leonard we were discussing his writings earlier this is about an eastern kentucky family and the key question here is this family doing what sometimes the drug families parts of the country do sentence this is a very complex matter and again as you know she was part of an oxe a code on conspiracy very bad stuff minor player her husband ran the operation they all pled guilty but perhaps in a lapse of wisdome while they are awaiting sentence for the oxy code on she arranges to have marijuana brought in for her about the united states versus griggs back in the ninety's said well you know when you have two indictments i'm going to print them together you use the three of you one point for grouping rules you look at what's the big sentence and then you sort of patch on to it if there is any see if there is enough significance in the other charge to up it here because the execute on case was so serious a level twenty six based on the amount of drugs that were attached to her this separate charge really would have no impact under the grouping rules as said under three d one point four the second charge is that tempt to possess contraband while in prison is that is that the charge itself that would be yes that's what she pled to attempt to possess yes i do not attempt to distribute no i don't believe so or not distributed but attempt to work conspiracy to distribute it might be a little bit closer but when it's only an attempt to possess i think it's kind of important yes however because the grouping rule first began at three and section in chapter three which curiously enough in even the preface it says the purpose of this is to create incremental punishment for an offense not to pile on to somebody so that you have these really small increases unless under the grouping you've got some really bad guys for example if a guy committed to murders we deal with those totally different we don't group on the one murder you can you appropriately would pile on but three d one point four no by the way crimes that are that are sentenced under the two ph chapter which relates to contraband those fall outside of grouping completely and that would make sense because it is so different groupings for sort of similar and related offenses that are intertwined in some way but then we go to the to p section that applies here and there and again this court has said this is a very poorly drafted guideline there is arguably some ambiguity that would make you think well maybe not that's the question i think that was requested as the supplemental brief is by the way we would like to adopt the first two paragraphs of the government's brief because it was better written than mine was  so i think we agree on that it just isn't covered under the oftens and the government said well but on the stem grouping rules we go back it is covered but it's not because the general grouping rules would say first contraband falls outside of it is just too different a charge and then even up for even the way you deal with two separate indictments you look at them you see you know if you look at does the lesser charge come with if it's less than nine levels of the serious charge you don't even add any office level points to it it's kind of just a point well to p one point two c is the cross reference and it says if the object of the offense was the distribution  controlled substance apply the offense level from two the one point one and i guess the first question is isn't it possible that the object of the contraband offense was to distribute even though it was an attempted possession charge is that is that fair i can understand that off the top of the language which is the ambiguity looking at how the language when you touch of that the cases that talk about this they talk about a connection between the offenses so well and i just i'm just trying to take it step by step i mean would you agree that under in this case under two p one point two the court was required to apply the offense level from to the one point one is that cross reference a political here in your view or not to the to the limited extent that because under after the grouping rules they also say when you have a cross reference though that's not meant to act as an adjustment calculation which would let you them into the same group so if you were to i think actually it's an open question because you would have the odd situation if somebody was bringing in one hundred kilograms somebody  struggling in one hundred kilograms of marijuana into her as it would be it would not seem reasonable that you would give them the level six that's the that's the opening calculation under two p from how much marijuana was involved here only two hundred fifty grams such a small amount that's why the the total calculation on the contraband charges would still be so low because it was such a small amount of marijuana that was attributed to er i mean i do believe she was bringing this in for personal use why in the middle of a big drug conspiracy conviction in sentencing i have no idea but it's a small small offen to be talking about underlying offense and we in the government agree the underlying offense is that possession or distribution charge to which you have added on this contraband charge because you can do both there's not a double jeopardy issue there and then if you were to hit him with  much when you group one hundred thirty one point one it should not if they are properly group for two reasons one if they are separate groups and then use that calculation code on grouping controls and that's what she would have been sentenced s so the contraband offense because it's so small doesn't have any impact ok but even if you were to bring it in and say let's look at this under the the joint amount of levels two d or three d whatever says if you're going to group them yeah if you going to group them within even the same group you've got to calculate the oftens level of each first that's not what was done here isn't that the bigger complaint here is that that the methodology really affects her sentence that they don't calculate the the offense level at the right time yes ma'am that the calculation under any possible permissible calculus calculation it was done incorrectly again that's partly because apparently this is i couldn't find a case where two people one on this point was addressed in any way no one's ever looked at this language and how those ambiguities might mislead a district court or even properly done under in or in one group grouping you calculate oxycodone conspiracy calculate the contraband joined in