good morning your honor said matt campbell from the federal defenders of eastern washington and idaho on behalf of jesse barker i'm going to try to reserve three minutes for rebuttal in this case the district court erroneously found that a prior conviction under eighteen u s c nine twenty two g for being a felon in possession of a firearm was a crime of violence the court did so because it based that determination largely on the commentary to two k two point one and forty one point two rather than any recognized prong of talk if you're talking about the application note correct a commentary yes your honor ok let me ask you a couple of questions about this discretion under kim roux and the factual determination is clear is this an interpretation of the guidelines or nap location of the guidelines to the facts it's an interpretation of the guidelines here are subject to an overview because the issue is what are the bases that a crime that a prior conviction can be determined to be a crime of violence and the right kate so the next question i have if it is dunno if the district court what at twenty the base offense level would be excuse me the guideline range in criminal history category four would be fifty one to sixty three months however mr barlow and what did he get mr barker got forty eight months so we're saying then there's no question that it's not harmless because he got three months less than it would have and as a base under the guideline range now you're on the base offense level was twenty however he pled guilty so he would have been sentenced as a seventeen and a seventeen the offense probably thirty seven to forty six months so even at the high end of that range he would have been looking at two months less than what he received what judge nelson actually did in this case was determined we argue erroneously that the range was fifty seven to seventy one months and then gave him the low end and then very downward by nine months if those same calculations were used that would have resulted in a sentence of twenty eight months and mr barker would in fact be out of custody as of today ok so then if i look at two k two point one eight two which as i understand it is th guideline is the place where we have to go in making these determinations and i look at two k two point one eight who is the application note to that particular guidelines says a crime of violence has the meaning given that term in for b one point two a which you could argue and i fail i frankly think we'd have to agree with you to some extent that the court has found that guideline unconstitutional correct so we got four point four b one point two way but the problem comes that it doesn't just  it says and application note of the commentary reading that language it doesn't suggest that four point four b one point two as interpreted by the application note is what we're using it suggests instead for b one point two a and the application note is that it is that a distinction that makes a difference in this case your honor i don't think it does and i think the reason why it doesn't is that at the time the commentary the application that was written the residual clause was in essence considered valid well but  just a second if in fact i mean i read after i read this particular note i read application notes into cave one point three into k two point what one point one three b one point five i read all these different situations in the application notes and it seems to me that in some they say and and in some they say as interpreted by does that make a difference i don't think it does if we look to the stinson case a case that suggests it doesn't make a difference well i think that if we look at the supreme court case in stinson that says that where the text of the guideline and the commentary or the application notes contradict it's the text of the guideline that controls and if we look at the guidelines themselves believe it's one b one point seven it says as much and cites to stenson so what we have here is a situation which through johnson two thousand and fifteen the residual clause is no longer valid which means that under the text of the guideline something can only be a crime of violence if it involves either the use of force or as one of the enumerated offenses this clearly is neither so therefore the commentary amounts to an expansion of the text guideline which is not authoritative by the sentencing commission and congress doesn't in fact approve those well let me let me think about this again the judge fletcher who did live here not the one who's returned home to would live where she lived she wrote barajas a vs wise and then brought us vs wise she had a similar situation and she was trying to determine what to do with this kind of a problem and she was in fact looking at one one zero one a forty three f and determining trying to determine whether it applied or whether the application note applied it seemed to me in reviewing that case she came out differently that she seemed to think that is if it's to really well if it's to be interpreted and that it is two different interpretations both of which would be a political and if i go to and you don't disagree with me do you that if i applied only the application note and not for the one sentence i think the analysis would be significantly more complicated well question i guess if i read the application note it says a crime of violence does not include the offense of unlawful possession of a firearm by a felon these are the most important words unless the possession of a firearm described in twenty six for us twenty six u s c fifty eight fifty four a which is exactly this one so the application note would suggest that for the possession of a firearm as indicated in twenty six fifty fifty eight forty five a that is a crime of violence because it's a very dangerous to possess the firearm now so it seemed to me again going back to where i was and trying to get you to help me the term and in the application note for two k two point one eight two is pretty important i'm either got a nor that and for some reason and i couldn't find a case that would suggest i should or if i read it in  then it seems to me i've got a crime of violence especially because you don't dispute that a molotov cocktail is in fact a destructive device you are taking that at the end and then perhaps going backwards i don't dispute that a molotov cocktail in theory is a destructive device but i do dispute whether mr barker was ever convicted of that since you was only played under nine twenty two g the statement that there was a molotov cocktail involved would be surpluses at best that under de camp would not be part of the analysis that we would engage in but i think to get to the court's fundamental question which was the use or your dancing it say that it's not a visible right it is not a divisible crime in the government concedes that nine twenty two g is not a divisible crime so i think