welcome we are very pleased to have you here thank you is whether the district court was authorized to use the same criminal history category and had applied at the original sentence seem to calculate appellants amended guideline range under thirty five eighty two the same question was presented to th included in there though that political guideline rates should be calculated under one b one point one that's the application instructions which actually refers back to what this court held in money and then in this court relied expressly on the application instructions one by one point one and said that it left no doubt that a criminal history departure under for a one point three is part of the political guideline range so this court's holding in i contrast to the commentary now the commentary is also in contrast to the text which this court interpreted in mine to meet in the post for a one point three determination guideline range not include in your list no why not was william cited in the government's brief i'm asking you about will be i don't we don't know whether i'm not familiar with williams well commission in this case amended the text i don't think we would be here we would we would agree text can abrogate a four circuit case that can abrogate precedent but it commentaries also if you like yes as long as it's consistent with the right so you're you're relying but if you read mine to the extent that this court interpreted the application instructions actually which was not abrogated the application instructions show the ten step process and show very clearly that in the sixth step criminal history categories determine under capers it was the opposite of the situation we're in now the guidelines were amended the commentaries the guidelines were amended in a way that was helpful to the defendant the defendant got a three level management manager enhancement based on the management of property not people comment or the guideline was subsequently added which said you don't get a three level hanson for managing property only going to manage you only get the it has been for managing people the the defendant brought a thirty five h p motion to have the three level hasn't removed the government opposed it by saying that commentary conflicts and it cannot be applied because it was not retroactive accounting applied to this defendant and this court agreed with the government there we're on the opposite situation now and to  be faithful to capers this court has to find for the defendant here otherwise it would be doing the opposite thing so to just because the commentary is helpful to the government well when the counter is helpful to the defendant it wasn't applied retroactive we're asking that the same be held here between capers and shall we think because the court would have to stray pretty far afield from its binding precedent to rule with the government including mine if you even if you agree that m which reversed mcgee is said that amendment seven fifty nine abrogated its previous decision which is what the court with the government wants you to find here this argument was not raised the argument that was raised and that was placed before the second circuit was whether or not the sentencing commission text that is a simple fix here is they revise the text the text controls and you can't just you know revise the commentary in a way that conflicts with what actually most of the circuit courts were on on the side of the force or it seems like you have a so i also think it's simple i thought i i don't know what to say about the rules when a j letters that was just they were filed and they were responses to sort of clarify some of the record the district court i should say that this is an issue of first impression in any circuit court but in the district of maryland in every single case but one the court has ruled in our favor and one of the twenty three letters listed there's actually six cases in which the made the same arguments and the district court agreed with us that money still control but in a different kind of just looking at it from a different angle how does how does month survive the sentencing commission to adoption of of the men seven fifty nine how does it survive it survives for the same reasons that the defendant's that yes i will be the conflict is that section eighty one which provides the authority this is the the first of the two steps to decide is some of this eligible  sentencing commission says the commentary then in section the next section v one once you decided eligibility you go to discuss the extent of the reduction it says in making such determination in the court substitute only the amendment list subsection d or the corresponding guideline provisions that were applied when event it was sentenced and shall leave all other guideline application decisions on affected now what the supreme court said in freeman is the purpose of this was not just this ok ok i'll stick with it stick with it ok says in a one when you're determining eligibility you look at the guideline range the corresponds to the offense level and the colonel history determine pursuant to one b one point a before any departure any variance ok so that's the eligibility determination there's no question eligible the application not for to which which is the commentary for b one which you talk about the extent of that they would auction it doesn't contain any of that language it says in determining the amended guideline range under  one which is extent the courts will substitute only the amendments list and subsection d or the corresponding guideline provisions that were applied when the defendant was sentenced all other guideline application decisions remain unaffected now so the the language which is the focus of this entire argument is tucked into application one which only refers to subsection a want to about eligibility we're the conflict is actually not even with the right section if it is if you read them together which i think is logical to that you read them together and say they have to be the same it's internally if there's an internal conflict and there's a conflict between the commentary and the text does that answer your question