to recognize there are two distinct lines of cases defining two distinct terms in those terms are the guidelines term controlled substance offense and the statutory term drug trafficking crime and while they share a similar definition the guidelines has one component that the statutory term does not and that's the commentary and what the commentary does is it further explains the guideline and it's governed by it seems to me goes beyond the guidelines because the guideline doesn't say attempt that's correct your honor but what the guideline does is provide a broad definition you have a maybe broader the and the commentary maybe broader than the guideline i mean that's my problem in your honor if attempt didn't did appear in the and attempt i believe it is a it's your you're under b and there an attempt is not mentioned the commentary says attempt as part is a complement of both a and b correct your would your argument be stronger if  omitted attempt here i don't believe so and that's ok isn't your argument now much weaker because congress was six or the sins of commission was expressed including attempt in a tells us that when your interpret in the two you don't just look at the text of the guideline you have to look at both and that's the first look i have to look at both what you have to look at that you have when you're when you're interpret ing the text of the guideline you have to look at the commentary and if the commentary has it enough that means the text does too it doesn't make any sense what anderson says is that when you're your interpretive what a guideline means it's necessary to look at both the commentary in the guideline itself well of course that's true i guess but if the guideline says a and the commentary says a plus b i'm supposed to assume the b s in the guideline not necessarily your honor i don't think that's what we have in this case ok so tell me why in this case we have a definition that doesn't say one way or the other whether attempts are included whether solicitations are included well you know attempt is such a common crime would expect if they intended that crime to be included they would have said it and they don't say or two of admitted it and both that's why i asked you if your argument wouldn't be stronger if a if the word attempt were omitted from  in your own or in interpret it i think that it's necessary to look at the commentary as well and well i looked it be simply doesn't say one way or the other whether it's included right but what suspicious is that a does it goes out of its way to say attempt is included and then b they do not repeat that so how do we include attempt there where it's expressing a and omitted from b well your honor the question is whether it's inconsistent and in determining if it's inconsistent you have to look at the text of the guideline and the commentary and determine whether they can be right in harmony and that's what anderson instructs to do in this situation now is income system in the way you're using it with her different from broader i mean i was consistent all come in conflict amid the we're not talking the conflict we're talking about here is that the commentary is broader and you're saying is yeah but that's ok it's not that much broader you know there are two distinct questions and one is whether the the commission had the authority to essentially expand or brought in the text of a guideline it did have a use the text of course we're going to do it by the commentary your honor that's not the challenge that's been made here though that's actually previously been a robot by the ninth circuit and it's been held to be within its authority to at that commentary language this specific challenge in this case is whether it's inconsistent which is a separate and distinct question from whether it had the authority to potentially brought in ok this is kind of an abstract matter but i want to focus on what inconsistency means either in our careers law and we are using it in consistency clearly would be clearly would include something was contrary to the guidelines as going to come terry says not a that's inconsistent but is that the only way in which a commentary can be impermissible with respect to a guideline let's say that the guideline says drug submitted to the court that what the the court and shumate did is similar to what both the seventh and tenth circuits have done and that's to look at the text of the guideline and view it as very broad in and of itself and look to the commentary for further definitional support and when those circuits have done that what they've done is looked at the the commentary and concluded that it is as broad as it really seems and it doesn't say one way or the other in the text of the guideline whether it's included the commentary concludes that it is and it can be viewed as a definitional provision instead of cluttering up the text of the guidelines saying that it includes aiding and abetting to distribute if you're saying the commenter isn't definitional provision correct your honor but the guideline itself has definitional group vision so he's a little there they already did give me a definition that's my problem the definition is no adds attempt that has been omitted from the language of the it just seems like such a common common thing attempt that there might be the sentencing commission might have done this someplace else corrector i believe there's a there's a blockquote in my brief from the tenth circuit goes through some of those additional areas of the guidelines i don't have them right in front of me and i can grab them if you would like or you can do an arm of the live honor in terms of and really it's what the d c circuit did is at odds with what the ninth circuit framework from andersen requires did you cite vegans are in your proof i can't remember interested to hear why you're not relying on that case because you're sort of debating this question as though it's right wing slate i believe anderson is the case outcome but i am looking at a case in which we in one thousand nine hundred three can confront of this exact argument and rejected it as squarely as the government is urging us to i just don't i'm wondering if you have any ideas as to how we would avoid following that decision here your honor if we if both of us just missed a case it may be appropriate for a slight amount of additional briefing to address it because i look at it i don't i'm not going to spin my wheels and try and respond to an argument that i i'm not exactly sure what it integral i do want to talk for a little bit about our narrower argument which the government didn't discuss and its argument and that's that the essential feature of a controlled substance offense is distribution or possession with intent to distribute so even if we accept that solicitation is read in to the commentary is part of the in code offenses that the court considers that still leaves the question solicitation of what and that what is important at solicitation of distribution the least of the conduct that mr crumb could have been convicted of is soliciting another to possess to purchase drugs from him and that's not