right our seventh case for this morning is united states against le may please the court jordan rice for appellant here in light of u s sentencing guidelines require a drug count and a felon in possession count to be grouped when the defendant is also guilty of the nine twenty four c offense relying on this court's mean obviously you know there are serious arguments on both sides of this point they've been fleshed out in other circuits they were fleshed out in our opinion and sinclair but has anything happened since sinclair that would justify our taking another look at this question or is this really now something that's just sitting around on the plate that the supreme court might decide to take up i bit so no other courts as the government in their brief did not cite a single decision of another court that's followed sinclair since the sinclair and so upset after sinclair the eleventh circuit seco which was filed after the opening brief in this case and before the reply most and clear was decided just last year with sinclair was a twenty fourteen decision so there's been four years since it was decided the eleventh circuit the six but rule forty eat gives this court the authority to overrule past precedent and well starry decisis will normally way against this it doesn't here because sinclair was incorrectly decided it perpetuates a circuit split decided it's contrary to the plain text of the guidelines under the guidelines counts involving substantially the same harm are grouped together this isn't just a general background principle of the guidelines it's explicit in the text of three d one point two in subsection guideline of political to another county just this directs courts to look at the relevant guidelines which are the sections in chapter two of political two offenses under the us code interview them on their face with sinclair did was add a step it directs courts not to look just at the relevant guidelines but to look at their alternate application in a particular case the three d one point two c says nothing about analyzing the guidelines as applied it uses the phrase guidelines apply couple sinclair is for that reason contrary to the tax so you're i mean the best argument for you to make the argument against you is that we just thought about this in two thousand and fourteen and came out a particular way on this issue i suppose the best argument for you is if you can make the case that we're an outlier you know sometimes we say the supreme court the trouble of having a per curiam opinion reversing us to bring the circuits in line with one another  realized where that's why we're there was a forty circulation we realized we were creating a conflict that doesn't mean that it's not perfectly legitimate i just want to say for the sake of getting it out there that you're entitled to ask you know to acknowledge a bad price ask us to take another look at it that's that's where we are in this instance and if if our opinion is not standing the test of time it's not standing the test of time or maybe it is i mean these are difficult statutes to work with because there's an inherent overlap between nine twenty two g n one twenty four c and then even with the age forty one and that there's that they're kind of a mishmash of statutes and the supreme court hasn't wanted double counting so they want to be careful that the one twenty four c wasn't you know having too much of an effect on the one twenty two g and so we did sort through it one way in sinclair which is unfortunately for your client away that led to two more guidelines let me ask you what do you think that made a big difference here because actually what the judge does it's he goes down to twenty four months right there that it would have been if it had been the the grouping that you wanted that's that's correct get an error here yes so this court presumes reversible error even on a plane or standard where there's an incorrectly calculated guideline range and the only time the court will find harmless error in that sort of circumstance is when the district judge is clear that the sentence would have been the same regardless of the air and we don't have any such statement here from the district court in fact what the district court said is simply that he was issuing a sentence near the guideline range you thought that was most appropriate so my guess would be on remand that he would do the same thing again and mr lehmann would get six seven months off the sentence due to the two level decrease in his guidelines range but we don't know for sure right now which is why this court remand the sort of surrounds to lower the guidelines down to the twenty four but the twenty four was the bottom of the range that you were arguing for right it is but there's no clear statement from the court that that is why he issued a twenty four month sentence all he said that he thought something near the lower end of the guideline range was correct all we can do is guess as to what just a court judge would do on reman and going back to reasons for reconsidering sinclair is the injury that this case works drug and gun counts are frequently charged together there are about two thousand nine hundred twenty four c convictions in tw sixteen about half of those were for an underlying drug count and then seventy percent of nine twenty four c offenders had a criminal history category of true or higher so that's approximately seven hundred defendants every single year and for mr layman it was an increase in his guideline range of six to seven months but for some defended sick can go up to two years so there's a real substantial injury here that makes it worth taking a look again at sinclair particularly the plain text argument that wasn't presented in that case that deals with the term the guideline so remind me and me sinclair was just sided i'm thinking at a time before the supreme court decided that district courts didn't need to give any if you had a nine twenty four c with a mandatory can second it is you could have a sense of one month you know on the on the underlying and sinclair's decided before that case comes out right you know i don't know that makes any difference that it might it's possible on remand that mr layman would be get you know one day morning your honor smith please the court greg walters on behalf united states judge what if i could just pick up right at the end that you're making reference to dean versus united states you have states versus stating that opinion counsel brought up that well you can get a one day sentence going back he could have gotten that here because this was a pre teen sensi or this was a posting sentence and so dean has no effect on on remained anymore than it had pre when when i said i don't know i'm trying i'm just trying to think how dean affects the sinclair rule actually well i think sinclair was based on the text of the guidelines so or an application of five so i don't think ultimately dean has any impact on how the statute or the guideline should be interpreted it has an impact perhaps in the argument by counsel that this is wrong and therefore works stand to injury when our courts have even greater flexibility post deem to impose to take into account the sixteen month sentence in formulating what is an appropriate sentence for the other two counts but regardless what i'd like to bring up judge w argument that we have quote serious arguments on both sides that means that sinclair's reasonable great advantage of our forty rule is that if we discover that we have come an outlier circuit on a particular point particularly something like the interpretation guidelines which the sentencing commission can go back and revisit they can fix it one way or the other  is is just say well we're not going to insist that we're going to wait until the supreme court tells us that we're outliers will fix it if there are reasonable views either way i agree that is a good and intervening change the rule over to certain extent well that your change rule in or has a point there and to be able to cite after two thousand and seven but they are still unpublished for a reason whatever it is i'm not privy to what happens in chambers or here and the the thing is that the legal landscape today is no different than it was in two thousand and fourteen this court is no more of an outlier today than it was in two thousand fourteen when it split ways with the eighth circuit and the unvarnished question of whether a decision is wrong is and sufficient to overrule circuit precedent absent it being undermined by a supreme court decision or a supervening development such as in this case a sensing commission seeing the conflict and resolving it which i would say judge would is far more likely than this sprint court ever tak one further reason for reconsidering sinclair was this court's decision and u s b cherry which there involved exactly the same situation we have in this case and sinclair so we didn't really discuss  sinclair was not discussed but in that case you have a probation office u s attorney's office defense counsel a district court which has an independent duty to apply the guidelines and then three judges of this court say that that not only to repeat simply what happened but to say was consistent with the guidelines it isn't picked it doesn't over rules and clare but it does give the court another reason to revisit and with respect to this court being an outlier these cases frequently this is a guideline decision just given the frequency of a nine felon in possession charge a drug count a nine twenty four c that's rising all the time and what's happening is that bell's approach and the other circuits approach are being thank you thank you as well for accepting the appointment in this case we appreciate your contributions thanks as well to your firm and thank you mr walters will take the case