at this point is really down to one about the role of the sentencing guidelines commentary but behind that issue it's kind of a bigger issue where the parties are fundamentally disagreeing on the rolland so we're preserving it for the second circuit's rubio since that time the government is no longer really asking the court to overrule rollin's which would take an  court to do the government is especially saying rollins is already overruled because speckles took care of that because that had an impact on the case even though i can it didn't say anything about the premise that we can't ignore rollins the first argument is simply that rollins controls and hasn't been overruled it hasn't even been aggravated egghead brigaded it has certainly been rather than interpret valid initial petitioners and in our view johnson well are not the supreme court cases that could provide him retroactively but given the reasoning in current we don't think we can make that argument to listing conspiracy as being included in a crime of violence and the second listing a number of the numerator offenses including murder and manslaughter for that matter so it's entirely possible conspiracy would probably satisfy that task or a combination of the application notes conspiracy and murder to determine that he met the definition of a kind of foreign at that time the court required sentencing courts to consider the application notes when they imposed a graph render sometimes on this particular point what's your what's your response to  about route relies you know on the notion that vagueness challenges have been eliminated and lighted back all right that's the reasoning of hill and what hill said about so that the problems are and i this is just a little bit of a master you wonder we're not cross i mean how do you read how do you how does your position on hill stand after cross well we've we believe had raised they had tried to rely on the commentary in that case the the opinion doesn't explain it but that is one possibility but in this case we have raised the issue is closing around in at his narrative text in the sentencing guidelines that are commenting on guideline provisions when you take in a race or to one of the guideline provisions it seems like the commentary just kind of falls by the wayside that's exactly what ro haste the residual cause was unconstitutional they understand that it's not just to me that that's an argument that cross is wrong because you're saying that with the commentary and the regulation it's narrowed by the commentary which rested in his case assata shakur in the screen tonight let me put the let me put the point where i think that what you're saying you're not writing it this way i understand why there is you can't say with a straight face that there was impermissible very nice on the facts of this case with respect to mr dan tony's conspiracy to murder the witness that that any anyone with any common sense would say that is absolutely a crime of violence i mean he went out after he was selling cocaine to a fifteen year old kid and was going to kill a witness now  thank you for you to make a few points in response to the government's argument i think i like you i'm having trouble sort of just starting precisely the nature of the argument but she started by saying you know sort of suggesting that sentencing and for this particular crime for the substantive in cohen crime of conspiracy the only guidelines tax the coverage is residual class and i do want to say that this particular case