concurring specially.
I concur with the result reached by the court today, but do so only because the *143government has conceded that the Criminal Livelihood Guideline, 4B1.3 of the Sentencing Guidelines,1 does not apply in this case and not because I agree with the court that this section applies only when the accused’s earnings exceeded the annual minimum wage.
At the time of sentencing in this case, the Assistant United States Attorney, though admittedly in a difficult situation because of the plea bargain agreement already in place, announced that he had the responsibility to advance the position of the United States Parole and Probation Office. This included arguing for the three-level increase in sentence mandated by section 4B1.3 for defendants deriving a substantial portion of their income from criminal conduct. However, when the case was appealed to this court, the United States Attorney, joined by the Department of Justice, whose attorney argued the case, changed the government’s position concerning the applicability of this section to agree with appellant Nolder’s position. Under this interpretation of section 4B1.3, they argued that Nolder did not receive a substantial portion of his income from criminal activity because his total income was below the yearly minimum wage. This position was repeated in oral argument.
My differences with the court in this case concern its interpretation and construction of 28 U.S.C. § 994(i)(2) which states:
(i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant—
(2) committed the offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income[.]
Any determination concerning the proper scope of a statute must begin with an examination of its language. United States v. Monsanto, — U.S. -, -, 109 S.Ct. 2657, 2661-62, 105 L.Ed.2d 512 (1989).
The text of the statute indicates that it applies to defendants who have derived a substantial portion of their income from criminal activity. The government argues that both this statute, and the guideline based upon it, take their meaning from the two statutes they replace, the dangerous special offender sentencing provision, 18 U.S.C. § 3575(e)(2), and the dangerous special drug offender provision, 21 U.S.C. § 849(e)(2). Those statutes defined “substantial source of his income” as an amount which exceeded both the yearly minimum wage, as set by the Fair Labor Standards Act, 29 U.S.C. § 206(a)(1), and half the defendant’s adjusted gross income under the Internal Revenue Act, 26 U.S.C. § 62. 18 U.S.C. § 3575(e); 21 U.S.C. § 849(e). To accept the government’s argument, it would be necessary to first stretch the phrase substantial portion of income to equal substantial source of income, and then treat the detailed definition of “substantial source” from the earlier acts as if it were codified in 28 U.S.C. § 994(i). I am not convinced that we should engage in such semantic somersaults, especially when it is contrary to the plain language of the statute.
Portion and source are simply two different words with two different meanings. Webster’s Third New International Dictionary (1981) defines “portion” as an “individual’s part or share of something” and *144“source” as “point of origin or procurement.” In 28 U.S.C. § 994(i)(2), Congress mandated imprisonment when the defendant derived a substantial portion of his income from criminal activity. Congress could have defined “portion of income” in the same way it did “source of income” in the earlier statutes. It did not. If the Sentencing Guidelines Commission was satisfied that portion meant source, it could have so stated in clear terms. It did not do so.2
“Absent a clearly expressed legislative intention to the contrary, [the] language [of a statute] must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The government attempts to support its concesssion in this case by using an adoption of the earlier standard in the legislative history of 28 U.S.C. § 994(i)(2). I do not so read the legislative history. The legislative history does note that a part of 28 U.S.C. § 994(i), including the section at issue here, was “derived” from the dangerous special offender provision in 18 U.S.C. § 3575(e) and the dangerous special drug offender provision in 21 U.S.C. § 849(e); however, it does not indicate that Congress intended to simply adopt the language and definitions of the earlier acts in toto. See S.Rep. No. 98-225, 98th Cong., 2d Sess. 176, reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3359. The majority in this case, as well as the two district court opinions it cites, seem ready to equate derivation with adoption. See ante at 142, United States v. Rivera, 694 F.Supp. 1105, 1106 (S.D.N.Y.1988); United States v. Kerr, 686 F.Supp. 1174, 1178 (W.D.Pa.1988). I am not prepared to do so.
The position taken by the government makes abundant good sense, but it is simply not what the Commission adopted nor what Congress enacted. We should not stretch and bend the language to achieve a more rational result. I cannot conclude that the district court erred in its interpretation of the guideline. I am willing to reverse only on the basis of the concession of the United States.
. This guideline states:
Criminal Livelihood.
If the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, his offense level shall be not less than 13, unless § 3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11.
United States Sentencing Commission Guidelines Manual § 4B1.3, at 4.12 (1988).
In its commentary on this guideline, the Commission stated that “[s]ection 4B1.3 implements 28 U.S.C. § 994(i)(2), which directs the Commission to ensure that the guidelines specify a 'substantial term of imprisonment’ for a defendant who committed an offense as part of a pattern of criminal conduct from which he derived a substantial proportion of his income." United States Sentencing Commission Guidelines Manual § 4B1.3 commentary at 4.13.
. The Sentencing Commission has now materially changed this guideline with an amendment to be effective November 1, 1989. The language that is troublesome in this case, "from which he derived a substantial portion of his income” is to be deleted and inserted in lieu thereof is the phrase "engaged in as a livelihood.” The application note then defines the terms "engaged in as a livelihood" as requiring income that in a twelve-month period exceeded two thousand times the then existing hourly minimum wage under federal law, which currently would be $6,700. The Commission thus recognizes the troublesome question in this case and specifically defines this term. My quarrel with the court's opinion today is that it does for the Commission what the Commission did not do the first time around. 54 Fed.Reg. 21348, 21380 (May 17, 1989).