you see who's got the larger amount what the court did was it conflated the two and it her leadership credit for the marijuana in court because she you know she called out oh she talked to this guy you know here you're bringing marijuana to the jail can you bring it in for me and go get go get my other son or brother in law another famil they took that leadership role and attached in that on top of it right yes kota so that's what really jacked are up well there are two problems here is i understand you're arguing number one they should have been group for under one possibility that would be a factor it doesn't play a role here because here that the quantity of drugs is so low except the adjustments relating to the marijuana count get added on to adjustments  account which is right and that's the other problem i thought you were saying is that the leadership enhanced men should be made to the higher of the two base offense levels before the yes or rather yes they tacked on the leadership on top of whether come on top of the oxycodone calculation whereas if even if you'd group them originally you could only attach it to the marijuana thing which ups it to i don't know what twelve or so i see and then because the twenty six it within with and the use grouping part of confusion is the use grouping interchangeably you've got you've got something between two e you don't see you don't stray from the numbers you use in your blue brief with having been sent the letter brief something you stand by what you the numbers and the calculations about that the jacking up that occurs as a result of the improper grouping and and the timing i guess the improper grouping is about timing yes and arguably her numbers could be lower if you did it if you consider them as the undergo under griggs as to said i mean you did kid gave to us the numbers that use assess would have been had please the court ron walker on behalf of the united states i'd like to give the court a little more background as to how this case began and the sentences that were imposed and that those sentences were proper and appropriate by the trial court that the manner in which this mosley was sit and stand this matter was properly grouped that the sentence was the leadership enhanced meant was proper and that the trial was properly over the original sentence on the oxy on the contraband case was continued until  could be properly sentence with the oxy code own case the statute eighteen united states code section seven hundred ninety one does not include a distribution element to it it clued possession attempt to possess and other language but no distribution yet all of the guidelines and the statute itself handsomeness based on distribution the fact that miss mostly in this instance actually did engaging in the distribution of marijuana by having initially while she was on bond for the oxy code on case initiated having marijuana so your point can i move ahead here you're saying that even though she wasn't charged with distribution in an in a just think it's fair to treat it as such yes the guidelines recognize it as such the statute again does not say anything about distribution yet the guidelines recognize that it is part of the conduct when in group when we group of offenses however do we look at the offenses or do we look at the underlyin this and you look at the offenses and in this case no ok you can argue you look at the charge and what they pled for and not necessarily what they did that so what you're answering well purposes yes your honor ok and the charge here includes that conduct the distribution is part of the conduct of seven hundred ninety one under the guidelines that's the way the guidelines under three under one d point one and three d one point two that's the way the guidelines interpret that particular statute so can you walk us through step by step how that guideline range in this case should have been calculated based based upon what you just said about seventy nine because that i know i have a hard time with it and also tell me what what section you're relying on because it appears to me that in your brief you relied on the a b and maybe see you've now abandoned all those arguments and now you rely on tuesday and i don't think you even argued today in your brief to do that that's correct or are what we did we would have not even not preserve the issue  cannot argue the issue why should we decide this on two d if it's not before us well your honor maybe we'll first have the rundown well yeah but i want to know what sections you're talking about when i do know that i know that yeah you're right yeah this well i think it's i think it's really fairly simple and it in the sense that one the gun range for the oxy code was a level twenty six the base offense level highest level what does that mean so that means you take the level twenty six ok so we take as a result of grouping them yes why why does it matter that i mean you already have about twenty six because he oxy i'm going to explain ok sorry i don't want to interrupt and then under one b one point five c right you have to take the specific characteristic and apply it to the grouped offense level so that mit she was a leader i see the specific offense level the in transfer over court when through all the factors of the leadership she never objected to the leadership in handsome and in fact she acknowledged that she was in type she was entitle to a leadership and handsome and wanted a three level as opposed to a four level but the court went through the factors and explained she was a leader organizer there were five or more participants that she instructed in that arena don't think this the team's a leader on the pot but in  have a cross reference then you apply the cross reference then under three b are scuse me three yes three d one point one comment or three d one point one three comment no three the adjustments the end go over to the larger base offense level so that's where you get the twenty six plus the four is the thirty that the court sit in stir based on it so to p one point two says if it's if it involves distribution which you argue it does but the object was distribution which you argue it does yes apply the offense level into the one point one so we go there that well actually achieve three d one point three that refers you to the application of the specific characteristics to the group base offense level three d one point three does that ok and so where does three d one point two come in where did i miss that three three d then that's getting to what judge griffin is asking