fourth case for this morning is united states against rodrigue rodriguez and if this court is certainly knows there's one issue before with this appeal it's whether or not the district court improperly applied both the trafficking in hands of men and the other felony and has been contained in guideline section two k two point one the five and the six b and i think it's it's kind of a technical complicated question but it's it's most simple formulation the answer turns on whether or not the sentencing commission can express we prohibit simultaneous application of two enhancements through negative implication through the omission of a critical phase of praise and i submit emphatically that yes it can well so here's the issue i have even taking the second circuit's decision into account and i have nothing but the greatest  all of the judges panel but the sentencing guidelines do permit double quote unquote double counting unless there's an express indication that it's not supposed to happen so what we've done for example with this other felony is we've said well there is an express indication that you don't apply the enhancement if the other felony is a firearms possession or trafficking offense because that's what the application note says and that's pretty plain black and white what you're arguing for is is a rather convoluted implicit exception because of course the other felony here was just a state felony of going out and shooting people which doesn't have anything to do with firearms possession or trafficking and we would all agree that first thing we're going to tackle is trying to understand what exactly application no thirteen d is what it's doing and what it says and the district court made a comment that it just reads that because she knows thirteen de purely as a permissive clause and respectfully i don't agree with that interpretation i think it's a limitation as you just pointed out there's the parent got a call there this specifically says you can't double count in situations in your to define situations not including yours is the things i mean what you've done is you've pulled apart the other sent to the other part and you've just anguish between using or possessing a firearm in connection with another felony offense but you're thinking of is part one or part two possessing or transferring any firearm that with the knowledge that it will be you would be used for possessed so it seems i have trouble getting out of that the notion that in the second half if if the firearm is transferred somehow you can't you see other felony unhandsome it right so i want to first just follow up on the parents that a think i think the limitation that thirteen to impose is it's not just contained to a parent that a girl had had that situation if if that was the sole limitation provided by thirteen to you it wouldn't be contained in a parent cold you know by nature contain asides cos it's additional material stands for points we don't put any thought to the very nature what are we talking about when we say another felony offense so there's i mean that's a big universe and so they're saying lower excluding two things from that universe i e in a sense other than firearms possession or trafficking trade but what's what's also really missing is that language from the second cause we see it in the six b with whether or not that it was with the firearm was transferred with knowledge intent or reason to believe the firearm would be used in connection with another felony offense so i think up but of course the other thing the part that we're talking about says is if the defendant know or transferred so taking that back into the earlier part the first part in front of the semi colon is you lose and that part after the semi cold line is for transferred so it seems to back to the first sentence of the application well because if you could if you go through the first sentence which of course winks allows the one in p five to be double counted it does so in situations where there is three or more firearms that were both possessed in traffic then p five which is the pure trafficking in headspace which just say it's you know the defendant traffic firearms at four levels and then bring in b one b five and b six together in the second sentence there transfer is presupposed it's already been assumed by application to be five in tandem with b one that's why i think the right way i mean you can get the other felony enhanced than if you are using or possessing the firearm yourselves in connection with another transfer and we look at what you know i would submit just jumps off the page is missing and that's that knowledge intent or reason to believe language we look at that i think that's where you know if there is some ambiguity about what the word transfer does lott thank you and may it please the court and he was right a lot of represent the united states the district court here made a clear factual finding that the defendant both traffic the firearms and there's no dispute about that and that he did so with the knowledge intent or reason to believe that those firearms would be used in a different state law crimes shooting other people flakes the exact right right and i think my understanding is that that's a slang term for the latin kings which are apparently a rival street gang of the individuals involved this situation is of course very different than john's and defense is not suggesting that is the johns case with the seventh circuit said the other  be another trafficking or firearms offense it is simply a different offense which is exactly what application note thirteen d says is permissible when the other felony offense is something different than just firearms   if this court has no further questions on this point i'll just ask that the judgment of the district court be firm i see none so thank you very much  for all the reasons i guess he says i would have imposed the high end of it but he just said that the high end would have been one hundred eight months of the lower range and i think the rationale he gives the problem with that and why we can't consider the air harmless if the court doesn't fact finding error is that he when he talks about thirty five fifty three factors and he talks about this sense against me it's for firearms the guns and hands with firearms he's talking about that in a general sense he's not necessarily it's not clear he's the existence of obliterated serial numbers that was another plus four and then in addition there was be five the trafficking enhanced maybe six b the other family of five in connection with enhancement that we're talking about so it's if the specific the six did not apply and it was for offense levels lower resulting in iran's range of two or three years difference i think i remember correctly i submit that we can't find that this court cannot find their thank you all right thank you very much thanks to both coun