or clearly  no i think the limitation is mine i was having a little trouble following this getting to the crystallized the conflict because one is not seeing why they can't be read think the text is consistent commentary comes along the commentary to a one adds the language at issue no departure no variance ok the comment which does seem to conflict with a one as this court held in my own because leaving all other guideline application decisions on affected what is a departure variance but a guideline application decision one be one point one tells you the order to go through and forty one point three precedes calculation of the guideline range so there's one conflict but then the other conflict is the fact that subsection two when you're talking about the extent of the departure it's commentary doesn't include that same language that language one one b one day doesn't make any mention of departures does it no it interpretation is also influenced by our holding which in mind which is the holding that in question well not all of one has to be thrown away ok even if even if you say that you thank you very much the legal issues are somewhat complex we've got a jump from the statutory tax which is thirty five eighty two c two to the guideline policy statement which is one b one point ten and then to the statement of in the commentary in the statement of reasons ultimately we respectfully submit that the court's job here is to construe all of this language and not to condemn it so let me if i could provide the framework that i would respect we submit to the court is really the way to look at this case  commission and acted amendments seven fifty nine in two thousand and eleven in the reason for amendment which is the appendix c the court i know what i'm talking about it actually laid out this is a page fo twenty and page four twenty one of the supplemental book laid out exactly what it was thinking in terms of the circuit split between this court and the second circuit on the one hand and all the other circuits on the other hand at the top of page four twenty one again this is appendix c volume three dated november first two thousand and eleven commission said consistent with the three step reproach adopted by amendment seven forty one which is what set out the three step process for sentencing and reflected in one b one point one the amendment this amendment adopts the approach of the six eighth and tenth circuits and amends application no one to clarify that the applicable guideline range referred to in one b one point ten is the guideline range determined pursuant to one b one point one a comma which is determined before consideration of any departure provision and your honor is correct that one be one point one a as a whole list of steps i think it's eight steps and then you go to one b one point one b now the first time the word departure ever appears in one b one characteristics and departures and any other policy statements or commentary so the first time we talk about departures is in b after the entire exercise that's undertaken in one b one point one a i could go further your honor what the appellants have not mentioned is the commentary to one be one point one if the court is still with me commentary no one  very clearly defines the term departure ok this is commentary note one need departure means this is subsection two for purposes of section four a one point three which is what we're talking about the criminal history departure assignment of a criminal history category other than the otherwise applicable criminal history category in order to effect a sentence outside the applicable guideline range so the definition of departure which is what we're talking about here specifically encompasses effecting a sentence outside the applicable guideline range so that means judge a g is that you apply the for a one point three i think the calculation is first undertaken again pursuant to one point one a and while there was a reference at step six to quote determining the defendant's criminal history category  as specified in part of chapter four the point there is you know chapter four is divided into three sections there is for a one or a two and then for a three is the departure i think what the commission  referring to here when it says determining the criminal history is for the first two provisions for a one and for a two and that's what the sixth circuit held in the watkins case which we've cited in our in our pleading to cited just a couple months ago where  sixth circuit observed i'm sorry it's the second circuit it's in montana is and this is at page two ninety three of the second circuit's opinion where the court talks about how the argument that the defendants are raising in this case doesn't really make any sense because when you look at steps one through four of one b one point one a referring to chapters two and chapter three there are a number of departure provisions in both of those chapters and so under the appellant's reasoning it would to use the second circuit's raise this argument is staggeringly broad it's of staggering breath because under their theory you would have to apply all of these departures under chapters two and three in one b one point one which which doesn't make any sense because then it doesn't it doesn't jive with one b one point one b so you've got all the other provisions all the other chapters chapters two in chapter three all the departure provisions which don't apply and everybody agrees on that that's the first argument the second argument is as i said and this is what the sixth circuit observed in watkins and i just want to make sure i get my language exactly right the when it's referring to chapter four when it's the step six reference let me just read directly to the core of this is from walk ins the defense position would have more force  instruction was to consider every subsection of part a of chapter four after all two of section four a ones subsections tell courts how to compute the defendant's criminal history category the other which is section four a one point three does not it can change the standard for criminal history category departures as the sentencing commission has