the fundamental question is how much of an import does the word and have and again i think the at the time the guideline and the commentary was drafted the and the language perhaps made more sense because at the time the residual clause was considered valid but we have now here nothing to do with the residual because it has all to do with whether you have you use the guideline which is that the two k two point one eight two or when the you can use that and the application note the application note doesn't talk about otherwise involves conduct that presents a serious potential risk but we've studied application note says there are possessions which are in fact crimes of violence what we've tried to do is set a number of cases specifically shell stinson and others that stand for the proposition that once the residual clause is excised the commentary that interpret it is no good and i would cite the court to the soto rivera case out of the first circuit that was issued this year that's always a good point and i appreciate your point and hill i thought to myself if it's center as interpreted by i think it's cases are dead on but if it's not as interpreted by and that's why i went to all these other application notes in all these other sections to determine if they use and or they use  interpreted by or what they do use it seems to me that end is a different situation than as interpreted by and all of your cases are really about if you will those guidelines that are as interpreted by i understand the court's point i've yet to come across a case that says that the commentary can simply create a freestanding exception i rely on the cases cited i realize i'm far over time already  good morning your honor so may it please the court melissa lou on behalf of the united states the defendant raises a number of arguments relating to forty one point two that are currently before the supreme court in battles however this is not the same a faculty this is a two k two point one case and we don't even get to four b one point two but for the fact that two k two point one incorporates excerpts of four b one point two into its definition of a crime of violence and it but the question remains to me whether might be useful for us to wait till buckles comes down to see what the court writes yes i think it could be useful if the court disagrees with the government's interpretation of the two case two point one definition of a crime of violence which is it says crime of violence to find in forty one point two and comment one to forty one point two so it's if the sentencing commission copied portions of those text and reprinted them in fall and comment one hundred two k two point one thereby setting them on equal  seventeen so yes i think it it could be useful for the court to wait for the back wheels decision and if it disagrees with the government's interpretation of the definition of crime of violence in two case two point one  address the issue of the categorical analysis the government recognizes that the categorical now so supplies to the guidelines generally but it applies to cases where there's a matching analysis needed here the text of the definition that we're looking at specifically that language in application no one to forty one point two really dictates circumstances based approach like the supreme court's case nisha one versus holder and unusual on the supreme court was looking at the monetary thresholds required for a fraud to be an aggravated felony under an immigration statute and the court noted that are some statutes or guidelines that refer to a generic crime and others that refer to a crime as committed on a specific instance and the court concluded that that particular statutes on the latter category and there was no need for a categorical matching analysis like that case the language we're looking at here also falls into that latter category it's clear that the sentencing commission is asking sentencing courts to look at the crime as committed on a particular instance namely the type of firearm that the defendant unlawfully possessed and so the government's that nine twenty two g and is not to visible however you only have to look at a prior conviction as a complete package under taylor and sheppard when you're looking to vindicate sixth amendment rights and here the sixth amendment isn't implicated this is just straightforward judicial fact finding and so really the sentencing guideline requires sentencing courts to look at unlawful possession plus whether or not a person possessed a firearm that falls into this really dangerous category and so it's not significant for sentencing purposes the fact that that was an element really had to find i'd also like to know that a molotov cocktail does fall into this category of really dangerous firearms alongside things like rockets and missiles and so there's really not a concern about judicial fact finding here because first of all the defendant had ample opportunity here to object to the fact the molotov cocktail particularly when two k two point one became an issue and also one would think that since it is a really dangerous firearm if he had had a bottle of something else like a bottle of soda he probably would have said so and so there's no concern about that  thank you ron it's very briefly in regard to waiting on back all if we would ask the court not do that for practical reasons beccles as of this morning sitting here has yet to be set for oral argument so any decision is likely to come at the end of the term which perhaps june of two thousand and seventeen which means that this case will become moot since mr barker is set to be released in july of two thousand and seventeen also i don't think back over has really become that is to say i understand that he's scheduled for a customer released from custody and july but i assume that depends on good behavior and if we were in the and say the sense has to be shorter would that have any influence on his period of supervised release i wouldn't apply very briefly in regard to the issue about the explosive device the judge school today asked about i did want to point out the government only addresses the constitutional underpinnings of taylor and de camp and ignores the other two underpinnings namely the textual analysis as well as what justice kagan identified as being the fairness equity arguments in other words the defendant has no reason to complain about a deficiency whether it's a m cocktail or whether or not it's another firearm at the time of the conviction and that's the situation we have here where the government sets up a false paradigm where it says mr barker could very well have objected to that at the time there's no reason to and as justice kagan explains you may very well  prosecutor or the court if you're arguing about a factual discrepancy that doesn't matter thank you i'm over time again i think most sense for their arguments united states prison marker submitted for decision