was mr i was raised three claims on appeal like to begin by having a body armor enhanced meant and turn to the other issues to the extent that this court has questions the language of the body armor enhancement in the sentencing guidelines  section three of the one point five is clear and clearly doesn't apply under the facts of this case but even if as the government argues the language is ambiguous canons of statutory construction would demonstrate that it clearly kind of the enhancement clearly cannot be applied under the circumstances of this case turning first to the plain language of the enhancement itself the enhancement applies where a defendant used body armor during the commission of the offense in preparation for the offense or an attempt to avoid at the huntsman and in turn the guidelines commentary defines use saying use means active employment in a manner to protect a person from gunfire or use as a means of bartering the use of the word meaning there in the definition first demonstrates that this is an exhaustive rather than a loss for the list this is what  and risks to police officers and whatever else may be two officers who were killed when body armor was being used doesn't seem to me they're worried about selling our border in either so what's your minutes or anything that i can find but i believe that that was likely what was what happened there was that the commission was attempting to adopt the supreme court's interpretations of the word use in the nine twenty four c context where a defend uses a firearm in the course of a drug trafficking or crime of violence and there had been two previous supreme court cases smith and bailey that had to find a use first as being the bar girl in a firearms transaction and then second in daily or hiring that used to be active employment of the firearm so i believe that it was an attempt to give meaning consistent with the word used in the one twenty four c cont but to the extent that that guidelines commentary is read as expanding on the definition of use because your honor is absolutely right that the legislative history for this particular enhanced man is concerned particularly to this circumstance here but if we decide that they did that wouldn't be inconsistent with the act would i mean or conversations we will make sure you do x and if the commission size you do why as well that's not inconsistent with congress it would be inconsistent with the guidelines which is what we're concerned we're here good but we're trying to figure out what it means and to what extent is congressional intent limit the commission or at  faithfully apply to correctly calculate and then consider in making it sentencing determination and so the language of the guideline is what controls here and the language of the guideline here creates an exclusive list for defendant uses body armor either when they're using it to protect themselves from gunfire or when they're right and or when they are using it you know harder transaction and both the guidelines themselves and th opinion or provide instruction to probation officers that certainly wasn't what happened here it was a vice given sort of informally in that context and while the sentencing commission might be able to provide advice to the probation officers and certainly wouldn't be controlling on the district court and wouldn't override the plain meaning of that guideline itself in turning so in turn and beyond the plain language of we maintain is clear the government and vance is the argument that it would be absurd to apply the guideline only as it is written to barter transaction unfortunate for importunately for the government however that kind that is not what courts have the use to determine absurdity the idea that there would be a symmetry in the application of a law does not create absurdity which can asymmetry wasn't enough for the court to reject the plain meaning of the statute which is interpreted to only apply to the person giving a firearm and it rejected the government's argument there that would lead to absurd are trading firearms for drugs would be a typical barter circumstance and it would be again this court has to sign barter to mean any transaction which involves exchange that is not for which is and again this court thanks to congressional intent of the enhancement as your honor previously reference deals with the public safety threat of criminals who wear body armor and while certainly  guidelines provision could go farther it's not inconsistent with congressional intent to apply an enhanced moment where defendants are wearing body armor as was done here finally turning to the harmlessness or harmfulness of this air the sentencing sentencing error sentencing guidelines calculation error will only be considered harmless where it is a detailed explanation that the sentence was based on factors independent of the guidelines so that sentence imposed must not have been influenced in any way i view erroneous guidelines here the record suggesting that she would impose the same enhanced but still or so wide on the reasoning every erroneous interpretation of the guidelines to make that statement so certainly there is nothing in the record that demonstrates that  district courts sentence was a pose for reasons independent of the guideline morning i think at least still morning my name is ron mclaren represent the united states in this appeal and i'm joined this morning by john murphy and james baer for trial counsel in this case i'm going to speak briefly about the four for b evidence and then move on to the body armor unless there's any questions about the deliberate ignorance instruction this case is about a police officer who shamelessly used his position to help the komodo drug trafficking organization the defendant officer juarez relied on a defense that he didn't know the grandma those were drug dealers that they were instead legitimate businessmen this defense justified the use of the other accidents in this case to show his intent his knowledge his lack of mistake and so first as to the four of four be evidence  generally true that a plea of not guilty in a drug conspiracy puts the defendant's intense officially at issue that we had that here we also have more than that we have officer war is claiming that he thought that the grandmothers were legitimate business men before for be evidence this was a part of his defense that was made very clear to the jury and as you come up in questioning a witness