition it did a multiple layered analysis i don't think it had to and that's part of our argument is i don't think the united states i mean i look back that we didn't make this argument and it was her and you know if we didn't make the argument that's too bad that doesn't mean though that i have to sort of avoid those are because i think you can apply those are and still the government wins here and the government wins because  the generic definition of conspiracy that applies to federal sentencing would it simply doesn't make sense that the generic definition would exclude the vast majority of federal issue the out of circuit cases have addressed it in the context of the illegal reentry guideline and three of the four circuits have held that conspiracy in that context does not require an overt act that's the six circuit the fifth circuit in the ninth circuit the only circuit to hold that in the in that context was the tenth circuit and actually that i'm sorry i'm just trying to remember exactly the context but the tenth circuit how that conspiracy requires an overt act and i was because the common law definition didn't make sense to apply it didn't work and that is what this court noted in that the common law definition of conspiracy does make sense there is a presumption even if one is going to apply the generic definition that the common law definition is what applies and guideline commentary amendment seven ninety eight does not say anything else i know we i haven't really looked at the attempt issue in that level of detail except that it simply is a little more complicated than conspiracy so one could say well with attempt we want to look at how with the generic contemporary definition  rejected language this clear in terms of the definition of a crime of violence not as it's you know it's almost like the point that was made in the statutory interpretation contacts you don't go into the weeds of legislative history right where the statutory text is clear that you know it and  first point our brief right that's argument number one i do have to acknowledge that this court has gotten into this we incent etienne with respect to conspiracy to court did look at the generic definition but what the court held was the generic definition does not require an overt act so i have to concede to this court that it has looked at the issue of what conspiracy needs not to fair enough your honor fair enough and again it may not have been that  any party in that case saying look the language is clear is it is you don't have to go there and we are making that argument in this case but we're also making the argument that if one goes there when you look at the language of the guideline and the language of the way that most federal statutes define conspiracy it does not include overt act and any interpretation or any generic definition formulation doesn't appear to be to me i don't read it that way at all but if you did it's not talking about the language in the commentary doesn't create does your interpretation create the possibility that the seriousness of the crime which is being conspired to a net inhance is makes the conspiracy more serious to see what i'm saying how you for purposes of the enhanced begins to turn on the underlying crime i'm not sure i'm understanding the case so suppose it's conspiracy to might just respond briefly to sort of what i'm hearing is a little bit of policy question there and i would say that i'm asking the consequences or the consequences of our interpretation are that it is tied broader than the common law definition and taylor noted that we don't want to go with a narrower definition if we don't think that congress intended that and here we get to do it the other way the  common law definition is actually broader and it's broader for a reason because the reason that why i'm these these are people who agree to commit violent offenses all of the elements of the conspiracy to the text so it's unclear if their definition of conspiracy they seem to be saying as i understand their argument they seem to be saying if the object of the conspiracy is really really bad we can ignore that the conspiracy itself doesn't conform to the the object of the conspiracy and it can't be that bad that's the crux of right and so what if you allow it so here's my pitch on that if you allow it to be defined by the object of the conspiracy you're doing the exact opposite of a broad consensus definition because in the fifth circuit points this out in its decision which is that forty seven out of fifty states apply an all or nothing approach it's always required is never required only three states and then add in the federal government apply this often specific definition where sometimes an overt act is yours sometimes it's not so i think it would be absolutely anathema to tailor into the broad consensus contemporary definition  decision in marking as proof is persuasive and in that decision they go to lengths to say only three star kids are not well first two of them are specifically limited to the context of drug trafficking spears so if you look at the ninth circuit they drop footnotes and say we think they this is limited to the circumstance the six circuits reasoning by implication is also very specific to drug trafficking only the fifth and the tenth of address it in the context of the in the other cont so again the tenth circuit in working as crews goes willing to say if the sentencing commission wants to cover all manner of conspiracy without regard to the contemporary definition they have the tools to do it they could have said in a parentheses whether or not an overt was required they could have specifically incorporated a particular federal offense as they did with many other federal offenses in the definition they didn't do those things and we have to respect their choices to leave the term undefined through have to respect their choice nine fifty nine and a half did and it matches up it matches up quite plainly with what for would be one point one that's sad that's only if we assume that the commission intended to use that all turns out the court shouldn't be all that concerned that if it excludes these no overt act conspiracies it's going to be some kind of giant windfall to all kinds of criminal defendants out there because the commission gives us the tools gives district court judges the tool to say well look if an offense falls outside of the scope of the definition of a crime of violence but it actually involved real live pilots the district courts consider that under thirty five fifty three it made that explicit again in this most recent amendment to say look we want narrowing these definitions based on the goal of making sure that these imply only the most dangerous offenders in the what they go on to say is if something we took out like a burglary for example involved actual violence then the court can consider that at the  really did have an object you know more serious punishment for more serious offenses and it was it was that simple and decision bad decision is now being undermined purpose is being rendered nugatory well you know i think i disagree with an empirical matter that we're not seeing anything qualifying as a  wilkinson back to the one who cast in a decision come out our way page three seventy nine you say very articulately there look this contemporary definition approach it cuts both ways sometimes it benefits the government sometimes benefits sometimes it benefits the government sometimes it benefits the didn't but our task is a court you said is to apply the taylor decision in a neutral manner and that's what a big court to do here apply the syncing commission's words you know another trial where they may