explained or should consider departure provisions only after determining the guideline range section one b one point one eight instruction to look to part a of chapter four is not also an invitation to consider part a provisions that bear no relation to that task so that's the six circuit judge a g directly addressing your question saying when step six tells you to look at chapter four look at the portions of chapter four that actually makes sense which is the first provision in the second provision the third provision which relates to departures doesn't kick in until you get to  yes your honor so in the government's view there is no conflict and let me address directly why so i'm looking at one b one point ten b which is the relevant policy statement as i understand it the defendants believe that the conflict arises under that very last sentence and i'm sorry to keep reading to the court but let me just read it again in making such a determination the court will substitute only the m m is listed in subsection d for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline applications decision all other guideline application decisions uneffected now again if their argument is that this language about leaving all other guideline application decisions on affected which i think is which seems to me to be the focus now let me and i apologize the sixth circuit has directly address that point and this is in the watkins decision and i apologize for let me just read to the court walk ins also points to language in one b one point ten b one that all other guideline application decisions are unaffected etc he takes this to mean that an amended guideline range must take into account downward departures here's the six circuits holding not only does that interpretation directly contradict the guideline commentary no let's put that aside but it has no grounding in the text whose meaning it purports to explain as is clear from language in context that phrase does none of the heavy lifting that watkins and the appellant's in this case want section one b one point ten b one if step by step instructions for how to determine a defendant's amended guideline range the unaffected clause in this is the key point simply reminds courts that section thirty five eighty two c two does not also grant license to reexamine other components of past sentencing decisions so other guidelines provisions that may have been at play the whole point of this unaffected language is to tell the sentencing court you can't revisit any of those general statutory principle that when courts are looking at text their goal is to try to harmonize what the relevant actor was trying to do it's a purpose of approach presumably when congress and when the sentencing commission which is more important here is acting it's acting to do something it's doing something rationally and so the question is what is the goal you know purposively what is the commission trying to do when it amended the section seven fifty nine amendment seven fifty nine in two thousand and eleven and that's where the reasons for amendment i think are very helpful is the core of the commission essentially told the course this is what we're trying to do we're trying to actually had clarity to the issue because of those  there's a conflict here and i think it's actually pretty clear what the commission was trying to do i'm reading no one this is the language that the commission inserted in two thousand and eleven eligibility for consideration under thirty five ready to see is triggered only by an amendment listed in subsection the right that lowers the applicable guideline range ok i e the guideline range that corresponds to the offense level and criminal history category determined pursuant to one one point one a which is determined or for any departure provision including for a one point three now let's cross reference one b one point one a right the commentary defines departure an defines departure to include for a one point three so when your honor asked me the question you know what is your task here i think the court's task difficult and somewhat tedious as it may be is to try to parse through all these materials and try to make sense of th if they don't make sense or if everything is ambiguous potentially we have a problem i think when you actually try to put all these pieces together it is pretty clear what the commission was trying to do i know one other point and this is something the montan court the second circuit noted and it's not something that really has come up in the argument you also have to look at the commentary note three to one v one point ten and this directly addresses the question of the application of subsection b to write one of the examples in that commentary is quote if the term of imprisonment imposed with outside the guideline range applicable to the defendant at the time of sentencing the limitation in sub section b to a also applies so in other words of the defendant receive a below guidelines or above guideline sentence at the original sentencing the sentencing court is still limited by the provisions under thirty five eighty two c two here's the point th the term of imprisonment imposed in the example provided above was not a sentence of seventy months which would have been within the guidelines but instead was a sentence of fifty six months and this is the key language here constituting a downward departure or variance comma the court likewise may reduce the the term of imprisonment as a second circuit circuit observed quote this example implicitly acknowledges that courts grant departures from the applicable guidelines range from it rather than when calculating that range so in other words that example where the fifty six month sentence was outside of the guideline range is provided as an example of a downward departure and that's exactly the point if you are sentence below the guideline range that means you have departed from the applicable guideline range and that the term applicable guideline range as the second circuit noted in one tiny as is a term of art in this context that's why the sentencing commission with amendment seven fifty nine specifically defined that term right