i don't have that in front of me but i would say two x one point one doesn't even apply at all because everything is in the two statutes at issue here as they wail in court the th circuit that would be and comment to it's my position that the substantive offense here for lack of a better phrase and there isn't really any better phrase  a separate punishment act it's anywhere from nothing to life as opposed to having a mandatory minimum councilor you have a problem with this is that in the criminal law subs and offense is used a term of art we have been code offenses attempt conspiracy complicity and they piggyback on a substantive offense what the person was soliciting or attempting or conspiring to commit so why should we not read the word substantive offense in keeping with the two and the way that it's ordinarily used in criminal law as it can't be is that that that language takes this substantive offense rubric out of the equation it's different is this harmony so you're arguing that there's something in this subsection that makes it different from the way that subset of offenses are treated throughout the guidelines and the rest of the criminal code what's special that means we shouldn't treat subset of offenses meaning what it means to fix one dollar which special as it has no mandatory minimum which i think though that list of two x one point one the substantive offense applies to a number that include mandatory minimum of the two d one offense if i recall of the  and ninety one is originally and acted in two thousand and seven didn't have any mandatory minimums for anything it was changed alternately after all lookout that works for the for all shop just look so the look out because whatever reason would be an absurd result that for the last part the no more than fourteen the rest of the guidelines and particularly enhancements would certainly be in place and handsomest relator shipper all and handsome bad but that but that doesn't answer the basic question base offense level still seems quite absurd great the disparity in the base offense level for the lookout vs the kingpin is hard to absurd but my my criticism would be that the lookout's lawyer didn't do as good a job of questions so offensive conviction right so if we just look at the plain language used to be one point one a one the offense of conviction here is fifteen and you foresee right corso so if we were just going on plain language i think i know where you're going to go after this but i'm going to ask the question anyway so we're just going on plain language than fi three so following up on judge greenways question when you direct our attention to two x one point one does that mean that it's reference to applying the base offense level for the substantive offense is the critical distinction because it doesn't say apply the guideline section to the substantive it quit it to x one point one directs you not just to two g one point one it directs you to a base offense level ok and help us take us through that progression ok twenty two x one point one one five nine four c is a conspiracy that is not covered by a specific guideline it's not explicitly covered that's why we go to two x one point one so i have a more fundamental question would you concede that in thinking about this guideline appropriate offense level that there's got to be some ambiguity you can see the th circuit taking a different position so so i presume that based on that you would concede that there's got to be some ambiguity here i think the ambiguity is in if there's any ambiguity is that dollar it talks about offensive conviction and it mentions be one without mentioning any one at the two would really have to be read together because how we didn't do that right i mean we spend so much of our time particularly here at the appellate level on what was said whether it's congress in this instance the sentence in motion what was said what was not said what should we what can we intuit what was said and mistake way limit they look because they mention two x one point one and they mentioned it as simply directing it to the guideline of two g one point one instead of what it does it actually direct you to a specific base offense level of that guideline that's i think the mistake that they made because they went they went from two x one point one almost in a vacuum to two g one dollar and they looked at two g one dollar and they said well for an offense of conviction under being one it's a one and being one that's the statute a want to be one this defendant mr simms pled guilty to a conspiracy to violate a one and b was so that the way you artfully worded your response of judge green away did not contest that there is an ambiguity in our in the case before us right the th circuit came to a country position and it was not completely unreasonable so shouldn't we i mean i think the status of levity in the guidelines have been settled in our circuit but wouldn't the application of the rule lend the favor even if it's not the most natural reading if it's a plausible reading should we tend towards the lower guidelines and let the commission raise it if they want to i don't think so because it's not a plausible leading if you ignore two x one point one is directed well let me so willing base the families a plain white might be a plausible reading a lot of the guidelines are pegged to statutory mandatory minimum the approach the commission generally took in the drug crimes for example was not put the guidelines where they think is right and then let the minimal trump them they pegged it so that if you were subject to his mandatory minimum the guidelines would would already get you basically there and this is a situation in