please watch the clock thank you your honor but your honors the primary issue in this case or at least what i would call the overarching issue in this case is how far the court can stray from the cardinal principles of statutory and guideline interpretation which state in effect that the text of the guideline  is primary the court should consult the text of the guideline just as it would consult the text of the statute and where the text is clear and the meaning is pla then the court should apply the text of the guideline corollary to that principle is to the extent that the court is directed to certain commentary or other portions of the guidelines once again the  should consult the text and apply the text faithfully apply the plain meaning of the text faithfully as we know from other cases when field for example  the fifth circuit really kind of took the lead on this case on this issue and the fifth circuit in my view is the only circuit that really stands for the proposition that ruled has has reason has ruled on the problem with the fifth circuit opinion and i have reviewed the opinion that was just published a few days ago the problem with the fifth circuit opinion i think is multiple first of all it does not contrary to the government's position that case did not deal with the personifies issues raised in this case for example the fifth circuit does not spend any amount of time any significant amount of time wrestling with the issue of what the guideline actually says the fifth circuit does they're answering the exact question that we're presented with here  well i would say not exactly the same question because it gets back to the tail wagging the dog notion again on the fifth circuit and some other courts have have basically seem to implicitly take the position that with respect to interpret ing the guidelines you can just cherry pick from many anything any text in the guidelines anywhere you want to go you court made a plain error and there isn't really an argument as to that is there well i'm not so sure when you look at the supreme court's decision and i'm not sure if i'm pronouncing it correctly morel us which came out last year the opinion that was authored by judge so to my or it seems to me that that sets a pretty low bar in the sentencing context for what constitutes plain error the judge soto or wrote at some length about the fairness in a judicial system must insist that sentencing proceedings are conducted appropriately conducted properly in that that the fifth circuit for some reason thought on policy grounds or perhaps the outcome that they reached was the preferable outcome they didn't really grapple with the textual argument the guidelines singular and then and then states what the sentence was that this is going to be the gallup guideline calculation i mean it's very clear in the text of the guideline that the guidelines are referring to a defendant's singular conduct in the commission of a singular offense which results in a singular conviction which in turn results in a singular sentence  it seems to me in this in this case the defendant sentence was if i recall correctly was three and a half years on the underlying burglary there were two  burglaries his sentence was three and a half years on each burglary therefore his sentence was three and a half years there are some discussion if i'm not mistaken there is some discussion by the fifth circuit that th concerns that are now another context consecutive sentences could be interpreted as an indication of the seriousness of the offense from the point of view of the sentencing judge but i think the court can take judicial notice of the arizona criminal code in its own experience as your experience jurists and attorneys  required to be imposed consecutively well in arizona consecutive sentences are the default mode absent an explanation as to why they're not consecutive and very often they're given consecutively because  prosecutor says judge there's two victims it would be unfair to sentence to get to impose con current terms when there are two can two two victims so we don't know what's going on in the state courts but it's not necessarily a gauge of something that a federal court years later should take into consideration and if the single sentence rule doesn't apply that's not accurate and there are many cases the fifth circuit notwithstanding there are many cases even in our circuit that have emphasized the difference between chapter four currently appeal our use for an appeal the government would respectfully request that the court declined the defendant's invitation to create a circuit split with the fourth and fifth circuits as those rulings correctly address the identical issue here and were correct indeed those courts rejected almost identical or at least substantially similar arguments that the defendant currently advances on appeal here in this ng through all of the references and  sections together therefore you should read them together for the enhancement is there any basis for that in that the said think i had lunch or any reason why we should follow their lead on that yes honor i would actually agree with the fifth circuits approach in that the enhancements under the two point two in the commentary are determined by a sentence imposed approach so in calculating the sentence imposed in the appropriate and handsome that court will actually have to go and consider the criminal history guidelines specifically the single sentence rule to determine prior relevant convictions and how the enhancement or the criminal history and say you should use that for determining and the answer man's can you cite me to to another guideline that takes an approach or other guidelines that take that approach off the top of my head your honor i can't think of anything obviously the prior version of the illegal reentry sentencing guidelines had the same approach but off the top of my mind i can't think of an analogous provision that directly deals with the type of misdemeanors then you'll get this sort of enhancement so clearly the sense of guidelines for specifically saying we want you to consider these three prior offenses together but nothing like  garcia sanchez case in which the court employee effort can evaluate in the cross references essentially concluded that with the operation of how the two l one point t cross references to the criminal hope history rolls that that the enhancement actually imply a deadly incorporated the single sentence rule and that was really the bulk of the analysis in the fifth circuit and  were no express cross references between the enhancement provision and the criminal history rules the court in its analysis concluded that it made good sense to look to the criminal history rules because the analysis was very similar not identical but again the us under the enhanced mn calculations and the criminal history calculations so really a fundamental purpose in determining the severity of prior convictions and what the appropriate punishment should be so in that view that that rule is also consider consistent with your honor's reference the background materials and the guidelines themselves in your honors if there are no additional questions i would s of a question about whether you can point us to any case in which there was no objection so it could be plainer but it's a purely legal question and there would be no prejudice for when it was raised and the the court of the government relied on that case extensively to argue that this court should decline to apply to nova standard in its discretion and the government made the point in sprit thing that without the objection the contemporaneous objection the parties and indeed this court has been deprived the opportunity of a well reasoned order from the district court in consideration of this issue ron ok well i guess i'll have to make this quick gonzales operation it was actually a case i handled on appeal the reason the court used planer standard was it was because the court argued that there were facts it needed to be resolved and that's why i needed to go back to the district court despite the absence of any precedent in the ninth circuit the government's position is the court should use cherry pick whichever portions of commentary it wants to in order to overrule and provide controlling authority over the text of the guideline as well as the text of the specific commentary that is referred to by the court as well as the commentary itself and just since i'm up running over time i just want to say that if you examine the commentary carefully you will see that any even in the commentary what you're faced with is a fair amount of