i did your honor there were questions along the lines of i don't have the records or directly in front of me but just because the government witnesses defense counsel would  cross examine and raise you see issue through the question yes your honor and so of the example that comes to mind was just because somebody happens to do business with a drug dealer doesn't mean that they are they know that they're a drug dealer something like that as to potential prejudice any potential prejudice in this case was mitigated by the careful actions of the district court in the government at record record four thirty one is judge advances order limiting the forum for be evidence to one day of trial and in her words so that it would avoid confusing the issues and so that her instructions to the jury would be more meaningful how long how many days the trial take i believe was four days or so one fourth of the evidence was other offenses or other the other acts was limited to the last day of trial but it wasn't the entire last day of trial was about three or four hours at record thirteen eighteen before the government introduced the evidence and at fifteen fifty during her final jury charge judge vance repeated the pattern jury instructions about the four four b evidence telling the jury how it was to use in addition to the steps taken by the district court the government provided a detailed bill of particulars that's up to eighty four and if detailed for a four b notice which is at three thirty nine so th defense counsel knew exactly what was coming it's of that the district court knew exactly what was coming the government also referred to the four four b evidence as special evidence this is something that's brought up in the briefing not to draw extra attention to it but instead to make it clear to the jury that it was to be used for this special purposes other purpose to show or as motive intent opportunity it cetera the probative value of the evidence coupled with the careful steps taken by the district court and the government justified the use of the other accidents in this case like i said if there are no further questions about the four four b evidence or the os or construction i'll move on to the body armor and as to the body armor enhanced mint starts by saying that common sense has to mean something that makes sense in this case that congress and the sentencing commission would want to prevent drug traffickers from getting body armor and becoming unstoppable for police it makes sense that this would extend to conduct other than just wearing body armor to stop bullets it does not make sense that it would extend to just bartering only and nothing else will come into it also leads you to worry judge they come and the words of this guideline a quite limited go i think it's almost are i would add two points on this one it's not our contention that border includes sale but that use includes sales so use includes bartering and sale and use to stop bullets we need that to move on that the second point here we use a hypothetical in our briefing that i'd like to expand on that where if i if a person over here gives a body armor they bring it in from the outside world and they and they give it to a drug trafficker over here they're bringing it in introducing it to this drug trafficking conspiracy that's the conduct that this guidelines x to what the drug trafficker gives in return for that body armor whether it's other goods in the case of a barter whether it's money in the case of a sale whether it's nothing in the case of a gift that should not be dispositive of whether this guideline applies this guideline was written to keep body armor out of the hands of violent criminals and drug traffickers so interpret ing the guidelines otherwise would lead to the kind of absurd and reasonable results that courts are to avoid when interpreting statutes and guidelines and there's no further questions briefly conclu conclusion the carefully handled for a four b evidence was justified because of four as his defense of ignorance that he maintained throughout the proceedings and the use of body armor and hands meant comports with policy and a common sense understanding all the judge southwick at the common sense could go we going kind of lazy that's a common sense understanding of the guideline that bulletproof vest should be out of the hands of drug traffickers and for these reasons the government respectfully request that this court affirm war as his convictions and sentence thank you the government in an argument asks this court to come up with a novel definition of use but used as defined in the guidelines commentary and stinson says where the guidelines commentary  inconsistent with the guidelines language it is authoritative and here the guidelines exclusively define use to include again employment to protect one from gunfire or means as the use of bartering so to be extent that the government is arguing for a different definition that would be a violation of stinson second the government's common sense argument that congress wanted to limit body armor and  it should apply in this case under its sales under its own logic under the government's logic then defendant should also always be punished where they possessed body armor and in fact the guidelines express criminal statute and sentencing statutes are allowed to draw distinctions and again based on the watson supreme court case the fact that an asymmetry exists does not create an absurd result when the guidelines language is clear  must be followed and to the extent that the government is arguing that there is an ambiguity that or means the rule of lenity would apply if we've reached through all of the rest of our stand ins of canons of statutory construction then  e sentencing guidelines should be applied against the government should be strictly construed and where we have here plain language that said that an exclusive definition and by its definition does not include the defendant clear why the commissioner would have wanted to do it this way you give me some possibilities that would reduce base with an odd guideline choice of words but the choice is there and the choice for and to the sentencing guidelines commentary doesn't depend on understanding an independent reason for why the commentary exists i know of no case where the commentary is rejected just because  different interpretation would make more sense it's required to be against the plain meaning of the guideline it