lester in terms of why we can get to the point on the arc vishu that we both share in these cases i've been struggling with that and thinking about a lot but i think intuitively when we read this guideline we read into the new two thousand one version includes aggravated felony i cited a number of cases in which the supreme court although they have not been dealing with that as an issue kind of holding in the case have read the guidelines and they automatically go to the reasons for amendment and they look at the contrary clear contrary intent of the legislative body and that's what we have in this case if we look to the reason for an amendment the sentencing commission could not have been clearer in the second paragraph of that it starts out  amendment response to the concerns that moment was speaking about by providing a more graduated sentencing is handsome and between eight levels and sixteen depending on the seriousness of the prior aggravated felony and the dangerousness of the defendant i think that's a clear statement that the commission intend that the eight to sixteen levels and that would include the sixteen level the apply only if there is a prior aggravated felony now this court has stated before that the intent of the sentencing commission should carry more weight and the reason for that is that the commission itself that right these reasons for amendment rights the commentary and rights the guideline itself unlike when we're dealing with congressional history the legislative intent maybe the intent of a staff member may be the intent of the subcommittee but it is not necessarily intend the objective of the entire congress to work but here it is so i think we've got a clearly clear expression of contrary legislative intent so under fundamental rules of statutory construction we cannot read this the way the government urges because that contrary intent so i think that's the right legislative intent of dispensing commission but this court i think applied sort of a holistic approach when it looked at the strike instruction and unfortunately at the time we raised this i was focusing mostly on the intent and it seems to me because that is the bottom line in this case no matter what else what the other rules that strike instruction are i think this one controls the outcome but i think if we start looking at the history the structure of the guideline commonsense views and if we look at the result that will occur as a result of the government's reading of this we come to the conclusion that it can't be read that way the history of this guideline to a one point two is such that it's always been connected to the aggravated felony statute from its beginnings what is qualified for a sixteen level enhancement has essentially evolved with the definition that we find in the aggravated felony statute it is usually near as that definition aggravated felony to get an eight level increase if we're going to double back from eight to sixteen that makes sense that it should be a felony is an aggravated felony in the sixteen level so i think what the commission is doing is adding the word felony on top of aggravated felony in the guidelines it didn't need to replace the aggravated felony i mean let me try the following argument ok which is intended to be a sympathetic you meant the same with the guidelines  certain kinds of aggravated felonies now the definition of crime of violence does not necessarily fall under that because some crimes of violence as defined here are made on them some may not be aggravated felonies but some i think are didn't replace the temporal requirement in the guidelines and i think it still have to be read into the guidelines so i think what all they've done in terms of the change that they made for the crime of violence was giving it a new definition they narrow it actually what they did was i think it's widely recognized by the courts that how much time an individual receives for the prior conviction is a very important measure of the seriousness of the facts you know the i think we understand that listen you run up to the end of your time would give you case is overly inclusive so our arc line is already served eighteen months imprisonment and would have only served range of eight to fourteen months would be entitled should be entitled to release right now unless the government can introduce judicially notable documents that show that  what was the statute of conviction remain that to the district court and allow the government the chance to introduce whatever judicially noticeable document they would like but i'm not following that point but let me i mean let me jump to the main issue that i have put yourself in the position of the poor district judge of this court remain and and it turns out that everything is in order and you didn't tell us all along that this would have qualified and so forth the poor district judges  or what are you going to show a laundry man or one of the government going to show on remand was the statute a conviction and that is not a record but as we've not understand that but you may have the burden of showing prejudice well i think on the disc court it will try to match the offense that appears in the state statutes and that's what we did in our announcer's on appeal we matched it to the statute at issue with ninety nine point zero four i'd have to take  washington code when your honor when we look at the class a felony so then we look to other wash other parts of the washington code to determine what class the felony is what's important in this is that under this court announces as well the core offense the one that would assault not a violation of a court order a violation of court orders not an aggravated felony if not mentioning the one day the only one possible is the assault you could commit a violation of a court order by committing a system for washington crimes and includes class three felonies it also talks about gross misdemeanors but the statute which actually talks about the penalty for violation of court orders is we've mentioned in our brief as well and that is twenty six points bestie point zero one zero but also refers to violation of a court order by a stalled being a class two felony it was just one of the point that i being asked to resign he didn't need to serve one year in prison in order to be in order for this to be a crime of violence and a district court judge roll you can tell that that's the only thing that was raised because he he just knows i don't i find based on the probation department finding and what is it going to don't you know you're the government don't you know what the crime of conviction is by now and it is not in this record but all remains are going to make any difference your honor i've looked at the statute of conviction that the defendant has and and all also the statutes and i think we need to go to common law to get that definition of assault which means looking at the washington state law and i think there's definitions there that would suggest that it is still a crime force putting another in apprehension of harm with or without intent to inflict harm i think this conviction speaks for itself that there was force inflicted here and that the defendant's conviction for assault was not one in which physical force was not used and i think we an objection is raised then at that point you know there could be more evidence presented there could be the underlying judgments of conviction the underlying information the league remit the things that we engage in when there's an objection raised now and then and that kind of leads  brief answers the question there was no objection vitaphone the next case about the nature of the underlying conviction this court raised its to respond thing instead it is the duty of the court to look at the statute to felony issue that was not about whether force was used the issue then becomes whether it was a felony and i'm talking about the underlying of salt the one that qualifies for the enhancement we can just look at the violation of the court the court any more than either a misdemeanor simple assault which is not a felony and therefore would not qualify for a second level enhancement and it would not be able to prove alternatively that was nothing more than a negligent or stop washington  guideline in connection with the aggravated felony statute if it looks at the structure of it and it also looks at the the consequences of public policy behind it as well as the consequences it will come to the conclusion as the other courts have come that it should be read in the sense and guideline commission intended only to apply aggravated felony thank you thank you thank you very much counsel thank you both for helpful arguments in the second case as well pimentel florida will now be submitted