good morning everyone thank you before we begin arguments this morning judge fernandes and i would like to to thank you to go into judge roger woman from the th circuit for a month to city please the court my name is rachel julie gayet and i'm an attorney with the federal defenders of montana and i am here today on behalf of the appellant mr brandon sorenson your honour's in amendment to the united states sentencing guidelines in two thousand and sixteen removed the residual clause from the crime of violence definition in section four b one point too this removal is critical for reasons that i will address here but in summary the analysis that originally led the court and united states st issue mat to expand the four b one point two controlled substance offense definition to include solicitation hinged on the language of the residual clause but that residual cause is now gone and nothing remains to support the addition of solicitation to the four b one dollar definition as such the district court erred in holding that mr sorenson's prior montana drug distribution conviction qualified as a four b one point two predicate offense due to its inclusion of offers to sell to the point you just made didn't seem to trouble a recent will in the united states versus chrome yes your honor the recent decision of crime does not affect this particular analysis because this specific issue was not raised before the court nor was it decided by the court in crom it did not address the issue of united states versus she mat or she was reliance on united states versus cox rather chrome was addressing primarily the issue of whether or not the commentary should even be permitted to expand the guideline definition to include certain in kuwait offenses the issue before the court here today is whether or not even if the commentary is permitted to expand the guideline definition whether or not solicitation in particular can be part of that expansion and again analysis of this issue necessarily begins with the case of united states versus cox in cox the court had found that a texas conviction for solicitation for murder constituted a crime of violence under four b one point two based solely on the residual clause and she monterey which was also decided prior to the amendment removing the residual clause from the guidelines definition relied on the reasoning of cox as well as a desire for parity between the four b one dollar definition for a crime of violence and the four b one dollar definition for a controlled substance offense to determine that controlled substance offenses also included solicitation offenses but because of that two thousand and sixteen amendment the guideline that was in effect at the time that mr sorenson was sentenced did not contain that residuals cla which was the sole basis for determining that the definition could be expanded to include solicitation and once you take away the residual clause which is no longer effect there is nothing in either the plain language of the guidelines or the commentary or an examination of the guidelines as a whole to support expansion of the definition specifically to include solicitation in fact an examination of the plain language of both the guideline and the commentary as well as the guidelines as a whole actually support a contrary finding that solicitation is not appropriately added to a list that deliberately left it off to begin with an examination of the guidelines as a whole demonstrates that the sentencing commission knows how to and does in fact elect to at times group solicitation with conspiracy and attempt when that result is warranted but at other times correspondent lee knows how to distinguish and treat solicitation differently than conspiracy and attempt again when that result is warranted specifically as i addressed in my brief an examination of two x one  r which is the portion of the guidelines that explicitly addresses solicitation conspiracy and attempt does just that it initially groups these three in co eight type of offenses together but then if you look at the body of the guideline you see that the sentencing commission also knows how to treat solicitation differently than conspiracy and attempt specifically the three point level reduction in the offense level that is provided for in turn for attempt conspiracy and then solicitation if you examine the criteria for getting that three point reduction it is essentially the same for conspiracy an attempt it focuses on the offenders conduct and whether or not the substantive steps of the offense have been completed either by the offender himself or in the instance of conspiracy a similarly situated coconspirator solicitation has a markedly different definition for determining eligibility for the three point reduction and specifically what the guideline implies is that the entire offense of solicitation can actually have been completed and the offender can still be eligible for the three point reduction unless the person solicited has completed all of the substantive steps necessary for completion of the offense this again demonstrates that the commission knows how to group solicitation in with conspiracy and attempt when that is the intended result and how to treat it differently when that is the intended result importantly if you look at two acts as a whole you see that there's a number of different in kuwait type offenses that are listed there and three of those offenses were selected for inclusion in the commentary to four b one point two and three of them were explicitly left out one of which was solicitation i think importantly also