and that term when you cross referenced section one be one in our view clearly takes into account pre departure it does not take into account those departure calculations of the criminal history category so i hope that has entered the courts questions i know it's a little bit it is a little bit difficult because these are difficult materials but i think when you start with the statute thirty five eighty two see you acknowledge the one exception which is pointed out in thirty five eighty to see to it it's got to be consistent with the applicable policy statements you then look at the policy statement which here is one b one point ten both provision a and most importantly b one which talks about the amended guideline range that would have been applicable applicable guideline range is a term of art and so the question is what is the applicable guideline range when the commission is using that term what are they trying to say does that include criminal history departures our view and we think the commission's view is the answer is no and you look at the commentary no   i just don't think that last clause the unaffected clause and really does all the work that the appellant's think it does because again when you're when you're engaging in the act of statutory construction as i said before the goal is to try to make sense of it it doesn't make sense that it doesn't make sense but it would if there is a way to make sense of it i respectfully would submit that that is what the court's role should be and the way to make sense of it is to say that unaffected language refers to everything else all the other departures variances you know all the other guidelines issues in the case are left on affected because all you're doing as a sentencing judge when you're looking at these thirty five eighty two motions is to essentially substitute the amended guideline range which is what the  commission has retroactively put into place substituted for what was the original applicable guideline range which as i say is a term of art and judge a view to get back to your original question does not include for a one point three departures because the one point one eight so that's the way i think judge duncan you harmonize all of the legal materials that we've been talking about as the or nellis court the ninth circuit which addressed this issue recently pointed out statements of reason or reasons for the amendment also provide guidance they do i don't know if they have the force of law in sort of the strong way that i'm suggesting but they do look to guidance these this court can certainly look to that material to get a sense of what the commission was doing and i think when you look at the reasons for the amendment there's no dispute that the commission was pretty clearly taking essentially a side on the the dispute right there if the court has any other questions and more than happy answer th yes application instructions one by one point one way say that in the the was that the fifth step you apply chapter four part a weird where in the chapter four particularly and now he was right that you don't talk about a departure and so you get after the guideline range but departure is a term of it says in that step chapter five parts h and k it specifically says what it means departure provisions look to chapter five we are still back talking much after for departure before you get to step six step five is where you take into account the criminal history category under forty one point three now if the application instructions were worded differently then he would get the government might have in a leg to stand on but the way it is now in chapter four is very specific they didn't just say determine colonel history category says chapter four part a then when you come to the departure of variance it says chapter five and then after that is thirty five fifty three a factors that to me it's completely logical and i don't see how it could be complexity and did almost the reasoning that has to go into either interpretation why would we use that to conclude that there was a conflict which would have no doubt that it thought it was succeeding isn't that instructive is my only question because we're looking at competing interpreter there yeah argument it's i didn't say it's instructive it is informative that yes and there is for the reasons we talked about one section the commentary note says a political guideline range is no departure no variance there's a conflict with the extended term nation which says apply the range you did before leave everything on affected the the government kept saying we're trying to go below the guideline range we are definitely not trying to go below the gun range we would we would have presented far different arguments i mean i think we're all just trying to wrestle the text ok so so putting that aside you asked for a canon of interpretation to help and freeman supreme court freeman said at the point of wilkins held and capers where the commentary tried to undo this court's precedent the court interpreted thirty five eighty two and said the question for us is whether i'm sorry answer the answer in that case depends on whether the sentencing range referred to by the sentencing commission is the range intended by the commission or the range actually applied by the district court we hold that sentencing range is the range actually applied by the district court so in that case there was a question about the enhancement whether it had actually been applied the way some of the commission wanted it to work the sentencing commission amended the commentary and when it came back up on appeal before circuit said we don't care what the sentencing commission intended we cared what actually happened i think capers answers that question to the extent you consider the sentencing commission's intentions instructive they are trumped by what happened in the district court in that particular case and that's capers at page four seventy four  and it goes on for pages about why what happened is what the court should look at not what the sentencing commission intended unless there's no more questions thank you very much will come out and greet me directly to the next