which the stature meant to remain a misery different depending on if you were convicted of the substantive six trafficking you got a mandatory minimum on the walsh act if you're convicted this conspiracy he has no mandatory minimum here correct correct so that was part of whalen's reasoning as to why it is plausible that the commission would set a different base offense level for the substantive celtic's trafficking crime from the conspiracy because one is already satisfying going hand in glove with congress's mandatory minimum and one doesn't need to because there's no mandatory minimum but both of those statutes call for a potential statutory maximum of life there aren't that many crimes that congress says the statutory medical understand why the maximum matters my understanding is that the guidelines are generally pegged to whatever a minimum is a political and you see that throughout the drug crime certainly but if you if you look at the at the guidelines schemas if you talk about as a whole and you look at the the conspiracies that are paying to e i think that's another indication of how serious congress took this offense and for it for someone to be convicted of conspiracy and to end with with say a criminal history category one and have a guideline range of fifteen to twenty one months and for the person who's convicted of the substance of offense to have a guideline range of one hundred and fifty one million two hundred and eighteen thousand and eighty eight months that doesn't make sense why  where the offense level is fourteen and then it's still low because there's no coercion for soul that's correct it's a voluntary it's viewed as a somewhat voluntary enterprise that is correct and that that's what that's one of the thing that's because that's what one of the thing that  multiple victims and so forth so i don't think that is an absurd result in this particular case we charge six people with being part of the sex trafficking conspiracy they were not all equally culpable some of them were leaders of this others were people that just assisted somewhere will women who were originally victimized by by being sex into this gang and then later became victimizers themselves and what with the sentences our courts have done and we negotiated conspiracy cleaves with most of them the courts have taken that into consideration and they varied from the guidelines that they found mitigated or or minor roles and they've adjusted the sentences accordingly so that for example one of the individuals in this conspiracy by the name of jose the last days he's doing seventy and a half years well i'm just what i'm doing and i'm you're asking me about if there's two people who are part of the same conspiracy who both plead to the conspiracy going to dip and there's different culpable levels the courts have to have have have imposed sentences agreed that that would bring us into a concession and the rule of lenity right ok so give me an example of what it would not want you know i guess what i'm saying is i don't agree that there are two equally plausible arguments here  tell me what is give me an example of one that would bring about at least a discussion i'm just i guess i'm trying to think about in this particular situation where it seems so clear to me what two x one point one says to do what would be a plausible i just don't see a plausible argument to say that a conspirator involved in a sex trafficking conspiracy should get a fourteen instead of a thirty four under the formula that is set forth in the sentencing guidelines the question is whether they should get fourteen the question is whether it's written in a way that they should get a fourteen day it we you know we were not trying to outdo the commission right we're trying to deal with the language that the commission has given us to look like and so if and if two x one point one was not involved if that will that conspiracies that are not expressed we covered by a guideline was not if there wasn't a section dealing with that and it just for whatever reason because it's a sex trafficking case you went to two g one point one without the two x one point one direct direction then i think if that was all we had to deal with then when when we're talking about offensive conviction being the one and there's no mention of one thousand five hundred and ninety four dollars see that's probably an example where that that would be your be in trouble then because you can don't have an awful lot to say it seems that you guys adequately did my rebuttal for me i will you know that they say that it requires them to go back to the one dollar f m and that's when they they couldn't find any mention of application due to is there it's a passing that they faced and i think everybody faces is that that section and i might not like the baptists and you clearly understand had only mentions he said well they obviously just did some really poor drafting it was a drafting error maybe so but they haven't changed it especially since way land and not for the many years that both of these statues have been in effect as it is since two thousand and eight in both cases i believe and whaling was in two thousand and sixteen and i'd like to thank that when somebody draft or the sentencing how did the i'm almost out of time here are a section of the sentencing guidelines that they put some thought into it these are not stupid people these are experienced people they're circuit circuit judges the legislators may they spend a lot of time doing these things i think they mean what they say a plain language is what it is the ambiguity that it's only come when you try to torture it as the government has by reading something into it that isn't there