the only question for this court to decide today is whether mr hyde is a safety valve eligible under the st step that this is a question of statutory interpretation not guideline interpretation under the statute as relevant to this appeal t defendant is only ineligible if he uses or possesses a firearm in connection with the offense of conviction because mr hodges did not use or possess a firearm in connection with the offense the drug offense he actually pled guilty to case of huey huey was the victim witness protection act and interpret in what matt for purposes of that statute there the supreme court determined that if the question was clear cut and that the plain reading of the word limited to events of convection we have huey and course generally like to interpret similar words or phrases similarly and other statute but also there's the the principle that because in other sections of the statute of the st step back statute congress was able to indicate that conduct would be disqualifying if it included relevant conduct and or three thousand five hundred and fifty three dollars f five it includes the language of relevant conduct use certain language or have certain requirements under other subsections of the statute that it's not willing to or it's not going to read in those same subsections when it's not included in that parties to refer to the guideline definition we surplusage there be no reason to have those in there clearly met relevant conduct under the statute and the governor appoints to in the district court relied upon the guideline commentary a step how binding upon the statutory interpretation this is improper and the supreme court in this court has both stated that the commission doesn't have the authority or the ability to amend  statute and that's exactly what happened in the you know in the all there was a question of how to determine the mandatory minimum for purposes of drug wait without there is a supreme court decision that defined the statute in a decade there's a certain way to determine wait for l s d and then the commission through a commentary no tried to change that which was what was the argument and the court of neil said that the mission doesn't have the authority to do that and they acknowledge that there's just a few different animals and we're dealing with the guidelines in the statute that the guidelines purpose of the guidelines as to set a rough approximation for sentences and that is the role of the legislature to determine these larger ranges this case and did he say anything about whether he would have gone lower but stash or eventually he did not make i don't believe any explicit statement to that effect but he was very you know interested about how far down can i go and that's really what the sentencing hearing was about there was also no statement otherwise no statement stating that you know i've heard of this come up in the other circuit not that i've seen your honor and i  did double check i think last week and i haven't seen it come up either and quite frankly practically i don't think it's one that's going to come up very often more often than not i mean not a whole lot of our clients are eligible for safety valve relief in general but more often than not the government at least requires or individuals generally plead to a conspiracy count i think it's rare to see something like this where you're playing to a single distribution and because you did plead to a single distribution and it's limited to offensive conviction and there's don't we don't have a case on this point not that i've been able to find your honor so i was wondering about this right right the united states so i think a lot of these cases are older c eligibility they'll cite the statute and they also cite that guideline but in those cases the argument was clearly about the two level reduction because we're talking about pre book or so it was in a case like this where the judge had the ability t vary downward and right it really was just about that two level departure or two level reduction excuse me so it's not controlling on the issue that is before the court today because it wasn't just a question but we have here   the defendant ineligibility due to his number of criminal history points was taken off the table and no longer rendered him and eligible for the safety valve that brought us then to the nd issue and that had to do with the issue of whether he possessed a firearm in further and in connection with the offense and that would be count one as judge college and you pointed out and your questions that's what that guideline says there was no like commentary to the guideline as we see it in their terms why is the guideline commentary relevant to what the statute means well the guideline commentary is relevant because we know that guidelines are used to interpret the statute one of the things that mr quick pointed out only know that one of the cases that i cited the johnson case out of the middle district of alabama and the th circuit it's now been published and in that particular case in a footnote the court discusses the fact that as judge pratt agrees that the the guidelines are used to interpret though not specifically add to or conflict with the statutory provisions sentencing provisions and well one of the things that mr quick stated was because of the st step back that somehow there there isn't an at a political commentary that applies but this in this particular instance whether he obviously dispensing commission is made up of people who are expert in the log sentencing in whatever they say and their commentary is persuasive authority but they have no authority to amend a statute and so we would look st i think right to the statute and we'd look at the statute itself and we'd say before we get to relying on the on the guideline commentary would we say there's is there like ambiguity such that we should care about what the guideline cometary says words are split in the circuit such that a court should look to the commentary for guidance on what people with expertise in the field might want to say about it right and so i really should i think well there are a lot of issues but but one of the issues i've got is is that there's an argument that has been advanced that other parts of the statute are rendered mere surplusage if we rely upon the language of the commentary why is that argument wrong well your honor that that argument is wrong  because when we look for example in this case even at the factual record and we concern we don't we don't even necessarily need to get there as i think the government pointed out in its brief when we look at his his factual basis around the plea agreement we see that he did in fact that he has asked that firearms in furtherance firearm and further ends of his drug trafficking and this was a serious it was a multiple count indictment he pled to count one the st distribution of methamphetamine count and he pled to count seven which that was that was the date of the search warrant and where he was found to possess cash as well as two firearms and and and drugs at the scene in between that was a that was a stretch of only nine weeks judge erickson and in that time there was a and it was represented in the intervening counsel were dismissed as part of the plea agreement there was an ongoing pattern of controlled by with  individual so the fact that he then and in addition to that supporting this factual basis and the charges in the indictment he admitted that he possessed that firearm in furtherance of drug trafficking so there's two issues here that are specific to this case and that would be his admission that factual basis as well as as judge college and asked mr quick the fact that the the practicality here is that his guideline direction from that commentary know that regardless the statutory minimum being one hundred and twenty months was a significant significant downward variance you know and how do we know he wouldn't have gone down further when we really we really don't you why are you making a distinction between transaction yes to so that was a stipulation in the police dream and even though he didn't plead guilty to that no no there was not and i also wanted to specifically refer back to something that you mentioned before and and i believe you know you took issue that i used the word that he was bound by it but quoting from that from the  think that technically that the commentary has force of law i think the guidelines have for some while but the the commentary does not correct your honor and just to clarify that the government is not asserting that it was that it was referr i'm referring here to what how judge brack that viewed it at the time the government's stance is as i pointed out and citing that johnson case from the middle district of alabama in the th circuit that that it serves as an interpretation and guidance for and the phrase excuse me i'm explaining the phrasing in f five both of those and says that it means the offense of both of those great things and have to an f five in both the offense of conviction and relevant conduct why do you and then in may when they conduct the search warrant all through that time there was a series of controlled purchases showing that he was distributing methamphetamine through that time the question was what there were that there are no i mean there's nothing from the date that that they conducted the search warrant there were drugs there there was cash there but that all of that was related to the the date of the offense charged and count  are regarded relevant conduct which then loops us back to it's a circular analysis that loops us back to whether the court should have considered the relevant conduct of jim a little confused it seems to me like the only place i find the firearms actually being mentioned i want to address the idea of deference and whether this should be considered persuasive authority the court and me all rejected this kind of argument there they stated we look at the statutory language it's interpreted been interpreted to clearly the statute is clear and we know it's clear from the huey case and also it only is persuasive to the extent generally with chevron deference when the regulation or whatever decision may be was formed and made with strict rule making or some kind of formal procedure here it's not even relying on the guideline language itself to try and interpret the statute they're looking to the commentary which is not subject to the typical no comment that kind of i don't think and there the court determined offense isn't limited to offensive conviction it was the same general kind of argument offenses broader offenses everything there was a question of restitution i think like a mail fraud and they'd argued well it's broader it's everything that criminal activity that was part of this criminal case and then the supreme court said no it's state's offense and that's limited to the statute or the count that you actually pled guilty to so that's how we know it is that limited i don't know of commission