in examining the guidelines as a whole we can see that elsewhere in the guidelines the commission chose to treat solicitation differently and application no nine dollars to one dollar b one dollar of the guidelines were  actually group solicitation miss prison of a felony and accessory after the fact together treating it again differently than attempting conspiracy and notably those three type in  offenses are also the ones that were left out of the commentaries attempt to expand the four b one dollar guidelines in addition because the court inquired about the crime case i do think it's important to discuss that momentarily although i don't think it does anything to undercut this argument which is that an examination of shoe montane again in light of the removal of the residual cause from the guidelines requires revisiting this issue but crum determined based on the vague and solace case a th circuit case that predated united states versus stenson that the th circuit had a different line of authority on the issue of whether or not the commentary could be permitted to expand the guidelines and that case may again salis relied heavily on anderson a portion of anderson's framework for how to interpret the commentary was rejected by the court and united states for assistance  and specifically instance in the court found that it was not appropriate to view commentary as a statement of the drafters intent when you look at the fact that that entire framework for how anderson approach the commentary was actually rejected convincing arguments to start with but you may i mean i'm sensitive to your arguments but it seems like because the three judge panel were pretty much down by existing laws and unless we could say that the there's a case from a higher authority that undercuts completely the rationale  shumate and cases that it relied upon there were there's a doctrine under miller versus gammy that says that we as a three judge panel are pretty much to follow existing law we can't us court free to make a different determination that was made in shumate in cox is the removal of the residual clause from the four b one dollar definition of the crime of violence an examination of the court's decision in shumate relied heavily in fact entirely on the reasoning if united states versus cox which relied on an interpretation of the residual clause there was no other textual support site at and either cox or shumate other than the residual clause which is now no longer in effect and in that sense the court is not bound by that because we have had a change in the law it's not a change in case law but it is a change in whether or not that residual clause is still present in the guidelines for the court to rely upon it  court has found in three published cases that solicitation or offers for sale are covered within the prohibited conduct under four b one dollar and as the court notes the only way the three judge panel can ignore or overrule prior precedent is if there is intervening higher authority which is clearly irreconcilable with with the existing precedent and again not only is it clear that that day and vegans always for that matter are settled law but it is it wasn't wasn't analyzing the residual clause it was analyzing the application of of the commentary the guidelines commentary to the to the crime of violence component of that for b one point to that analysis is really no no difference regardless of the subsequent change in law and i would note that in  in the in the defense's briefs the argument was well united states versus johnson stepped in and that was why the residual clause was was invalidated as i think the defense recognize  t united states versus johnson doesn't reach the guidelines provision that there was no constitutional problem that affected that affected cox  guidelines that since the commission it's changed the law that it didn't but it doesn't that doesn't affect the validity of cox and it certainly doesn't affect the application or the holdings  again i do and not only i think that law is correct but as a three judge panel this court is it is bound by that in any event and the conduct prohibited under montana law offers for sale it's fall safely within what this court has found is covered under under four b one point two as a controlled substance defense so unless  minute thank your honour's i would like to address two brief points in rebuttal the st is responsive to the government's argument i do think that the removal of the residual clause is critical to the court's analysis because that was the sole basis relied upon by the court in cox and  turn by the court to mine to determine that solicitation could be included and whether or not it's a constitutional issue and the government is correct in pointing that out and i do want to be clear on that that in beccles the supreme court to determine that there would not be a problem of constitutional dimensions with the residual cause in the sentencing guidelines but nonetheless the guidelines in effect at the time of mr sorenson sentencing did not contain the residual clause which was the sole basis for widening the net to include solicitation and the only other point that i would like to make is that the concurrence in schumacher left open the possibility for a different type of statute and unlike the statute it issue in schumacher there is no montana corollary indicating that solicitation is to get a rd person to get involved in the distribution of drugs which was the situation with the organ statute ok thank you thank you thank you counsel the matter will be submitted at this time