is we have to establish a new form of the system which is the policy of the guidelines the purpose of the guidelines one of their main purposes is to stop wish some kind of law only for me thing the system if we casing of the supreme court of stinson has found that the commentary sunday knows that interprets the guidelines that are consistent with the text of the guidelines so we're giving equal force in this instance we believe church we don't we don't want to take the description of the court definitely not but we want to secure only for me i'm vicious in your cause there's no way your manner that could w concede that is correct your honor so there was nothing that seems like waiver rather than just not raising it and then the needs to be some reason why justice requires us to over look at with respect to decamp i don't see what the immediately what the reason would be since that could have been raised below but wasn't i take it your argument is that you want to correct on that the cam that's the perfect argument it would have been a waiver but johnson came afterward it johnson doesn't have anything to do with the camp johnson is just about issue with respect to whether the application notes survives if the residual clause is unlawful with respect to whether de camp is the analysis we have to use so that you can never look at the application c no way to meet it was a caused by the rest of the guideline i get that and then i take it the item is it's prejudicial because it could have affected the calculation and that with it ok but on the fourth prong since you can see the  defendant conceded below that they were subject to the career offender guideline what is the reason of the fourth prong why when there's a clear application note it's perfectly obvious what that the justice of the whole system should be such that in a case like this we shouldn't count the application out you ordered the best the best way to answer this is the main reason why  that furnace as being of vs be affected in this case i guess that's why i'm asking how has it been since you had perfect notice that the machine gun was covered by the application of the application no it's still there and can be read what is unfair in this case notwithstanding johnson about saying be one thing if you'd object or below but since you didn't what is unfair about holding you to the application notes since you had perfect knowledge the application note is simply inconsistent with the test of the guidelines once you take out that i see your calls and he would be unfair to subject me to a punishment based on a clause that he has  know might be clear ok when the notes or the judge because we're certainly mindful of the fact that the guidelines are discretionary and they're not mandatory is there anything that the judge said that sentencing that would lead us to believe that he would impose the same sentence the morning mayor please the court my name is tiffany monroe's and i represent the united states we accept your firm the judgment of the district court for the reasons set forth in our brief counsel could you start out by pinning down what the government is conceding yes  the government is conceding that the sentencing the residual clause of the sentencing guideline in section four b one point two is similar to the residual clause in the arm for a criminal act and in johnson and the supreme court determined that that clause was beg the government and its supplemental acknowledge that the clause was that the residual clause in the  career offender guideline was also vague however the government raised an alternative argument in its responsive brief which relied primarily on the commentary to section four b one point two under the commentary the felon in possession of a firearm is not a crime of violence unless it's one of the crimes i'm sorry unless it's one of the firearms listed in twenty six u s c section fifty eight forty five a and one of those firearms listed is a machine gun and the appellant soto acknowledged in this case that the firearm found in his vehicle was his and that the firearm was modified to fire automatically but was in that commentary done to try to flesh out what crimes would be applicable to the residual cause no i would say no the supreme court court found that previously and since in the supreme court was looking at the amendment to the commentary in which the sentencing commission determined that career felons in possession of a firearm did not constitute a crime of violence the court also held that amendments to the commentary are binding on the federal courts and this case the subsequent amendment in two thousand and four changed the earlier commentary so that crimes like the ones  the commentary be a reference to anything but the residual cause just as a textual matter so the first cause of the first part of the definition of crime of violence under the gun if i have it right is that the a firearm i take it that the application note is saying no unless it's a machine gun that's just giving content to the residual cause which you're saying is gone so it looks like we have an application note to a offenses yes going back to states and the supreme court found that even though the guidelines text me back and tell the amendments inclusion of the office in question it was binding nonetheless and  binding if that's not inconsistent with the absolute i guess we're just having trouble trying to figure out how you can argue that with the residual was gone it can now be consistent with the guideline there is there isn't a specific provision that the appe the first part which says attempted use or threaten use of physical force because it can't be given content that friend and he says it's inconsistent with a for less than offenses because it can't be defining them and he says it is consistent with the residual cause but it was it will cause has no application which you're conceding right so what's left of the wrong it seems to be inconsistent with if you'd like us to apply it that's what we're trying to figure out why it is not on one of the arguments that he made in his reply to my supplemental was not in his original supplemental brief he is reaffirming those arguments now at oral argument that he filed in his supplemental reply we did not have an opportunity to address it and i don't think that the i strongly strongly acts the court to i don't think the court instance and found that their reason why the commentary was valid was based upon the residual clause i my reading of the opinion it is not it's not like what was it based on it was based upon the fact that the commentary is similar to legislative rules adopted by agencies in congress has delegated the authority to the census commission to establish these type of commentaries even the amendments to the commentaries are still binding on federal courts and in and looking at it in the commentary does not have to be compelled by the text the court gave guidance