a distribution offense that's not solicitation of a distribution offense that's not an issue that this panel has decided it's not decided by hsu majorly those decisions don't do the the legwork that would be necessary to resolve that issue they don't define what generic solicitation is they take the first step in terms of  doing the construction of the commentary to determine that solicitation is there but that leaves the question for this court ok solicitation is part of the commentary is this solicitation of a controlled substance offense in this instance you're relying mostly on right that's right there's this chain of cases that poll that so the first case in the series in oregon is sargent which is a conviction under a solicitation statute and then they're pulled into the attempt line by polak the organ courts of appeals are saying what would constitute solicitation just offering to sell without any evidence of further intent to distribute by the person that's buying the drugs it would constitute attempt under oregon law but no it's the attempt to distribute is when you're trying to get a third party to commit a crime right that what you have in a case like pollock is an attempt on that person's part to distribute the drugs he or she possesses to another right but this is the weakness in the government's argument is they're trying to pound what is what is solicitation and offer to sell into an attempt i mean their argument really would make a lot more sense if they were arguing that this type of solicitation constitutes attempt those are the terms on which all the other circuit courts have analyzed this type of conduct they're analyzing whether an offer to sell involves enough in that particular state to constitute attempt and that's what that's how this court kind of looked at it in sand of all the sessions to oregon law doesn't constitute a champ there's not enough there it's just the offer to sell there's no additional corroborative act that's necessary under oregon law so the government can't come up here and argue that oregon law constitutes i read paula is not i don't republicans having a read out of you know the attempt offense at issue there some kind of you know the actual intent to distribute that that's the problem in the in the cases that you've relied on is that some of the states just would allow a mere offer to sell even divorced entirely from any intent on the person's part to carry out the offer to to sustain a conviction and that's not true in oregon in pollok the court explained why given the circumstances in which the offer was made the officer there was a problem because if you the officer could infer that the person really did have the intent to actually carry out the distribution the problem with i disagree that there's necessarily difference between oregon law and those other cases this is that's kind of argument the government makes and it's brief and basically what it does is it uses the federal courts criticism of the limited actis raya required in those statutes and then read that as some sort of holding about what connecticut state law or kansas state law requires in terms of think under those circumstances one might say well obviously that wasn't any kind of a person wasn't serious about their intent to carry that out they're standing there they don't have a right but i think it was the circumstances in which the offer was made that's what the court as i read it said  yeah it was he didn't there wasn't any concrete proof of possession coupled with the offer but it was made under circumstances where it would be reasonable to infer that the person was actually serious they weren't just offering to sell you the brooklyn bridge kind of thing right and i understand your point i guess you have to read it in conjunction with with self and sergeant and we said it just record decision that i think does a good job of describing just how broad that underlying  required is under oregon law that i believe that sergeant where it's a jail call and the person is telling a third party hey you get my friend out you take him to i think california and a buddy of ours will give you five five and there's no evidence of an agreement there's nothing else really that's described in the facts other than the jail call itself and that's something that the sand of all these sessions focused on is really the lack of any corroborative evidence in that that was nonetheless found to be held sufficient to constitute solicitation under oregon law so you combine that with pawlik and there's just nothing that's required there other than the offer to sell in many instances and in the you know it's a categorical approach so that the question is whether categorically something more is required in an organ holds that the act of offering to sell in certain circumstances is in and of itself enough to constitute a solicitation or an offer to sell or attempt which this court has held is  not tantamount to attempt under federal law so that's the problem solicitation doesn't you know the fact that solicitation is included in the guidelines commentary doesn't change that it still has to be solicitation of a distribution  ok so for those reasons we did ask this panel to affirm the decision of the district court mr crumb's conviction does not categorically qualify as a controlled substance offense ok thank you thank you response thank you your honour's i believe judge watford hit the nail on the head in observing that oregon still requires the intent to distribute a controlled substance and the difference between that and states that criminalize the words of the offer is the intent with those statutes that criminalized the words or the intent to utter the words the intent required under oregon law is to distribute a controlled substance in terms of the conduct being broader the issue make or was aware of the sergeant and self when it made the decision and the scope of oregon law and public didn't really change the scope of oregon law it still requires an intent to distribute a controlled substance in terms of whether this should be couched as an attempt or a solicitation the government's urging this court to follow prior decisions of this circuit which have characterized an offer to sell as a solicitation and in the levy the the court didn't simply make the decision because the the defendant had argued that an offer to sell is a solicitation and therefore she made applies the court in least stated right at the beginning that we compared the elements of the statutory definition of the crime of conviction with a federal definition of the crime to determine whether the conduct prescribe by the statute is broader than the generic federal definition and from there the court went through the categorical approach it went through the modified categorical approach and its conclusion was these documents on their face establish that lee pled guilty to selling were offering to sell cocaine base conduct that falls squarely within the definition of controlled substance offense it decided the exact issue that the defense is trying to get around in this case but it was directly on point and it decided that