about we originally argued that but even d isn't applicable here because really the cos reference is the two p one point one that specifically says go to the cross reference under the specific statute i mean under the specific guideline in the specific guideline cross reference is from two p one point two to the one to d one point one that's where today one point one tells you you group them so you don't even have to address consider two d or three d one point one the one that has an exception excuse me is that the one that has an exception no yes that's the one that has the accept ok and what does the exception say and the exception says you use used to use one one point one point one for drugs and then it goes down further and says the exclusion a clue includes two p one point one so if you refer back to two p one point one knife a cell phone those are the kinds of things ok that are excluded under that provision drugs are not because of the impact is this the key difference between your argument and your opponents the government because we never heard that before i guess i was maybe judge griffin too was confused about that argument given to us by counsel for the defendant here i see the argument just changing all the time and we try to keep up well i'm not keep you know i decide the case as it's presented to me i don't consider two arguments made on the day of oral argument to be preserved arguments and i only i only address what's preserved and what's in front of us when the case fit well i understand that your honor but we did make the argument that to the one i mean that yes that to  one point one was a proper basis for the since the grouping you're changing the subsection yes we have we have always maintained that there were more than one provision that allowed the court to sit and as it did i mean the question here is whether the just a court got it right and exactly not whether you get you know whether you made an argument at one point or another correctly so you're now i can see you're saying we don't even have to reach the question that you know frankly we directed you to answer about three d one point two is that what you're saying we don't we don't have to go there you do not have to go there because frankly the answer to the question of the proper sentencing is under two p one point two that's the cross reference that specifically refers you to to the one point one and when you go to the one point one it specifically says these are grouped that's exactly which subsection to p one point one i thought you said yep one point two four one point one two p one two p one point by the sentencing guidelines for the contraband that is right up here one point two years and paul yes all right it cross  be one point one say which subsection you point to here excuse me you've said two p one point two takes us to two d one point one yes what subsection of two d one point one are you pointing to it would take you to the c section where you're talking about drug amounts see drug quantity table exactly how do i know that we go to that two hundred fifty grams or less this is where you are losing you and that would give you a base level of six if you one hundred fifty grams of we're talking about one ok so what does that how does that matter read that matters is because it's going to tell you whether you have a twenty six eighty six or some other number for the drug quantity and which of those is higher is going to be the controlling base offense level with it where is the language in the guidelines that says the higher one controls is that basic fence level pli the greatest in a excuse me you just said whichever is higher controls yes or to get that really get that you get that from one b one point five c well i mean we just went from one point two i understand why to come to p one point two matters it says go to two d one point one yes ok so now you know when i look at two people won't point two i'm looking at see i can see the language that matters  can't figure out the language that matters in two d one point one well the the met the language that matters in two d one point one is simply you're using the drug tables to calculate the base  level ok and then i see my time is up if not being please so and then what so we use them show me how we use it here so then you so then when you get the two base offense levels you have to decide which one controls so you're saying we look under here and under these quantity tables we get twenty six roxy and we get six for marijuana correct then what the n one b one point five  tells you that you take the higher level it doesn't say that it says an offense if the offense levels determined by a reference to another guideline under subsection a or b want to be the adjustments of chapter three are also determined in respect to the rest of that excitement that the wrong one that's when you guys said in your letter well that that's the one that applies to the application of the four level enhanced all right so which part of one b one point five are we supposed to be looking at here that tells us go with the twenty six ok the joint offense levels that's what that's what we're talking about correct i don't i'm asking you yes i mean essentially what we're offense levels the group based offense let me have a twenty six and a six and a eight three three d three d one point one eight three yes i don't think i've heard about three d one point one in this case yet well that's that's the basis of the court combining the two or taking the higher all right so we take one hires so we have a twenty six take i don't understand what combining means when we just forget about the six and take the twenty six well what's the difference who cares about the service well you don't care about the six when you combine them but when you don't know what it's going to be you are concerned about it and that's what the court had to calculate it is your point as to which you had a sin the six i don't know why we're starting at combining it when we jettison it but so now we have twenty six well you have  huge yeah and the one in the way you do that is you take the base offense will have the higher base offense level ok but of the two you take the specific characteristics and you combine even though the specific characteristics of leadership apply to me my only through the contraband that's correct but i'll remind this is why we're too we're told it's unfair yes  only get two sentences excuse me didn't she get two sentences she got a ninety seven month sentence on the oxy cotto and you just told me that this