to this court now the courts that while it's not explicitly listed in the language  of section four b one point two the sentencing commission is allowed to amplify a reading of the phrase crime of violence i understand the court's concern and whether or not this is sort of creating another another case of ambiguity or some kind because there has to relate back to something and that's i think the argument that the appellant me that in his reply to my supplemental that it has to be tethered to something but that's inconsistent with what the supreme court stated instance that the text does not have to compel a reading of the commentary in that way  can be characterized as a crime of violence he concedes that point he also concedes that he was in possession of a firearm he now wants to ask this court to overlook his earlier representations and i would that the court did not does not allow him to turn his back on his representation to the district where he challenges also his prior convictions prior controlled substance convictions  has the burden is on the government to come forward with the shepherd documents i understand that he may have them wait but i'm trying to figure out how totally troublesome this particular sentencing may have been at this point well in this case when he acknowledges that the career finder guideline applies he does not challenge whether or not his prior convictions constitute a predicate offenses to justify the application of career finder guideline the court would be without any sort of inkling or indication that the defendant would challenge any convictions and would certainly not sue sponte on his own look at those those documents charging documents transcripts plea agreements if the defendant is challenging that there was a case that was not cited in my brief but was decided by this court in which a similar set of circumstances where defendant did not specifically challenge his prior whether or not his prior convictions constitute a crime of violence under the career friend or guideline the defendant did not ask the court to look at any shop or documents and this court did not found that it was proper and this court was not required to reverse i would ask to be able to submit a supplemental twenty a j supplemental letter and here you can see th court fail to gather additional information regarding the substance of those offenses and an argument he essentially makes is asking this court to look at the underlying facts even though he asked the court to apply the categorical approach which doesn't require this court to look at the underlying facts essentially he was asking the cour a modified category of cool approach while simultaneously asking that the category of categorical approach apply to substance criminal controlled substance offenses and normally at least my reading of this court's precedents is that the categorical approach of the modified categorical approach applies when the court is analyzing whether or not a crime constitutes a crime of violence and this case under the career friend or guideline it can apply whether if you have two prior convictions for a controlled substance or a crime of violence in this case the court the district court looked at his prior criminal history and determined that the career finder guideline applied because of substance control substance convictions not because of a crime of violence and so to now say that we should have looked at shepherd documents even though it normally doesn't apply when you have a at least based on this course precedence when you have a controlled substance conviction if it's sort of you know it he's kind of marrying two arguments together and i don't know of any cases from this circuit in which that has applied where you where there's a controlled substance conviction that's a predicate for his  career ender guideline applying in the case i don't know that the court then turns to the shopper documents especially when the defendant doesn't challenge and raise it for the first time on appeal therefore we ask that the court would affirm it at affirm his  rm his conviction and application of the career offender guidelines the court was reasonable in looking at the representations of his attorney the fact that he did not challenge the p s r and now represents competent every evidence in which the district court can consider and determining whether or not he has convictions which qualify which justify the application of the career find a guideline the court i think would have to read the mind of the defendant to counseling figuring out that he disagreed but if you look at the express representations to the court it would be contrary to the representations made by the appellate on appeal and for that reason if we decide two things just to make sure i'm understanding your argument you agree with defense of conviction here has to qualify as a crime of violence in other words we can't avoid the residual cause issue well you see there was if you will clause issue was a additional argument that the government made at the district court did not rely on the residual clause to apply the career offender guideline but  i i believe that the court can't reach a resolution of this case without analyzing this was a through how because you see the offensive conviction here was the gun crime only right yes the it's none of that has to be a crime of violen did not make an objection actually he made representations to the court that the correct standard to apply was the career from a guideline based on his prior convictions it's not a case where you know i  i don't know if i would say he waived or forfeited the argument but he had an opportunity to address it and he he chose not to he chose to make an alternative argument i was so we should applaud claim error or not i'm just trying to figure out in my  obvious and if he was prejudiced by it but nonetheless he should lose yes i want assume that the error is plain or obvious because the residual cause is gone you can't apply the application no he was prejudiced by it that the calculations would have that the calculations by the parties in this in the plea agreement were incorrect and that if the correct calculations were applied the sentence the total often slept would have been twenty six rather than twenty four and if you subtract the track three points for acceptance of responsibility the total office level would remain twenty three which was the calculation that the district court made the essentially the sentence would have been the same whether the career finder guideline applied or did not apply and that's an argument that the appellant made in his brief the the overall system the justice system is not compromised in this case by affirming his conviction because of the that the guidelines were not correctly applied and that moves of to play never and i recall men the court was reading some cases like last night and i recommend the court to look at the case