is to get one sentence she well to get one she's twelve months on right and there consecutive there so he actually has about nine years and apparently in time for this one of the arguments raised in issue two and they don't cite they don't spend much time on it they say that nine years for this woman is substantively unreasonable and the district judge says well it's within the guidelines as i computed it was all it's math and everything else but tell me is nine years s fully reasonable irrespective of the guidelines for this woman's conduct it is well and the reason it is is because of the court's concern about district was she an ok the let me say also concerns me they d just wanted to sentence her like her husband but her husband was clearly the leader of this distribution ring for the oxo sitting on cottage and she wasn't she was a minor player and that wasn't she well no she was not a minor player that's a male she would only result in what three of the transactions or whatever the heck it is she wasn't she was she wasn't she was not the leader that's true but she was not a monday and now sentenced as if she were well the judge said i want this woman to be sentenced the same as her husband is is that is that right no he didn't say he wanted her sentence the same as because her husband received one hundred sixty months and her son received eighty three months and in the scheme of this conduct the son was the lesser of the three the mother was the second most culpable and the husband was the most culpable and that's the sentence that were imposed that the court considered all the facts of the case and all the relevant conduct of the individuals and sentenced them accordingly your time's long expired and we did ask you to state that i'd want to ensure that judge griffin's question has been answered for you some is this conduct worth nine years in prison for conduct well your honor i think seems like a long sense to me when when a person has been engaged in one question drug conduct that has been prevail in that particular area and then is on bail for that offense and not only continues to violate the law but does so in a manner that jeopardizes law enforcement officers in the correctional facility other inmates the court is entitled to take all those factors in consideration in imposing an appropriate sentence and that's exactly what this court did let me real quick to right i want to hit really quick because we sorta on a somewhat different issue you said we apply the specific offense characteristics to the twenty six correct what do you mean what is specific offense characterised as the leadership role you apply the n and three d which section is it that says you applied a specific offense care to characteristics to the twenty six you you go to which sections directory b one point one a and then three d one point point one a and then what three d one point three comment no three why are we looking at three d one point three i guess we can look it up so you're saying three d one point one as the one that says apply the d but three b one point one a is the specific offense conduct three be one that's the leadership contest correct what's the one that says i the leadership conduct i e specific offense characteristics three d one point three comment no three how about is there a guideline as opposed to a comment for relief from these intricacies and again i would submit this is in part the way these guidelines were written a couple of points the provision which deals with how you calculate if you're grouping offenses into one group three d one point three and it's commentary talks about how you do that we don't concede in fact our argument in the in the brief is they should not have been it is you who argues that two p one point two should exclude this contraband offense and we're told by mr walker that that's correct except where the other offense is also drugs and well if it's a knife or ok what about that argument yes and this is again i wish i had made a chart the first permit which you had to us i will i will move next because it is it's the first the first issue was as you asked for in the supplemental briefs those the provision regarding underlying offense pull this in so that you do the grouping and we both agree it doesn't  and we also we have again three d what mr walker plainly told us that they go ahead and you don't exclude as to says when it's drugs you disagree up well kewpie goes then he goes down to this cross reference we put that provision assad we agree that doesn't bring in and they say this cross reference brings it in what's unique about seven hundred ninety one is it makes a distinction between alcoholic beverages marijuana controlled substances  narcotics so you can argue that reference that cross reference if it refers to controlled substances must refer to controlled substances as prohibited by eighteen u s c seven hundred ninety one since marijuana is excluded it doesn't reference it back if we assume for argument though it does reference that back if you look at two d and its rules they have been referenced back to three d which then excludes two people so you have this infinite loop that says go here but don't count this keeps going back so it offers no no guidance it offers nothing which says this is how you should do this that you should group these two charges together the only way you can interpret this is to go back and to forgive me because i did not cite in my brief us versus griggs forty seven hundred thirty two what's the right rule what is the proper action and here if it's two separate indictments two separate crimes that otherwise have no relation you group them under this different rule three but i mean when you say no relation of course they both involve drugs i don't know what the differences between narcotics and controlled substance ok they both involve drugs yes so unrelated really want well a small amount of marijuana oxy code on conspiracy all right you can have separate drug conspiracies but one thing that they talk in the grouping rules who's the victim we say that we say the drugs are the victim is societal interest even oxycodone kills a lot of folks but the victim in the contraband case is the institution you have compromised the security of it to whatever degree so even of the grouping rules that they would not group together but we also say if you do  still miscalculate because the grouping rules are designed to reduce the sentence thank you all right thank you sir thank you very much the quote has your matter if we ever sort it out you'll get an opinion